Exhibit 2.1

 

 

 

 

COMPASS SUB NORTH, INC.,

 

COMPASS SUB EAST, INC.,

 

 

COMPASS SUB WEST, INC.

 

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AGREEMENT AND PLAN OF MERGER, dated as of November 23, 2025 (this “Agreement”), by and among Green Dot Corporation, a Delaware corporation (“Green Dot”), CommerceOne Financial Corporation, an Alabama corporation (“CommerceOne”), Compass Sub North, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of CommerceOne (“New CommerceOne”), Compass Sub East, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of New CommerceOne (“Merger Sub One”) and Compass Sub West, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Merger Sub Two Holdco (as defined below) (“Merger Sub Two”).  Green Dot, CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two are collectively referred to herein as the “Parties.”

 

 

WHEREAS, CommerceOne has organized New CommerceOne, and New CommerceOne has organized Merger Sub One and Compass Sub Northwest, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of New CommerceOne (“Merger Sub Two Holdco”), and Merger Sub Two Holdco has organized Merger Sub Two for the purpose of facilitating the transactions contemplated by this Agreement;

 

WHEREAS, the Parties intend that, on the terms and subject to the conditions set forth in this Agreement, (i) Merger Sub One shall merge with and into CommerceOne, with CommerceOne surviving as a direct wholly-owned Subsidiary of New CommerceOne (the “CommerceOne Merger”), (ii) Merger Sub Two shall merge with and into Green Dot, with Green Dot surviving as a direct, wholly-owned Subsidiary of Merger Sub Two Holdco (the “Green Dot Merger”, and together with the CommerceOne Merger, the “First Mergers”); and (iii) CommerceOne, as the surviving corporation of the CommerceOne Merger, shall merge with and into New CommerceOne, with New CommerceOne surviving under the name “CommerceOne Financial Corporation” (the “Upstream Merger”, and together with the CommerceOne Merger, the “CommerceOne Mergers”, and the Upstream Merger together with the First Mergers, the “Mergers”);

 

WHEREAS, for U.S. federal income tax purposes, it is intended that the CommerceOne Mergers, taken together, shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and this Agreement is intended to be and is adopted as a plan of reorganization for purposes of Sections 354 and 361 of the Code;

 

WHEREAS, the Boards of Directors of Green Dot, CommerceOne, New CommerceOne, Merger Sub One, Merger Sub Two have (i) determined that it is in the best interests of their respective companies and their stockholders to enter into this Agreement and consummate the transactions contemplated hereby, including the Mergers, and (ii) in furtherance thereof, approved this Agreement and the transactions contemplated hereby, including the Mergers;

 

WHEREAS, concurrently with the execution of this Agreement, New CommerceOne and Green Dot are entering into a Separation Agreement, dated as of the date of this Agreement (as it may be amended, modified or supplemented, the “Separation Agreement”) with Green Dot OpCo, LLC, a Delaware limited liability company (“Payments Buyer”), pursuant to which, among other things, (a) Santa Barbara Tax Products Group, LLC will elect (on IRS Form 8832) to be classified as a disregarded entity for U.S. federal income tax purposes, with an effective date at least one day prior to the Closing Date (the “SBTPG Election”), (b) immediately following the First Mergers, Green Dot, as the surviving corporation of the Green Dot Merger, will convert into a limited liability company pursuant to Section 266 of the Delaware General Corporation Law (the “DGCL”) and Section 18-214 of the Delaware Limited Liability Company Act (the “DLLCA”) (such conversion, the “Conversion”) and, as a result of the Conversion, Green Dot will become a disregarded entity for U.S. federal income tax purposes, (c) immediately following the Conversion, Green Dot will distribute the stock of Green Dot Bank, a Utah-chartered bank and wholly owned Subsidiary of Green Dot (“Green Dot Bank”) to New CommerceOne (the “Distribution”, and collectively with the SBTPG Election and the Conversion, the “Pre-Sale Reorganization”), and (d) immediately following the Pre-Sale Reorganization, Payments Buyer will acquire Green Dot and the Business (as defined in the Separation Agreement), subject to the terms and conditions set forth in the Separation Agreement (“Payments Business Sale”, and together with the Pre-Sale Reorganization, the “Sale Transactions”);

 

WHEREAS, as a condition and inducement to Green Dot’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, certain stockholders of CommerceOne have executed and delivered to Green Dot, Support Agreements pursuant to which such stockholders have agreed to, among other things, certain limitations on the transfer of their shares of CommerceOne Common Stock and to vote to approve this Agreement and in favor of the transactions contemplated hereby, including the Mergers; and

 

WHEREAS, the parties desire to make certain representations, warranties and agreements in connection with the Mergers and also to prescribe certain conditions to the Mergers.

 

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows:

 

 

 

1.1          The Mergers.  Subject to the terms and conditions of this Agreement, in accordance with the DGCL and the Alabama Business and Nonprofit Entities Code (the “ABCL”), as applicable:

 

(a) at the First Effective Time, (i) Merger Sub One shall merge with and into CommerceOne, the separate corporate existence of Merger Sub One shall cease, and CommerceOne shall be the surviving corporation and a direct, wholly-owned Subsidiary of New CommerceOne and continue its existence under the laws of the State of Alabama as the surviving corporation, and (ii) Merger Sub Two shall merge with and into Green Dot, the separate corporate existence of Merger Sub Two shall cease, and Green Dot shall be the surviving corporation and a direct, wholly-owned Subsidiary of Merger Sub Two Holdco; and (b) at the Second Effective Time, CommerceOne, as the surviving corporation of the CommerceOne Merger, shall merge with and into New CommerceOne, the separate corporate existence of CommerceOne shall cease, and New CommerceOne shall be the surviving corporation and continue its existence under the laws of the State of Delaware as the surviving corporation.

 

 

1.2          Closing.  Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) will take place by electronic exchange of documents at 10:00 a.m., New York City time, on a date which shall be no later than three (3) business days after the satisfaction or waiver (subject to applicable law) of all of the conditions set forth in Article VII hereof (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof), unless another date, time or place is agreed to in writing by Green Dot and CommerceOne.  The date on which the Closing occurs is referred to as the “Closing Date.”  The Closing shall occur concurrently with the closing of the transactions contemplated by the Separation Agreement, and the First Mergers shall occur only if the Sale Transactions occur immediately thereafter.

 

1.3         Effective Times.

 

(a)          On or (if agreed by Green Dot and CommerceOne) prior to the Closing Date, (i) CommerceOne and Merger Sub One shall cause to be filed a certificate of merger with respect to the CommerceOne Merger (the “CommerceOne Delaware Certificate of Merger”) with the Secretary of State of the State of Delaware (the “Delaware Secretary”) and a certificate of merger with respect to the CommerceOne Merger with the Secretary of State of the State of Alabama (the “Alabama Secretary”) (such certificate, together with the CommerceOne Delaware Certificate of Merger, the “CommerceOne Certificates of Merger”), and (ii) Green Dot and Merger Sub Two shall caused to be filed a certificate of merger with respect to the Green Dot Merger (the “Green Dot Certificate of Merger”) with the Delaware Secretary.  The CommerceOne Merger and Green Dot Merger shall become effective simultaneously at such time as may be agreed by the Parties in writing and specified in the CommerceOne Certificates of Merger and the Green Dot Certificate of Merger in accordance with the relevant provisions of the DGCL and the ABCL or at such other time as shall be provided by applicable law (such time hereinafter referred to as the “First Effective Time”).

 

(b)          On or (if agreed by Green Dot and CommerceOne) prior to the Closing Date, CommerceOne and New CommerceOne shall cause to be filed a certificate of merger with respect to the Upstream Merger with the Delaware Secretary (the “Upstream Delaware Certificate of Merger”) and a certificate of merger with respect to the Upstream Merger with the Alabama Secretary (such certificate, together with the Upstream Delaware Certificate of Merger, the “Upstream Certificates of Merger”).  The Upstream Merger shall become effective after the Sale Transactions at such time as may be agreed by the Parties in writing and specified in the Upsteam Certificates of Merger in accordance with the relevant provisions of the DGCL or the ABCL or at such other time as shall be provided by applicable law (such time hereinafter referred to as the “Second Effective Time”).

 

1.4          Effects of the Mergers.  The Mergers shall have the effects set forth in this Agreement and the applicable provisions of the DGCL and, with respect to the CommerceOne Mergers, the ABCL.

 

1.5         Treatment of CommerceOne Common Stock in the CommerceOne Merger.  At the First Effective Time, by virtue of the CommerceOne Merger and without any action on the part of any of the Parties or any holder of securities thereof:

 

(a)          Subject to Section 2.2(e), each share of the common stock, par value $1.00 per share, of CommerceOne (“CommerceOne Common Stock”), issued and outstanding immediately prior to the First Effective Time shall be converted into the right to receive one share of the common stock, par value $0.01 per share, of New CommerceOne (“New CommerceOne Common Stock” and such consideration, the “CommerceOne Merger Consideration”).

 

(b)          All the shares of CommerceOne Common Stock converted into the right to receive the New CommerceOne Common Stock pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the First Effective Time, and each certificate (each, an “CommerceOne Old Certificate,” it being understood that any reference herein to “CommerceOne Old Certificate” shall be deemed to include reference to book‑entry account statements relating to the ownership of shares of CommerceOne Common Stock) previously representing any such shares of CommerceOne Common Stock shall thereafter represent only the right to receive (i) a New Certificate representing the number of whole shares of New CommerceOne Common Stock which such shares of CommerceOne Common Stock have been converted into the right to receive pursuant to this Section 1.5 and (ii) any dividends or distributions which the holder thereof has the right to receive pursuant to Section 2.2, in each case, without any interest thereon.

