Vintage Rodeo Parent, LLC v. Rent-A-Center, Inc.

• Court: Court of Chancery of Delaware
• Decided: March 14, 2019
• Docket: CA 2018-0927-SG
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

VINTAGE RODEO PARENT, LLC, a Delaware ) limited liability company, VINTAGE RODEO ) ) ACQUISITION, INC., a Delaware corporation, and VINTAGE CAPITAL MANAGEMENT, ) LLC, a Delaware limited liability company, ) ) Plaintiffs, ) ) and ) ) B. RILEY FINANCIAL, INC., a Delaware ) corporation, ) ) Intervenor-Plaintiff, ) ) v. ) C.A. No. 2018-0927-SG ) RENT-A-CENTER, INC., a Delaware ) corporation, ) ) Defendant. ) ) RENT-A-CENTER, INC., a Delaware ) corporation, ) ) Counterclaim-Plaintiff, ) ) v. ) ) VINTAGE RODEO PARENT, LLC, a Delaware ) limited liability company, ) ) and ) ) B. RILEY FINANCIAL, INC., a Delaware ) corporation, ) ) Counterclaim-Defendants. ) MEMORANDUM OPINION

Date Submitted: March 11, 2019 Date Decided: March 14, 2019

William B. Chandler III, Bradley D. Sorrels, Shannon E. German, and Andrew D. Berni, of WILSON SONSINI GOODRICH & ROSATI, P.C., Wilmington, Delaware; William M. Lafferty, Thomas W. Briggs, Jr., and Richard Li, of MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; OF COUNSEL: David J. Berger and Katherine Henderson, of WILSON SONSINI GOODRICH & ROSATI, P.C., Palo Alto, California; Tariq Mundiya, Jeffrey Korn, Sameer Advani, and Shaimaa Hussein, of WILLKIE FARR & GALLAGHER LLP, New York, New York, Attorneys for Plaintiffs Vintage Rodeo Parent, LLC, Vintage Rodeo Acquisition, Inc., and Vintage Capital Management, LLC.

David E. Ross and S. Michael Sirkin, of ROSS ARONSTAM & MORITZ LLP, Wilmington, Delaware; OF COUNSEL: Bruce Van Dalsem, William C. Price, and Scott B. Kidman, of QUINN EMANUEL URQUHART & SULLIVAN, LLP, Los Angeles, California; Andrew J. Rossman, Jane M. Byrne, Corey Worcester, Ellyde R. Thompson, Guyon H. Knight, Elisabeth B. Miller, and Hope D. Skibitsky, of QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York, New York, Attorneys for Intervenor-Plaintiff B. Riley Financial, Inc.

Michael A. Pittenger, T. Brad Davey, Matthew F. Davis, Jaqueline A. Rogers, and Caneel Radinson-Blasucci, of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; OF COUNSEL: John W. Spiegel, George M. Garvey, Robert L. Dell Angelo, and John M. Gildersleeve, of MUNGER, TOLLES & OLSON LLP, Los Angeles, California, Attorneys for Defendant Rent-A-Center, Inc.

GLASSCOCK, Vice Chancellor Plaintiff Vintage Capital Management, LLC (“Vintage Capital) indirectly

owns stores offering consumer goods to the public under the trade name “Buddy’s.”

Buddy’s is a “rent-to-own” retailer. This business model offers consumers an

alternative to paying for goods with cash or credit, and taking immediate title. Under

the rent-to-own model, as I understand it, the consumer “rents” the item, the seller

retains title, the consumer makes payments denominated “rental payments,” which

contain an amount of principal payment, and if the consumer is able to complete the

contractual payments, title is then transferred to the consumer. Vintage Capital,

through two affiliates (collectively with Vintage Capital, “Vintage” or the “Vintage

Entitities”), entered a merger agreement to acquire Defendant Rent-A-Center, Inc.

(“Rent-A-Center”), a bigger player in the rent-to-own market. Because of the

overlap of these competing retail operations, the parties knew that Federal Trade

Commission (“FTC”) permission would be required for the merger, and that the

review process could be lengthy. Therefore, in a vigorously negotiated provision,

the merger agreement provided an “End Date,” six months from signing, after which

either party could terminate the merger agreement. If, however, the FTC review

process was still ongoing, each party negotiated for itself the unilateral right to

extend the End Date for three months (and a second time for an additional three

months), by giving the other side notice of the election to extend before the original

End Date. By doing so, the extending party was binding both its counterparty and itself to compliance with the merger terms during the extension period. If neither

party chose to extend the End Date, the merger was not terminated once that date

had passed—both parties were still bound by the merger agreement, but either could

terminate at will, simply by giving notice.

Thus, as the End Date approached, each party had a set of decisions to

contemplate. It could give notice of election to extend, in which case both it and its

counterparty would be bound to use commercially reasonable efforts to close during

the extension period before the new End Date. If it chose not to extend, the party

would nonetheless continue to be so bound if the counterparty gave notice of election

to extend.

If neither party gave the required notice, the parties were free to proceed to

closing, but with the knowledge that either party had the right to terminate at will

before closing.

These decisions were complicated by another bargained-for set of provisions,

involving breakup fees. If Vintage chose not to extend the End Date, it (and its

banker, B. Riley Financial, Inc. (“B. Riley”), an intervenor here) was (at least per

Rent-A-Center) liable for a reverse breakup fee if either party terminated thereafter.

Adjectives are often misplaced in legal opinions; nonetheless, I am comfortable

2 describing the size of the reverse breakup fee, in light of the entity to be acquired, as

enormous. 1

At a meeting of Rent-A-Center’s Board of Directors (the “Board”) shortly

before the End Date, the Board was given a presentation by corporate counsel.

According to counsel, the Board was faced with the decision matrix described above:

whether it should unilaterally extend the End Date, and if not—and if Vintage chose

not to extend—should it immediately cancel the merger, or proceed towards closing?

The Rent-A-Center Board determined that it was, by that point, no longer in the

corporate interest to proceed under the terms of the merger agreement. It decided,

therefore, not to elect extend the End Date, and, should Vintage not elect to extend,

to terminate the merger. The Rent-A-Center Board was told by counsel that it was

likely that Vintage would extend, given, I assume, market conditions and the reverse

breakup fee. In that case, Rent-A-Center would be bound to continue to use

commercially reasonable efforts to obtain FTC approval and consummate the

1 The reverse termination fee here is $126.5 million, or 15.75% of the equity value ($803 million) of the prospective transaction. See JX 691 (Expert Report of Professor Guhan Subramanian) ¶ 19. According to the report of the Plaintiffs’ expert, Professor Subramanian, 15.75% is two to three times higher than average in comparable deals. See JX 691 ¶¶ 43–69. By contrast, the Defendant’s expert, Professor Rock, notes, among other things, that while the reverse termination fee here is above average, reverse termination fees are necessarily deal-specific and that there are examples of reverse termination fees within the same range as the one at issue here. See JX 696 (Expert Report of Edward B. Rock) ¶¶ 80, 81. I note, however, that this Court has generally found termination fees of around 3% to be reasonable, subject to deal-specific factors. See, e.g., McMillan v. Intercargo Corp., 768 A.2d 492 (Del. Ch. 2000); In re Pennaco Energy, Inc., 787 A.2d 691 (Del. Ch. 2001); In re Toys “R” US, Inc. S’holder Litig., 877 A.2d 975 (Del. Ch. 2005); La. Municipal Police Emps.’ Ret. Sys. v. Crawford, 918 A.2d 1172 (Del. Ch. 2007); In re Dollar Thrifty S’holder Litig., 14 A.3d 573 (Del. Ch. 2010).

3 merger. If Vintage made the surprising decision not to give notice of an election to

extend, Rent-A-Center was ready to exercise its resulting right to terminate,

immediately. As it happened, Vintage failed to give notice of an election to extend,

and a few hours later, Rent-A-Center gave the notice required to terminate the

merger agreement.

Vintage Capital was blindsided. In this litigation, it seeks relief including a

declaration that Rent-A-Center’s notice of termination was ineffective, and an order

that the parties must proceed to obtain FTC approval and merge. If that is to occur,

it is apparent that it must happen quickly; therefore, Vintage pursued this action on

an expedited basis. This matter was tried for two days, post-trial argument followed

quickly on March 11, 2019, and this partial (and rough-and-ready) decision is the

result.

Vintage Capital makes a number of arguments, but principally two, which I

find somewhat in tension. First, Vintage asserts that it and Rent-A-Center took

numerous actions during the six months following execution of the merger

agreement that were intended to achieve regulatory approval, and that these actions

and the accompanying joint documents executed by Rent-A-Center and the Vintage

Entities made clear that Rent-A-Center expected the merger to close after the End

Date. Therefore, per Plaintiffs, Vintage had (through the joint documents)

adequately given notice of its election to extend, or the extension notice provision

4 had lost its relevance (and enforceability) in light of both parties’ intent to proceed

past the End Date, or Rent-A-Center had, through its actions, waived the notice of

election to extend. The problem, in my view, with these assertions, is that the

parties’ activities are consistent with their obligations to use commercially

reasonable efforts to obtain FTC approval and close; the ability of the counterparty

to extend the End Date unilaterally meant that the parties were required to plan for

such activities beyond the original End Date. Therefore, these documents and

actions are not inconsistent with an intention to terminate, if such an opportunity

became available. As such, they are insufficient to bind the parties under the theories

set out above; they are consistent with the merger agreement, which contemplated,

but did not require, extension of the End Date.

The other theory the Plaintiffs advance is that Rent-A-Center’s behavior was,

in effect, fraudulent. Once the Rent-A-Center Board determined, less than two

weeks before the original End Date, that it was in the company’s interest not to

merge with Vintage, Rent-A-Center concealed its intent by continuing to act as

though it were willing to consummate the merger. The Rent-A-Center Board, in this

view, was hoping that Vintage would choose not to—or would forget to—give

notice of extension. If Rent-A-Center had conveyed its real intent to Vintage, or at

least acted like a reluctant merger partner, Vintage would have been more scrupulous

in exercising its right to extend, presumably by giving the notice required by the

5 merger agreement. While Vintage couches this as a breach of Rent-A-Center’s duty

to use commercially reasonable efforts to close, this strikes me as the equivalent of

a “duty to warn” Vintage of the approaching End Date, which Vintage itself does

not contend exists under law or under the merger agreement. More fundamentally,

Rent-A-Center had no reason to believe that Vintage had forgotten or misunderstood

its options under the merger agreement, and it believed that Vintage Capital would

extend; therefore, Rent-A-Center would continue to be required to expend

commercially reasonable efforts toward closing going forward. I find its behavior

to be consistent with that understanding.

It is, I find, telling what the Plaintiffs did not present at trial. The Plaintiffs

did not attempt to explain why they did not deliver notice of their election to extend,

as called for in the merger agreement. They presented no evidence, for example,

indicating that Vintage’s principals considered the approaching End Date and the

contractual option to elect extension, but concluded it would not be necessary to give

written election notice out of the belief that Vintage had already bound Rent-A-

Center for an additional three months, or that Rent-A-Center had waived notice of

election to extend. To the contrary, Vintage’s arguments are after-the-fact

rationalizations as to why failure to give written notice of election to extend is

excused. I am left to the startling conclusion that, having vigorously negotiated a

provision under which Vintage was entitled to extend the End Date simply by

6 sending Rent-A-Center notice of election to do so by a date certain, Vintage and B.

Riley personnel, in the context of this $1 billion-plus merger, simply forgot to give

such notice. As one B. Riley principal messaged another, immediately upon learning

of the failure of notice, “We are [prejudiced in the extreme].” 2 This attempt by the

Plaintiffs to demonstrate that Rent-A-Center nonetheless was not free to terminate

followed.

At bottom, the Plaintiffs’ argument is that they were working in good faith

toward a 2019 closing, which was expected to occur only after the first End Date,

and that Rent-A-Center made it abundantly clear that it was working toward the

same goal. Both parties had committed much time and effort in that regard, as

required by the merger agreement. Under these circumstances, per the Plaintiffs, it

is unfair to allow Rent-A-Center to exercise the letter of its bargained-for rights and

walk away from the contract, because of a mistaken failure by Vintage to exercise a

right that Rent-A-Center must have known Vintage wanted to exercise. I find,

however, that the End Date, and the methods to extend it, were matters of importance

to the parties, and were heavily negotiated. The parties are bound to their contractual

bargain. And a finding that contractually-required expenditures of time and effort

2 JX 39, at 155 (expletives modified in accordance with context). In fact, the message employed an Anglo-Saxon expression that, while generally unfit for publication, when used metaphorically has many meanings. I am convinced from context, however, that the meaning the message attempted to express was “prejudiced in the extreme.” I note that Vintage’s principal had a different reaction; in a text to his partner, he wrote: “No idea what [Rent-A-Center’s] thinking. They know its [sic] extended.” JX 870.

7 made, before the End Date, equated to sufficient notice of election to extend, would

fundamentally rewrite the bargain of the parties. I explain my reasoning below.

