CASH 2018 Special Proxy Statement

that Crestmark shareholders approve the merger and the merger agreement, (3) recommends, proposes or publicly announces its intention to recommend or propose to engage in an acquisition transaction with any person other than Meta, (4) fails to convene the Crestmark special meeting, (5) fails to publicly recommend against an alternative acquisition proposal within five business days after being asked to do so by Meta, or (6) fails to publicly reconfirm its recommendation that Crestmark shareholders approve the merger or the merger agreement within five business days after being asked to do so by Meta; or • Crestmark, if the board of directors of Meta materially breaches its obligations to call, give notice of and commence the Meta special meeting. If the merger agreement is terminated, it will become void and have no effect and the parties will be relieved of all obligations and liabilities, except that (i) certain specified provisions of the merger agreement will survive and (ii) if the merger agreement is terminated because of a material breach of a representation, warranty, covenant or agreement, the breaching party will not be relieved of liability for any breach giving rise to the termination; provided, however, if either party is required by the terms of the merger agreement, and does pay, the termination fee described below, then such party will have no further obligations under the merger agreement. Crestmark will be required to pay a termination fee to Meta equal to $10.0 million, in the following circumstances: • Meta terminates the merger agreement because Crestmark (1) materially breaches its non-solicitation obligations provided in the merger agreement, subject to a five-day cure period, (2) fails to recommend, or withdraws its previous recommendation, that Crestmark shareholders approve the merger and the merger agreement, (3) recommends, proposes or publicly announces its intention to recommend or propose to engage in an acquisition transaction with any person other than Meta, (4) materially breaches its obligations to convene the Crestmark special meeting, subject to a 5-day cure period, or (5) fails to publicly reconfirm its recommendation that Crestmark shareholders approve the merger or the merger agreement after being asked to do so by Meta; or • in the event that (1) a third party acquisition proposal had been made known to Crestmark or made directly to its shareholders and not withdrawn, and thereafter the merger agreement is terminated (x) by either party because the Crestmark shareholders fail to approve the merger agreement or because the merger is not consummated by June 30, 2018 without the Crestmark shareholders having approved the merger, or (y) by Meta because of a material uncured breach by Crestmark of its representations, warranties or covenants under the merger agreement, or (2) within six months after the date of termination, Crestmark consummates an acquisition transaction (as defined in the merger agreement) or enters into a definitive agreement with respect to such acquisition proposal. Meta will be required to pay a termination fee to Crestmark equal to $10.0 million, in the following circumstances: • Crestmark terminates the merger agreement because Meta materially breaches its obligation to convene the Meta special meeting, subject to a five-day cure period; or • in the event that there is a publicly announced offer to purchase at least 20% or more of Meta’s or MetaBank’s capital stock or consolidated assets, and, thereafter, the merger agreement is terminated by Meta because the Meta stockholders fail to approve the merger agreement. Waiver and Amendment of the Merger Agreement At any time before completion of the merger, either Meta or Crestmark may, to the extent legally allowed, amend in writing the merger agreement or waive in writing compliance by the other with any provision contained 87