Exhibit 2.4
LIMITED
GUARANTEE
LIMITED GUARANTEE , dated as of July 22, 2009 (this “
Limited Guarantee ”), by BEN Holdings, Inc., a
Delaware corporation (the “ Guarantor ”) in
favor of Bankrate, Inc., a Florida corporation (the “
Guaranteed Party ”).
Reference is hereby made to that certain Agreement and Plan of
Merger, dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the “
Merger Agreement ”) by and among the Guarantor, BEN
Merger Sub, Inc., a Florida corporation and wholly-owned subsidiary
of the Guarantor (“ Merger Sub ”), and the
Guaranteed Party, pursuant to which Merger Sub has agreed to (i)
commence a tender offer for all of the outstanding Shares (the
“ Offer ”) and (ii) if the Offer is completed on
the terms and subject to the conditions set forth in the Merger
Agreement, merge with and into the Guaranteed Party (the “
Merger ”), with the Guaranteed Party surviving the
Merger as a wholly-owned subsidiary of the Guarantor. Capitalized
terms used but not defined herein shall have the meaning ascribed
to them in the Merger Agreement.
1. GUARANTEE
.
To induce the Guaranteed Party to enter into the Merger Agreement,
the Guarantor, intending to be legally bound, hereby absolutely,
irrevocably and unconditionally, guarantees to the Guaranteed
Party, but only up to the Cap (as defined below), the due and
punctual observance, performance and/or discharge of payment when
due or required of (i) the Parent Termination Fee pursuant to
Section 8.3(c) of the Merger Agreement, (ii) the Guarantor’s
obligation to pay damages subject to the Parent Liability Cap in
Section 8.3(f) of the Merger Agreement, or (iii) Guarantor’s
and Merger Sub’s obligations pursuant to Section 9.5 of the
Merger Agreement to perform specifically the terms and provisions
of the Merger Agreement, in each case, solely to the extent such
Parent Termination Fee, damages or specific performance, as the
case may be, are found in a final judicial determination (or a
settlement tantamount thereto), to be due and payable or to be
required, as applicable, pursuant to the terms and conditions of
the Merger Agreement (as so found, the “ Obligations
”); provided that in no event shall the
Guarantor’s aggregate liability under this Limited Guarantee
exceed $570,800,000 (the “ Cap ”), it being
understood that in no event shall this Limited Guarantee be
enforced without giving effect to the Cap. All payments hereunder
shall be made in lawful money of the United States, in immediately
available funds. Subject to the Cap, the Guarantor promises and
undertakes to make all payments hereunder free and clear of any
deduction, offset, defense, claim or counterclaim of any kind
(other than defenses to the payment of the Obligations that are
available to the Guarantor or Merger Sub under the Merger
Agreement).
Upon tender of the Parent Termination Fee pursuant to Section
8.3(c) of the Merger Agreement no member of the Parent Group shall
have any further liability or obligation relating to or arising out
of this Limited Guarantee, the Merger Agreement, the equity
commitment letter dated the date hereof among the Funds, the
Guarantor and the Guaranteed Party (the “ Equity
Commitment Letter ”) or otherwise. In the event of breach
by either the Guarantor or Merger Sub of its representations and
warranties or covenants under the Merger Agreement, the Guaranteed
Party shall be entitled to seek damages (which the parties
acknowledge and agree shall not be limited to reimbursement of
expenses or out-of-pocket costs, and may include, subject to the
Cap and to the extent proven, the benefit of the bargain lost by a
party or a party’s shareholders (taking into consideration
all relevant matters, including other combination
opportunities and the time value of money
subject to all of the terms, conditions and limitations set forth
herein)), and provided, that in any event the maximum aggregate
liability of the Guarantor and Merger Sub under this Limited
Guarantee, the Merger Agreement and the Equity Commitment Letter
shall not exceed the Cap.
If the Guarantor or Merger Sub is in breach of its Obligations,
then the Guaranteed Party may at any time and from time to time, at
the Guaranteed Party’s option, and so long as the Guarantor
or Merger Sub remains in breach of its Obligations, take any and
all actions available hereunder or under applicable Law to collect
on the Guarantor’s liabilities hereunder in respect of such
Obligations subject to the Cap; provided , that the
Guaranteed Party acknowledges that the Guarantor’s liability
hereunder and under the Merger Agreement is subject to the Cap.