Also pending before me is B. Riley’s argument that the reverse breakup fee is

untethered to actual damages, and is, therefore, unenforceable. Because of the need

to issue my decision quickly in this expedited matter, I have not resolved that issue

here. At the end of this Memorandum Opinion, I lay out the issues regarding the

reverse breakup fee, and seek additional briefing on whether the implied covenant

of good faith and fair dealing should apply to liability for a reverse break fee in these

circumstances, where the buyer remains willing and able to proceed toward closing.

I. BACKGROUND

Trial took place over two days, during which eight witnesses gave live

testimony. The parties submitted over seven hundred exhibits and lodged eighteen

depositions, as well as competing expert reports. The following facts were stipulated

by the parties 3 or proven by a preponderance of the evidence at trial.

A. The Parties

1. The Vintage Entities

Plaintiff Vintage Capital is a Delaware limited liability company with its

principal place of business in Orlando, Florida.4 Vintage Capital’s managing partner

3 The parties stipulated certain facts in their Joint Pre-Trial Stipulation and Order (“Pre-Trial Order”). I commend the parties for the excellent craftsmanship at trial and in briefing, made all the more remarkable given these expedited proceedings. 4 Pre-Trial Order ¶ II.A.1.

8 is Brian Kahn (“Kahn”). 5 Vintage Capital is the controlling stockholder of Buddy’s

Newco, LLC d/b/a Buddy’s Home Furnishings (“Buddy’s”). 6 Buddy’s, in turn, is a

privately held operator and franchisor of rent-to-own stores, and has close to three

hundred locations across the United States and Guam. 7

Plaintiff Vintage Rodeo Parent, LLC (“Vintage Parent”)8 is a Delaware

limited liability company. 9 Vintage Parent is an affiliate of Vintage Capital.10

Plaintiff Vintage Rodeo Acquisition, Inc. (“Vintage Merger Sub”) is a Delaware

corporation, and the wholly-owned subsidiary of Vintage Parent. 11 Vintage Parent

and Vintage Merger Sub were formed for the purpose of acquiring Defendant Rent-

A-Center through a merger of Vintage Merger Sub and Rent-A-Center (the

“Merger”).12 Vintage Capital, Vintage Parent, and Vintage Merger Sub are, again,

collectively referred to as “Vintage” or the “Vintage Entities.”

2. B. Riley Financial, Inc.

Intervenor-Plaintiff B. Riley Financial, Inc. 13 is a publicly traded Delaware

corporation with its principal place of business in Woodland Hills, California.14 B.

5 Kahn Dep. 13:6–13:8. 6 Pre-Trial Order ¶ II.A.1. 7 Id. 8 Vintage Parent is also a Counterclaim-Defendant. 9 Pre-Trial Order ¶ II.A.2. 10 Id. 11 Id. ¶ II.A.3. 12 Id. ¶¶ II.A.2, II.A.3; see also JX 272. 13 B. Riley is also a Counterclaim-Defendant. 14 Pre-Trial Order ¶ II.A.4.

9 Riley’s Chairman and CEO is Bryant Riley (“Mr. Riley”). 15 B. Riley is a financial

services company. 16 B. Riley and Vintage Capital have previously worked together

on a number of investments.17 Here, B. Riley arranged debt and equity financing for

the Merger.

3. Rent-A-Center, Inc.

Defendant Rent-A-Center18 is a publicly traded Delaware corporation with its

principal place of business in Plano, Texas. 19 Rent-A-Center operates

approximately 2,400 rent-to-own stores in the United States, Mexico, Canada, and

Puerto Rico, and is the franchisor of approximately 250 rent-to-own stores.20 In

addition to stores, Rent-A-Center operates approximately 1,250 kiosks in the stores

of third-party retailers, where the third-party retailers’ customers can obtain rent-to-

own financing through Rent-A-Center’s Acceptance Now operating segment

(“Acceptance Now”). 21

15 Trial Tr. 301:20–302:9 (B. R. Riley). 16 Id. at 303:1–304:17 (B. R. Riley). 17 Id. at 27:23–28:7 (Kahn); id. at 306:4–307:7 (B. R. Riley). 18 Rent-A-Center is also a Counterclaim-Plaintiff. 19 Pre-Trial Order ¶ II.A.5. 20 Id. 21 Id.; JX 66, at 53.

10 B. The Rent-A-Center Sales Process and Negotiation of the Merger Agreement with Vintage

1. Rent-A-Center Pursues a Sale

In 2017, a Rent-A-Center stockholder, Engaged Capital, ran a successful

proxy contest to elect nominees to Rent-A-Center’s Board. 22 Engaged Capital’s

slate included Mitch Fadel (“Fadel”), a longtime Rent-A-Center employee who had

left the company in 2015.23 As a result, Fadel was elected to Rent-A-Center’s Board

of Directors in June 2017. 24 Around the same time, Vintage Capital sent Rent-A-

Center an unsolicited bid to acquire all of Rent-A-Center’s common stock for $15

per share, but Rent-A-Center’s Board decided not to pursue the bid. 25

At the end of October 2017, Rent-A-Center’s Board designated certain

directors, including Fadel, to serve on a steering committee to advise the Board on

strategic alternatives, including the possibility of a sale. 26 The Board hired J.P.

Morgan to help with the process. 27 On November 7, 2017, Vintage Capital sent

another unsolicited proposal to Rent-A-Center, which was declined, given the early

stage of the strategic review process.28 In December 2017, J.P. Morgan, on behalf

of the steering committee, identified and contacted thirty potential acquirors,

22 JX 316, at 36; Trial Tr. 499:20–500:4 (Fadel). 23 Trial Tr. 494:9–495:2, 499:20–500:4 (Fadel). 24 JX 316, at 36; Trial Tr. 499:20–500:16 (Fadel). 25 Pre-Trial Order ¶ II.A.6. 26 Id. ¶ II.A.7; JX 316, at 37; Trial Tr. 508:1–10 (Fadel). 27 Pre-Trial Order ¶ II.A.9; JX 316, at 36–39; Trial Tr. 501:8–19 (Fadel). 28 Pre-Trial Order ¶ II.A.8; JX 316, at 37.

11 including Vintage Capital. 29 At the end of 2017, Rent-A-Center’s CEO retired, and

Fadel became CEO on January 2, 2018.30

Of the thirty parties contacted by J.P. Morgan, eleven signed non-disclosure

agreements (“NDAs”) with Rent-A-Center, including Vintage Capital.31

Discussions with potential acquirors continued into 2018.32 Only three potential

acquirors were considered serious bidders; by May 2018, two of the serious bidders

had effectively dropped out, leaving Vintage Capital as the sole potential acquiror.33

On June 10, 2018, Rent-A-Center publicly announced it was terminating its strategic

review process, and on the same day, Vintage Capital made an acquisition offer of

$14 per share.34 After further discussion, on June 17, 2018, Vintage Capital raised

its offer to $15 per share in cash, a forty-seven percent premium over Rent-A-

Center’s closing price on October 30, 2017.35 Vintage Capital’s offer represented

“total consideration of approximately $1.365 billion, including net debt.” 36 After

receiving J.P. Morgan’s opinion, the Rent-A-Center Board voted unanimously to

approve the transaction with Vintage Capital, and the parties executed the

29 Pre-Trial Order ¶ II.A.9. 30 JX 316, at 38; Trial Tr. 502:8–17 (Fadel). 31 Pre-Trial Order ¶ II.A.9. 32 Id. ¶ II.A.10. 33 Id. ¶¶ II.A.9, II.A.10; JX 316, at 38–44. 34 Pre-Trial Order ¶ II.A.10. 35 Id. October 30, 2017 was the trading day before Rent-A-Center announced it was looking at strategic alternatives. Id. 36 JX 263.

12 Agreement and Plan of Merger (the “Merger Agreement”)37 on June 17, 2018.38

Rent-A-Center and Vintage Capital issued a joint press release the next day

announcing the Merger; the press release stated that the Merger was “expected to

close by the end of 2018.”39

2. Vintage Capital Engages B. Riley to Finance the Transaction

On March 24, 2018, J.P. Morgan circulated a proposed merger agreement to

the (at that point) three prospective acquirors.40 During the negotiation period that

followed, Vintage Capital engaged B. Riley to arrange “backstop” debt and equity

financing for the prospective transaction.41 As a result, B. Riley, and its subsidiary

Great American Capital Partners, agreed to provide a large portion of the total debt

and equity to finance the Merger. 42 Of the debt financing, $275 million was in the

form of a “liquidation loan” from Great American Capital Partners, and was secured

by Acceptance Now’s assets. 43 In addition to providing debt and equity financing,

37 The Plaintiffs cite to JX 272 for the Merger Agreement, and the Defendant cites to JX 227. JX 227 was the executed version on July 17, 2018; the following day, the parties corrected several formatting issues, and the Merger Agreement in JX 272 was the version filed with the SEC. See JX 272. The two versions are, in pertinent part, identical. I cite to JX 272 for convenience. I also note that, for purposes of clarity, I cite to the sections of the Merger Agreement rather than page numbers. 38 Pre-Trial Order ¶ II.A.11; JX 227; JX 238; JX 266; JX 316, at 41, 48. 39 JX 263. 40 JX 316, at 40. 41 Id. at 44. Mr. Riley explained at trial that “backstop” in this context meant that “if [B. Riley] could not syndicate [the debt] by the time the transaction closed, [B. Riley] would fund it off of [its] balance sheet.” Trial Tr. 308:24–309:4 (B. R. Riley). 42 JX 233; JX 315, at 65; JX 826, at 1; JX 828, at 1. 43 Trial Tr. 27:15–22 (Kahn); see also JX 233, at 2.

13 B. Riley agreed to guarantee, among other things, a $126.5 million parent

termination fee contained in the Merger Agreement, discussed at length below. 44

C. The Merger Agreement

Rent-A-Center and Vintage Capital exchanged multiple drafts of the Merger

Agreement between March 24, 2018, when Rent-A-Center first circulated a

proposed merger agreement, and June 17, 2018, when the parties executed the

Merger Agreement.45 Given that Buddy’s was one of Rent-A-Center’s largest

competitors,46 the parties expected that the Merger would require antitrust clearance

from the FTC; accordingly, the Merger Agreement specifically references the Hart-

Scott-Rodino (“HSR”) Act and the process of obtaining regulatory approval from

the FTC.47

1. Commercially Reasonable Efforts

The parties, in various provisions of the Merger Agreement, contracted to use

“commercially reasonable efforts” to take certain actions and to achieve certain

goals, both general and specific. In Section 6.03, the parties agreed to use

commercially reasonable efforts to take all action necessary under the Merger

44 Pre-Trial Order ¶ II.A.13; JX 229. B. Riley executed the “Limited Guarantee” concurrent with the execution of the Merger Agreement. Pre-Trial Order ¶ II.A.13. 45 See JX 44; JX 48; JX 59; JX 71; JX 78; JX 81; JX 86; JX 106; JX 110; JX 148; JX 159; JX 167; JX 172; JX 187; JX 199; JX 211; JX 225; JX 244; JX 245; JX 246; JX 250; JX 252; JX 255; JX 271. 46 Pre-Trial Order ¶ II.A.1. 47 See, e.g., JX 272 §§ 6.18, 7.01(b).

14 Agreement to “consummate and make effective as promptly as practicable . . . the

transactions contemplated by [the Merger Agreement].” 48 In Section 6.11(f), Rent-

A-Center agreed to use commercially reasonable efforts to satisfy the conditions of

the financing for the transaction, including specific actions, such as attending certain

meetings and providing financial information.49

With regard specifically to obtaining antitrust approval for the Merger, in

Section 6.18(a) the parties agreed to use commercially reasonable efforts both to

make all filings and to take all steps to obtain government approval of the Merger.50

The Merger Agreement specified certain of the steps, such as making a filing

pursuant to the HSR Act within twenty days of the Merger Agreement. 51

Vintage Parent and Vintage Merger Sub further agreed in Section 6.18(b) to

use “commercially reasonably efforts to . . . promptly undertake . . . any and all

action necessary or advisable to avoid, prevent, eliminate or remove the actual or

threatened commencement of any action by . . . any Government Entity . . . that

would . . . prevent the consummation of the Merger or the other transactions

contemplated.” 52 Section 6.18(b) is referred to as a “hell or high water” provision,53

48 Id. § 6.04. 49 Id. § 6.11(f). 50 Id. § 6.18(a). 51 Id. 52 Id. § 6.18(b). 53 See Trial Tr. 132:5–15 (Ferris) (A “hell or high water” provision is “[b]asically that the buyer had to remove every impediment to clearance, and every antitrust impediment to clearance.”).

15 and it specifically included the possibility of Vintage Capital’s divesture of

Buddy’s. 54

2. Closing Date, Effective Time, and End Date

The “Closing Date” of the Merger Agreement is defined as the date on which

the “Closing” occurs, and is further defined to occur on a date to be specified by

Rent-A-Center and Vintage Parent following the “satisfaction or . . . waiver by the

party . . . entitled to the benefits thereof of the conditions set forth in Article VII

. . . .” 55 Article VII of the Merger Agreement sets out conditions precedent, such as

Rent-A-Center stockholder approval of the Merger, 56 government consent for the

merger, 57 material performance of the obligations of the parties,58 and the lack of a

Rent-A-Center material adverse effect, 59 among others.

