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 V INTAGE 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

- S G
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 Acquisit ion, 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 A ngeles, 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. Ril ey 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 ChancellorPlaintiff 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. U nder 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

co ntractual payments, title is then transferred to the consumer

. Vintage Capital, through two affiliate s (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 len gthy. Therefore, in a vigorously negotiated provision, the merger agreement provided an “End D ate ,” six months from signing , after which either party could terminate the merger agreement . If, however, the FTC review
p rocess was still ongoing, each party negotiated for itself the unilateral right to extend the End D ate 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 D ate. By doing so, the extending party was binding both its counterparty and2 itself to compliance with the merger terms during the extension period. If nei ther party chose to extend the End D ate, the merger was not terminated once that date had passed

— both p arties were still bound by the merg er a greem ent, but either could terminate at will, simply by giving notice. Thus, as the End D ate 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 woul d nonetheless continue to be so bound if the counterparty gave notice of election
to exten d

. 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 D ate, it (and its banker, B. Riley Financial, Inc. (“B. Riley”) , an intervenor here ) was (at least per
Rent

- A

- C enter) liable for a reverse break up fee if either party terminated thereafter

. Adjectives are often misplaced in legal opinions; nonetheless, I am comfortable3 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 B oard of Directors (the “Board”) shortly before the End D ate, the Board was given a presentation by corp orate counsel.
A ccording to counsel, the Board was faced with the deci sion matrix described above: whether it should unilaterally extend the End D ate, and if not

— and if Vintage chose not to extend

— shoul d it immediately cancel t he merger, or proc eed towards closing? The Rent

- A

- Center B oard determined that it was , by that point , no long er in the corporate interest to proceed under the terms of the merger agreement. It d ecided, therefore, not to elect ext end the End Date , and, should Vintage not elect to extend , to t erminate the merger. The Rent

- A

- Center B oard was told by counsel that it was likely that Vintage would extend, given, I assume, market conditions and the reverse break up fee. In that case, Re nt

- A

- C enter 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 S ubramanian, 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 te rmination 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 fo und 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 Emp s.’ 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)

.4 merger. If Vintage made th e surprising decision not to giv e notice of an election to
exten d , Rent

- A

- C enter was ready to exercise its resulting right to terminate, immediately. As it happened , Vintage f ailed to give notice of an election to extend , and a few hours later , Rent

- A

- Ce nter gave the not ice required to terminate the merger agreement. Vintage Ca pital was blindsided. In this litigation, it seeks relief including a declaration that Rent

- A

- C enter ’ 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 appar ent 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 R ent

- A

- C enter took numerous actions during the six months following execution of the merger agreement that were intended to ach ieve regulatory approval, and that these actions and the accompanying joint documents executed by R ent

- A

- C enter and the Vintage Entities made clear that R ent

- A

- C enter expected the merger to close after th e End
D ate. Therefore, per Plaintiffs, Vintage had (through the joint documents) adequately given notice of its election to extend, or the extension notice provision5 had lost its relevance (and enforceability) in light of both part ies ’ intent to proceed past the E nd D ate, or R ent

- A

- C enter 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 t o obtain FTC approval and close; t he 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 D ate. Therefore, these documents and actions are not inconsistent with an intention to terminate, i f such an opportunity became available. As such, they are in sufficient 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 D ate. The other theo ry the Plaintiffs advance is that R ent

- A

- C enter ’s behavior was, in effect, fraudulent . Once the R ent

- A

- C enter B oard determin ed, less than two week s before the original End D ate, that it was in the company’s interest not to merge with Vintage, R ent

- A

- C ente r 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 R ent

- A

- C enter 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 the6 merger agreement. While Vintage couches this as a bre ac h of Ren t

- A

- Center’s duty to use commercially reasonable efforts to close, t his strikes me as the equivalent of a “duty to wa rn” Vintage of the approaching End D ate , which Vintage itself d oes not contend exists under law or under the merger agreem ent. M ore fundamentally,
Rent