 

(c)          At the First Effective Time, each outstanding warrant to purchase shares of CommerceOne Common Stock (an “CommerceOne Warrant”) shall, automatically and without any required action on the part of the holder thereof, cease to represent a warrant to purchase shares of CommerceOne Common Stock and shall be converted into a warrant to purchase a number of shares of New CommerceOne Common Stock equal to the number of shares of CommerceOne Common Stock subject to such CommerceOne Warrant immediately prior to the Effective Time, at an exercise price equal to the exercise price per share of CommerceOne Common Stock of such CommerceOne Warrant immediately prior to the Effective Time.  Except as specifically provided above, following the First Effective Time, each CommerceOne Warrant shall continue to be governed by the same terms and conditions as were applicable to such CommerceOne Warrant immediately prior to the First Effective Time.

 

1.6          Treatment of Merger Sub One Common Stock in the CommerceOne Merger.  At the First Effective Time, by virtue of the CommerceOne Merger and without any action on the part of any of the Parties or any holder of securities thereof, each share of the common stock, par value $0.01 per share, of Merger Sub One (“Merger Sub One Common Stock”) issued and outstanding immediately prior to the First Effective Time shall be converted into one share of common stock of CommerceOne as the surviving corporation of the CommerceOne Merger (the “CommerceOne Surviving Corporation Common Stock”).

 

1.7          Treatment of Green Dot Common Stock in the Green Dot Merger.  At the First Effective Time, by virtue of the Green Dot Merger and without any action on the part of any of the Parties or any holder of securities thereof:

 

(a)          Subject to Section 2.2(e), each share of Class A common stock, par value $0.001 per share, of Green Dot (collectively, “Green Dot Class A Common Stock”) and each share of Class B common stock, par value $0.001 per share, of Green Dot (collectively, “Green Dot Class B Common Stock”), in each case issued and outstanding immediately prior to the First Effective Time (collectively, “Green Dot Common Stock”), except for shares of Green Dot Common Stock owned by Green Dot, CommerceOne or New CommerceOne (in each case other than shares of Green Dot Common Stock (i) held in trust accounts, managed accounts, mutual funds and the like, or otherwise held in a fiduciary or agency capacity that are beneficially owned by third parties or (ii) held, directly or indirectly, by Green Dot, CommerceOne or New CommerceOne in respect of debts previously contracted), shall be converted into the right to receive (A) 0.2215 shares (as it may be adjusted pursuant to Section 1.7(b), the “Exchange Ratio”) of the New CommerceOne Common Stock and (B) an amount in cash equal to $8.11 (as it may be adjusted pursuant to Section 1.7(b), the “Per Share Cash Consideration,” and the consideration described in clauses (A) and (B), the “Green Dot Merger Consideration”).

 

(b)          All the shares of Green Dot Common Stock converted into the right to receive the Green Dot Merger Consideration pursuant to this Article I shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the First Effective Time, and each certificate (each, an “Green Dot Old Certificate,” it being understood that any reference herein to “Green Dot Old Certificate” shall be deemed to include reference to book‑entry account statements relating to the ownership of shares of Green Dot Common Stock; and the Green Dot Old Certificates and CommerceOne Old Certificates, collectively, the “Old Certificates”) previously representing any such shares of Green Dot Common Stock shall thereafter represent only the right to receive (i) a New Certificate representing the number of whole shares of New CommerceOne Common Stock which such shares of Green Dot Common Stock have been converted into the right to receive pursuant to this Section 1.7, (ii) the Per Share Cash Consideration in respect of each such share of Green Dot Common Stock, (iii) cash in lieu of fractional shares which the shares of Green Dot Common Stock represented by such Old Certificate have been converted into the right to receive pursuant to this Section 1.7 and Section 2.2(e), without any interest thereon and (iv) any dividends or distributions which the holder thereof has the right to receive pursuant to Section 2.2, in each case, without any interest thereon.  If, prior to the First Effective Time, the outstanding shares of CommerceOne Common Stock, New CommerceOne Common Stock or Green Dot Common Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, or there shall be any extraordinary dividend or distribution, an appropriate and proportionate adjustment shall be made to the Exchange Ratio and the Per Share Cash Consideration to give CommerceOne and New CommerceOne and the holders of Green Dot Common Stock the same economic effect as contemplated by this Agreement prior to such event; provided, that nothing contained in this sentence shall be construed to permit Green Dot, CommerceOne or New CommerceOne to take any action with respect to its securities or otherwise that is prohibited by the terms of this Agreement.

 

(c)          Notwithstanding anything in this Agreement to the contrary, at the First Effective Time, all shares of Green Dot Common Stock that are owned by Green Dot, CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two (in each case other than shares of Green Dot Common Stock (i) held in trust accounts, managed accounts, mutual funds and the like, or otherwise held in a fiduciary or agency capacity that are beneficially owned by third parties or (ii) held, directly or indirectly, by Green Dot, CommerceOne or New CommerceOne in respect of debts previously contracted) shall be cancelled and shall cease to exist and no New CommerceOne Common Stock or other consideration shall be delivered in exchange therefor.

 

1.8          Treatment of Merger Sub Two Common Stock in the Green Dot Merger.  At the First Effective Time, by virtue of the Green Dot Merger and without any action on the part of any of the Parties or any holder of securities thereof, each share of the common stock, par value $0.01 per share, of Merger Sub Two (the “Merger Sub Two Common Stock”) issued and outstanding immediately prior to the First Effective Time shall be converted into one share of class A common stock of Green Dot as the surviving corporation of the Green Dot Merger.

 

1.9          New CommerceOne Common Stock.  At the First Effective Time, each share of New CommerceOne Common Stock issued and outstanding immediately prior to the First Effective Time, shall no longer be outstanding and shall automatically be cancelled and shall cease to exist as of the First Effective Time and no consideration shall be delivered in exchange therefor.  At and after the Second Effective Time, each share of New CommerceOne Common Stock issued and outstanding immediately prior to the Second Effective Time shall remain an issued and outstanding share of New CommerceOne Common Stock, as applicable, and shall not be affected by the Upstream Merger.

 

1.10        Treatment of CommerceOne Surviving Corporation Common Stock in the Upstream Merger.  At the Second Effective Time, each share of CommerceOne Surviving Corporation Common Stock issued and outstanding immediately prior to the Second Effective Time shall no longer be outstanding and shall be cancelled and shall cease to exist as of the Second Effective Time and no consideration shall be delivered in exchange therefor.

 

1.11        Treatment of Green Dot RSU and PSU Awards; Green Dot ESPP.

 

(a)          At the First Effective Time, each restricted stock unit award in respect of shares of Green Dot Common Stock (each, a “Green Dot RSU Award”) granted under Green Dot’s Amended and Restated 2010 Equity Incentive Plan (as amended from time to time, the “Stock Plan”) that is vested and outstanding as of immediately prior to, the First Effective Time (each, a “Vested Green Dot RSU Award”), shall, as of the First Effective Time, be cancelled and converted automatically into the right to receive (without interest) the Green Dot Merger Consideration in respect of the number of shares of Green Dot Common Stock subject to such Vested Green Dot RSU Award immediately prior to the First Effective Time, less applicable withholding Taxes (which withholding Taxes shall be deducted from the cash payment to which the holder is entitled pursuant to this Section 1.11(a)); provided, that, with respect to any Vested Green Dot RSU Award that constitutes nonqualified deferred compensation subject to Section 409A of the Code, and that is not permitted to be paid at the First Effective Time without triggering a Tax or penalty under Section 409A of the Code, such payment shall be made at the earliest time permitted under the Stock Plan and applicable award agreement that will not trigger a Tax or penalty under Section 409A of the Code.

 

(b)          At the First Effective Time, each Green Dot RSU Award that is subject to performance-based vesting conditions and that is outstanding and unvested immediately prior to the First Effective Time (each, an “Unvested Green Dot PSU Award”) and that was granted in calendar year 2025 shall, as of the First Effective Time, be cancelled and converted automatically into the right to receive (without interest) the Green Dot Merger Consideration in respect of the number of shares of Green Dot Common Stock subject to such Unvested Green Dot PSU Award immediately prior to the First Effective Time, determined by deeming any applicable performance-based vesting criteria applicable to such Unvested Green Dot PSU Award achieved at 150% of the target level of performance for the 2025 performance period and the target level of performance for each of the 2026 and 2027 performance periods (such Unvested Green Dot PSU Awards, the “Vesting Green Dot PSU Awards”), less applicable withholding Taxes (which withholding Taxes shall be deducted from the cash payment to which the holder is entitled pursuant to this Section 1.11(b)).

 

(c)          At the First Effective Time, each Unvested Green Dot PSU Award that is not a Vesting Green Dot PSU Award shall be cancelled without any consideration to the holder of such Unvested Green Dot PSU Award.

 

(d)          At the First Effective Time, each outstanding and unvested Green Dot RSU Award that is not an Unvested Green Dot PSU Award and that would otherwise vest in accordance with its terms on or before June 30, 2026, including as a result of a single-trigger vesting provision applicable to such Green Dot RSU Award (each, a “Vesting Green Dot RSU Award”) shall, as of the First Effective Time, fully vest and be cancelled and converted automatically into the right to receive (without interest) the Green Dot Merger Consideration in respect of the number of shares of Green Dot Common Stock subject to such Vesting Green Dot RSU Award immediately prior to the First Effective Time, less applicable withholding Taxes (which withholding Taxes shall be deducted from the cash payment to which the holder is entitled pursuant to this Section 1.11(d)).

 

(e)          At the First Effective Time, each outstanding and unvested Green Dot RSU Award that is neither a Green Dot PSU Award or a Vesting Green Dot RSU Award (each, an “Unvested Green Dot RSU Award”), after giving effect to the forfeiture provisions set forth in Section 7.8 of the Separation Agreement, shall, automatically and without any required action on the part of the holder thereof, be converted into a restricted stock unit award (an “New CommerceOne RSU Award”) in respect of that number of shares of New CommerceOne Common Stock (rounded to the nearest whole share) equal to the product of (i) the total number of shares of Green Dot Common Stock subject to the Unvested Green Dot RSU Award immediately prior to the First Effective Time, multiplied by (ii) the Equity Award Exchange Ratio (as it may be adjusted if necessary pursuant to the last sentence of Section 1.7(b)).  Each such New CommerceOne RSU Award shall be settleable in shares of New CommerceOne Common Stock.  Except as expressly provided in this Section 1.11(e), each such New CommerceOne RSU Award shall be subject to the same terms and conditions (including vesting terms) as applied to the corresponding Unvested Green Dot RSU Award immediately prior to the First Effective Time.  For purposes of this Agreement, “Equity Award Exchange Ratio” means (A) the Exchange Ratio, plus (B) the quotient of (x) the Per Share Cash Consideration divided by (y) the Implied New CommerceOne Share Price, rounded to the nearest one thousandth.