On the Closing Date, the parties to the Merger Agreement are obligated to file

a certificate of merger with the Delaware Secretary of State. 60 The Merger becomes

54 JX 272 § 6.18(b) (“[Vintage Parent] and [Vintage Merger Sub] shall . . . use their respective commercially reasonable efforts . . . including (i) proffering and consenting and/or agreeing to an Order or other agreement providing for the sale . . . of particular assets . . . of Vintage Parent (or any of its Affiliates, including Buddy’s Newco, LLC) . . . .”). 55 Id. § 1.03. The date specified, however, could be no later than the third business day following the satisfaction or waiver of the conditions in Article VII of the Merger Agreement. Id. 56 Id. § 7.01(a). 57 Id. § 7.01(b). 58 Id. §§ 7.02(b), 7.03(b). 59 Id. § 7.03(c). 60 Id. § 1.02.

16 effective when the certificate is filed, or at a later time if specified in the certificate.61

The time the merger becomes effective is defined as the “Effective Time.” 62

The “End Date” of the Merger Agreement is defined as “11:59 p.m., Eastern

Time, on December 17, 2018.”63 According to Section 8.01(b)(i) of the Merger

Agreement “either [Vintage Parent] or [Rent-A-Center] may elect (by delivering

written notice to the other party at or prior to 11:59 p.m., Eastern time, on December

17, 2018) to extend the End Date to March 17, 2019,” provided that the Effective

Time has not occurred by the End Date and “the conditions set forth in Section

7.01(b) or Section 7.01(c) shall not have been satisfied . . . .”64 Section 7.01(b)

contains the condition that “[a]ny applicable waiting period under the HSR Act shall

have expired or been earlier terminated and all other required consents under any

Antitrust Laws shall have been obtained.”65 Section 7.01(c) contains the condition

that no “Legal Restraint”66 “is in effect and makes the Merger illegal or otherwise

prevents the consummation of the Merger . . . .” 67 The End Date could be extended

61 Id. 62 Id. 63 Id. § 8.01(b)(i). 64 Id. 65 Id. § 7.01(b). 66 See id. § 7.01(c) (“No Government Entity of competent jurisdiction shall have enacted, issued, or promulgated any Law or granted any Order (whether temporary, preliminary or permanent) (collectively, the “Legal Restraints”) . . . .” ). 67 Id.

17 a further and final time, under the same conditions, at the election of either Vintage

Parent or Rent-A-Center, from March 17, 2019 to June 17, 2019. 68

3. Termination of the Merger Agreement

The Merger Agreement provides circumstances in Section 8.01 by which the

Merger Agreement can be terminated prior to the Effective Time. 69 The

circumstances include: by mutual written consent; 70 by Rent-A-Center or Vintage

Parent upon written notice that the other party has breached a representation or failed

to perform any covenant, such that Rent-A-Center stockholder approval or

government consent to the Merger would not be obtained as of the Closing Date;71

by Rent-A-Center or Vintage Rodeo if a Legal Restraint exists or Rent-A-Center

stockholder approval is not obtained;72 by Rent-A-Center if it receives a Superior

Proposal 73 prior to Rent-A-Center stockholder approval;74 by Vintage Parent upon

written notice that Rent-A-Center’s Board makes or fails to make certain

recommendations; 75 and by Rent-A-Center if the conditions precedent in Article VII

68 Id. § 8.01(b)(i). The election to extend again had to be by written notice and delivered “to the other party at or prior to 11:59 p.m., Eastern time, on March 17, 2019.” Id. 69 Id. § 8.01. 70 Id. § 8.01(a) 71 Id. § 8.01(c), (e). 72 Id. § 8.01(b)(ii), (iii). 73 “Superior Proposal” was a further defined term. See id., at 77. 74 Id. § 8.01(d). 75 Id. § 8.01(f).

18 are satisfied or waived and Vintage Parent and Vintage Merger Sub fail to

consummate the merger.76

The remaining circumstance in Section 8.01 under which the Merger

Agreement can be terminated—and the primary focus of this action—is Section

8.01(b)(i), which reads:

Section 8.01 Termination. This Agreement may be terminated prior to the Effective Time by action of [Rent-A-Center] or [Vintage Parent], as the case may be: . . . (b) by either [Rent-A-Center] or [Vintage Rodeo]: (i) upon written notice to the other party, whether before or after receipt of the Company Stockholder Approval, if the Merger shall not have been consummated by [the End Date] . . . . 77

The right to terminate the Merger Agreement under Section 8.01(b)(i), however, is

not available “to any party whose breach of any provision of [the Merger Agreement]

causes the failure of the Closing to be consummated by the End Date.”78

4. Termination Fees

The Merger Agreement provides for a termination fee under certain

circumstances. Rent-A-Center agreed to a pay a termination fee of $25,300,000 to

Vintage Parent for certain terminations described in Section 8.01, such as if Rent-A-

Center terminated the Merger Agreement to pursue a different proposal, or if

Vintage Rodeo terminated the Merger Agreement because Rent-A-Center’s Board

76 Id. § 8.01(g). 77 Id. § 8.01(b)(i). 78 Id.

19 made or failed to make certain recommendations.79 Vintage Parent agreed to pay a

termination fee of $126,500,000 to Rent-A-Center for certain terminations described

in Section 8.01 (the “Parent Termination Fee”). 80 Relevant here, Vintage Parent

agreed to pay the Parent Termination Fee if “[the Merger Agreement] is terminated

pursuant to Section 8.01(b)(i) and the conditions set forth in Section 7.01(b) shall

not have been satisfied . . . .” 81 Section 7.01(b), again, is the condition that the HSR

Act waiting period has expired (or had been terminated) and all other antitrust

approval has been obtained.82

5. Notice and Waiver Provisions

The Merger Agreement contained provisions on Waiver and Notice.

According to Section 8.05, before the Effective Time, the parties could extend the

time of performance of any obligation, waive inaccuracies in representations and

warranties, waive compliance with covenants and agreements, and waive the

satisfaction of conditions.83 “Any agreement on the part of a party to any such

extension or waiver shall be valid only if set forth in an instrument in writing signed

on behalf of such party.” 84

79 Id. § 8.03(b). 80 Id. § 8.03(c). 81 Id. § 8.03(c)(i). 82 Id. § 7.01(b). 83 Id. § 8.05. 84 Id.

20 Section 9.02 of the Merger Agreement provides the method, timing, and

required addressees of notices and other communications. 85 According to Section

9.02, notices have to be in writing and are considered “duly given” on “the date of

delivery if delivered personally” or on “the date sent if sent by facsimile or electronic

mail,” among other methods. 86 Section 9.02 requires that notices be delivered to

specified addressees set forth in Section 9.02.87 If the notice is being sent to Rent-

A-Center, the addressees are Rent-A-Center, to the attention of its General Counsel,

and separately to certain of its attorneys; if the notice is being sent to Vintage Capital,

the addressees are Vintage Capital, to the attention of Kahn, and separately to certain

of its attorneys. 88

D. Post-Signing Antitrust, Financing, and Integration Efforts

The parties signed the Merger Agreement on June 17, 2018. On July 16, 2018,

Rent-A-Center filed its Preliminary Proxy Statement with the SEC; 89 on August 15,

2018, Rent-A-Center filed its Definitive Proxy Statement on Schedule 14A

regarding the proposed Merger. 90 On September 18, 2018, Rent-A-Center

stockholders voted on and approved the Merger. 91 Before and after stockholder

85 Id. § 9.02. 86 Id. 87 Id. 88 Id. 89 JX 283. 90 Pre-Trial Order ¶ II.C.17; JX 315. 91 Pre-Trial Order ¶ II.C.20. Prior to the stockholder vote, Vintage sent Rent-A-Center a notice of breach, in which Vintage claimed that Rent-A-Center breached Section 6.01(d) of the Merger

21 approval, Rent-A-Center and Vintage Capital worked together on: obtaining

antitrust approval, pre-closing integration efforts and planning, and Vintage

Capital’s financing for the merger. While the June 18, 2018 press release first

announcing the Merger contained an expectation that the Merger would “close by

the end of 2018,” 92 subsequent press releases and the parties’ work on antitrust

approval, integration, and financing all reflected a prospective closing date in 2019.93

1. Antitrust Approval Efforts

The Merger Agreement required a filing in accordance with the HSR Act for

antitrust approval from the FTC within twenty days of the date of the Merger

Agreement. 94 The parties to the FTC filing were Rent-A-Center and Buddy’s, as

Buddy’s was Rent-A-Center’s competitor. 95 Rent-A-Center filed its FTC

submission within the twenty days, but Buddy’s failed to do so because of an

administrative error.96 Given the missed deadline, Vintage Parent requested a

waiver, in compliance with Section 9.02’s notice requirements, to which Rent-A-

Agreement by not scheduling a stockholder vote “as promptly as practicable after the SEC clears the Proxy Statement.” JX 308 (internal quotations omitted); see also JX 272 § 6.01(d). Vintage later withdrew its notice of breach. JX 312. Both the notice of breach and the withdrawal notice complied with Section 9.02 recipient requirements. See JX 308; JX 312. 92 JX 263. 93 Rent-A-Center’s own press releases contained the expectation that closing would occur in 2019. See, e.g., JX 355; JX 477. 94 JX 272 § 6.18(a). 95 Trial Tr. 129:5–19, 169:12–20 (Ferris). 96 Id. at 134:6–19 (Ferris).

22 Center agreed.97 Buddy’s and Rent-A-Center then submitted their filing to the

FTC. 98

As described by the Plaintiffs and the Defendant,99 under the HSR Act,

prospective merger partners must submit a filing to the FTC, after which they cannot

close their merger until a thirty-day “waiting period” has elapsed (or the FTC earlier

terminates the waiting period).100 In other words, the FTC only has the length of the

waiting period to make its decision. 101 Before the end of the waiting period, the FTC

may request additional information, known as a “second request.”102 If merging

parties receive a second request, they cannot close the merger until thirty days after

they have complied with the request (again unless the FTC earlier terminates the

waiting period), essentially extending the waiting period. 103

In August 2018, the FTC signaled to the filing parties that it would issue a

second request.104 Vintage Capital and Rent-A-Center decided to pull their FTC

filings and then refile, in an effort to avoid a second request by resetting the thirty-

97 JX 294; Trial Tr. 296:15–24 (Korst). 98 JX 295; see also Trial Tr. 134:6–135:0 (Ferris). 99 The Plaintiffs and the Defendant agree on what they believe the HSR Act and the FTC antitrust approval process require. See, e.g., Joint Proposed Finding of Fact of Pls. & Intervenor-Pl.; Def. & Countercl.-Pl.’s Proposed Finding of Fact. I make no independent findings as to the underlying antitrust statutes or government process, and simply rely on the parties’ representations. 100 Trial Tr. 136:13–20 (Ferris). 101 Id. at 136:18–20. 102 Id. at 136:13–23. 103 Pre-Trial Order ¶ II.C.18. 104 JX 323; Trial Tr. 135:15–136:12, 136:24–137:6 (Ferris).

23 day waiting period, which would give the FTC more time to review their filings.105

As a result, Buddy’s and Rent-A-Center refiled under the HSR Act on August 14,

2018. 106 Nonetheless, on September 13, 2018, in response to their refilings with the

FTC, Buddy’s and Rent-A-Center received a second request.107 Rent-A-Center and

Vintage Capital issued a joint press release on September 13, 2018, which

announced that the FTC had sent them a second request and included the expectation

that the Merger would “close during the first quarter of 2019.” 108

Buddy’s and Rent-A-Center subsequently entered into a joint timing

agreement (the “Joint Timing Agreement”) with the FTC on October 29, 2018.109

According to the Joint Timing Agreement, Buddy’s and Rent-A-Center agreed not

to close the Merger for a forty-five day waiting period, which would, in turn, be

triggered by their substantial compliance and certification of compliance with the

second request they had received. 110 Buddy’s and Rent-A-Center “anticipate[d]

substantially complying . . . by November 15,” but agreed not to certify their

compliance on that date.111 Certification would trigger deadlines for FTC action,

and the parties wanted to avoid rushing the FTC into unfavorable action. Instead,

105 JX 311; JX 312; Trial Tr. 138:20–139:20 (Ferris); Ressler Dep. 103:17–104:6. 106 JX 312; JX 313. 107 Pre-Trial Order ¶ II.C.18; see also JX 352; JX 358. 108 Pre-Trial Order ¶ II.D.19; JX 355, at 3. 109 Pre-Trial Order ¶ II.D.21. 110 JX 458, at 3. 111 Id.

