CASH 2018 Special Proxy Statement

• approve or recommend, or propose to approve or recommend, any acquisition proposal; or • enter into any letter of intent, or other agreement related to any acquisition transaction (other than a confidentiality agreement entered into in accordance with the non-solicitation provisions of the merger agreement) or requiring Crestmark to abandon, terminate or fail to consummate the merger or any other transaction contemplated by the merger agreement; unless, the Crestmark board determines that an unsolicited acquisition proposal that Crestmark received (that did not result from a breach of the non-solicitation provisions of the merger agreement) constitutes a superior proposal, but only if it so determines in good faith, after consultation with outside legal counsel and its financial advisor, and it is reasonably necessary to do so in order to comply with its fiduciary duties to the Crestmark shareholders under applicable law. In the event that the Crestmark board makes this determination, Crestmark must provide five business days’ prior written notice to Meta that its board has made such determination. During the five business days after Meta’s receipt of such notice, Crestmark and its board must cooperate and negotiate in good faith with Meta to make any adjustments, modifications or amendments to the terms and conditions of the merger agreement as Meta may elect to propose that would enable Crestmark to proceed with its board’s original recommendation with respect to the merger agreement. At the end of the five business day period, and after taking into account any such adjusted, modified or amended terms as may have been proposed by Meta during that period, the Crestmark board must again determine: • in good faith, after consultation with outside legal counsel, whether it is reasonably necessary to withdraw, qualify, amend or modify its recommendation with respect to the merger agreement to comply with its fiduciary duties to its stockholders under applicable law; and • whether the acquisition proposal is a superior proposal. In the event of any material revisions to the superior proposal, Crestmark must provide a new notice of such superior proposal to Meta. During the three business day period following receipt of such new written notice, Crestmark and its board must cooperate and negotiate in good faith with Meta to make any adjustments, modifications or amendments to the terms and conditions of the merger agreement as would enable Crestmark to proceed with its board’s original recommendation with respect to the merger agreement without requiring Crestmark to withdraw, qualify, amend or modify its board’s recommendation with respect to the merger agreement, provided that Meta does not have any obligation to propose any such modifications, amendments or adjustments to the merger agreement. Crestmark is obligated to submit the merger agreement to its shareholders for a vote to approve the merger agreement and the merger, with a recommendation to approve it; provided, however, in the event the Crestmark board has determined there is a superior proposal as described above, the Crestmark board may recommend such superior proposal and submit the merger agreement without recommendation, along with the basis for such recommendation and lack thereof. Under certain circumstances, including if the merger agreement is terminated in the event Crestmark breaches certain obligations described above, Crestmark must pay Meta a fee equal to $10.0 million. See “—Termination of the Merger Agreement.” Other Agreements In addition to the agreements described above, the parties to the merger agreement have agreed to take several other actions, including: • to use commercially reasonable efforts to consummate the merger and the other transactions contemplated by the merger agreement; • to convene a special meeting of Meta stockholders within 45 days from the date the registration statement, of which this joint proxy statement/prospectus is a part, becomes effective to consider and 82