 

(f)          New CommerceOne shall pay the holders of Vested Green Dot RSU Awards, the Vesting Green Dot PSU Awards and the Vesting Green Dot RSU Awards the cash payments and shares of New CommerceOne Common Stock described in Sections 1.11(a), 1.11(b) and 1.11(d) on or as soon as reasonably practicable after the Closing Date, but in any event no later than the first regular payroll date that is at least three (3) business days thereafter; provided, that, with respect to any Vesting Green Dot PSU Award or Vesting Green Dot RSU Award that constitutes nonqualified deferred compensation subject to Section 409A of Code, and that is not permitted to be paid at the First Effective Time without triggering a Tax or penalty under Section 409A of the Code, such payment shall be made at the earliest time permitted under the Stock Plan and applicable award agreement that will not trigger a Tax or penalty under Section 409A of the Code.

 

(g)          At or prior to the First Effective Time, Green Dot, the Board of Directors of Green Dot and the Green Dot Compensation Committee, as applicable, shall adopt any resolutions and take any actions that are necessary or appropriate to effectuate the provisions of this Section 1.11.

 

(h)          Prior to the First Effective Time, the Green Dot Board of Directors (or any authorized committee thereof) shall adopt resolutions to provide that, subject to the consummation of the Green Dot Merger, the Green Dot Employee Stock Purchase Plan (the “Green Dot ESPP”) shall terminate effective as of immediately prior to the First Effective Time.  As soon as reasonably practicable after the date of this Agreement, Green Dot shall adopt resolutions and take all actions necessary to (i) provide that no new offering period under the Green Dot ESPP shall commence on or after the date of this Agreement, (ii) set a new exercise date under the Green Dot ESPP for the offering period under the Green Dot ESPP that is in effect as of the date of this Agreement, which date shall be no later than five (5) Business Days prior to the Closing Date (the “Final Exercise Date”), and (iii) provide that each participant’s outstanding right to purchase shares of Green Dot Common Stock under the Green Dot ESPP as of the Final Exercise Date shall automatically be exercised in accordance with the terms of the Green Dot ESPP based on each participant’s accumulated payroll deductions under the Green Dot ESPP as of the Final Exercise Date.  All shares of Green Dot Common Stock purchased on the Final Exercise Date shall be cancelled at the First Effective Time and converted into the right to receive the Green Dot Merger Consideration in accordance with Section 1.7(a).  Copies of resolutions relating to any of the foregoing in this Section 1.11(f) shall be provided to CommerceOne prior to the Closing and shall be subject to CommerceOne’s reasonable review and comment.

 

(i)          New CommerceOne shall take all corporate actions that are necessary for the assumption of the applicable Green Dot RSU Awards pursuant to Section 1.11(b), including the reservation, issuance and listing of CommerceOne Common Stock as necessary to effect the transactions contemplated by this Section 1.11.  As soon as practicable following the First Effective Time, New CommerceOne shall file with the SEC a post-effective amendment to the Form S-4 or a registration statement on Form S-8 (or any successor form) with respect to the shares of New CommerceOne Common Stock underlying such Unvested Green Dot RSU Awards, and shall use reasonable best efforts to maintain the effectiveness of such registration statement for so long as such assumed Unvested Green Dot RSU Awards remain outstanding.

 

1.12        Treatment of CommerceOne Restricted Stock; CommerceOne Options.

 

(a)          At the First Effective Time, any vesting conditions applicable to each outstanding restricted stock award (each an “CommerceOne Restricted Stock”) under the CommerceOne Second Amended and Restated 2018 Incentive Stock Compensation Plan (“CommerceOne Stock Plan”) shall, to the extent required by the CommerceOne Stock Plan, automatically and without any required action on the part of the holder thereof, accelerate in full and shall be converted into, and become exchanged for the CommerceOne Merger Consideration (less applicable Taxes required to be withheld with respect to such vesting), pursuant to Section 1.5(a).

 

(b)          At the First Effective Time, each outstanding option to purchase shares of CommerceOne Common Stock (an “CommerceOne Option”) under the CommerceOne Stock Plan shall, automatically and without any required action on the part of the holder thereof, cease to represent an option to purchase shares of CommerceOne Common Stock and shall be converted into an option to purchase a number of shares of New CommerceOne Common Stock equal to the number of shares of CommerceOne Common Stock subject to such CommerceOne Option immediately prior to the Effective Time, at an exercise price equal to the exercise price per share of CommerceOne Common Stock of such CommerceOne Option immediately prior to the Effective Time; provided, however, that the exercise price and the number of shares of New CommerceOne Common Stock purchasable pursuant to the CommerceOne Options shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, further, that in the case of any CommerceOne Option to which Section 422 of the Code applies, the exercise price and the number of shares of New CommerceOne Common Stock purchasable pursuant to such option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code.  Except as specifically provided above, following the First Effective Time, each CommerceOne Option shall continue to be governed by the same terms and conditions (including vesting terms) as were applicable to such CommerceOne Option immediately prior to the First Effective Time.

 

(c)          At or prior to the First Effective Time, CommerceOne, the Board of Directors of CommerceOne and the CommerceOne Compensation Committee, as applicable, shall adopt any resolutions and take any actions that are necessary or appropriate to effectuate the provisions of this Section 1.11.

 

 

(a)          At the First Effective Time, (i) the certificate of incorporation and the bylaws of CommerceOne, as in effect immediately prior to the First Effective Time, shall be the certificate of incorporation and the bylaws, respectively, of the surviving corporation of the CommerceOne Merger until thereafter amended in accordance with applicable law, and the officers and directors of CommerceOne as of immediately prior to the First Effective Time shall be the officers and directors of the surviving corporation of the CommerceOne Merger until their respective successors are duly elected or appointed or until the earlier of their death, resignation or removal; and (ii) the certificate of incorporation and the bylaws of Green Dot, as in effect immediately prior to the First Effective Time, shall be the certificate of incorporation and the bylaws, respectively, of the surviving corporation of the Green Dot Merger until thereafter amended in accordance with applicable law, and the officers and directors of Merger Sub Two as of immediately prior to the First Effective Time shall be the officers and directors of the surviving corporation of the Green Dot Merger until their respective successors are duly elected or appointed or until the earlier of their death, resignation or removal.

 

(b)          At the First Effective Time, the certificate of incorporation and the bylaws of New CommerceOne shall be amended and restated in their entirety in the form of the amended and restated certificate of incorporation set forth in Exhibit A (the “New CommerceOne Charter”) and the form of the amended and restated bylaws set forth in Exhibit B (the “New CommerceOne Bylaws”), respectively, and such New CommerceOne Charter and New CommerceOne Bylaws shall be the certificate of incorporation and the bylaws of New CommerceOne, respectively, until thereafter amended in accordance with applicable law.  At the Second Effective Time, the New CommerceOne Charter and the New CommerceOne Bylaws, as the certificate of incorporation and the bylaws of New CommerceOne, the surviving corporation of the Upstream Merger, shall continue to be the certificate of incorporation and the bylaws of New CommerceOne, respectively, until thereafter amended in accordance with applicable law.  The officers and directors of New CommerceOne, as in effect immediately prior to the Second Effective Time, shall be the officers and directors of the surviving corporation of the Upstream Merger until their respective successors are duly elected or appointed or until the earlier of their death, resignation or removal.

 

1.14        Tax Consequences.  It is intended that the CommerceOne Mergers, taken together, shall qualify as a “reorganization” within the meaning of Section 368(a) of the Code, and this Agreement is intended to be and is adopted as a plan of reorganization for purposes of Sections 354 and 361 of the Code.

 

 

 

2.1          New CommerceOne to Make Consideration Available.  At or prior to the First Effective Time, New CommerceOne shall deposit, or shall cause to be deposited, with a bank or trust company designated by New CommerceOne and reasonably acceptable to Green Dot (the “Exchange Agent”), for exchange in accordance with this Article II for the benefit of the holders of Old Certificates, (a) certificates or, at New CommerceOne’s option, evidence in book-entry form, representing shares of New CommerceOne Common Stock to be issued pursuant to Section 1.5 and Section 1.7 (collectively, referred to herein as “New Certificates”), and (b) cash in an amount sufficient to pay (i) the aggregate cash portion of the Green Dot Merger Consideration and (ii) cash in lieu of any fractional shares to be paid pursuant to Section 2.2(e) (such cash and New Certificates described in the foregoing clauses (a) and (b), together with any dividends or distributions with respect to shares of New CommerceOne Common Stock payable in accordance with Section 2.2(b), being hereinafter referred to as the “Exchange Fund”).