24 Buddy’s and Rent-A-Center agreed to a timing structure that involved the FTC

making preliminary findings and engaging in a series of meet-and-confers with

Buddy’s and Rent-A-Center, prior to certification of compliance; that certification

would trigger the agreed-upon waiting period.112 Rent-A-Center’s antitrust counsel

noted to Rent-A-Center’s Board that certification was expected on December 10,

2018, which would “for all practical purposes” push a conclusion to the antitrust

approval process to the “end of January” 2019. 113 The Rent-A-Center Board

approved Rent-A-Center entering into the Joint Timing Agreement.114 On

November 5, 2018, Rent-A-Center issued a press release regarding its third quarter

2018 financial results, which contained the same expectation that the Merger would

“close during the first quarter of 2019.” 115

On November 29, 2018, counsel for Buddy’s and Rent-A-Center participated

in a call with the FTC, following which counsel updated their respective clients and

began working on a “white paper” to explain why full divesture of Buddy’s would

not be necessary. 116 Buddy’s and Rent-A-Center jointly submitted the white paper

to the FTC on December 14, 2018.117 Counsel for Buddy’s and Rent-A-Center had

112 Id. The forty-five day waiting period to which Buddy’s and Rent-A-Center agreed could be cut short if the FTC terminated the waiting period or closed its investigation. Id. 113 JX 433, at 1. 114 Id.; JX 437, at 1; JX 439, at 1; JX 440, at 1; Trial Tr. 251:23–252:5 (Lentell). 115 Pre-Trial Order ¶ II.D.22; JX 477. 116 JX 526; JX 532; Trial Tr. 174:8–176:22 (Ferris); Agin Dep. 125:7–18. 117 JX 600; Trial Tr. 176:23–178:2 (Ferris).

25 an additional call with the FTC on December 17, 2018; based on that call, counsel

were hopeful that a full divesture of Buddy’s would not be necessary, but understood

that the FTC needed additional time to further study the issue. As a result, a planned

in-person meeting with the FTC on December 19, 2019 was canceled.118 At this

time, Buddy’s and Rent-A-Center still had not certified compliance with the second

request.119

2. Financing

Vintage Capital and Rent-A-Center worked together to create financial

models of the post-closing entity, to be used pre-closing by Vintage Capital and B.

Riley when engaging with investors, potential investors, and rating agencies.120

Rent-A-Center was obligated to provide assistance for the financial modeling under

the Merger Agreement.121 Rent-A-Center’s Vice President of Finance, Daniel

O’Rourke, was primarily responsible for the modeling and for responding to requests

from Vintage Capital. 122 O’Rourke created and updated a financial model for

“NEWCO,” the post-merger entity, and did so with input and model assumptions

from Kahn. 123 O’Rourke’s original model included a “transaction close” assumption

118 JX 601; Trial Tr. 190:22–192:18, 193:1–13 (Ferris). 119 Trial Tr. 191:20–192:7 (Ferris). 120 See, e.g., Trial Tr. 33:22–35:7 (Kahn); id. at 328:1–14 (B. R. Riley). 121 See JX 272 §§ 6.03, 6.11(f). 122 Trial Tr. 458:24–460:8 (O’Rourke). 123 See, e.g., JX 282; Trial Tr. 460:24–462:10 (O’Rourke).

26 of September 30, 2018. 124 On September 20, 2018, O’Rourke updated the financial

model, changing, among other things, the assumption for “Transaction Close” from

September 30, 2018 to January 31, 2019. 125 O’Rourke received approval from both

Kahn and Fadel to make this change to the financial model. 126

On December 7, 2018, Fadel met Mr. Riley at B. Riley’s Los Angeles

office.127 Fadel first met with Great American Capital Partners, a subsidiary of B.

Riley that was providing, in part, debt financing for the Merger. 128 Fadel then met

with Mr. Riley and discussed, among other things, how B. Riley might continue to

be involved with the post-merger entity. 129 On December 8, 2018, Fadel e-mailed a

Rent-A-Center employee, copying Mr. Riley. 130 Fadel wrote that “B. Riley will be

a major partner in our company going forward,” and B. Riley should therefore be

allowed to compete for a financial services opportunity at Rent-A-Center. 131

Given other changes in the financial model for “NEWCO,” on December 11,

2018, O’Rourke asked Kahn if he should move “close timing back.”132 Kahn gave

124 JX 282; JX 369, at 6; JX 371, at 6; Trial Tr. 465:5–14 (O’Rourke). 125 JX 369, at 6; JX 373, at 3. The model contains a typo; “January 31, 2018” is clearly a scrivener’s error, which should instead be “January 31, 2019.” See Trial Tr. 115:17–116:5 (Kahn); O’Rourke Dep. 145:20–146:5. 126 JX 369; JX 370; JX 371; JX 376, at 1; Trial Tr. 488:6–489:7, 489:20–490:10 (O’Rourke). 127 Trial Tr. 327:24–329:5, 329:19–24 (B. R. Riley); id. at 527:8–528:1, 595:13–16 (Fadel). 128 Id. at 482:11–20 (O’Rourke); id. at 527:8–13 (Fadel). 129 Id. at 330:22–331:16, 334:1–8 (B. R. Riley); id. at 575:2–8 (Fadel). 130 JX 553. 131 Id. 132 JX 573.

27 his approval, and O’Rourke updated the financial model with an assumption that the

“Timing” of the Merger was the “End of March 2019.”133 This financial model was

sent, after review by Kahn, Fadel, and B. Riley, to investors and a rating agency on

December 14, 2018.134

3. Integration Planning and Rent-A-Center Operations

Rent-A-Center was also obligated under the Merger Agreement to provide

support for Vintage’s 135 integration of Rent-A-Center. 136 Fadel, who was expected

to become the CEO of the merged entity, was involved in integration planning.137

Among other meetings and activities, Fadel attended an integration planning

meeting in Orlando, Florida on December 10, 2018.138 After the integration

planning meeting, Fadel met with Kahn and discussed, among other things,

Acceptance Now. 139 Kahn planned to find a merger partner to manage the

Acceptance Now business; Fadel sought Kahn’s approval at the meeting, in light of

an expected closing in 2019, for ninety days to implement a change to Acceptance

Now, in the hopes of keeping it wholly owned by Rent-A-Center.140 Vintage and

133 JX 589, at 49; JX 594, at 10; JX 595, at 6. 134 JX 589, at 1; JX 594, at 5; JX 595, at 1; JX 602; Trial Tr. 488:3–489:7 (O’Rourke). 135 Vintage in this regard includes Buddy’s. See Trial Tr. 37:23–38:13 (Kahn); id. at 514:11–14 (Fadel). 136 JX 272 §§ 6.03, 6.11(f). 137 Trial Tr. 37:23–39:13 (Kahn); id. at 514:1–515:5, 539:9–11 (Fadel). 138 Id. at 44:11–17 (Kahn); id. at 528:30–529:3 (Fadel). 139 Id. at 45:24–47:23 (Kahn); id. at 530:5–18 (Fadel). 140 Id. at 45:24–47:23, 49:2–7, 73:15–74:1 (Kahn); id. at 530:5–18, 579:21–580:7 (Fadel).

28 Rent-A-Center representatives had another integration planning meeting scheduled

for December 18, 2018.141

Rent-A-Center had agreed in the Merger Agreement to “conduct their . . .

business and operations in the ordinary course of business consistent with past

practices;” conduct outside the ordinary course could only be taken “with the prior

written consent of [Vintage Parent] (including by email) . . . .” 142 Rent-A-Center

requested such consent from Kahn on several occasions, and received it. 143 The

Rent-A-Center Board approved a transaction on December 6, 2018 that required

such consent,144 Kahn asked for documents related to the transaction,145 and Fadel

sent the documents to Kahn on December 17, 2018. 146

E. Termination of the Merger Agreement

1. Rent-A-Center’s Board Decides to Terminate the Merger Agreement If Given the Opportunity

Rent-A-Center held regularly scheduled Board meetings on December 5 and

6, 2018. 147 During the meetings, the Board discussed Rent-A-Center’s financial and

operational performance, which had improved since the Merger Agreement was

141 Id. at 61:16–62:19 (Kahn); id. at 597:9–14 (Fadel). 142 JX 272 § 5.01. 143 Trial Tr. 30:7–32:14 (Kahn); see also, e.g., JX 296; JX 326. 144 JX 558. 145 JX 652. 146 JX 619, at 1. 147 See JX 546; JX 558.

29 signed on June 17, 2018.148 Legal counsel to the Board “reminded” the Board that

the Merger Agreement’s “initial end date” was December 17, 2018, but could be

extended by either party through written notice beforehand.149 Legal counsel to the

Board explained that in the event Vintage did not extend, the Board would need to

decide whether Rent-A-Center should extend the End Date or terminate the Merger

Agreement. 150 Legal counsel also “reminded the Board of the Provisions in the

Merger Agreement relating to payment of a termination fee.” 151 The Board then

determined that if Vintage Capital did not extend the End Date, it would be in the

best interests of Rent-A-Center’s stockholders for the Board to also not extend the

End Date, and to instead terminate the Merger Agreement.152 The Board and legal

counsel believed that Rent-A-Center would receive written notice electing to extend

the End Date from Vintage Capital before the Section 8.01(b)(i) deadline, that is,

before midnight Eastern Time on December 17, 2018. 153 In the meantime, the Board

decided that Rent-A-Center’s management “should continue with its efforts to

consummate the merger.”154 The determination by the Board to terminate the

148 JX 546, at 1; see also JX 556. 149 JX 546, at 2. 150 Id. 151 Id. 152 JX 546, at 2; JX 558, at 4; Trial Tr. 384:6–24 (Ressler); Trial Tr. 519:2–11, 519:23–521:21 (Fadel); Brown Dep. 50:21–51:3, 56:15–57:14. 153 Trial Tr. 404:24–405:8 (Ressler); id. at 519:17–22, 555:4–5, 577:10–19 (Fadel); see also Hetrick Dep. 133:20–134:6. 154 JX 558, at 4.

30 Merger Agreement, if given the opportunity, was kept confidential. 155 For example,

Rent-A-Center’s General Counsel was not told of this decision until December 14,

2018, and O’Rourke was not told until December 17, 2018.156

As previously described, following the December 5 and 6, 2018 Rent-A-

Center Board meetings, Vintage and Rent-A-Center continued to work together

toward antitrust approval, integration planning, and arranging financing for the

Merger. Specific actions that took place after the December 5 and 6 Board meetings

included joint discussions with the FTC, Fadel’s in-person meetings with Kahn and

B. Riley, exchanging information, financial modeling, and integration planning.

During the course of these joint interactions, the Rent-A-Center Board’s discussions

and its decision to terminate the Merger Agreement, if given the opportunity, were

not shared with anyone from the Vintage Entities or B. Riley. 157

Rent-A-Center’s Board held a special meeting at 9 p.m., Eastern Time, on

December 17, 2018.158 Legal counsel to Rent-A-Center and legal counsel to its

Board159 told the Board that they had not yet received a notice to extend the End

Date in accordance with the Merger Agreement, which extension, under the Merger

155 Trial Tr. 389:6–14, 411:16–18 (Ressler); id. at 533:15–18 (Fadel). 156 Id. at 275:17–258:10 (Korst); id. at 483:13-16 (O’Rourke). The Board also did not tell Rent- A-Center’s antitrust counsel. Id. at 584:5–7 (Fadel). 157 See, e.g., id. at 50:19–51:2, 58:2–7, 59:21–61:6, 61:4–15 (Kahn); id. at 333:5–10 (B. R. Riley); id. at 582:6–12 (Fadel). 158 JX 617. 159 Legal counsel were required recipients of notice under Section 9.02. See JX 272 § 9.02.

31 Agreement, must be made, if at all, by 11:59 p.m. that night.160 During the special

meeting, the Board “reviewed their previous discussions regarding [Rent-A-

Center]’s strong financial performance and outlook, as well as their view that

terminating the Merger Agreement was in the best interest of the Company’s

stockholders.”161 The Board resolved to terminate the Merger Agreement and

demand the Parent Termination Fee if Rent-A-Center did not receive an extension

notice before the deadline in the Merger Agreement.162

2. Rent-A-Center Purports to Terminate the Merger Agreement

On December 18, 2018, shortly after midnight, Rent-A-Center’s General

Counsel 163 advised the Board that he had “not received any communication from

Vintage or Vintage attorneys.” 164 As a result, at 6:55 a.m., Eastern Time, on

December 18, 2018, Fadel e-mailed Kahn a “notice of termination and demand for

payment” (the “Termination Notice”).165 The Termination Notice indicated that

Rent-A-Center was “exercising its right to terminate the Merger Agreement pursuant

to Section 8.01(b)(i) thereof, effective immediately.” 166 The Termination Notice

160 JX 617, at 1. 161 Id. 162 Id. 163 Rent-A-Center’s General Counsel was a required recipient of notice under Section 9.02. See JX 272 § 9.02. 164 JX 646. 165 JX 660. 166 Id.