- A

- C enter 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, R ent

- A

- C enter would continue to be required to expen d

commerc ially reasonable efforts toward closing going forward. I find its behavior to be consistent with that understanding. It is, I find, telling what the Plaintiff s did not present at trial. The Plaintiff s 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 eviden ce , for example, indicating that Vintage ’s princip als considered the approaching End D ate and the contractual option to elect extension, but conclud ed 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 t he End D ate si mply by7 sending Rent

- A

- Center notice of election to do so by a date certain , Vintage and B. Riley perso nnel, in the context of this $1 billion

- plus merger, simply forgot to give such notice. As one B. Riley pr incipal messaged a nother , immediately upon learn ing of the failure of notice, “W e 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 D ate, and that R ent

- A

- C enter mad e it abundantly clear that it was working toward the same goal

. Both parties had committed much time and effort in that regard, as requi red by the merger agreement. Under these circumstances, per the Plaintiffs, it is unfair to allow R ent

- A

- C enter 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 righ t that R ent

- A

- C enter must have kno wn Vintage wanted to exercise. I find, however, that t he End D ate, 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, how ever, 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 870.8 made , before the End Date, equated to suff icient notice of election to ext end, 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. B ecause of the need to issue my decision quickly in this expedited matter , I hav e not resolved that issue here. At the end of this Memorandum Opinion, I lay out the issues regarding the reverse break up fee, and seek addition al 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 th e 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 eightee n depositions, as well as competin g 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 bus iness in Orlando, Florida. 4 Vintage Capital’s managing partner

3 The parties stipulated certain facts in their Joint Pre

- Trial Stipulation an d 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.1.9 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 Ca pital. 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.4.10 Riley’s Chairman and CEO is Bryant Riley (“Mr. Riley”). 15 B. Riley is a financial services company . 16 B. Riley and V intage Capital have previously worked together on a number of investments

. 17 Here, B. Riley arranged debt and equity financing for the Merger. 3. R ent

- A

- C enter, Inc. Defendant Rent

- A

- Center 18 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

- t o own financing through Rent

- A

- Center’s Acceptance Now operating s egment (“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 53.11 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, Engag ed Capital, ran a successful proxy contest to elect nominees to Re nt

- 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, o n 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 ; Tria l 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 37.12 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
Di scussions with potential acquiro rs cont inued into 2018

. 32 O nly three potential acquirors were considered serious bidders; by May 2018 , two of the serious b idders had effec tively dropped out, leaving Vintage Capital as the sole potential acquiror

. 33 On June 10, 2018, Rent

- A

- Center publicly announced it was terminat ing 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 Vi ntage 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 unanim ously 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 263.13 Agreement and Plan of Merger (the “ Merger Agreement ”) 37 on June 17, 2018. 38
Rent

- A

- Center and Vintage Capital issued a j oint press release the next day announcing the Merger; the press release stated that the Merger was “ expected to close b y t he en d of 2018

. ” 39
2. Vintage Capital Engages B. Riley to Finance the Transaction On March 24, 2018, J.P. Morgan circulated a p roposed merger agreement to the (at that point) three prosp ective acquiro rs. 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 d ebt 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 ve rsion 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

.14 B. Riley agreed to guarantee , among other things, a $126.5 million parent termination fee contained in the Merger Agreement , discussed at l ength below

. 44
C. The Merger Agreement Rent

- A

- Center and Vintage Capital exchanged multiple dra fts 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 th e 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 Reas onable 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 th e “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; J X 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).15 Agreement to “consummate and make effective as promptly as practicable . . . the
tr ansactions 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
meet ings 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 go vern ment 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

us e “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.”).16 and it specifically included the possibility of Vintage Capital’s divesture of Buddy’s. 54
2. Closing Date , Ef fective 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 . . . w aiver by the party . . . entitled to the benefits thereof of the condition s set forth in Article VII

. . . .” 55 Article VII of the Merger Agreement sets ou t 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 . . . incl uding (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 speci fied, 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. § 1.02.17 e ffective when the certificate i s filed , or a t 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 i s 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 (b y delivering written notice to the other par ty 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 hav e 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 S ection 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 I d. 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, th e “ Legal Restraints ”) . . . .” ). 67 Id.18 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 approv al 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 stock holder approval is not obtained; 72 by Rent