 

 

(a)          As promptly as practicable after the First Effective Time, but in no event later than five (5) days thereafter, New CommerceOne shall cause the Exchange Agent to mail to each holder of record of one or more CommerceOne Old Certificates representating shares of CommerceOne Common Stock immediately prior to the First Effective Time and Green Dot Old Certificates representing shares of Green Dot Common Stock immediately prior to the First Effective Time that have been converted at the First Effective Time into the right to receive the CommerceOne Merger Consideration and Green Dot Merger Consideration, respectively pursuant to Article I, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Old Certificates shall pass, only upon proper delivery of the Old Certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Old Certificates in exchange for New Certificates representing the number of whole shares of New CommerceOne Common Stock and, if applicable, any cash in lieu of fractional shares and the cash portion of the Green Dot Merger Consideration, which the shares of Green Dot Common Stock represented by such Old Certificate or Old Certificates shall have been converted into the right to receive pursuant to this Agreement as well as any dividends or distributions to be paid pursuant to Section 2.2(b).  Upon proper surrender of an Old Certificate or Old Certificates for exchange and cancellation to the Exchange Agent, together with such properly completed letter of transmittal, duly executed, the holder of such Old Certificate or Old Certificates shall be entitled to receive in exchange therefor, as applicable, (i) (A) a New Certificate representing that number of whole shares of New CommerceOne Common Stock to which such holder of CommerceOne Common Stock and Green Dot Common Stock shall have become entitled pursuant to the provisions of Article I and (B) a check representing the amount of (w) the cash portion of the Green Dot Merger Consideration which such holder of Green Dot Common Stock has the right to receive in respect of the Old Certificate or Old Certificates surrendered pursuant to the provisions of this Article II, (x) any cash in lieu of fractional shares which such holder of Green Dot Common Stock has the right to receive in respect of the Old Certificate or Old Certificates surrendered pursuant to the provisions of this Article II and (y) any dividends or distributions which the holder thereof has the right to receive pursuant to Section 2.2(b), and the Old Certificate or Old Certificates so surrendered shall forthwith be cancelled.  No interest will be paid or accrued on the cash portion of the Green Dot Merger Consideration or any cash in lieu of fractional shares or dividends or distributions payable to holders of Green Dot Old Certificates.  Until surrendered as contemplated by this Section 2.2, each Old Certificate shall be deemed at any time after the First Effective Time to represent only the right to receive, upon surrender, the CommerceOne Merger Consideration or the Green Dot Merger Consideration and any cash in lieu of fractional shares or in respect of dividends or distributions as contemplated by this Section 2.2, as applicable.

 

(b)          No dividends or other distributions declared with respect to New CommerceOne Common Stock shall be paid to the holder of any unsurrendered Old Certificate until the holder thereof shall surrender such Old Certificate in accordance with this Article II.  After the surrender of an Old Certificate in accordance with this Article II, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the whole shares of New CommerceOne Common Stock that the shares of CommerceOne Common Stock or Green Dot Common Stock represented by such Old Certificate have been converted into the right to receive.

 

(c)          If any New Certificate representing shares of New CommerceOne Common Stock is to be issued in a name other than that in which the Old Certificate or Old Certificates surrendered in exchange therefor is or are registered, it shall be a condition of the issuance thereof that the Old Certificate or Old Certificates so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Exchange Agent in advance any transfer or other similar Taxes required by reason of the issuance of a New Certificate representing shares of New CommerceOne Common Stock in any name other than that of the registered holder of the Old Certificate or Old Certificates surrendered, or required for any other reason, or shall establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.

 

(d)          After the First Effective Time, there shall be no transfers on the stock transfer books of CommerceOne of the shares of CommerceOne Common Stock and of Green Dot of the shares of Green Dot Common Stock that were issued and outstanding immediately prior thereto.  If, after the First Effective Time, Old Certificates representing such shares are presented for transfer to the Exchange Agent, they shall be cancelled and exchanged for the CommerceOne Merger Consideration or Green Dot Merger Consideration, cash in lieu of fractional shares and dividends or distributions that the holder presenting such Old Certificates is entitled to, as applicable, as provided in this Article II.

 

(e)          Notwithstanding anything to the contrary contained herein, no New Certificates or scrip representing fractional shares of New CommerceOne Common Stock shall be issued upon the surrender for exchange of Old Certificates, no dividend or distribution with respect to New CommerceOne Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a stockholder of New CommerceOne.  In lieu of the issuance of any such fractional share, New CommerceOne shall pay to each former holder of Green Dot Common Stock who otherwise would be entitled to receive such fractional share an amount in cash (rounded to the nearest cent) equal to (i) (A) (1) the closing sale price of Green Dot Common Stock on the New York Stock Exchange (the “NYSE”) as reported by The Wall Street Journal on the last trading day preceding the Closing Date minus (2) the Per Share Cash Consideration, divided by (B) the Exchange Ratio (the amount contemplated by this clause (i), the “Implied New CommerceOne Share Price”), multiplied by (ii) the fraction of a share (after taking into account all shares of Green Dot Common Stock held by such holder immediately prior to the First Effective Time and rounded to the nearest one-thousandth when expressed in decimal form) of New CommerceOne Common Stock which such holder would otherwise be entitled to receive pursuant to Section 1.7.  The parties acknowledge that payment of such cash consideration in lieu of issuing fractional shares is not separately bargained-for consideration, but merely represents a mechanical rounding off for purposes of avoiding the expense and inconvenience that would otherwise be caused by the issuance of fractional shares.

 

(f)          Any portion of the Exchange Fund that remains unclaimed by the stockholders of Green Dot or CommerceOne for twelve (12) months after the First Effective Time shall be paid to New CommerceOne.  Any former holders of Green Dot Common Stock or CommerceOne Common Stock who have not theretofore complied with this Article II shall thereafter look only to New CommerceOne for payment of, as applicable, the Green Dot Merger Consideration, the CommerceOne Merger Consideration, cash in lieu of any fractional shares and any unpaid dividends and distributions on the New CommerceOne Common Stock deliverable in respect of each former share of Green Dot Common Stock such holder holds as determined pursuant to this Agreement, in each case, without any interest thereon.  Notwithstanding the foregoing, none of the Parties or any other person shall be liable to any former holder of shares of Green Dot Common Stock for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.

 

(g)          In the event any Old Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Old Certificate to be lost, stolen or destroyed and, if required by New CommerceOne or the Exchange Agent, the posting by such person of a bond in such amount as New CommerceOne or the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Old Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Old Certificate the CommerceOne Merger Consideration or the Green Dot Merger Consideration and any cash in lieu of fractional shares deliverable in respect thereof, as applicable, pursuant to this Agreement.

 

(h)          Notwithstanding anything in this Agreement to the contrary, if required by the ABCL or DGCL, as applicable (but only to the extent required thereby), shares of CommerceOne Common Stock and Green Dot Common Stock that are issued and outstanding immediately prior to the First Effective Time and that are held by holders of such shares of CommerceOne Common Stock and Green Dot Common Stock, respectively, who have not voted in favor of the adoption or approval, as applicable, of this Agreement or consented thereto in writing and who have properly exercised appraisal rights with respect thereto in accordance with, and who have complied with, Article 13 of the ABCL or Section 262 of the DGCL, as applicable (such shares, the “Dissenting Shares”) will not be converted into the right to receive the CommerceOne Merger Consideration or Green Dot Merger Consideration, as applicable, and holders of such Dissenting Shares will be entitled to receive payment of the fair value of such Dissenting Shares in accordance with the provisions of such Article 13 or Section 262, as applicable, unless and until any such holder fails to perfect or effectively withdraws or loses its rights to appraisal and payment under the ABCL or DGCL, as applicable. If, after the First Effective Time, any such holder fails to perfect or effectively withdraws or loses such right, such Dissenting Shares will thereupon be treated as if they had been converted into and had become exchangeable for, at the First Effective Time, the right to receive the CommerceOne Merger Consideration or Green Dot Merger Consideration, as applicable, without any interest thereon. At the First Effective Time, any holder of Dissenting Shares shall cease to have any rights with respect thereto, except the rights provided in Article 13 of the ABCL or Section 262 of the DGCL, as applicable, and as provided in the previous sentence. Green Dot will give CommerceOne or, following the Upstream Merger, New CommerceOne (i) notice of any demands received by Green Dot for appraisals of shares of Green Dot Common Stock and (ii) the opportunity to participate in all negotiations and proceedings with respect to such notices and demands.  Prior to the First Effective Time, CommerceOne will give Green Dot (i) notice of any demands received by CommerceOne for appraisals of shares of CommerceOne Common Stock and (ii) the opportunity to participate in all negotiations and proceedings with respect to such notices and demands.

 

2.3          Withholding. New CommerceOne shall be entitled to deduct and withhold, or cause the Exchange Agent to deduct and withhold, from any amounts otherwise payable pursuant to this Agreement, such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local or foreign Tax law.  To the extent that amounts are so withheld by New CommerceOne or the Exchange Agent, as the case may be, and paid over to the appropriate governmental authority, the withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder in respect of which the deduction and withholding was made by New CommerceOne or the Exchange Agent, as the case may be.

 

 

 

Except (a) as disclosed in the disclosure schedule delivered by Green Dot to CommerceOne and New CommerceOne concurrently herewith (the “Green Dot Disclosure Schedule”); provided, that (i) no such item is required to be set forth as an exception to a representation or warranty if its absence would not result in the related representation or warranty being deemed untrue or incorrect, (ii) the mere inclusion of an item in the Green Dot Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission by Green Dot that such item represents a material exception or fact, event or circumstance or that such item would reasonably be expected to have a Material Adverse Effect and (iii) any disclosures made with respect to a section of Article III shall be deemed to qualify (1) any other section of Article III specifically referenced or cross-referenced and (2) other sections of Article III to the extent it is reasonably apparent on its face (notwithstanding the absence of a specific cross reference) from a reading of the disclosure that such disclosure applies to such other sections or (b) as disclosed in any Green Dot Reports filed by Green Dot since December 31, 2022 and prior to the date hereof (but disregarding risk factor disclosures contained under the heading “Risk Factors,” or disclosures of risks set forth in any “forward-looking statements” disclaimer or any other statements that are similarly cautionary, predictive or forward-looking in nature), Green Dot hereby represents and warrants to CommerceOne and New CommerceOne as follows:

 

 