32 also demanded payment of the $126.5 million Parent Termination Fee. 167 At 7:00

a.m., Eastern Time, Rent-A-Center issued a press release announcing the Merger

Agreement had been terminated because Rent-A-Center had not received a notice of

election to extend and the Rent-A-Center Board, “in light of the current financial

and operational performance of [Rent-A-Center],” decided not to extend either, and

instead to terminate. 168

Kahn responded to Fadel by letter on December 18, 2018. 169 Kahn disputed

that the Termination Notice was valid and insisted that Rent-A-Center continue to

comply with the Merger Agreement. 170 Rent-A-Center did not respond, nor did

Fadel respond to Kahn’s other attempts to reach him. 171

F. Procedural History

The Vintage Entities filed a Complaint against Rent-A-Center on December

21, 2018. Vintage also sought a Temporary Restraining Order (“TRO”) against

Rent-A-Center in an attempt to force compliance with the Merger Agreement. I held

a TRO hearing on December 31, 2018; from the Bench, I denied in part and granted

in part the TRO. I subsequently entered a Status Quo Order on January 7, 2019. On

January 3, 2019, I granted B. Riley’s Motion to Intervene; it filed its own Complaint

167 Id. 168 JX 627. 169 JX 657. 170 Id. 171 Trial Tr. 41:4–41:7 (Kahn).

33 against Rent-A-Center on the same day. On January 8, 2019, Rent-A-Center filed a

Counterclaim. The parties pursued discovery and trial on an expedited schedule.

Trial took place over two days on February 11 and 12, 2019. I heard Post-Trial Oral

Argument on March 11, 2019.

II. ANALYSIS

Plaintiffs Vintage Capital, Vintage Parent, and Vintage Merger Sub seek

declaratory judgment, and bring claims for breach of the implied covenant of good

faith and fair dealing and estoppel—all, in one way or another, to prevent Rent-A-

Center’s termination of the Merger Agreement. They also bring a claim for breach

of contract and specific performance to enforce the Merger Agreement. Intervenor-

Plaintiff B. Riley seeks declaratory judgment on several counts, which are largely

duplicative of the relief the Vintage Entities ask for, with the exception of a request

for a declaratory judgment that the Parent Termination Fee is an unenforceable

penalty. The Vintage Entities and B. Riley are collectively referred to below as “the

Plaintiffs.” Defendant Rent-A-Center has brought a counterclaim for breach of

contract, seeking payment of the Parent Termination Fee. I begin with the

contractual claims surrounding the termination of the Merger Agreement.

A. Rent-A-Center Had the Right to Terminate the Merger Agreement Pursuant to Section 8.01(b)(i)

The Plaintiffs did not introduce evidence at trial, nor do they argue, that they

sent a written notice of election to extend to Rent-A-Center that explicitly used the

34 term “End Date” or otherwise referenced Section 8.01(b)(i) of the Merger

Agreement or the date March 17, 2019. Nor do they argue that they sent any

document that could be construed as a written notice of election to extend in a

manner compliant with the Merger Agreement, which required notice to Rent-A-

Center to be delivered personally or sent by fax or email to Rent-A-Center’s General

Counsel and certain of Rent-A-Center’s outside counsel. The Plaintiffs do, however,

argue that Rent-A-Center’s termination of the Merger Agreement pursuant to

Section 8.01(b)(i) was not valid. The Plaintiffs seek declaratory judgment and put

forward four contractual arguments that the End Date had been extended before

termination, or that Rent-A-Center had waived notice: first, that the purpose of the

notice requirement in Section 8.01(b)(i) of the Merger Agreement was satisfied, and

no “additional”172 notice was therefore required; second, that Rent-A-Center

extended or waived the notice requirement of Section 8.01(b)(i) in accordance with

Section 8.05; third, that if notice of election to extend was required, a financial model

prepared by Rent-A-Center itself listing a “Transaction Close” date of January 31,

2019 fulfilled the notice requirement and complied with the general provision on

notice in Section 9.02; and fourth, that Rent-A-Center did not have the right to

terminate the Merger Agreement under Section 8.01(b)(i) because it had breached

the Merger Agreement by failure to employ commercially reasonable efforts toward

172 Post-Trial Answering Brief of Pls. and Intervenor-Pl. at 7.

35 the closing. The Plaintiffs, as the parties seeking declaratory judgment, assume the

burden of proving their position. 173 The Plaintiffs also argue that if Rent-A-Center

had the right to terminate under Section 8.01(b)(i), the implied covenant of good

faith and fair dealing prevents Rent-A-Center from exercising that right. I begin

with the clear and unambiguous language of the Merger Agreement itself, before

addressing the Plaintiffs’ arguments in turn.

1. The Merger Agreement and the End Date

The provisions of the Merger Agreement at issue are clear and

unambiguous,174 and all the provisions are assumed to have meaning.175 As parties

to the Merger Agreement, Vintage and Rent-A-Center are assumed to have

knowledge of the terms of the contract that they bargained for and entered into.176

The Merger Agreement binds the parties until its termination; Section 8.01 details

various rights to terminate, but the Merger Agreement would also “terminate” after

a successful closing of the Merger. While bound, the parties agreed to use

173 In re Oxbow Carbon LLC Unitholder Litig., 2018 WL 818760, at *50 (Del. Ch. Feb. 12, 2018), aff’d in part rev’d in part sub nom. Oxbow Carbon & Minerals Hldgs., Inc. v. Crestview-Oxbow Acq., LLC, 2019 WL 237360 (Del. Jan. 17, 2019). 174 The parties also agree that the language is clear and unambiguous. See Post-Trial Answering Br. of Pls. and Intervenor-Pl. at 5 (“Quite the opposite, the parties agree on the meaning of the clear words of Section 8.01(b)(i) . . . .”). 175 See Kuhn Constr., Inc. v. Diamond State Port Corp., 990 A.2d 393, 396–97 (Del. 2010) (“We will read a contract as a whole and we will give each provision and term effect, so as not to render any part of the contract mere surplusage.”). 176 See, e.g., Chapter 7 Tr. Constantio Flores v. Strauss Water Ltd., 2016 WL 5243950, at *6 (Del. Ch. Sept. 22, 2016) (“[A] party who enters into a contract governed by Delaware law will be charged with knowledge of the contents of the instrument and will be deemed to have knowingly agreed to the plain terms of the instrument absent some well-pled reason to infer otherwise.”).

36 commercially reasonable efforts to work toward closing, as well as for obtaining

antitrust approval, for integration planning, and for achieving financing for the

transaction.

Section 8.01(b)(i) of the Merger Agreement states that the “End Date” of the

Merger Agreement is “11:59 p.m., Eastern Time, on December 17, 2018.” 177 If the

Merger is not consummated by the End Date, either Vintage or Rent-A-Center have

the right, but not the obligation, to terminate the Merger Agreement upon written

notice. Either party, however, can elect to extend the End Date to March 17, 2019,

if FTC approval has not yet been achieved, and if the party electing to extend

delivers written notice of its election to the other party by 11:59 p.m., Eastern Time,

on December 17, 2018. Section 9.02 of the Merger Agreement governs notices and,

relevant here, specifies the names and addresses of the recipients of such notices.

Extension of the End Date is not permissible if there is a “Legal Restraint” that

“makes the Merger illegal or otherwise prevents the consummation of the Merger .

. . ,” 178 or “[a]ny applicable waiting period under the HSR Act shall have expired or

been earlier terminated and all other required consents under any Antitrust Laws

shall have been obtained.” 179 Those conditions did not obtain here, and either party

was entitled to file a notice of election to extend, upon which the obligations of the

177 JX 272 § 8.01(b)(i). 178 Id. § 7.01(c). 179 Id. § 7.01(b).

37 Merger Agreement would be binding on all parties until the new End Date. In other

words, the Merger Agreement creates a reciprocal, unilateral right to extend the End

Date.

Therefore, each party to the Merger Agreement was faced with a decision

concerning the End Date in Section 8.01(b)(i), and had to make that decision in

accordance with the following decision matrix. The party could elect to extend the

End Date, and thereby bind itself and its counterparty to the Merger Agreement until

at least March 17, 2019,180 or the party could choose not to extend the End Date, at

which point its options were contingent on its counterparty. If its counterparty chose

to extend, then the first party had no choice—it would remain bound by the Merger

Agreement. If the counterparty did not elect to extend, the party could terminate the

Merger Agreement at any time after the End Date. If both parties did not elect to

extend but also both chose not to immediately exercise their termination rights, then

both parties would continue to be bound by the Merger Agreement, but by their own

volition and with the understanding that either party could terminate at will.

Rent-A-Center was faced with this decision matrix during its December 5 and

6, 2018 Board meetings. The Board knew that Vintage had the unilateral right to

bind Rent-A-Center to the Merger Agreement until at least March 17, 2019. The

180 The parties could extend the End Date again to the further and final End Date of June 17, 2017. Id. § 8.01(b)(i).

38 record shows that the Rent-A-Center directors did not believe that Vintage had

already effected an election to extend the End Date; their discussion would otherwise

have been moot, as the right to extend was unilateral. Rent-A-Center’s Board also

believed that it would likely receive a written notice from Vintage electing to extend

the End Date.181 However, from the Board’s perspective, it had no assurance that

Vintage would definitely make such an election, nor does the record show that Rent-

A-Center had reason to believe that Vintage did not also think it was faced with the

same decision matrix. Rent-A-Center’s Board, then, late in the process but

appropriately, considered the options available to Rent-A-Center under Section

8.01(b)(i) and made the decisions that it found to be in the Company’s best interest.

It decided not to extend the End Date. Furthermore, the Rent-A-Center Board

decided that, should Vintage not bind Rent-A-Center through an election to extend,

the Board would exercise its right to terminate immediately after the End Date and

walk away from the Merger. This litigation is the result of that decision.

2. The Joint Timing Agreement Was Not An Election to Extend the End Date

Section 8.01(b)(i) of the Merger Agreement requires written notice of election

to extend the End Date. Section 9.02 details how and to whom notices must be sent.

The Plaintiffs, nonetheless, contend that under the circumstances a written notice—

181 See, e.g., Trial Tr. 404:24–405:8 (Ressler); id. at 519:17–22 (Fadel).

39 in accordance with Section 9.02—of election to extend the End Date was not

required because “the purpose of [the] contractual notice requirement” had already

been satisfied.182 The Plaintiffs’ reasoning is as follows: the purpose of Section

8.01(b)(i) was to “define the parties’ rights if the merger did not close by December

17, 2018 due to the ongoing FTC clearance process,” 183 and this purpose is satisfied

by an [implicit] election to extend the End Date and notice to the other party of that

election. 184 The Plaintiffs suggest that the true purpose of Section 8.01(b)(i) is to

provide notice that the counterparty intends to go forward towards closing, post-End

Date. The purpose evidenced by the clear and unambiguous language of Section

8.01(b)(i) is, to my mind, different: It is to give notice that the counterparty has

elected to bind itself, and the party receiving notice, to the strictures of the Merger

Agreement pending the extended End Date.

The Plaintiffs argue that the Joint Timing Agreement, in addition to other

communications between the parties, represented notice185 to Rent-A-Center that the

Plaintiffs had elected to extend the End Date, because the parties represented to the

FTC therein that closing would not take place until after the End Date. Since any

182 Written Closing Argument of Pls. and Intervenor-Pl. at 3. 183 Post-Trial Answering Br. of Pls. and Intervenor-Pl. at 6 (quoting Def. and Counterclaim-Pl. Rent-A-Center’s Opening Post-Trial Br. at 17). 184 Id. 185 The Plaintiffs go so far as to claim that the Defendant has “actual knowledge” of the election to extend. Written Closing Argument of Pls. and Intervenor-Pl. at 11; Post-Trial Answering Br. of Pls. and Intervenor-Pl. at 6.

40 closing would be post-End Date, per the Plaintiffs, this must represent an election to

extend, thus satisfying the purpose of Section 8.01(b)(i).186 According to the

Plaintiffs, once the purpose was satisfied, there was no obligation to provide

“separate” or “additional” notice in literal compliance with Section 8.01(b)(i) and

Section 9.02’s specific requirements regarding recipients.187

First, I note that Rent-A-Center bargained for a right in the Merger

Agreement: the right to cancel the merger after six months unless Vintage gave

written notice of election to bind itself and Rent-A-Center to an additional three-

month term. The Plaintiffs essentially ask that I go beyond the written words of the

provision to consider its “purpose,” which, the Plaintiffs contend, if satisfied,

constitutes substantial compliance, negating the need for literal compliance.188

However,“[c]ontracts are to be interpreted as written,”189 which is why judicial

review generally stops if the terms are clear and unambiguous.190 In order to deviate

from clear and unambiguous contract terms without consequence, a party must

justify its deviation, by, for instance, showing that it has acted reasonably, in light

of the circumstances, to substantially comply in a way that preserves the benefits of

186 Post-Trial Answering Br. of Pls. and Intervenor-Pl. at 6–7. 187 Id. at 7. 188 Written Closing Argument of Pls. and Intervenor-Pl. at 11. 189 Willie Gary LLC v. James & Jackson LLC, 2006 WL 75309, at *5 (Del. Ch. Jan. 10, 2006), aff’d, 906 A.2d 76 (Del. 2006). 190 See Gildor v. Optical Sols., Inc., 2006 WL 4782348, at *6 (Del. Ch. June 5, 2005) (“The language of [the notice provision] is clear and unambiguous, which means that the language alone would typically dictate the outcome.”).

41 the contract to the counterparty. 191 To the extent a reviewing court contemplates

condoning such deviation, it must be scrupulous to preserve the benefits of the

counterparty’s bargain.