- A

- Center if it receives a Superior Proposal 73 prior to Ren t

- 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).19 are satisfied or waived and Vi ntage Parent and Vintage Merger Sub fail to consummate the merger. 76 The remaining circumstance in Section 8.01 under which the Merger
A greement can be terminated

— and the primary focus of this action

— is Section 8.01(b)(i), which reads: Section 8.01 Terminat ion . 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 af ter 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 Fee s 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.20 ma de 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 F ee 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
Ac t waiting p eriod 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
exte nsion 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.21 Section 9.02 of the Merger Agreement provides the method, timing , and required address e es of notices and other communications. 85 According to Section 9.02, notices have to be in writing and a re 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 no tices be delivered to specified addre ssees set forth in Section 9.02. 87 I f the notice i s being sent to Rent

A

- Center, the addresse es a re Rent

- A

- Center , to the attention of its General Counsel, and separately to certain of its attorneys; if the notice i s be ing sent to Vintage Capital, the address e es a re Vintage Capital , to the attention of Kahn, and separately to certain of its attorneys. 88
D. Post

- Signing Antit rust , 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 t he proposed M erger. 90 On September 18, 2018, Rent

- A

- Center stockholders vo ted on and approved the M erger. 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 breach ed Section 6.01(d) of the Merger22 approval, Rent

- A

- Center and Vi ntage Capital worked together on : obtaining antitrust approval, pre - closing integration efforts and planning, and Vintage Capital’ s financing for the merger. Whil e the June 18, 2018 press release first announcing the Merger contained an expectation that the Merger would “ close b y the end of 2018, ” 92 subsequent press releases and the parties ’ work on antitrust approval, integration, and financing all r eflected a pros pective closing date in 2019. 93
1. Antit rust 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 T he 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 dead line, 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 br each. 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).23 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 earlie r terminates the waiting period )

. 100 In other words , the FTC only has th e len gth of the waiting period to make its decision. 101 Before the end of the waiting period, the FTC
may requ est additional information, known as a “second request.” 102 If merging parties receive a second request, they can not close the merger until thirty days a fter 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 Capit al and Rent

- A

- Center decided to pu ll the ir FTC filings and then re file , in an effort to avoid a second request by resetting the thirty

-

97 JX 294; Trial Tr. 296:15

– 24 (Korst)

. 98 JX 295; s ee 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 indepe ndent findings as to the underlying antitrust statu t es 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).24 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, o n Septembe r 13, 2018, in response to the ir re filings with the FTC, Buddy’s and Rent

- A

- Center received a second request. 107 Rent

- A

- Center and Vintage Capit al 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 unfavorab le 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; s ee 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.25 Buddy’s and Rent

- A

- Cente r 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 certificat ion

wou ld 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 anti trust 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 it s 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 t he FTC, following which counsel updated their respective clients and began wor king on a “white paper” to explain w hy 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).26 an additional call wi th 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 th e FTC needed additional time to further study the issue. As a result, a planned
in

- person meeting with the FT C on December 19, 2019 was cance led. 118 At this time, Buddy’s and Rent

- A

- Center still had not certified compliance with the second request. 119
2. F inancing Vintage Capital and Rent

- A

- Center worked together to create financial models of the post

- closing entity , t o be used pre - closing by Vintage Capital and B. Riley when engaging with investors, potential investors , and rating agencies. 120
Rent

- A

- Center was ob ligated 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 mod el 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).27 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 Capi tal 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, 2 018, Fadel e

- mailed a
Rent

- A

- Cen ter employee, copying Mr. Riley. 130 Fadel wr ote that “B. Riley will be a major partner in our company going forwa rd,” and B. Riley should therefore be allow ed to compete for a financial services opportunity at Rent

- A

- Center. 131 Given other changes in the financial model for “NEWCO,” o n December 11 , 2018, O’Rourke asked Kahn if he should move “ clos e timing back.” 132 Kahn gave

124 JX 282; JX 369, at 6; JX 371, a t 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

– 5 28:1, 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 573.28 his approval, and O’Rourke updated the financial model with an assumption that the “Timing ” of the Merger was the “E nd of March 2019.” 133 This fin ancial 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 unde r 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 integ ration 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 Tr ial 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).29 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 app roved 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 Dec ember 17, 2018. 146
E. Termination of the Merger Agreement 1. Rent