(a)          Green Dot is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, is a bank holding company duly registered under the Bank Holding Company Act of 1956, as amended (the “BHC Act”) and has elected to be treated as a financial holding company under the BHC Act.  Green Dot has the corporate power and authority to own, lease or operate all of its properties and assets and to carry on its business as it is now being conducted.  Green Dot is duly licensed or qualified to do business and in good standing in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned, leased or operated by it makes such licensing, qualification or standing necessary, except where the failure to be so licensed or qualified or to be in good standing would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Green Dot.  As used in this Agreement, the term “Material Adverse Effect” means, with respect to Green Dot, CommerceOne or New CommerceOne, as the case may be, any effect, change, event, circumstance, condition, occurrence or development that, either individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on (i) the business, properties, assets, results of operations or financial condition of such party and its Subsidiaries taken as a whole (provided, however, that, with respect to this clause (i), Material Adverse Effect shall not be deemed to include the impact of (A) changes, after the date hereof, in U.S. generally accepted accounting principles (“GAAP”) or applicable regulatory accounting requirements, (B) changes, after the date hereof, in laws, rules or regulations of general applicability to companies in the industries in which such party and its Subsidiaries operate, or interpretations thereof by courts or Governmental Entities, (C) changes, after the date hereof, in global, national or regional political conditions (including the outbreak of war or acts of terrorism) or in economic or market (including equity, credit and debt markets, as well as changes in interest rates) conditions affecting the financial services industry generally and not specifically relating to such party or its Subsidiaries, (D) changes, after the date hereof, resulting from hurricanes, earthquakes, tornados, floods or other natural disasters or from any outbreak of any disease or other public health events, (E) public disclosure of the transactions contemplated hereby or by the Separation Agreement (including any effect on a party’s relationships with its customers, vendors or employees) (it being understood and agreed that the foregoing shall not apply for purposes of the representations and warranties in Sections 3.3(b), 3.4, 3.11(i), 4.3(b), 4.4 or 4.11(i)), (F) any stockholder litigation arising out of the Agreement, the Separation Agreement or the transactions contemplated hereby and thereby that is brought or threatened against a party or any party’s Board of Directors from and following the date of this Agreement and prior to the First Effective Time (it being understood and agreed that the foregoing shall not apply for purposes of the representations and warranties in Sections 3.3(b), 3.4, 3.11(i), 4.3(b), 4.4 or 4.11(i)) or actions expressly required by this Agreement or the Separation Agreement or that are taken with the prior written consent of the other party in contemplation of the transactions contemplated hereby or thereby or (G) a decline in the trading price of a party’s common stock or the failure, in and of itself, to meet earnings projections or internal financial forecasts, but not, in either case, including any underlying causes thereof; except, with respect to subclauses (A), (B), (C) or (D), to the extent that the effects of such change are materially disproportionately adverse to the business, properties, results of operations or financial condition of such party and its Subsidiaries, taken as a whole, as compared to other companies in the industry in which such party and its Subsidiaries operate or (ii) the ability of such party to timely consummate the transactions contemplated hereby.  As used in this Agreement, the word “Subsidiary” when used with respect to any person, means any corporation, partnership, limited liability company, bank or other organization, whether incorporated or unincorporated, or person of which such first person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting or other power to elect a majority of the board of directors or other managing authority of such persons performing similar functions.  True, correct and complete copies of the Certificate of Incorporation of Green Dot (the “Green Dot Charter”) and the Bylaws of Green Dot (the “Green Dot Bylaws”), in each case as in effect as of the date of this Agreement, have previously been made available by Green Dot to CommerceOne.

 

(b)          Each Subsidiary of Green Dot (a “Green Dot Subsidiary”) (i) is duly organized and validly existing under the laws of its jurisdiction of organization, (ii) is duly licensed or qualified to do business and, where such concept is recognized under applicable law, in good standing in all jurisdictions (whether federal, state, local or foreign) where its ownership, leasing or operation of property or the conduct of its business requires it to be so licensed or qualified or in good standing and in which the failure to be so licensed or qualified or in good standing would reasonably be expected to have a Material Adverse Effect on Green Dot and (iii) has all requisite corporate power and authority to own, lease or operate its properties and assets and to carry on its business as now conducted.  There are no restrictions on the ability of Green Dot or any Subsidiary of Green Dot to pay dividends or distributions except, in the case of Green Dot or a Subsidiary that is a regulated entity, for restrictions on dividends or distributions generally applicable to all similarly regulated entities.  The deposit accounts of each Subsidiary of Green Dot that is an insured depository institution are insured by the Federal Deposit Insurance Corporation (the “FDIC”) through the Deposit Insurance Fund (as defined in Section 3(y) of the Federal Deposit Insurance Act of 1950) to the fullest extent permitted by law, all premiums and assessments required to be paid in connection therewith have been paid when due, and no proceedings for the termination of such insurance are pending or threatened.  Section 3.1(b) of the Green Dot Disclosure Schedule sets forth a true and complete list of all Subsidiaries of Green Dot that would constitute “significant subsidiaries” within the meaning of Rule 1-02 of Regulation S-X of the SEC as of the date hereof (any references to “significant Subsidiaries” of either Green Dot or CommerceOne in this Agreement shall mean “significant subsidiaries” within the meaning of Rule 1-02 of Regulation S-X of the SEC as of the date hereof).  There is no person whose results of operations, cash flows, changes in stockholders’ equity or financial position are consolidated in the financial statements of Green Dot other than the Green Dot Subsidiaries.

 

 

(a)          The authorized capital stock of Green Dot consists of 100,000,000 shares of Green Dot Class A Common Stock, 100,000,000 shares of Green Dot Class B Common Stock, and 5,000,000 shares of preferred stock, par value $0.001 per share (the “Green Dot Preferred Stock”).  As of November 20, 2025 (in the case of clause (a)(i)) or November 21, 2025 (in the case of clauses (a)(ii) through (v)), there were (i) 55,548,617 shares of Green Dot Class A Common Stock issued and outstanding and no shares of Green Dot Class B Common Stock issued and outstanding; (ii) no shares of Green Dot Common Stock held by Green Dot in its treasury; (iii) 4,798,301 shares of Green Dot Common Stock reserved for issuance upon the settlement of outstanding Green Dot RSU Awards (assuming applicable performance conditions are satisfied at target levels, or, where a Green Dot RSU Award is subject to performance-based vesting conditions but does not specify a “target” amount, assuming the total amount of Shares subject to such Green Dot RSU Award) or 5,577,492 shares of Green Dot Common Stock reserved for issuance upon the settlement of outstanding Green Dot RSU Awards (assuming applicable performance conditions are satisfied at maximum levels, or, where a Green Dot RSU Award is subject to performance-based vesting conditions but does not specify a “target” amount, assuming the total amount of shares of Green Dot Common Stock subject to such Green Dot RSU Award); (iv) 4,979,410 shares of Green Dot Common Stock reserved for issuance under the Green Dot ESPP; and (v) (A) no shares of Green Dot Preferred Stock issued and outstanding.  As of the date of this Agreement, except as set forth in the immediately preceding sentence and for changes since November 20, 2025 or November 21, 2025, as applicable , resulting from the vesting or settlement of any Green Dot RSU Awards issued prior to the date of this Agreement as described in the immediately preceding sentence or the exercise of options to purchase shares of Green Dot Common Stock under the Green Dot ESPP, there are no shares of capital stock or other voting securities or equity interests of Green Dot issued, reserved for issuance or outstanding.  All of the issued and outstanding shares of Green Dot Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof.  There are no bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which stockholders of Green Dot may vote.  No trust preferred or subordinated debt securities of Green Dot are issued or outstanding.  Other than Green Dot RSU Awards issued prior to the date of this Agreement as described in this Section 3.2(a) or options to purchase shares of Green Dot Common Stock under the Green Dot ESPP, as of the date of this Agreement there are no outstanding subscriptions, options, warrants, stock appreciation rights, phantom units, scrip, rights to subscribe to, preemptive rights, anti-dilutive rights, rights of first refusal or similar rights, puts, calls, commitments or agreements of any character relating to, or securities or rights convertible or exchangeable into or exercisable for, shares of capital stock or other voting or equity securities of or ownership interest in Green Dot, or contracts, commitments, understandings or arrangements by which Green Dot may become bound to issue additional shares of its capital stock or other equity or voting securities of or ownership interests in Green Dot or that otherwise obligate Green Dot to issue, transfer, sell, purchase, redeem or otherwise acquire, any of the foregoing (collectively, “Green Dot Securities,” and any of the foregoing in respect of Subsidiaries of Green Dot, collectively, “Green Dot Subsidiary Securities”).  Other than Green Dot RSU Awards or options to purchase shares of Green Dot Common Stock under the Green Dot ESPP, no equity-based awards (including any cash awards where the amount of payment is determined in whole or in part based on the price of any capital stock of Green Dot or any of its Subsidiaries) are outstanding.  There are no voting trusts, stockholder agreements, proxies or other agreements in effect to which Green Dot or any of its Subsidiaries is a party with respect to the voting or transfer of Green Dot Common Stock, capital stock or other voting or equity securities or ownership interests of Green Dot or granting any stockholder or other person any registration rights.

 

 

(a)          Green Dot has full corporate power and authority to execute and deliver this Agreement and, upon receipt of the Requisite Green Dot Vote (as defined below), to consummate the transactions contemplated hereby.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including the Green Dot Merger) have been duly and validly approved by the Board of Directors of Green Dot.  The Board of Directors of Green Dot has unanimously determined that the transactions contemplated hereby (including the Green Dot Merger), on the terms and conditions set forth in this Agreement, are advisable and in the best interests of Green Dot and its stockholders, has approved this Agreement and the transactions contemplated hereby (including the Green Dot Merger), and has directed that this Agreement be submitted to Green Dot’s stockholders for adoption at a meeting of such stockholders and has adopted a resolution to the foregoing effect.  Except for the adoption of this Agreement and the transactions contemplated by the Separation Agreement by the affirmative vote of the holders of a majority of the outstanding shares of Green Dot Common Stock entitled to vote on this Agreement (the “Requisite Green Dot Vote”) (and the approval of Merger Sub Two Holdco of the Conversion following the First Effective Time), no other corporate proceedings on the part of Green Dot are necessary to approve this Agreement or to consummate the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by Green Dot and (assuming due authorization, execution and delivery by CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two) constitutes a valid and binding obligation of Green Dot, enforceable against Green Dot in accordance with its terms (except in all cases as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws of general applicability affecting the rights of creditors generally and the availability of equitable remedies (the “Enforceability Exceptions”)).