In that regard, this Court has, at times, accepted substantial compliance with

notice provisions in lieu of literal compliance,192 when the circumstances so

justified. 193 The Court’s precedent on substantial compliance with notice provisions

focuses almost entirely on the manner in which notice was provided.194 The

Plaintiffs here argue that the Court should find substantial compliance not only in

the manner in which notice was given, but also in the substance. They argue that

191 For example, in Corporate Property Associates 6 v. Hallwood Group Inc., this Court found substantial compliance with a notice provision when the executive designated to receive notice had left the company—making literal compliance impossible—but executives at the receiving company did receive and review the notice. 792 A.2d 993, 1000–01 (Del. Ch. 2002), rev’d on other grounds, 817 A.2d 777 (Del. 2003). 192 As then-Vice Chancellor Strine explained, “when confronted with less than literal compliance with a notice provision, courts have required that a party substantially comply with the notice provision. The requirement of substantial compliance is an attempt to avoid ‘harsh results . . . where the purpose of these [notice] requirements has been met.’ When literal compliance is not possible, that is a sensible rule, and it is one which would not require [the defendant] to search to the ends of the world for [the plaintiff]. Substantial performance is ‘that which, despite deviations from contract requirements, provides the important and essential benefits of the contract.’” Gildor, 2006 WL 4782348, at *7 (internal quotations and citations omitted). 193 In PR Acquisitions, LLC v. Midland Funding LLC, the Defendant argued that the Plaintiff had received actual notice and that the notice provision did not require strict compliance. 2018 WL 2041521, at *6 (Del. Ch. Apr. 30, 2018). This Court, after reviewing prior case law, rejected the defendant’s arguments on notice, writing “[the defendant] offers no reason other than its own error for its failure to comply with the notice provision it negotiated.” Id. at *7. 194 For example, in Gildor v. Optical Solutions, Inc., the notice provision did not contain an address for a required recipient, making literal compliance impossible; this Court found that substantial compliance would have sufficed. 2006 WL 4782348, at *6–9. Additionally, in Kelly v. Blum, the Court found that notice sent by fax and a confirmation copy by overnight commercial delivery substantially complied with the notice provision, which required fax and a confirmation copy on the same day by first class mail. 2010 WL 629580, at *8 (Del. Ch. Feb. 24, 2010).

42 implicit in Vintage’s actions, such as Vintage causing Buddy’s to enter the Joint

Timing Agreement, was Vintage’s intent to close after the End Date, thus putting

Rent-A-Center on notice of Vintage’s desire to go forward to closing beyond the

End Date. In the Plaintiffs’ view, this made contractual notice a meaningless

formality. Again, however, the notice of election to extend had a different purpose:

to bind the parties after the End Date.

The Joint Timing Agreement, as testimony made clear, was an attempt by the

parties to encourage a favorable outcome from the FTC. By agreeing not to close

for a period, the parties gave the FTC, which was otherwise under a time constraint,

a chance to consider the parties’ argument that less than full divestiture of Buddy’s

was necessary. By agreeing not to close, however, the parties were not binding one

another past the End Date. If Vintage had found it in its business interest to do so,

it could have terminated the agreement after the End Date, unless Rent-A-Center

elected to extend. The reciprocal must be true. It is worth pointing out that, even if

neither party elected to extend, the parties could nonetheless have gone forward to a

closing after the End Date, consistent with the Joint Timing Agreement. Under

Section 8.01(b)(i), the Merger Agreement remained in force until notice of

termination. Contractually, the parties could have gone forward to closing after the

End Date. Each would have done so suffering the daunting uncertainty of knowing

43 that the counterparty could terminate at will, but with the advantage that the party

itself could cancel if a change in circumstances warranted.

In addition to the Joint Timing Agreement itself, the Plaintiffs point to all the

other actions and expense they devoted to moving toward a closing. They argue that

Rent-A-Center must have known the Vintage intended to extend, because no

reasonable party would have undertaken the effort Vintage did without that

intention. But Rent-A-Center itself did that very thing. Both parties had a

bargained-for right to terminate the agreement at any time after the End Date, unless

the counterparty elected to extend. All the Plaintiffs really point to is that market

conditions changed in a way that made it attractive only for Rent-A-Center to

terminate. However, nothing in the parties’ changed financial circumstances, the

Joint Timing Agreement, or the other actions of the parties is a replacement for a

notice of election to extend the End Date.

Finally, I note that much, if not all, of the effort Vintage expended toward

closing was required contractually; both parties were required to use commercially

reasonable efforts to obtain FTC permission and otherwise advance the merger. If

undertaking contractually-required action to consummate the merger is the

equivalent of an election to extend the End Date, bind the counterparty, and give

44 notice thereof, the notice of election to extend requirement of Section 8(b)(i) is

meaningless. I must avoid such an interpretation of contractual language. 195

The parties bargained for a reciprocal, unilateral right to extend the End Date

of the Merger Agreement via written notice of election to exercise that right. The

parties could have written Section 8.01(b)(i) to provide for automatic extension of

the End Date if the Merger was still under antitrust review, or the parties could have

imposed a different standard of notice, but they did not. They are bound by their

contract.

3. The Notice Requirement in Section 8.01(b)(i) Was Not Extended or Waived by the Joint Timing Agreement

The Plaintiffs argue that they were not required to provide notice of election

to extend the End Date according to Section 8.01(b)(i) of the Merger Agreement

because the Defendant agreed, pursuant to Section 8.05, to extend the time to submit

the notice and/or waived the requirement to submit the notice at all. According to

Section 8.05, an agreement of extension or waiver is only valid if “set forth in an

instrument in writing signed on behalf of” the party agreeing to extend or waive.196

According to the Plaintiffs, the Defendant signed such an instrument in writing when

it agreed to the Joint Timing Agreement. Furthermore, the Plaintiffs argue, “an

195 See O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 287 (Del. 2001) (“Contracts are to be interpreted in a way that does not render any provisions ‘illusory or meaningless.’”) (internal quotations and citations omitted). 196 JX 272 § 8.05.

45 instrument in writing” is not subject to the general notice requirements in Section

9.02; that is, it need not be sent to specific individuals of the counterparty. 197

I have found above that the Joint Timing Agreement, as well as similar

agreements, actions, and communications, did not function as an election to extend

the End Date. For the same reasons, to the extent that the Joint Timing Agreement

could serve as an extension or waiver under Section 8.05 of the End Date itself, 198 it

is not such an extension or waiver.

As an initial matter, the Joint Timing Agreement governs the relationship

between the FTC, on one side, and Vintage199 and Rent-A-Center, on the other side.

The Joint Timing Agreement says nothing of the Merger Agreement or the

relationship between Vintage and Rent-A-Center, although it certainly has

implications for the Merger. The Merger Agreement requires a writing to work an

extension or waiver, and that requirement implies an explicit, not implicit, release of

such rights.200 Furthermore, even implicit references to obligations or agreements

197 Id. 198 I use “could” because it is not clear that Section 8.05 can be used to extend or waive the End Date. Section 8.05(a) allows for the extension of the “the time for the performance of any of the obligations or other acts of the other parties” and Section 8.05(c) allows for the waiver of “compliance with any covenants and agreements contained” in the Merger Agreement. Id. § 8.05(a), (c) (emphasis added). The right to extend the End Date in Section 8.01(b)(i), does not obviously qualify as an obligation, an act, a covenant, or an agreement in the Merger Agreement. I assume, however, for purposes of this analysis that waiver or extension are available here. 199 It is, in fact, Buddy’s, and not Vintage, that is a party to the Joint Timing Agreement. 200 See, e.g., Simon-Mills II, LLC v. Kan Am USA XVI Ltd. P’ship, 2017 WL 1191061, at *34 (Del. Ch. Mar. 30, 2017) (“The standard for demonstrating waiver is ‘quite exacting;’ because waiver is redolent of forfeiture, ‘the facts relied upon to demonstrate waiver must be unequivocal.’”) (quoting Amirsaleh v. Bd. of Trade of City of N.Y., Inc., 27 A.3d 522, 529 (Del. 2011)).

46 related to Section 8.01(b)(i) are lacking in the Joint Timing Agreement. As

explained in detail above, a promise to the FTC not to close before the End Date is

not an implicit election to extend the End Date.

I accept, as do the parties, that the Joint Timing Agreement functions to push

the anticipated time of closing into 2019. The Joint Timing Agreement, however,

is not the equivalent of a promise that a post-End Date closing shall occur and that

the parties agree to be bound by the Merger Agreement until that time. An actual

extension or waiver of the right to notice of election to extend the End Date would

extend the time in which both parties are definitively bound by the Merger

Agreement. I find that Rent-A-Center never expressed in writing such an intent, and

that it did not waive its right to terminate the Merger Agreement post-End Date.

4. The Notice Requirement in Section 8.01(b)(i) Was Not Otherwise Satisfied

The Plaintiffs argue that if written notice in literal compliance with Section

8.01(b)(i) was required to elect to extend the End Date, this requirement was

satisfied—not by Vintage, but by Rent-A-Center itself. On September 24, 2018,

O’Rourke of Rent-A Center sent a financial model of “NEWCO” to Kahn. The

financial model had an assumption for “Transaction Close” of January 31, 2019 that

was an update from an earlier version, which listed a close date of September 31,

2018. Fadel approved the change in the closing date assumption of the financial

model, and knew that the financial model would be sent to Kahn. The Plaintiffs

47 contend that when O’Rourke sent the financial model to Kahn, Rent-A-Center

effectively gave a written notice of election to extend the End Date, because the

closing date assumption was past the End Date. The Plaintiffs further argue this

“written notice” complied with Section 9.02, because Kahn was one of the

designated recipients in Section 9.02—although so were certain of Vintage’s

attorneys. In other words, Vintage argues that Rent-A-Center bound both Vintage

and itself by creating the financial model, and sending it to Vintage. For the same

reason I have rejected the Plaintiffs’ arguments regarding the Joint Timing

Agreement, this argument fails.201 Rent-A-Center’s statement that it expected

closing to occur in 2019 is not contractual notice extending the End Date. I do not

find that Rent-A-Center sent Vintage written notice of its own election to extend

through O’Rourke’s financial model.

5. Rent-A-Center Did Not Lose Its Contractual Right to Terminate Under Section 8.01(b)(i)

According to the Merger Agreement, a party does not have the right to

terminate under Section 8.01(b)(i) if that party has breached the Merger Agreement

and its breach “cause[d] the failure of the Closing to be consummated by the End

Date.”202 The Plaintiffs argue that the Defendant failed to use commercially

201 The financial model, including the assumption on time of closing, was also required by the Merger Agreement because Rent-A-Center had agreed to use commercially reasonable efforts to help Vintage achieve financing for the Merger. See generally JX 272 § 6.11. 202 Id. § 8.01(b)(i).

48 reasonable efforts to consummate the Merger, and thus cannot exercise the right to

terminate pursuant to Section 8.01(b)(i). The Plaintiffs base their allegation of

breach on the fact that the Defendant did not tell them that the Rent-A-Center Board

had resolved to terminate the Merger if it did not receive a written notice electing to

extend the Merger Agreement. The Plaintiffs not only allege a failure to disclose in

this regard, but also claim that the Defendant took affirmative action to conceal,

which they contend conflicts with Rent-A-Center’s obligation to use commercially

reasonable efforts.

The Plaintiffs argue that Rent-A-Center’s efforts and actions in support of the

merger—at least, after the Board’s termination decision at the December 5 and 6,

2018 Board meetings—were deceptive, because its “business as usual” conduct hid

the fact that Rent-A-Center did not believe that the End Date had been previously

extended. The Plaintiffs suggest that if they had known that Rent-A-Center did not

consider the End Date extended, then they would have re-read the Merger

Agreement, recognized the upcoming termination of the period in which to elect to

extend, and sent the required written notice. In support of their argument, the

Plaintiffs compare their situation to those in Williams Companies. v. Energy

Transfer Equity, L.P. 203 and Hexion Specialty Chemicals., Inc. v. Huntsman Corp.204

203 159 A.3d 264 (Del. 2017). 204 965 A.2d 715 (Del. Ch. 2008).

49 In both Williams and Hexion, a party to a merger agreement was obligated to use its

reasonable best efforts 205 to achieve a condition precedent to the contemplated

merger; when the party became aware of a problem that threatened the condition

precedent, however, the party stayed silent and did not share its concern with its

counterparty. 206 In Hexion, the “reasonable best efforts” clause “impose[d]

obligations to take all reasonable steps to solve problems and consummate the

transaction.”207 In Williams, our Supreme Court wrote that the “reasonable best

efforts” and “commercially reasonable efforts” clauses “placed an affirmative

obligation on the parties to take all reasonable steps to obtain the [condition

precedent] and otherwise complete the transaction.”208 The Plaintiffs point to the

inescapable fact that, as the minutes ticked down to the passing of the End Date,

Rent-A-Center’s principals watched Vintage closely. Rent-A-Center personnel

205 In Williams, the party was obligated to use both “reasonable best efforts” and “commercially reasonable efforts.” 159 A.3d at 273. 206 In Williams, where the contemplated merger was conditioned on the issuance of a tax opinion by the defendant’s counsel; the Supreme Court found that there was evidence that the defendant did not use reasonable best efforts where the defendant “did not direct [its counsel] to engage earlier or more fully with [the plaintiff’s] counsel, failed itself to negotiate the issue directly with [the plaintiff], failed to coordinate a response among the various players, went public with the information that [its counsel] had declined to issue the [tax opinion], and generally did not act like an enthusiastic partner in pursuit of consummation of the [Merger Agreement].” 159 A.3d at 273 (quoting Williams Cos. v. Energy Transfer Equity, L.P., 2016 WL 3576682, at *17 (Del. Ch. June 24, 2016)). In Hexion, where the contemplated merger was conditioned on financing, the buyer did not use reasonable best efforts when it developed concerns about the solvency of the combined entity, but instead declined to share those concerns. 965 A.2d at 755–756; see also Williams, 159 A.3d at 272 (discussing Hexion). 207 Williams, 159 A.3d at 272 (discussing Hexion). 208 Id. at 273.