- A

- Center’s Board Decides to Term inate the Merger Agreement If Given the Opportunity Rent

- A

- Center held regularly schedule d Board meetings on December 5 and 6, 2018. 147 During the meetings, t he 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) ; s ee also, e.g

. , JX 296; JX 326. 144 JX 558. 145 JX 652. 146 JX 6 19 , at 1. 147 See JX 546; JX 558.30 signed on June 17, 2018. 148 Legal c ounsel to the Board “ reminded ” the Board that the Merger Ag reement’s “initial end date” was Decemb er 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 termin ate 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

c ounsel 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); s ee also Hetrick Dep. 133:20

– 134:6. 154 JX 558, at 4.31 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 1 7, 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 a ctions 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 j oint interactions, the Rent

- A

- Center Board’s discussions and its decision to terminat e 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 Board 159 told the Board that they had not yet received a notice to extend the End
Date in accordance with the Merger Agreement , which extension, un der 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 Boar d 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 § 9.02.32 Agreement, must be made, if at all, by 11:59 p.m. that night

. 160 During the special meeting, t he 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 de mand the Parent Termination Fee if Rent

- A

- Center did not receive an extension notice before the deadline in the Merger Ag reement. 162
2. Rent

- A

- Center Purports to Terminat e 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
V intage or Vintage attorneys

. ” 164 As a resul t, 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 i t s right to terminate the Merger Ag reement 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.33 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 Ag reement had been terminated because Rent

- A

- Cente r had not received a notice of election to extend and the Rent

- A

- Center Board , “in light of the current financial and operation al performance of [Rent

- A

- Center],” decided not to extend either, and instead to terminate. 168 Kahn responded to Fadel by letter on De cember 18, 2018. 169 Kahn disputed that t he 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 c ompliance with the Merger Agreement. I held
a T RO 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 t o Intervene ; it filed its own Complaint

167 Id. 168 JX 627. 169 JX 657. 170 Id. 171 Trial Tr. 41:4

– 41:7 (Kahn).34 against Rent

- A

- Center on the same day. On January 8, 2019, Rent

- A

- Center filed a Counterclaim. The parties pursued d iscovery 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 est oppel

— 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 coun terclaim for breach of contract, seeking paymen t of the Parent Termination Fee

. I begin with the contractual claims surrounding the termination of the Mer ger Agreement.
A. Rent

- A

- Center Had the Right to Terminat e the Merger Agreement Pursuant to Section 8.01(b)(i) The Plaintiffs did not introduce evidence at t rial, nor do they argue, that they sent a written notice of election to extend to Rent

- A

- Center that e xplicitly used the35 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 c ompliant 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 . T he Plaintiffs seek declaratory judgment and put forward four contractual arguments that the End Date had been extended before termination, or that Rent

- A

- Center ha d waived notice : f irst, 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; s econd, that Rent

- A

- Center extended or waived the notice requirement of Section 8.01(b)(i) in accordance with Section 8.05 ; t hird, 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 not ice requirement and complied with the general provision on notice in Section 9.02 ; a nd fourth, that Rent

- A

- Center did not have the right to terminate the Merger Agreement under Section 8.0 1(b)(i) because it had breached the Merger Agreement by failure to e mploy commercially reasonable efforts toward

172 Post

- Trial Answering Brief of Pl s . and Intervenor

- Pl. at 7.36 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 Mer ger 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 term s 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. Crestv iew

- 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 Pl s . 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 contrac t 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. ”).37 commercially re asonable efforts to work toward closing, as well as for obtain ing 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 notic es 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 ex pired 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).38 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, e ach party to the Merger Agreement was faced with a decision

conce rning 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 optio ns were contingent on its counterparty. If its counter party chose to extend, then the first party had no choice

— it would remain bound by the Merger Agreement. If the counter party 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 partie s 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 duri ng 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 t he further and final End Date of June 17, 2017. Id. § 8.01(b)(i).39 record shows that the Rent

