Common use of The Merger Agreement Clause in Contracts

The Merger Agreement. The following summary of the material provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified in their entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit (d)(1) to the Schedule TO and is incorporated herein by reference. For a complete understanding of the Merger Agreement, you are encouraged to read the full text of the Merger Agreement. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 8 – “Certain Information Concerning Parent, Purchaser and Certain Related Persons.” Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The summary description has been included in this Offer to Purchase to provide you with information regarding the terms of the Merger Agreement and is not intended to modify or supplement any rights or obligations of the parties under the Merger Agreement or any factual information about Parent, Purchaser or the Company or the transactions contemplated in the Merger Agreement contained in public reports filed by Parent or the Company Table of Contents with the SEC. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement has been filed as an exhibit to the Current Report on Form 8-K filed by the Company with the SEC on January 22, 2018. The Merger Agreement and the summary of its terms contained in the Current Report on Form 8-K filed by the Company with the SEC on January 22, 2018, are incorporated herein by reference as required by applicable SEC regulations and solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants, which were made only for the purposes of such agreement and as of specific dates, were made solely for the benefit of the parties to the Merger Agreement (and, in the case of certain covenants relating to indemnification of directors and officers, for the benefit of directors and officers of the Company designated as third-party beneficiaries), and are intended not as statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate. In addition, such representations, warranties and covenants may have been qualified by certain disclosures in confidential disclosure schedules delivered by the Company to Parent and Purchaser in connection with the signing of the Merger Agreement, and may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. The holders of Shares and other investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company, Parent, Purchaser or any of their respective subsidiaries or affiliates. Accordingly, the representations and warranties contained in the Merger Agreement and summarized in this Section 11 should not be relied on by any persons as characterizations of the actual state of facts and circumstances of the Company at the time they were made and the information in the Merger Agreement should be considered in conjunction with the entirety of the factual disclosure about the Company in the Company’s public reports filed with the SEC. Information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Offer, the Merger, the Company, Parent, Purchaser, their respective affiliates and their respective businesses that are contained in, or incorporated by reference into, the Tender Offer Statement on Schedule TO and related exhibits, including this Offer to Purchase, and the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on February 7, 2018, as well as in the Company’s other public filings.

The Merger Agreement. The following summary of the material provisions description of the Merger Agreement does not purport to be complete and all other provisions of the Merger Agreement discussed herein are is qualified in their its entirety by reference to the Merger Agreement, a copy of which we have Table of Contents included as an exhibit to the Schedule TO, which Stockholders may examine and copy. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The summary description has been included in this Offer to Purchase to provide Stockholders with information regarding the terms of the Merger Agreement. The Merger Agreement is not intended to modify or supplement any factual disclosures about OPAY or ACI in OPAY’s or ACI’s public reports filed with the SEC. In particular, the Merger Agreement and this summary of terms are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to OPAY or ACI without taking into consideration the entirety of public disclosure by XXXX as set forth in its public disclosures. The representations and warranties have been negotiated with the principal purpose of establishing the circumstances in which we may have the right not to consummate the Offer, or a party may have the right to terminate the Merger Agreement, if the representations, warranties and covenants of the other party prove to be untrue due to a change in circumstance or otherwise or covenants are breached, and allocate risk between the parties, rather than establish matters as facts. The representations and warranties may also be subject to a contractual standard of materiality different from those generally applicable to Stockholders. The Merger Agreement is filed as Exhibit (d)(1) to the Schedule TO and is incorporated herein by reference. For a complete understanding of the Merger Agreement, you are encouraged to read the full text of the Merger AgreementThe Offer. The Merger Agreement may be examined and copies may be obtained at provides that we must commence the places and in the manner set forth in Section 8 – “Certain Information Concerning Parent, Purchaser and Certain Related Persons.” Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The summary description has been included in this Offer to Purchase to provide you with information regarding the terms of the Merger Agreement and is not intended to modify or supplement any rights or obligations of the parties under the Merger Agreement or any factual information about Parent, Purchaser or the Company or the transactions contemplated in the Merger Agreement contained in public reports filed by Parent or the Company Table of Contents with the SEC. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement has been filed as an exhibit to the Current Report on Form 8-K filed by the Company with the SEC on January 22, 2018. The Merger Agreement and the summary of its terms contained in the Current Report on Form 8-K filed by the Company with the SEC on January 22, 2018, are incorporated herein by reference promptly as required by applicable SEC regulations and solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants, which were made only for the purposes of such agreement and as of specific dates, were made solely for the benefit of the parties to the Merger Agreement (and, in the case of certain covenants relating to indemnification of directors and officers, for the benefit of directors and officers of the Company designated as third-party beneficiaries), and are intended not as statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate. In addition, such representations, warranties and covenants may have been qualified by certain disclosures in confidential disclosure schedules delivered by the Company to Parent and Purchaser in connection with the signing of the Merger Agreement, and may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. The holders of Shares and other investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company, Parent, Purchaser or any of their respective subsidiaries or affiliates. Accordingly, the representations and warranties contained in the Merger Agreement and summarized in this Section 11 should not be relied on by any persons as characterizations of the actual state of facts and circumstances of the Company at the time they were made and the information in the Merger Agreement should be considered in conjunction with the entirety of the factual disclosure about the Company in the Company’s public reports filed with the SEC. Information concerning the subject matter of the representations and warranties may change practicable after the date of the Merger AgreementAgreement (but in no event later than October 4, which subsequent information 2013 or such other date as may or be agreed to by OPAY and ACI). Our obligation to accept for payment and pay for Shares tendered pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the satisfaction of the other conditions set forth in Section 14—“Conditions of the Offer.” We may not be fully reflected in waive certain of the Company’s public disclosuresconditions to the Offer without the consent of OPAY. We may not, however, waive the Minimum Condition without the consent of OPAY. The Merger Agreement should not be read aloneprovides that each Stockholder who tenders Shares in the Offer will receive $8.35 for each Share tendered in cash, but should instead be read in conjunction with less any applicable withholding taxes. We have agreed that, without the other information regarding prior written consent of OPAY, we will not: • decrease the Offer Price or change the form of consideration payable pursuant to the Offer, ; • reduce the Merger, the Company, Parent, Purchaser, their respective affiliates and their respective businesses that are contained in, or incorporated by reference into, the Tender Offer Statement on Schedule TO and related exhibits, including this Offer maximum number of Shares to Purchase, and the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on February 7, 2018, as well as be purchased in the Company’s Offer; • impose conditions to the Offer in addition to those set forth in Section 14—“Conditions of the Offer”; • modify or change any condition to the Offer in a manner adverse to the Stockholders; • waive or change the Minimum Condition; or • amend any other public filingsterm of the Offer in a manner adverse to the Stockholders.

The Merger Agreement. The following is a summary of the material certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified in their entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit (d)(1) to the Schedule TO and is incorporated herein by reference. For a complete understanding of the Merger Agreement, you are encouraged to read the full text of the Merger Agreement. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 8 – “Certain Information Concerning Parent, Purchaser and Certain Related Persons.” Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The This summary description has been included in this Offer to Purchase to provide you with information regarding the terms of the Merger Agreement has been included to provide stockholders with information about its terms. It is not intended to provide any other factual disclosures about Purchaser, Parent, Carbon Black or their respective affiliates, and it is not intended to modify or supplement any rights or obligations of the parties under the Merger Agreement or any factual information disclosures about Parent, Purchaser or the Company Carbon Black or the transactions contemplated in by the Merger Agreement contained in public reports filed by Parent or the Company Table of Contents Carbon Black with the SEC. Such information can This summary does not purport to be found elsewhere complete and is qualified in this Offer its entirety by reference to Purchase. The the full text of the Merger Agreement has been Agreement, a copy of which is filed as an exhibit Exhibit (d)(1) to the Current Report on Form 8-K filed Schedule TO, which is incorporated herein by reference. Copies of the Company with the SEC on January 22, 2018. The Merger Agreement and the summary Schedule TO, and any other filings we make with the SEC with respect to the Offer or the Merger, may be obtained in the manner set forth in Section 8 “Certain Information Concerning Purchaser and Parent.