50 acted entirely in the corporate interest, anticipating the stroke of midnight, when

Rent-A-Center’s termination right would ripen and could be exercised. A friendly

heads-up, argues Vintage, would have allowed it to bind Rent-A-Center to the

Merger Agreement, going forward.

Here, according to the Plaintiffs, the Defendant breached its obligation to use

commercially reasonable efforts by not informing Vintage that Rent-A-Center

considered the operative End Date to be the initial End Date defined by the Merger

Agreement—that is, December 17, 2018. The result, per the Plaintiffs, was that

Vintage was not put on notice of its need to comply with the notice requirement in

Section 8.01(b)(i). Williams and Hexion are, I find, distinguishable from the case

before me. The defendants in those cases were aware of a “problem,” impending

failure to obtain a condition precedent, and chose not to make the effort to alert, and

to work with, their counterparties. The “problem” posed by the Plaintiffs here is not

the sabotage of achieving a condition precedent to the Merger, but Vintage’s lack of

understanding of its explicit rights under the Merger Agreement. Under Delaware

Law, parties are assumed to have knowledge of their own contractual rights.209 For

Williams and Hexion to be analogous here would require me to find that Rent-A-

Center was aware that Vintage misunderstood its contractual rights, but Rent-A-

209 See, e.g., Chapter 7 Tr. Constantio Flores v. Strauss Water Ltd., 2016 WL 5243950, at *6 (Del. Ch. Sept. 22, 2016).

51 Center nonetheless chose not to raise the confusion with its counterparty. 210 I need

not decide whether, in such a case, failure to raise the issue would violate Rent-A-

Center’s duty to use commercially reasonable efforts, because the record fails to

demonstrate that the Defendant had such knowledge.

The record is bereft of any evidence that the Rent-A-Center Board had

knowledge Vintage was mistaken as to its contractual right to extend the End Date

by giving notice.211 In fact, testimony at trial indicates that the Board was told, and

believed, that Rent-A-Center was likely to give notice before the end date. 212 The

Plaintiffs argue that the Defendant’s behavior was nonetheless fraudulent or

deceptive, and that this is therefore evidence that Rent-A-Center knew Vintage was

210 I note that I am faced here with the exercise of a contractual right, and not compliance with contractual commitments. To the extent that precedent provides guidance here, I find helpful the analysis of “reasonable best efforts” (presumably also applicable to “commercially reasonable efforts”) described in Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347, at *91 (Del. Ch. Oct. 1, 2018), aff’d, 198 A.3d 724 (Del. 2018). In Akorn, this Court described the analysis of “reasonable best efforts” as “whether the party subject to the clause (i) had reasonable grounds to take the action it did and (ii) sought to address problems with its counterparty.” Id. This Court also noted that prior decisions “criticized parties who did not raise their concerns before filing suit, did not work with their counterparties, and appeared to have manufactured issues solely for purposes of litigation.” Id. (internal citations omitted). 211 The Plaintiffs argue that the Chairman of Rent-A-Center admitted at his deposition that given the extension of the closing date in the Joint Timing Agreement, the End Date had to be extended. Written Closing Argument of Pls. and Intervenor-Pl. at 17–18. However, the Plaintiffs quote from the question posed by counsel, not the Chairman’s response. See Written Closing Argument of Pls. and Intervenor-Pl. at 17–18; Lentell Dep. 157:3–7. The Chairman, in fact, answered, “That was the intent.” Lentell Dep. 157:3–7. This is consistent with Rent-A-Center’s belief that Vintage would bind them with a notice of election to extend before the deadline, not evidence that Vintage had already done so. 212 See, e.g., Trial Tr. 404:24–405:8 (Ressler); id. at 519:17–22 (Fadel).

52 working under a mistaken understanding. 213 The Plaintiffs offer—among other

documents and conduct—the “white paper,” which was submitted to the FTC on

December 14, 2018, as evidence of the deceit. The Plaintiffs also offer as evidence

the fact that the Board kept its conditional decision to terminate the Merger

Agreement confidential, including confidential from many within Rent-A-Center

who frequently interacted with Vintage, among them antitrust counsel, O’Rourke,

and Rent-A-Center’s General Counsel.

In the white paper the filing parties represented to the FTC that the Merger

was an opportunity to “revitalize” Rent-A-Center, and that “[o]ver the last five years,

[Rent-A-Center] has been experiencing declining revenues and its store count has

reduced significantly because it has closed underperforming stores.”214 This

representation was literally true; the Plaintiffs, however, submit it was deceitful,

indeed it is the quintessence of their fraud claim, because Rent-A-Center’s

operational performance had, in fact, recently improved, and the Board had, by this

time, decided it was in the corporate interest to terminate the Merger, if given the

opportunity, and proceed without Buddy’s and Vintage. Per the Plaintiffs, the white

paper is evidence of Rent-A-Center’s active deception. I find the facts otherwise.

213 The Plaintiffs seek to shoehorn this deception under the commercially reasonable efforts rubric—I suspect, because Vintage’s behavior does not constitute actionable legal fraud. 214 JX 600, at 21.

53 Prior to submitting the white paper, I note, Rent-A-Center’s counsel informed

Vintage that the white paper’s comment on declining operational performance no

longer reflected Rent-A-Center’s operations, which had turned for the better, and

that the white paper argument had thus lost some of its force. 215 If the statement in

the white paper on operational performance was misleading, it was only misleading

to the FTC, not Vintage. I find no fraud or deceit as to Vintage in the white paper,

or in similar documents and conduct.

The Plaintiffs also contend that the Board’s decision to keep the plan to

terminate confidential is evidence that Rent-A-Center knew that Vintage was

mistaken about the extension of the End Date. According to this view, by keeping

their decision confidential, the Board hoped to avoid tipping off Vintage, which

supposedly the Board knew would, if clued in, timely perfect its unilateral right to

extend the End Date through compliance with Section 8.01(b)(i). However, the

Plaintiffs’ only evidence of this theory is the fact that the Board kept the plan to

terminate confidential.

Fadel testified at trial that decisions made by the Board during executive

sessions are, by nature, confidential.216 There are also business reasons why the

Board may have chosen to keep this specific decision confidential. Legal counsel

215 JX 1215, at 1 (“Given our recent improving financial and business performance, this argument loses some of its impact or relevance in any event . . . .”). 216 Trial Tr. 533:14–18, 555:19–23, 556:19–557:1, 567:16–22, 568:16–569:6 (Fadel).

54 told the Board that Vintage was likely to send written notice extending the End Date,

and the Board resolved to continue working toward a close. However, had Rent-A-

Center shared its desire to terminate—again, an option only if Rent-A-Center was

given the contractual opportunity—it could have upset its merger partner and

complicated their relationship going forward, as Rent-A-Center would have been

bound to continue working toward a close if Vintage extended the End Date as

expected. Additionally, sharing the decision—even internally—could have affected

the level of effort Rent-A-Center staff put towards closing, including in ongoing

interactions with the FTC, and could have put Rent-A-Center at risk of breach by

falling short of using commercially reasonable efforts.

There are many possibilities as to why the Board kept its decision confidential,

and the Plaintiffs have not shown that this confidentiality was to avoid “tipping off”

Vintage. 217 In fact, the evidence shows that the Board was informed by counsel, and

believed, that Vintage would give notice of election to extend, which implies a

reasonable assumption that Vintage was aware of the End Date, its implications, and

Vintage’s explicit rights therewith. 218 I do not find that Rent-A-Center was aware

of Vintage’s mistaken belief about its contractual rights.

217 Written Closing Argument of Pls. and Intervenor-Pl. at 38. 218 I do not doubt that the Rent-A-Center Board hoped for, and welcomed, the opportunity to terminate, whether that opportunity arrived by conscious decision or inadvertence on Viintage’s part.

55 What remains of the Plaintiffs’ argument is, effectively, that commercially

reasonable efforts means that Rent-A-Center had a “duty to warn.”219 In other

words, the Plaintiffs argue that a commercially reasonable effort by Rent-A-Center

required notice that Rent-A-Center would not extend, and would terminate if

Vintage did not extend, which would thereby remind Vintage of the impending End

Date and its related rights. Finding that commercially reasonable efforts require

such notice is inconsistent with the terms of the Merger Agreement. Section

8.01(b)(i) does not require advance notice, either of the election to extend or of

termination. Advance notice provisions, however, are common; in fact, the Merger

Agreement requires a party to give advance notice before it exercises several of the

other termination rights in Section 8.01 itself. 220 As a matter of contractual

interpretation, I should refrain from writing a provision into a contract when the

parties could have done so themselves, but chose not to.221 In any event, I need not

219 The Plaintiffs also suggest, in a footnote in their briefing, that the Defendant had a duty to disclose under Delaware Law, independent of its contractual obligation to use commercially reasonable efforts. Written Closing Argument of Pls. and Intervenor-Pl. at 37 n.67. In In re Wayport, Inc. Litigation, this Court wrote that “[a] duty to speak can arise because of statements a party previously made. A ‘party to a business transaction is under a duty to disclose to the other party before the transaction is consummated subsequently acquired information that the speaker knows will make untrue or misleading a previous representation that when made was true.’” 76 A.3d 296, 323 (Del. Ch. 2013) (quoting Restatement (Second) of Torts § 551 (1977)). However, no such duty to disclose attaches here; Rent-A-Center did not make a representation that it would not terminate the Merger Agreement if given the opportunity, nor did it make a representation that it considered Vintage to have already made an election to extend the End Date. 220 See JX 272 §§ 5.03(d)(ii), 8.01(d), 8.01(c). 221 See Allied Cap. Corp. v. GC-Sun Hldgs., L.P., 910 A.2d 1020, 1035 (Del. Ch. 2006) (“[C]ourts should be most chary about implying a contractual protection when the contract easily could have been drafted to expressly provide for it.”).

56 consider imposing an advance notice provision, because commercially reasonable

efforts under these circumstances do not require it. The Plaintiffs argue that Rent-

A-Center’s apparent enthusiasm for the merger misled Vintage about Rent-A-

Center’s decision to terminate if possible, and that had Vintage known the truth, it

might have informed itself of its contractual rights, and given notice of an election

to extend. Commercially reasonable efforts do not require that sophisticated parties

remind one another of their contractual rights. 222

I have attempted, in the preceding paragraphs, to grapple with the Plaintiffs’

contentions that Rent-A-Center failed to use commercially reasonable efforts.

However, the Plaintiffs’ argument fails for a more fundamental reason. For Rent-

A-Center to lose its right to terminate under Section 8.01(b)(i), its breach must be

one that causes a failure to consummate the Merger by the End Date. 223 The

Defendants point out that what prevented consummation of the Merger by the End

Date was the ongoing antitrust approval process, with respect to which Rent-A-

222 The Plaintiffs also argue that Rent-A-Center’s efforts towards closing in fact exceeded what was required by commercially reasonable efforts. See Written Written Closing Argument of Pls. and Intervenor-Pl. at 33–38. This excess was, to the Plaintiffs’ eyes, deceptive. However, the Plaintiffs have not shown, or even argued, that if Rent-A-Center had displayed only the bare minimum “commercially reasonable enthusiasm,” the Plaintiffs would then have been aware that Rent-A-Center did not consider the End Date extended. As a result, it makes no difference, for purposes of this analysis, whether Rent-A-Center did only what commercially reasonable efforts required, or went beyond. 223 The right to terminate the Merger Agreement under Section 8.01(b)(i) is not available “to any party whose breach of any provision of [the Merger Agreement] causes the failure of the Closing to be consummated by the End Date.” JX 272 § 8.01(b)(i).

57 Center was, I find, using commercially reasonable efforts. Even had the Plaintiffs

demonstrated a breach of commercially reasonable efforts inhering in Rent-A-

Center’s failure to warn, they have, nonetheless, not shown that such a breach

prevented consummation of the Merger by the End Date.