 

(b)          Neither the execution and delivery of this Agreement by Green Dot nor the consummation by Green Dot of the transactions contemplated hereby (including the Mergers), nor compliance by Green Dot with any of the terms or provisions hereof, will (i) violate any provision of the Green Dot Charter or the Green Dot Bylaws or (ii) assuming that the consents and approvals referred to in Section 3.4 are duly obtained, (x) violate any law, statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to Green Dot or any of its Subsidiaries or any of their respective properties or assets or (y) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of Green Dot or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which Green Dot or any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound, except (in the case of clauses (x) and (y) above) for such violations, conflicts, breaches, defaults, terminations, cancellations, accelerations or creations which, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Green Dot.

3.4          Consents and Approvals.  Except for (a) the filing of any required applications, filings and notices, as applicable, with the NYSE, (b) the filing of any required applications, filings and notices, as applicable, with the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”) under the BHC Act and approval of such applications, filings and notices, (c) the filing of any required applications, filings or notices with the Financial Industry Regulatory Authority (“FINRA”) and approval of such applications, filings and notices, (d) the filing of any required applications, filings or notices with any state banking or financial authorities listed on Section 3.4 of the Green Dot Disclosure Schedule or Section 4.4 of the CommerceOne Disclosure Schedule and approval of such applications, filings and notices, (e) the filing of any required applications, filings and notices, as applicable, with the FDIC and approval of such applications, filings and notices, (f) the filing by Green Dot with the Securities and Exchange Commission (the “SEC”) of a proxy statement in definitive form (including any amendments or supplements thereto, the “Proxy Statement”), and the registration statement on Form S-4 in which the Proxy Statement will be included as a prospectus, to be filed with the SEC by New CommerceOne in connection with the transactions contemplated by this Agreement (the “S-4”) and the declaration of effectiveness of the S-4, (g) the filing of the CommerceOne Certificates of Merger, Green Dot Certificate of Merger and Upstream Certificates of Merger with the Delaware Secretary pursuant to the DGCL and the Alabama Secretary pursuant to the ABCL, as applicable, (h) such filings and approvals as are required to be made or obtained under the securities or “Blue Sky” laws of various states in connection with the issuance of the shares of New CommerceOne Common Stock pursuant to this Agreement and the approval of the listing of such New CommerceOne Common Stock on the NYSE, and (i) compliance with any applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”), no consents or approvals of or filings or registrations with any court, administrative agency or commission or other governmental or regulatory authority or instrumentality or SRO (each a “Governmental Entity”) are necessary in connection with (x) the execution and delivery by Green Dot of this Agreement or (y) the consummation by Green Dot of the Mergers and the other transactions contemplated hereby.  As of the date hereof, Green Dot is not aware of any reason why the necessary regulatory approvals and consents will not be received in order to permit consummation of the Mergers on a timely basis.

 

3.5          Reports.  Green Dot and each of its Subsidiaries have timely filed (or furnished) all reports, forms, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file (or furnish, as applicable) since December 31, 2022 with (i) any state regulatory authority, (ii) the SEC, (iii) the Federal Reserve Board, (iv) the FDIC, (v) the Office of the Comptroller of the Currency (the “OCC”), (vi) any foreign regulatory authority and (vii) any self-regulatory organization (an “SRO”) (clauses (i) – (vii), collectively “Regulatory Agencies”), including any report, form, registration or statement required to be filed (or furnished, as applicable) pursuant to the laws, rules or regulations of the United States, any state, any foreign entity, or any Regulatory Agency, and have paid all fees and assessments due and payable in connection therewith, except where the failure to file (or furnish, as applicable) such report, form, correspondence, registration or statement or to pay such fees and assessments, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Green Dot.  Subject to Section 9.15, except for normal examinations conducted by a Regulatory Agency in the ordinary course of business of Green Dot and its Subsidiaries, no Regulatory Agency has initiated or has pending any proceeding or, to the knowledge of Green Dot, investigation into the business or operations of Green Dot or any of its Subsidiaries since December 31, 2022, except where such proceedings or investigations would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot.  Subject to Section 9.15, there (i) is no unresolved violation, criticism, or exception by any Regulatory Agency with respect to any report or statement relating to any examinations or inspections of Green Dot or any of its Subsidiaries and (ii) have been no formal or informal inquiries by, or disagreements or disputes with, any Regulatory Agency with respect to the business, operations, policies or procedures of Green Dot or any of its Subsidiaries since December 31, 2022, in each case, which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot.

 

 

(a)          The financial statements of Green Dot and its Subsidiaries included (or incorporated by reference) in the Green Dot Reports (including the related notes, where applicable) (i) have been prepared from, and are in accordance with, the books and records of Green Dot and its Subsidiaries, (ii) fairly present in all material respects the consolidated results of operations, cash flows, changes in stockholders’ equity and consolidated financial position of Green Dot and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth (subject in the case of unaudited statements to year-end audit adjustments normal in nature and amount), (iii) complied, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, and (iv) have been prepared in accordance with GAAP consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto.  Since December 31, 2022, no independent public accounting firm of Green Dot has resigned (or informed Green Dot that it intends to resign) or been dismissed as independent public accountants of Green Dot as a result of or in connection with any disagreements with Green Dot on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.

 

(b)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, neither Green Dot nor any of its Subsidiaries has any liability of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected or reserved against on the consolidated balance sheet of Green Dot included in its Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2025 (including any notes thereto) and for liabilities incurred in the ordinary course of business consistent with past practice since September 30, 2025, or in connection with this Agreement and the transactions contemplated hereby.

 

(c)           The records, systems, controls, data and information of Green Dot and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership of Green Dot or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership that would not reasonably be expected to have a Material Adverse Effect on Green Dot.  Green Dot (x) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) to ensure that material information relating to Green Dot, including its Subsidiaries, is made known to the chief executive officer and the chief financial officer of Green Dot by others within those entities as appropriate to allow timely decisions regarding required disclosures and to make the certifications required by the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), and (y) has disclosed in writing, based on its most recent evaluation prior to the date hereof, to Green Dot’s outside auditors and the audit committee of the Board of Directors of Green Dot (i) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect Green Dot’s ability to record, process, summarize and report financial information, and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in Green Dot’s internal controls over financial reporting.  There is no reason to believe that Green Dot’s outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act, without qualification, when next due.

 

(d)          Since December 31, 2022, (i) neither Green Dot nor any of its Subsidiaries, nor, to the knowledge of Green Dot, any director, officer, auditor, accountant or representative of Green Dot or any of its Subsidiaries, has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of Green Dot or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Green Dot or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no employee of or attorney representing Green Dot or any of its Subsidiaries, whether or not employed by Green Dot or any of its Subsidiaries, has reported evidence of a material violation of securities laws or banking laws, breach of fiduciary duty or similar violation by Green Dot or any of its Subsidiaries or any of their respective officers, directors, employees or agents to the Board of Directors of Green Dot or any committee thereof or to the knowledge of Green Dot, to any director or officer of Green Dot.

 

3.7          Broker’s Fees.  With the exception of Citigroup Global Markets Inc., neither Green Dot nor any Green Dot Subsidiary nor any of their respective officers or directors has engaged any broker, finder or financial advisor or incurred any liability for any broker’s fees, commissions or finder’s fees in connection with the Mergers or the other transactions contemplated by this Agreement.  Green Dot has disclosed to CommerceOne as of the date hereof the aggregate fees to be paid by Green Dot to Citigroup Global Markets Inc. related to the Mergers and the other transactions contemplated hereunder.

 

 

(a)          Since December 31, 2024, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot.

 

(b)          Since December 31, 2024, Green Dot and its Subsidiaries have carried on their respective businesses in all material respects in the ordinary course.

 

 

(a)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, neither Green Dot nor any of its Subsidiaries is a party to any, and there are no outstanding or pending or, to the knowledge of Green Dot, threatened in writing, legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against Green Dot or any of its Subsidiaries or any of their current or former directors or executive officers or challenging the validity or propriety of the transactions contemplated by this Agreement.

 

(b)          There is no injunction, order, judgment, decree, or regulatory restriction imposed upon Green Dot, any of its Subsidiaries or the assets of Green Dot or any of its Subsidiaries (or that, upon consummation of the Mergers, would apply to the New CommerceOne or any of its Affiliates) that would reasonably be expected to be material to New CommerceOne and its Subsidiaries (after giving effect to the Mergers), taken as a whole.

 

 

(a)          Each of Green Dot and its Subsidiaries has duly and timely filed (including all applicable extensions) all material Tax Returns in all jurisdictions in which Tax Returns are required to be filed by it, and all such Tax Returns are true, correct, and complete in all material respects.

 

(b)          Neither Green Dot nor any of its Subsidiaries is the beneficiary of any extension of time within which to file any material Tax Return (other than extensions to file Tax Returns obtained in the ordinary course).

 

(c)          All material Taxes of Green Dot and its Subsidiaries (whether or not shown on any Tax Returns) that are due have been fully and timely paid.

 

(d)          Each of Green Dot and its Subsidiaries has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor, stockholder, independent contractor or other third party.

 

(e)          Neither Green Dot nor any of its Subsidiaries has granted any extension or waiver of the limitation period applicable to any material Tax that remains in effect.

 

(f)          Neither Green Dot nor any of its Subsidiaries has received written notice of assessment or proposed assessment in connection with any material amount of Taxes, and there are no ongoing, threatened in writing or pending disputes, claims, audits, examinations or other proceedings regarding any material Tax of Green Dot and its Subsidiaries or the assets of Green Dot and its Subsidiaries that has not been accrued in the latest audited balance sheet included in the Green Dot Reports.

 

(g)          There are no Liens for material Taxes (except Taxes not yet due and payable) on any of the assets of Green Dot or any of its Subsidiaries.

 

(h)          Neither Green Dot nor any of its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than (i) such an agreement or arrangement exclusively between or among Green Dot and its Subsidiaries or (ii) commercial agreements the principal purpose of which does not relate to Taxes).

 

(i)          Neither Green Dot nor any of its Subsidiaries (i) has been a member of an affiliated group filing a consolidated federal income Tax Return for which the statute of limitations is open (other than a group the common parent of which was Green Dot) or (ii) has any liability for the Taxes of any person (other than Green Dot or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise.