Subject to and in furtherance of the foregoing, the Guarantor
acknowledges that the Guaranteed Party may, in its sole discretion,
bring and prosecute a separate action or actions against the
Guarantor for the full amount of the Obligations (subject to the
Cap).
2. CHANGES IN OBLIGATIONS, CERTAIN
WAIVERS .
(a) The Guarantor agrees that the
obligations of the Guarantor hereunder shall not be released or
discharged, in whole or in part, or otherwise affected by (i) the
failure or delay on the part of the Guaranteed Party to assert any
claim or demand or to enforce any right or remedy against the
Guarantor or Merger Sub; (ii) any change in the time, place or
manner of payment of any of the Obligations or any rescission,
waiver, compromise, consolidation or other amendment or
modification of any of the terms or provisions of the Merger
Agreement made in accordance with the terms thereof or any
agreement evidencing, securing or otherwise executed in connection
with any of the Obligations; (iii) the addition, substitution or
release of any entity or other Person interested in the
transactions contemplated by the Merger Agreement; (iv) any change
in the corporate existence, structure or ownership of the
Guarantor, Merger Sub or any other Person interested in the
transactions contemplated by the Merger Agreement; (v) any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Guarantor, Merger Sub or any other Person interested
in the transactions contemplated by the Merger Agreement; (vi) the
existence of any claim, set-off or other right which the Guarantor
may have at any time against Merger Sub or the Guaranteed Party,
whether in connection with the Obligations or otherwise (other than
defenses to the payment of the Obligations that are available to
the Guarantor or Merger Sub under the Merger Agreement or Limited
Guarantee); or (vii) the adequacy of any means the Guaranteed Party
may have of obtaining payment related to the Obligations. The
Guarantor waives promptness, diligence, notice of the acceptance of
this Limited Guarantee and of the Obligations, presentment, demand
for payment, notice of non-performance, default, dishonor and
protest, notice of any Obligations incurred and all other notices
of any kind (other than notices expressly required to be provided
to the Guarantor or Merger Sub pursuant to the Merger Agreement),
all defenses which may be available by virtue of any valuation,
stay, moratorium Law or other similar Law now or hereafter in
effect, any right to require the marshalling of assets of the
Guarantor or Merger Sub or any other Person interested in the
transactions contemplated by the Merger Agreement, and all
suretyship defenses generally, other than defenses that are
available to the Guarantor and Merger Sub (a) under the Merger
Agreement, (b) in respect of a breach by the Guaranteed Party of
this Limited Guarantee, and (c) in respect of fraud or willful
misconduct of the Guaranteed Party or any of its Affiliates in
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connection with the Merger Agreement or
the transactions contemplated thereby. The Guarantor acknowledges
that they will receive substantial direct and indirect benefits
from the transactions contemplated by the Merger Agreement and that
the waivers set forth in this Limited Guarantee are knowingly made
in contemplation of such benefits.
(b) The Guaranteed Party hereby
covenants and agrees that it shall not institute, and shall cause
its respective Affiliates not to institute, any proceeding or bring
any other claim arising under, or in connection with, the Merger
Agreement or the transactions contemplated thereby or otherwise
relating thereto (including under the Equity Commitment Letter)
against (i) any of the former, current and future equity holders,
controlling persons, directors, officers, employees, agents,
Affiliates, members, managers, general or limited partners or
assignees of the Guarantor, (ii) Merger Sub, (iii) the Funds, (iv)
any member of the Parent Group, or (v) any former, current or
future stockholder, controlling person, director, officer,
employee, general or limited partner, member, manager, Affiliate,
agent or assignee of any of the foregoing (those persons and
entities described in any of the foregoing clauses, each being
referred to as a “ Non-Recourse Party ”), except
for claims against the Guarantor under this Limited Guarantee,
against the Funds with respect to the right of the Guaranteed Party
to enforce payment to Parent under the Equity Commitment Letter or
against the Guarantor or Merger Sub under the Merger Agreement. The
Guarantor hereby covenants and agrees that it shall not institute,
and shall cause its Affiliates not to institute, any proceeding
asserting that this Limited Guarantee or any portion thereof is
illegal, invalid or unenforceable in accordanc