Rent-A-Center’s efforts toward closing cannot be a breach of the

commercially reasonable efforts provision. If Rent-A-Center had not entered into

the Joint Timing Agreement, participated in meetings with Vintage, and shared

financial information, it would have, by such inactions, presumably breached the

commercially reasonable efforts clauses of the Merger Agreement. A party’s

obligation to use commercially reasonable efforts must be cabined by its bargained-

for contractual rights. 224 If an agreement to use commercially reasonable efforts to

comply with obligations in a contract means that a party cannot exercise its

bargained-for right to terminate that contract, that bargained-for right would be

illusory. The Plaintiffs have argued that the Defendant’s actions after the December

224 This Court expressed a similar sentiment in Akorn, writing that: [T]he parties agreed in the Reasonable Best Efforts Covenant to seek ‘to consummate and make effective’ the transaction that they had agreed to in the Merger Agreement on the terms set forth in that contract. They were not committing themselves to merge at all costs and on any terms. Instead, they were committing themselves to fulfill the contract they had signed, which contained representations that formed the basis for the transaction, established conditions to the parties’ performance, and gave both sides rights to terminate under specified circumstances. As I see it, the Reasonable Best Efforts Covenant did not require either side of the deal to sacrifice its own contractual rights for the benefit of its counterparty. Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347, at *91 (Del. Ch. Oct. 1. 2018) (emphasis added), aff’d, 198 A.3d 724 (Del. 2018).

58 5 and 6, 2019 Board meetings were not commercially reasonable, in a way that

vitiates the termination right, because the Defendant did not share with the Plaintiffs

its decision not to extend the End Date and to terminate, should Vintage not so

extend. I reject this argument. Given the foregoing, I find that the Defendant

retained its right to terminate the Merger Agreement under Section 8.01(b)(i).

6. The Implied Covenant of Good Faith and Fair Dealing Does Not Prevent Termination

As our Supreme Court has recognized, “the implied covenant attaches to

every contract.” 225 It is “the doctrine by which Delaware law cautiously supplies

terms to fill gaps in the express provisions of a specific agreement.” 226 Caution in

this regard should be underscored.227 Furthermore, a gap must exist to invoke the

implied covenant, “because ‘[t]he implied covenant will not infer language that

contradicts a clear exercise of an express contractual right.’” 228

The Plaintiffs argue that the implied covenant of good faith and fair dealing

should be applied here to prevent the Defendant from exercising its termination right

under Section 8.01(b)(i), because the implied covenant provides a “no deception”

term. 229 However, the Plaintiffs do not claim that Rent-A-Center committed fraud,

225 Dunlap v. State Farm Fire and Cas. Co., 878 A.2d 434, 441 (Del. 2005). 226 Allen v. El Paso Pipeline GP Co., LLC, 2014 WL 2819005, at *10 (Del. Ch. June 20, 2014). 227 See NAMA Hldgs., LLC v. Related WMC LLC, 2014 WL 6436647, at *16–17 (Del. Ch. Nov. 17, 2014). 228 See id., at *16 (quoting Nemec v. Shrader, 991 A.2d 1120, 1127 (Del. 2010)). 229 Written Closing Argument of Pls. and Intervenor-Pl. at 47.

59 per se. What the Plaintiffs ultimately seek is equitable fairness,230 which is not

promised by the implied covenant.231 The parties vigorously negotiated the right to

extend the End Date—a right that Vintage had, but failed to exercise. There is

simply no gap in Section 8.01(b)(i) for the implied covenant to fill.

B. Rent-A-Center Is Not Estopped From Exercising Its Right to Terminate

The Plaintiffs argue, and seek declaratory judgment, that the Defendant is

estopped in equity from exercising its right to terminate under Section 8.01(b)(i).

The Plaintiffs argue that either equitable estoppel or quasi-estoppel bar the

Defendant from exercising its termination right. Similar to their contractual

arguments, the Plaintiffs base estoppel primarily on the course of conduct between

the parties, which reflected an expected time of close in 2019. I assume, without

finding, that in some circumstances these equitable principals could trump contract

230 See Written Closing Argument of Pls. and Intervenor-Pl. at 49 (“This Court should, using the implied covenant, prevent that unjust result . . . .”) (emphasis added). 231 As Vice Chancellor Laster explained in NAMA Holdings, LLC v. Related WMC LLC: When used with the implied covenant, the term “good faith” contemplates “faithfulness to the scope, purpose, and terms of the parties’ contract.” . . . The concept of “fair dealing” similarly refers to “a commitment to deal ‘fairly’ in the sense of consistently with the terms of the parties' agreement and its purpose.” These concepts turn not on whether a court believes that a particular action was morally or equitably appropriate under the circumstances, but rather “on the contract itself and what the parties would have agreed upon had the issue arisen when they were bargaining originally.” 2014 WL 6436647, at *17 (Del. Ch. Nov. 17, 2014) (emphasis in original) (quoting Gerber v. Enter. Prods. Hldgs., LLC, 67 A.3d 400, 419 (Del. 2013), overruled in part on other grounds by Winshall v. Viacom Int’l, Inc., 76 A.3d 808 (Del. 2013)).

60 law, and could thus save a contract terminated under an explicit contractual right.232

Because I find no grounds for estoppel, I need not reach that issue.

1. Equitable Estoppel

The Plaintiffs claim that equitable estoppel bars the Defendant from

terminating the Merger Agreement. “[E]quitable estoppel is invoked ‘when a party

by his conduct intentionally or unintentionally leads another, in reliance upon that

conduct, to change position to his detriment.’” 233 As the party asserting equitable

estoppel, the Plaintiffs bear the burden of proof, which is clear and convincing

evidence.234 The Plaintiffs “must demonstrate that: (i) they lacked knowledge or the

means of obtaining knowledge of the truth of the facts in question; (ii) they

reasonably relied on the conduct of the party against whom estoppel is claimed; and

(iii) they suffered a prejudicial change of position as a result of their reliance.”235

This Court does not lightly turn to equitable estoppel to enforce contract rights which

cannot be vindicated as the contract is written.236

232 In Genencor International, Inc. v. Novo Nordisk A/S, our Supreme Court, “[i]n analyzing whether the remedy [the appellant] seeks is equitable estoppel,” found it “important to consider that [the apellant] is seeking to enforce a contract supported by valid consideration. 766 A.2d 8, 12 (Del. 2000). Our Supreme Court noted that it had “previously observed that a promissory estoppel analysis is not applicable to cases in which the alleged promise is supported by consideration,” and “this observation also applies to equitable estoppel.” Id. “Therefore,” our Supreme Court wrote, “because this is a dispute about enforcement of a bargained-for contract right, we conclude that the remedy [the appellant] seeks is not equitable estoppel.” Id. 233 Nevins v. Bryan, 885 A.2d 233, 249 (Del. Ch. 2005) (quoting Wilson v. Am. Ins. Co., 209 A.2d 902, 903–04 (Del. 1965)). 234 Id. 235 Id. 236 See Genencor Inter., Inc. v. Novo Nordisk A/S, 766 A.2d 8, 12 (Del. 2000).

61 The Plaintiffs claim that they had no reason to doubt the impression they

received from Fadel and O’Rourke—that Rent-A-Center remained in enthusiastic

support of the merger—and had no way to discover the Board’s plan to terminate

the Merger Agreement. The Plaintiffs contend that they reasonably relied on Rent-

A-Center’s “business as usual” act following the December 5 and 6, 2018 Rent-A-

Center Board meetings. The Plaintiffs’ argument for equitable estoppel suffers from

the same flaw as their contractual arguments: an agreement to extend the time of

closing into 2019 is not agreement to extend the End Date. Fatal to the Plaintiffs’

equitable estoppel claim, though, is the Plaintiffs’ own ability to unilaterally extend

the End Date and bind Rent-A-Center.

The Plaintiffs argue that they lacked knowledge of, or the means to obtain, the

truth that Rent-A-Center did not consider the End Date extended based on the Joint

Timing Agreement and other conduct between the parties. However, what Rent-A-

Center believed about the End Date would have been immaterial had Vintage merely

exercised its contractual right and sent a written notice explicitly extending the End

Date. Vintage negotiated for this right, and was constructively aware of it.

Therefore, the Plaintiffs cannot have reasonably relied on the demeanor of Rent-A-

Center’s principals. Nor did they change positions based on any reliance. Again,

Vintage did not make a decision that it need not send notice of election to extend

62 before the End Date based on some action by Rent-A-Center. 237 It appears that

Vintage simply forgot the End Date in the Merger Agreement—and its implications.

The estoppel argument is another after-the-fact attempt to excuse Vintage’s lack of

action: Vintage did not change its position based on Rent-A-Center’s actions.

Vintage’s attenuated claim that an honest lack of enthusiasm on the part of Rent-A-

Center might have caused Vintage to read the Merger Agreement and act

accordingly is another version of the misplaced duty to warn.

2. Quasi-Estoppel

Quasi-estoppel applies “when it would be unconscionable to allow a person

to maintain a position inconsistent with one to which he acquiesced, or from which

he accepted a benefit.” 238 Reliance is not required for quasi-estoppel to apply.239

However, the Plaintiffs’ argument for quasi-estoppel is unavailing because the

Defendant’s position is consistent with its position prior to the extension of the

expected time of closing. Prior to the End Date, the Defendant at all times complied

with its contractual obligations to use commercially reasonable efforts. After it

became clear that closing would be impossible in 2018, such efforts included

working toward a closing at some uncertain time in 2019. When faced with an

237 Or, if it did so, it is not reflected in the record. 238 RBC Cap. Mkts., LLC v. Jervis, 129 A.2d 816, 873 (Del. 2015) (internal quotations omitted). 239 Barton v. Club Ventures Invs. LLC, 2013 WL 6072249, at *6 (Del. Ch. Nov. 19, 2013).

63 opportunity to exercise its contractual termination right, the Defendant seized that

opportunity. For the reasons explained above, these actions are not inconsistent.

C. The Parent Termination Fee

The Plaintiffs seek declaratory judgment that the Parent Termination Fee is

unenforceable. They advance arguments that the Fee is a penalty, is untethered to

anticipated damages and would be a windfall to the Defendant. They also argue that

the contract by, its explicit terms, does not require the Fee to be paid here. The

Defendant disputes these allegations and has counterclaimed for breach of contract

to force payment of the Fee. Both sides have submitted expert reports to advance

their position. However, I have an additional concern: whether the Parent

Termination Fee is applicable here, in light of the implied covenant of good faith

and fair dealing.

The implied covenant of good faith and fair dealing, as discussed above,

serves primarily to fill gaps, including providing terms so obvious that contracting

parties fail to include them. 240 Such “quasi-reformation, however, ‘should be [a]

rare and fact intensive’ exercise, governed solely by ‘issues of compelling

240 See NAMA Hldgs., LLC v. Related WMC LLC, 2014 WL 6436647, at *16 (Del. Ch. Nov. 17, 2014) (“[T]he implied covenant ‘seeks to enforce the parties’ contractual bargain by implying only those terms that the parties would have agreed to during their original negotiations if they had thought to address them.’”) (quoting Gerber v. Enter. Prods. Hldgs., LLC, 67 A.3d 400, 418 (Del. 2013), overruled in part on other grounds by Winshall v. Viacom Int’l, Inc., 76 A.3d 808 (Del. 2013)).

64 fairness.’” 241 “Only when it is clear from the writing that the contracting parties

‘would have agreed to proscribe the act later complained of . . . had they thought to

negotiate with respect to that matter’ may a party invoke the covenant’s

protections.” 242

Despite the limited application of the implied covenant, I am dubious whether

the parties meant for a reverse breakup fee to apply in this situation. Specifically,

Rent-A-Center was bound through the End Date to use commercially reasonable

efforts to close the Merger. The End Date was set at six months beyond the entry of

the Merger Agreement, but either party could extend it another three months by

giving written notice. Inadvertently, Vintage failed to notice election to extend.

Rent-A-Center then exercised its right to terminate, for business reasons of its own.

Immediately on learning of the termination, Vintage attempted to give notice and

bind itself and Rent-A-Center to an extended End Date. It is clear that there was no

gamesmanship in Vintage’s actions—it simply forgot to exercise its contractual

right. Vintage is ready to move to closing; it is Rent-A-Center that is causing the

merger to terminate. That is Rent-A-Center’s contractual right. However, I question

whether the parties considered this scenario in contracting for the reverse break-up

fee. As neither side has raised the applicability of the implied covenant of good faith

241 Dunlap v. State Farm Fire and Cas. Co., 878 A.2d 434, 441 (Del. 2005) (quoting Cincinnati SMSA Ltd. P’Ship v. Cincinnati Bell Cellular Sys. Co., 708 A.2d 989, 992 (Del. 1998)). 242 Id. (quoting Katz v. Oak Industries, Inc., 508 A.2d 873, 880 (Del. Ch. 1986)).

65 and fair dealing, I request supplemental briefing, on this issue alone, before

rendering a decision on whether the Parent Termination Fee must be paid.

III. CONCLUSION

The Plaintiffs were surprised by Rent-A-Center’s termination of the contract.

They had expended six months of effort and considerable funds toward closing; it is

understandable that they are angered by what they see as Rent-A-Center’s sharp

practice. However, the Plaintiffs have failed to show that the Merger Agreement’s

End Date was extended or that the Defendant should otherwise be barred from

exercising its right to terminate. As a result, the Defendant’s termination of the

Merger Agreement pursuant to Section 8.01(b)(i) was valid. I reserve decision on

the parties’ requests for relief pertaining to the Parent Termination Fee, pending

supplemental briefing.