 

(j)          Neither Green Dot nor any of its Subsidiaries has been, within the past two (2) years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Mergers are also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intending to qualify for tax-free treatment under Section 355 of the Code.

 

(k)          Neither Green Dot nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).

 

(l)          At no time during the past five (5) years has Green Dot been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.

 

(m)          Neither Green Dot nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or any portion thereof) ending after the Closing Date as a result of (i) any change in accounting method made before the Closing under Section 481(c) of the Code (or any similar provision of state, local or foreign law), (ii) any agreement entered into with any Governmental Entity (including a “closing agreement” described in Section 7121 of the Code (or any similar provision of state, local or foreign law)) prior to the Closing, (iii) any installment sale or open transaction disposition or intercompany transaction made on or prior to the Closing, or (iv) any intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state or local law) existing on or prior to the Closing, in each case, as a result of any action or transaction occurring prior to the Closing.

 

(n)          As used in this Agreement, the term “Tax” or “Taxes” means all federal, state, local, and foreign income, excise, gross receipts, ad valorem, profits, gains, property, capital, sales, transfer, use, license, payroll, employment, social security, severance, unemployment, withholding, duties, excise, windfall profits, intangibles, franchise, backup withholding, value added, alternative or add-on minimum, estimated and other taxes, charges, levies or like assessments together with all penalties and additions to tax and interest thereon.

 

(o)          As used in this Agreement, the term “Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof, supplied or required to be supplied to a Governmental Entity.

 

 

(a)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, each Green Dot Benefit Plan has been established, operated and administered in accordance with its terms and the requirements of all applicable laws, including ERISA and the Code.  For purposes of this Agreement, the term “Green Dot Benefit Plans” means all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA, and all equity, equity-based, bonus or incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, termination, change in control, retention, employment, welfare, insurance, medical, fringe or other benefit plans, programs, agreements, contracts, policies, practices, arrangements or remuneration of any kind, whether or not funded and whether or not in writing, with respect to which Green Dot or any Subsidiary or any trade or business of Green Dot or any of its Subsidiaries, whether or not incorporated, all of which together with Green Dot would be deemed a “single employer” within the meaning of Section 4001 of ERISA (a “Green Dot ERISA Affiliate”), is a party or has any current or future obligation or that are maintained, contributed to or sponsored by Green Dot or any of its Subsidiaries for the benefit of any current or former employee, officer, director or independent contractor of Green Dot or any of its Subsidiaries, excluding, in each case, any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a “Multiemployer Plan”) or any plan, program or arrangement sponsored by a Governmental Entity.

 

(b)          Green Dot has made available to CommerceOne true and complete copies of each material Green Dot Benefit Plan and the following related documents, to the extent applicable:  (i) all summary plan descriptions, material amendments, modifications or material supplements, (ii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the “IRS”), (iii) the most recently received IRS determination letter and (iv) the most recently prepared actuarial report.

 

(c)          Except as would not result in any material liability to Green Dot and its Subsidaries, taken as a whole, each Green Dot Benefit Plan that is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service or may rely on a favorable opinion letter issued by the Internal Revenue Service and, to Green Dot’s knowledge, no event has occurred since December 31, 2022 that would adversely affect the qualification or tax exemption of any such Green Dot Benefit Plan.

 

(d)          No Green Dot Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code.  During the immediately preceding six (6) years, no liability under Section 302 or Title IV of ERISA has been incurred by Green Dot or its Subsidiaries or any of their respective ERISA Affiliates, and, to Green Dot’s knowledge, no condition exists that presents a risk to Green Dot or its Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability.

 

(e)          None of Green Dot and its Subsidiaries nor any Green Dot ERISA Affiliate has, at any time during the last six (6) years, contributed to or been obligated to contribute to a Multiemployer Plan or a plan that has two (2) or more contributing sponsors at least two (2) of whom are not under common control, within the meaning of Section 4063 of ERISA (a “Multiple Employer Plan”), and none of Green Dot and its Subsidiaries nor any Green Dot ERISA Affiliate has incurred any liability that has not been satisfied in full to a Multiemployer Plan or Multiple Employer Plan as a result of a complete or partial withdrawal (as those terms are defined in Part I of Subtitle E of Title IV of ERISA) from a Multiemployer Plan or Multiple Employer Plan.

 

(f)          Except as would not result in any material liability to Green Dot and its Subsidiaries, taken as a whole, no Green Dot Benefit Plan provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees or beneficiaries or dependents thereof, except as required by Section 4980B of the Code.

 

(g)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, all contributions required to be made to any Green Dot Benefit Plan by applicable law or by any plan document or other contractual undertaking for any period through the date hereof have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of Green Dot.

 

(h)          There are no pending or, to Green Dot’s knowledge, threatened claims (in each case other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Green Dot’s knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Green Dot Benefit Plans, any fiduciaries thereof with respect to their duties to the Green Dot Benefit Plans or the assets of any of the trusts under any of the Green Dot Benefit Plans that would reasonably be expected to result in any liability of Green Dot or any of its Subsidiaries in an amount that, individually or in the aggregate, would be material to Green Dot and its Subsidiaries, taken as a whole.

 

(i)          Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in (i) the acceleration of vesting, exercisability, funding or delivery of, or increase in the amount or value of, any payment, right or other benefit to any current or former employee, officer, director or other service provider of Green Dot or any of its Subsidiaries, (ii) result in any limitation on the right of Green Dot or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Green Dot Benefit Plan or related trust on or after the First Effective Time or (iii) otherwise give rise to any material liability under any Green Dot Benefit Plan.  Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Green Dot or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code.

 

(j)          Neither Green Dot nor any Subsidiary has any obligation to provide, and no Green Dot Benefit Plan provides for, the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code (or any corresponding provisions of state, local or foreign Tax law), or otherwise.

 

(k)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, there are no pending or, to Green Dot’s knowledge, threatened labor grievances or unfair labor practice claims or charges against Green Dot or any of its Subsidiaries, or any strikes or other labor disputes against Green Dot or any of its Subsidiaries.  Neither Green Dot nor any of its Subsidiaries is party to or bound by any collective bargaining or similar agreement with any labor organization, or work rules or practices agreed to with any labor organization or employee association applicable to employees of Green Dot or any of its Subsidiaries and, except as would not reasonably be expected to be material, either individually or in the aggregate, to Green Dot and its Subsidiaries, there are no pending or, to the knowledge of Green Dot, threatened organizing efforts by any union or other group seeking to represent any employees of Green Dot or any of its Subsidiaries. Neither Green Dot nor any of its Subsidiaries has incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder (the “WARN Act”) or any similar foreign, state or local Law that remains unsatisfied.

 

(l)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, each Green Dot Benefit Plan that is subject to the laws of a jurisdiction other than the United States (whether or not U.S. law also applies) or is otherwise maintained primarily for the benefit of employees outside of the United States (a “Non-U.S. Green Dot Benefit Plan”) (i) has been maintained in accordance with all applicable requirements, (ii) if intended to qualify for special tax treatment, meets all requirements for such treatment and (iii) if intended to be funded and/or book-reserved, is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions. As of the date hereof, there is no pending or threatened material litigation relating to any Non-U.S. Green Dot Benefit Plan.

 

3.12        SEC Reports.  Green Dot has previously made available to CommerceOne an accurate and complete copy of each (a) final registration statement, prospectus, report, schedule and definitive proxy statement filed with or furnished to the SEC since December 31, 2022 by Green Dot pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act (the “Green Dot Reports”) and (b) communication mailed by Green Dot to its stockholders since December 31, 2022 and prior to the date hereof, and no such Green Dot Report or communication, as of the date thereof (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of the relevant meetings, respectively), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, except that information filed or furnished as of a later date (but before the date of this Agreement) shall be deemed to modify information as of an earlier date.  Since December 31, 2022, as of their respective dates, all Green Dot Reports filed or furnished under the Securities Act and the Exchange Act complied in all material respects with the published rules and regulations of the SEC with respect thereto.  No executive officer of Green Dot has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Sarbanes-Oxley Act.

 

 

(a)          Green Dot and each of its Subsidiaries hold, and have at all times since December 31, 2022, held, all licenses, registrations, franchises, certificates, permits, charters and authorizations necessary for the lawful conduct of their respective businesses and ownership of their respective properties, rights and assets under and pursuant to each (and have paid all fees and assessments due and payable in connection therewith), except where neither the cost of failure to hold nor the cost of obtaining and holding such license, registration, franchise, certificate, permit, charter or authorization (nor the failure to pay any fees or assessments) would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Green Dot, and to the knowledge of Green Dot, no suspension or cancellation of any such necessary license, registration, franchise, certificate, permit, charter or authorization is threatened.

 

(b)          Except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Green Dot, Green Dot and each of its Subsidiaries have complied with and are not in default or violation under any law, statute, order, rule, regulation, policy and/or guideline of any Governmental Entity applicable to Green Dot or any of its Subsidiaries, including all laws related to data protection or privacy (including laws relating to the privacy and security of data or information that constitutes personal data or personal information under applicable laws (“Personal Data,” and such laws relating thereto, “Data Protection Laws”)), the USA PATRIOT Act, the Bank Secrecy Act, the Equal Credit Opportunity Act and Regulation B, the Fair Housing Act, the Community Reinvestment Act, the Fair Credit Reporting Act, the Truth in Lending Act and Regulation Z, the Home Mortgage Disclosure Act, the Fair Debt Collection Practices Act, the Electronic Fund Transfer Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, any regulations promulgated by the Consumer Financial Protection Bureau, the Interagency Policy Statement on Retail Sales of Nondeposit Investment Products, the SAFE Mortgage Licensing Act of 2008, the Real Estate Settlement Procedures Act and Regulation X, Title V of the Gramm-Leach-Bliley Act, any and all sanctions or regulations enforced by the Office of Foreign Assets Control of the United States Department of Treasury and any other law, policy or guideline relating to bank secrecy, discriminatory lending, financing or leasing practices, consumer protection, money laundering prevention, foreign assets control, U.S. sanctions laws and regulations, Sections 23A and 23B of the Federal Reserve Act, the Sarbanes-Oxley Act, and all agency requirements relating to the origination, sale and servicing of mortgage and consumer loans.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, since December 31, 2022, there has been no action pending or, to the knowledge of Green Dot, threatened against Green Dot and its Subsidiaries by any Governmental Entity or other person alleging any violation of any Data Protection Laws.