- A

- Center d irectors 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 believe d that it would likely receive a written notice from Vintage electing to extend the End Date. 181 However, fr om 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 throug h 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.
Th e 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).40 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 Plai ntif fs’ 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 T he 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 th e 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 Dat e. The Plaintiffs argue that the Joint Timing Agreement, in addition to other communications between the parties, represented notice 185 to Rent

- A

- Center that the Plaintiffs had elected to extend the End Date, because the parties represented to the
FTC th erein 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

- Tr ial 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. an d Intervenor

- Pl. at 11; Post

- Trial Answ ering Br. of Pls. and Intervenor

- Pl. at 6.41 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, on ce 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 g ave 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 writte n words o f the provision to consider its “purpose, ” which , t he Plaintiffs contend , if satisfied , constitutes substantial compliance , negating the need for literal compliance. 188 However, “[c] ontract s 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

- Tr ial 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 Sol s . , 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 typi cally dictate the outcome.”).42 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 b argain. In that regard, t his 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 T he 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 comp liance 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, “w hen confronted with less tha n literal compliance with a notice provision, courts have required that a party substantially comply with the notice provision. The requirement of substantial com pliance is an attempt to avoid ‘harsh results . . . where the purpose of these [notic e] requi rements 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 deviati ons 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 Pla intiff 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 def endant] 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 t hat 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)

.43 implicit in Vin tage’ s actions, such as Vintage causing Buddy’s to enter the J oint
T iming A greement , was Vintage’s intent to close after the End Date, thus puttin g 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 J oint T iming A greement , as testimony made clear, was an attempt by the
par ties 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 nec essary. 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 e xtend. The reciprocal must be true. It is worth pointing out that, even if neither party elected to ex t end, the parties could nonetheless have gone forward to a closing after the End D ate , consistent with the J oint T iming A greement . 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 D ate. Each would have done so suffering the daunting uncertainty of knowing44 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 J oint T iming A greement 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 bar gained

- 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 terminat e. However, n othing in the parties’ changed financial circumstances, the
J oint T iming A greement , or the other actions of the parties is a replacement for a notice of election to extend the End D ate

. Finally, I note that much, if not all, of the effort Vin tage 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 give45 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 el ection to exercise that right

. T he 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 b y the Joint Timing Ag reement 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 n otice and/or waived the requirement to submit the notice at all. According to Section 8.05, an agr eement 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 § 8.05.46 instrument in writing” is not subject to the general notice requirements in Section 9.02 ; that is, it need not be sent to specif ic 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 Da te

. For the same reason s , 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 Vintage 199 and Rent

- A

- Center, on the other side. The Joint Timing Agreement says nothing of the Merger Agreement or the relationship between Vin tage and Rent

- A

- Center, a lthough it certainly has implications for the Merger

. The Merger Agreement requires a writing to work a n extension or waiver, and that requirement implies an explicit, not implicit, release of such rights. 200 Furthermore, even implicit reference s to obligations or agreements

197 Id. 198 I us e “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. , Simo n - Mills II, LLC v. Kan Am USA XVI Ltd. P’ship , 2017 WL 1191061, at *34 (Del. Ch. Mar. 30, 2017) (“The standa rd for demonstrating waiver is ‘quite exacting;’ because waiver is redolent of forfeiture, ‘the facts relied upon to demonstrate waiver must be uneq uivocal.’”) (quoting Amirsaleh v. Bd. of Trade of City of N.Y., Inc. , 27 A.3d 522, 529 (Del. 2011)).47 relate d to Section 8.01(b)(i) are lacking in t he 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 a ccept, as do the parties, that the Joint Timing Agreemen t functions to push the anticipat ed time of closing into 2019. T he Joint Timing Agreement , however, is not the equivalent o f 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 o f 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 t o terminate the Merger Agreement post

- End Date.
4. The Notice Requirement in Section 8.01(b)(i) Was Not Otherwise Satisfied The Plaintiff s 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 a n assumption for “Transa ction Close” of January 31, 2019 tha t 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 t he financial model would be sent to Kahn. The Plaintiffs48 contend tha t when O’Rourke sen t 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 wi th Section 9.02, because Kahn was one of the designated recipient s 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’ argument s 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 extend ing 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 M erger Agreement, a party does not have the right to
te rminate under Section 8.01(b)(i) if that party has breach ed the M erger A greement and its breach “cause[d] the failure of the Closing to be consummated by the End
Date.” 202 The Plainti ffs argue tha t t he 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 comme rcially reasonable efforts to help Vintage achieve financing for the Merger. See generally JX 272 § 6.11. 202 Id. § 8.01(b)(i).49 reasonable efforts to consummate the M erger , 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 Defend ant did not tell them that the Rent