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of its the provisions summarized below. Capitalized terms used in this section and not otherwise defined have the respective meanings set forth in the Merger Agreement. The assertions embodied in the representations and warranties contained in the Current Report on Form 8-K filed by the Company with the SEC on January 22, 2018, are incorporated herein by reference as required by applicable SEC regulations and solely to inform investors of its terms. The Merger Agreement contains representationsare qualified by information included in a confidential disclosure letter delivered by Carbon Black to Purchaser and Parent in connection with signing the Merger Agreement (the “Disclosure Letter”). Moreover, certain representations and warranties and covenants, which in the Merger Agreement were made only as of a specified date, may be subject to a contractual standard of materiality different from what might be viewed as material to stockholders, or may have been used for the purposes purpose of such agreement and as of specific dates, were made solely for the benefit of allocating risk between the parties to the Merger Agreement (and, in the case of certain covenants relating to indemnification of directors and officers, for the benefit of directors and officers of the Company designated as third-party beneficiaries), and are intended not as statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate. In addition, such representations, warranties and covenants may have been qualified by certain disclosures in confidential disclosure schedules delivered by the Company to Parent and Purchaser in connection with the signing of the Merger Agreement, and may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. The holders of Shares and other investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company, Parent, Purchaser or any of their respective subsidiaries or affiliates. Accordingly, the Table of Contents representations and warranties contained in the Merger Agreement and summarized in this Section 11 should not be relied on by any persons as characterizations of the actual state of facts and circumstances of the Company Carbon Black at the time they were made and the information in the Merger Agreement should be considered in conjunction with the entirety of the factual disclosure about the Company Carbon Black in the Company’s its public reports filed with the SEC. Information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the CompanyCarbon Black’s public disclosures. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Offer, the Merger, the CompanyCarbon Black, Purchaser, Parent, Purchaser, their respective affiliates and their respective businesses that are is contained in, or incorporated by reference into, in the Tender Offer Statement on Schedule TO and related exhibits, including this Offer to Purchase, and the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 filed by Carbon Black with the Company SEC on February 7September 6, 20182019, as well as in the CompanyCarbon Black’s other public filings. The Merger Agreement provides that Purchaser will commence the Offer on or before September 6, 2019, and that, subject to the satisfaction or waiver of the Minimum Condition and the other conditions that are described in Section 15—“Conditions of the Offer,” Purchaser will, and Parent will cause Purchaser to, irrevocably accept for payment all Shares validly tendered and not properly withdrawn at or as promptly as practicable following the Expiration Time of the Offer, and pay for all such Shares at or promptly (and in any event within three business days) following such Acceptance Time. The initial Expiration Time of the Offer will be midnight, New York City time, at the end of the day on Thursday, October 3, 2019.

The Merger Agreement. ‌ The following summary of the section summarizes material provisions of the Merger Agreement merger agreement and all other provisions of the Merger Agreement discussed herein are is qualified in their its entirety by reference to the Merger Agreementmerger agreement, a copy of which is filed included in this proxy statement as Exhibit (d)(1) to Annex A. The rights and obligations of Bank are governed by the Schedule TO express terms and is incorporated herein by reference. For a complete understanding conditions of the Merger Agreement, you merger agreement and not by this summary or any other information contained in this proxy statement. Bank’s shareholders are encouraged urged to read the full text merger agreement carefully and in its entirety—as well as this proxy statement—before making any decisions regarding the merger, including the approval and adoption of the Merger Agreementmerger agreement and the transactions contemplated by the merger agreement, including the merger. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 8 – “Certain Information Concerning Parent, Purchaser and Certain Related Persons.” Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The summary description has been merger agreement is included in this Offer to Purchase proxy statement to provide you with information regarding the its terms of the Merger Agreement and is not intended to modify or supplement any rights or obligations of the parties under the Merger Agreement or provide any factual information about Parent, Purchaser or the Company or the transactions contemplated in the Merger Agreement contained in public reports filed by Parent or the Company Table of Contents with the SEC. Such information can be found elsewhere in this Offer to PurchaseBank. The Merger Agreement has been filed as an exhibit merger agreement contains representations and warranties by each of the parties to the Current Report on Form 8-K filed by the Company with the SEC on January 22, 2018merger agreement. The Merger Agreement These representations and the summary of its terms contained in the Current Report on Form 8-K filed by the Company with the SEC on January 22, 2018, are incorporated herein by reference as required by applicable SEC regulations and solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants, which were made only for the purposes of such agreement and as of specific dates, were have been made solely for the benefit of the other parties to the Merger Agreement (merger agreement and, in the case of certain covenants relating to indemnification of directors and officers, for the benefit of directors and officers of the Company designated as third-party beneficiaries), and : • are not necessarily intended not as statements of fact, but rather as a way of allocating the risk to one of between the parties if those in the event that the statements therein prove to be inaccurate. In addition, such representations, warranties and covenants may ; • have been qualified by certain disclosures in confidential disclosure schedules delivered by that were made between the Company to Parent and Purchaser parties in connection with the signing negotiation of the Merger Agreementmerger agreement, which disclosures are not reflected in the merger agreement; and • may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. The holders of