- A

- Center Board had resolved to terminate the M erger if it did not receive a written notice electing to extend the M erger A greement. The Plaintiffs not only allege a failure to disclose in this regard , but also claim tha t the Defendant took affirmative action to conceal, wh i ch they contend conflict s with Rent

- A

- Center’s obligation to use commercially reasonable efforts. The Plaintiffs argue that Rent

- A

- Center’s effor ts 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 sug gest 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

ex ten d, and sent the required written notice

. In support of their argument, the Plaintiffs compare their situation to those in Williams Co mpanie s. v. Energy Transfer Equity, L.P. 203 and Hexion Specialty Chem ical s., Inc. v. Huntsman Corp

. 204

203 159 A.3d 264 (Del. 2017). 204 965 A.2d 715 (Del. Ch. 2008).50 In both Williams and Hexion , a party to a merger agre ement was o bligated 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 opi nion by the defendant’s counsel; the Supreme Cou rt 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 p laintiff’s] counsel, failed itself to negotiate the issue directly with [th e p laintiff], 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 eff orts when it developed concerns about the solvency of the combined entity, but instead declined to share those concerns. 965 A.2d at 755

– 756; s ee also Williams , 159 A.3d at 272 (discussing Hexion ). 207 Williams , 159 A.3d at 27 2 (discussing Hexion ). 208 Id. at 273.51 acted entirely in the corporate interest, anticipating the stroke of midnight, when
Rent

- A

- Center’s termination right would ri pen 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 ef forts 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 t o 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 no t 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 Me rger Agreement

. Under Delaware Law, p arties 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).52 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 rec ord fails to demonstrate that the Defendant had such knowle d ge . 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, testim ony 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 t he Defendant’s behavior was nonetheless fraudulent or deceptive, and that this is therefore evidenc e 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 . T o the extent that precedent provides guidance here , I find helpful the analysis of “reasonable b est 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 w ith 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 litigati on.” 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 Argumen t 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).53 working under a mistaken understanding. 213 T he 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 o ffer 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

. I n 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 be en 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 the ir 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 Vi ntage . Per the Plaintiffs, the white paper is evidence of R ent

- 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 21.54 P rior to submitting the white paper, I note , Rent

- A

- Center’s counsel informed Vintage that th e white paper’s comment on declining op erational 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 supposedl y 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 confide ntial. 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).55 told t he 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 con tract ual opportunity

— it could have upset its merger partner and complicated their relationship going forward , as Rent

- A

- Center would have been b ound to continue working toward a close if Vintage extended the End Date as expected . Addi tionally, sharing the deci sion

— 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 effor ts

. 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 Vintag e’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.56 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 c ommercially 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 commerci ally reasonabl e 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 Mer ger 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 contractu al interpretation, I should refrain from writing a provision into a contract when the partie s 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 C ourt 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 co nsummated subsequently acquired information that the speaker knows will make untrue or misleading a previous representa tion 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 th e End Date. 220 See JX 272 §§ 5.03(d)(ii), 8.01(d), 8.01(c). 221 See Allied Cap. Corp. v . GC

- Sun Hld gs . , 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.” )

.57 consider imposing an advance notice provision , because commercially reasonable effort s under these circumstances do not require it. The Plaintiffs a rgue that Rent

A

- Center’s app arent enthus iasm for the merger misle d Vintage about Rent

- A

Center’s decision to terminate if possible, and that had Vintage know n the truth, it might have informed itself of its contractual rights, and given notice of an election to extend. Commercially reasonable eff orts 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. F or 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 Plai ntiffs have not shown, or even argued, that if Rent

- A

- Center had displayed only the bare minimum “commercia lly 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 Merg er 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).58 Center was , I find, using co mmercially reasonable efforts. Even had the Plaintiffs demonstrat ed 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 brea ch of the commercially reasonable efforts provision. If Rent

- A

- Center had not entered into the Joint Timing Agreement, participated in meeting s with Vintage , and shared financial information , it would have, by such in actions , presumably breached the

comme rcially reasonable efforts clause s of the Merger Agreement. A party’s obligation to use commercially reasona ble efforts must be cabined by its bargained

for contractual rights. 224 If an agreement to use commercially reasonable efforts t o comply with obliga tions in a contract means that a party cannot exercise its bargained

- for r ight to terminate that contract , that barga ined

- for right would be illusory

. The Plaintiffs have argued that the Defendant’s actions after the December

224 This Court expressed a similar sentime nt 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 commi tting 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, establ ished conditions to the parties’ per formance, 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).59 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 r ecognized, “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 Furthermor e, 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 deali ng should be applied here to prevent the Defendant from exercising its termination right under Section 8.01(b)(i) , bec ause 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 281900 5, 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 47.60 per s e. 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. R ent

- A

- Center Is Not Estopped From Exercising Its Right to Terminate The Plaintiffs argue, and seek declaratory judgment, that t he Defendant is estopped in equity from exercising its right to terminate under Sectio n 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. Rel ated WMC LLC : When used with the implied covenant, the term “good faith” contemplates

“ faithfulness to the scope, pu rpose, and terms of the parties’ contract
. ” . . . The concept of “fair dealing” similarly refers to “a commitment to deal ‘fairly’ in the s ense of consistently with the terms of the part ies' 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 an d 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), overr uled in part on other gr ounds by Winshall v. Viacom Int’ l, Inc. , 76 A.3d 808 (Del. 2013) ).61 law, and could thus save a contract terminated under an explicit contractual right

. 232
B ecause I find no grounds for estoppel, I need not reach that issue.
1. Equitable Estoppel T he Plaintiffs claim that e quitable 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 ch ange 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 i n question; (ii) they reasonably relied on the conduct of the party aga inst whom estoppel is claimed; and (iii) they suffered a prejudicial change of position as a result of their reliance. ” 235 This Court does not lightl y turn to equitable estoppel to enforce contract rights w hich 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 case s 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).62 The Plaintiffs claim that they had no reason to doubt the impression they

r eceived 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’ a rgument for equitable estoppel suffers from the same flaw as their contractual arguments: an agreement to extend the time of closing into 2019 is not agr eement to extend the End Date. Fatal to the Plaintiffs’ equitable estoppel claim, though, is the Plain tiffs’ 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 th e Joint Timing Agreeme nt and other conduct between the parties. However, what Rent

- A

Center believed about the End Date would have been immaterial had Vintage merely exercised it s contractual right and sent a written notice explicitly extend ing the End
Date. Vintage negotiate d for this right, and was constructively aware of it. Therefore, t he Plaintiffs cannot have reasonably relied on the demeanor of Rent

- A

Center ’ s principals. Nor did they change positions based on any reliance. A gain, Vintage did not make a decision that it need not send notice of election to extend63 before the End Date base d 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 Agree ment and act accordingly is another version of the misplaced duty to warn.
2. Quasi

- Estoppel Q uasi

- 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 accept ed a benefit.” 238 Reliance is not required for quasi

- estoppel to apply. 239 However, t he Plaintiffs ’ argument f or quasi

- estoppel is unavailing because t he Defendant ’ s position is consistent with its position prior to the extension of the expected time of clos ing . 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 closi ng would be impossible in 2018 , such efforts included working toward a closing at som e 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).64 opportunity to exercise its contractual terminatio n 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 t he 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. The y also argue th a t 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 . Howeve r, 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 o bvious that contracting
pa rties 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 o riginal 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 gr ounds by Winshall v. Viacom Int’ l, Inc. , 76 A.3d 808 (Del. 2013) ).65 fairness.’” 241 “ Only when it is clear from th e writin g 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 imp lied covenant, I am dubious whether the parties meant for a reverse break up 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 busines s 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
gam esmanship in Vintage’s actions

— it simply forgot to exe rcise 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 reve rse 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)).66 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. CO NCLUSION 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 pract ice. However, t he 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 p ursuant 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.