Shares and other investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company, Parent, Purchaser or any of their respective subsidiaries or affiliatesyou. Accordingly, the representations and warranties contained in the Merger Agreement and summarized in this Section 11 should not be relied on by any persons as characterizations other provisions of the actual state of facts and circumstances of the Company at the time they were made and the information in the Merger Agreement should be considered in conjunction with the entirety of the factual disclosure about the Company in the Company’s public reports filed with the SEC. Information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Merger Agreement merger agreement should not be read alone, but instead should instead be read in conjunction together with the other information regarding the Offer, provided elsewhere in this proxy statement. Terms of the Merger; Merger Consideration‌ The merger agreement provides that, on the Companyterms and subject to the conditions set forth in the merger agreement, at the effective time of the merger, Interim Bank will merge with and into Bank, with Bank continuing as the surviving bank in the merger and a direct wholly-owned subsidiary of Parent Bank. At the effective time of the merger, each outstanding share of Bank common stock, other than shares for which dissenters’ rights held by Bank shareholders have been perfected, will be automatically converted into the right to receive the Per Share Merger Consideration. Immediately after the merger, Bank will merge with and into Parent Bank, with Parent Bank continuing as the surviving bank in the bank merger. Completion of the Merger‌ The parties will complete the transactions contemplated by the merger agreement when all of the conditions to the completion of the transactions, as provided in the merger agreement, are satisfied or waived. The merger will become effective at the date and time the parties file the certificate of merger with the Texas Secretary of State or at such subsequent time as agreed to in writing by Parent, Purchaser, their respective affiliates Parent Bank and their respective businesses that are contained in, or incorporated by reference into, Bank and specified in the Tender Offer Statement on Schedule TO and related exhibits, including this Offer certificate of merger. Bank currently expects the closing of the merger to Purchase, and occur in the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on February 7, third calendar quarter of 2018. However, as well as the merger is subject to the satisfaction or waiver of other conditions described in the Company’s other public filingsmerger agreement, it is possible that factors outside the control of Bank could result in the merger being completed at an earlier time, a later time or not at all.

The Merger Agreement. The following summary of the material provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are qualified in their entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit (d)(1) to the Schedule TO and is incorporated herein by reference. For a complete understanding of the Merger Agreement, you are encouraged to read the full text of the Merger Agreement. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in Section 8 – 7 — “Certain Information Concerning Parent, Purchaser and Certain Related Personsthe Company.” Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement. The summary description has been included in this Offer to Purchase to provide you with information regarding the terms of the Merger Agreement and is not intended to modify or supplement any rights or obligations of the parties under the Merger Agreement or any factual information about Parent, Purchaser or the Company or the transactions contemplated in the Merger Agreement contained in public reports filed by Parent or the Company Table of Contents with the SEC. Such information can be found elsewhere in this Offer to Purchase. The Merger Agreement has been filed as an exhibit to the Current Report on Form 8-K filed by the Company with the SEC on January 22December 9, 20182019. The Merger Agreement and the summary of its terms contained in the Current Report on Form 8-K filed by the Company with the SEC on January 22December 9, 20182019, are incorporated herein by reference as required by applicable SEC regulations and solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants, which were made only for the purposes of such agreement and as of specific dates, were made solely for the benefit of the parties to the Merger Agreement (and, in the case of certain covenants relating to indemnification of directors and officers, for the benefit of directors and officers of the Company designated as third-party beneficiaries), and are intended not as statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate. In addition, such representations, warranties and covenants may have been qualified by certain disclosures in confidential disclosure schedules delivered by the Company to Parent and Purchaser in connection with the signing of the Merger Agreement, and may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. The holders of Shares and other investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or conditions of the Company, Parent, Purchaser or any of their respective subsidiaries or affiliates. Accordingly, the representations and warranties contained in the Merger Agreement and summarized in this Section 11 should not be relied on by any persons as characterizations of the actual state of facts and circumstances of the Company at the time they were made and the information in the Merger Agreement should be considered in conjunction with the entirety of the factual disclosure about the Company in the Company’s public reports filed with the SEC. Information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Offer, the Merger, the Company, Parent, Purchaser, their respective affiliates and their respective businesses that are contained in, or incorporated by reference into, the Tender Offer Statement on Schedule TO and related exhibits, including this Offer to Purchase, and the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on February 7December 23, 20182019, as well as in the Company’s other public filings.