 

(c)          Green Dot Bank has a Community Reinvestment Act rating of “satisfactory” or better. Except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Green Dot: (A) Green Dot has complied with all requirements of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (the “CARES Act”) and the Paycheck Protection Program, including applicable guidance, in connection with its participation in the Paycheck Protection Program; (B) Green Dot and each of its Subsidiaries have properly administered all accounts for which it acts as a fiduciary, including accounts for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in accordance with the terms of the governing documents and applicable state, federal and foreign law; and (C) none of Green Dot, any of its Subsidiaries, or any of its or its Subsidiaries’ directors, officers or employees, has committed any breach of trust or fiduciary duty with respect to any such fiduciary account, and the accountings for each such fiduciary account are true, correct and complete and accurately reflect the assets and results of such fiduciary account.

 

(d)          Green Dot maintains a written information privacy and security program that includes measures reasonably designed to protect the privacy, confidentiality and security of all Personal Data processed or otherwise handled by or on behalf of Green Dot against any (i) loss or misuse of such Personal Data, (ii) unauthorized or unlawful processing or handling of such Personal Data, or (iii) other act or omission that compromises the security or confidentiality of such Personal Data (each of clauses (i) through (iii), a “Security Breach”).  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, Green Dot and its Subsidiaries have taken commercially reasonable measures, consistent with general industry practices, designed to ensure the confidentiality, privacy and security of Personal Data processed or otherwise handled by or on behalf of Green Dot.  To the knowledge of Green Dot, Green Dot has not experienced any Security Breach that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Green Dot.  To the knowledge of Green Dot, there are no data security or other technological vulnerabilities with respect to its information technology systems or networks that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Green Dot.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, Green Dot and its Subsidiaries are in compliance with all of its and their privacy policies relating to Personal Data.

 

(e)          Without limitation, none of Green Dot or any of its Subsidiaries or to the knowledge of Green Dot, any director, officer, employee, agent or other person acting on behalf of Green Dot or any of its Subsidiaries has, directly or indirectly, (i) used any funds of Green Dot or any of its Subsidiaries for unlawful contributions, unlawful gifts, unlawful entertainment or other expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic governmental officials or employees or to foreign or domestic political parties or campaigns from funds of Green Dot or any of its Subsidiaries, (iii) violated any provision that would result in the violation of the Foreign Corrupt Practices Act of 1977, as amended, or any similar law, (iv) established or maintained any unlawful fund of monies or other assets of Green Dot or any of its Subsidiaries, (v) made any fraudulent entry on the books or records of Green Dot or any of its Subsidiaries, (vi) made any unlawful bribe, unlawful rebate, unlawful payoff, unlawful influence payment, unlawful kickback or other unlawful payment to any person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business, to obtain special concessions for Green Dot or any of its Subsidiaries, to pay for favorable treatment for business secured or to pay for special concessions already obtained for Green Dot or any of its Subsidiaries or (vii) is currently subject to any United States sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department, except in each case as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Green Dot.

 

(f)           As of the date hereof, Green Dot and Green Dot Bank each meet the applicable published criteria to be “well-capitalized” (as such term is defined in the relevant regulation of the applicable institution’s primary federal banking regulator).

 

(g)          Except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Green Dot, (i) Green Dot and each of its Subsidiaries have properly administered all accounts for which it acts as a fiduciary, including accounts for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in accordance with the terms of the governing documents and applicable state, federal and foreign law; and (ii) none of Green Dot, any of its Subsidiaries, or any of its or its Subsidiaries’ directors, officers or employees, has committed any breach of trust or fiduciary duty with respect to any such fiduciary account, and the accountings for each such fiduciary account are true and correct and accurately reflect the assets and results of such fiduciary account.

 

 

(a)          Except as set forth in Section 3.14(a) of the Green Dot Disclosure Schedule or as filed with any Green Dot Reports, as of the date hereof, neither Green Dot nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral), but excluding any Green Dot Benefit Plan and any contract, arrangement, commitment or understanding solely among Green Dot and any wholly-owned Subsidiaries of Green Dot or solely among wholly owned Subsidiaries of Green Dot:

 

(i)          which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);

 

(ii)          which contains a provision that materially restricts the conduct of any line of business by Green Dot or any of its Subsidiaries or upon consummation of the Mergers will materially restrict the ability of New CommerceOne or any of its Affiliates to engage in any line of business or in any geographic region (including any exclusivity or exclusive dealing provisions with such an effect);

 

(iii)          with or to a labor union or guild with respect to any employees of Green Dot or any its Subsidiaries (including any collective bargaining agreement);

 

(iv)          any of the benefits of or obligations under which will arise or be increased or accelerated by the occurrence of the execution and delivery of this Agreement, receipt of the Requisite Green Dot Vote or the announcement or consummation of any of the transactions contemplated by this Agreement, or under which a right of cancellation or termination will arise as a result thereof, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, where such increase or acceleration of benefits or obligations, right of cancellation or termination, or change in calculation of value of benefits would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Green Dot;

 

(v) (A) that relates to the incurrence of indebtedness by Green Dot or any of its Subsidiaries, including any sale and leaseback transactions, securitizations, off-balance sheet financing arrangements, capitalized leases and other similar financing arrangements (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase in each case incurred in the ordinary course of business consistent with past practice), or (B) that provides for the guarantee, support, indemnification, assumption or endorsement by Green Dot or any of its Subsidiaries of, or any similar commitment by Green Dot or any of its Subsidiaries with respect to, the obligations, liabilities or indebtedness of any other person, in the case of each of clauses (A) and (B), in the principal amount of $500,000 or more; (vi) that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Green Dot or its Subsidiaries;

 

 

(vii)          that is a consulting agreement or data processing, software programming or licensing contract involving the payment by Green Dot or any of its Subsidiaries of more than $10,000,000 per annum (other than any such contracts which are terminable by Green Dot or any of its Subsidiaries on sixty (60) days’ or less notice without any required payment or other conditions, other than the condition of notice);

 

(viii)          any lease, sublease, license and other agreement under which Green Dot or any of its Subsidiaries leases, subleases, licenses, uses or occupies (in each case whether as landlord, tenant, sublandlord, subtenant or by other occupancy arrangement), or has the right to use or occupy, now or in the future, any real property pursuant to which the annual amount payable by Green Dot or any of its Subsidiaries is more than $2,000,000;

 

(ix)          that is a settlement, consent or similar agreement and contains any material continuing obligations of Green Dot or any of its Subsidiaries; or

 

(x)          that relates to the acquisition or disposition of any person, business or asset and under which Green Dot or its Subsidiaries have or may have a material obligation or liability.

 

Each contract, arrangement, commitment or understanding of the type described in this Section 3.14(a), whether or not set forth in the Green Dot Disclosure Schedule, is referred to herein as a “Green Dot Contract.”  Green Dot has made available to CommerceOne true, correct and complete copies of each Green Dot Contract in effect as of the date hereof.

 

(b)          (i)  Each Green Dot Contract is valid and binding on Green Dot or one of its Subsidiaries, as applicable, and in full force and effect, except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Green Dot, (ii) Green Dot and each of its Subsidiaries have in all material respects complied with and performed all obligations required to be complied with or performed by any of them to date under each Green Dot Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Green Dot, (iii) to the knowledge of Green Dot, each third-party counterparty to each Green Dot Contract has in all material respects complied with and performed all obligations required to be complied with and performed by it to date under such Green Dot Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Green Dot, (iv) neither Green Dot nor any of its Subsidiaries has knowledge of, or has received notice of, any violation of any Green Dot Contract by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot and (v) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a material breach or default on the part of Green Dot or any of its Subsidiaries or, to the knowledge of Green Dot, any other party thereto, of or under any such Green Dot Contract, except where such breach or default, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Green Dot.

 

3.15        Agreements with Regulatory Agencies.  Subject to Section 9.15, neither Green Dot nor any of its Subsidiaries is subject to any cease-and-desist or other order or enforcement action issued by, or is a party to any written agreement, consent agreement or memorandum of understanding with, or is a party to any commitment letter or similar undertaking to, or is subject to any order or directive by, or has been ordered to pay any civil money penalty by, or has been since December 31, 2022, a recipient of any supervisory letter from, or since December 31, 2022, has adopted any policies, procedures or board resolutions at the request or suggestion of, any Regulatory Agency or other Governmental Entity that currently restricts in any material respect or would reasonably be expected to restrict in any material respect the conduct of its business or that in any material manner relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management or its business (each, whether or not set forth in the Green Dot Disclosure Schedule, a “Green Dot Regulatory Agreement”), nor has Green Dot or any of its Subsidiaries been advised in writing since December 31, 2022, by any Regulatory Agency or other Governmental Entity that it is considering issuing, initiating, ordering, or requesting any such Green Dot Regulatory Agreement.

 

3.16        Risk Management Instruments.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, all interest rate swaps, caps, floors, option agreements, futures and forward contracts and other similar derivative transactions and risk management arrangements, whether entered into for the account of Green Dot or any of its Subsidiaries or for the account of a customer of Green Dot or one of its Subsidiaries, were entered into in the ordinary course of business and in accordance with applicable rules, regulations and policies of any Regulatory Agency and with counterparties reasonably believed to be financially responsible at the time and are legal, valid and binding obligations of Green Dot or one of its Subsidiaries enforceable in accordance with their terms (except as may be limited by the Enforceability Exceptions).  Green Dot and each of its Subsidiaries have duly performed in all material respects all of their respective material obligations thereunder to the extent that such obligations to perform have accrued, and, to the knowledge of Green Dot, there are no material breaches, violations or defaults or allegations or assertions of such by any party thereunder.

 

3.17        Environmental Matters.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, Green Dot and its Subsidiaries are in compliance, and since December 31, 2022 have complied with, any federal, state or local law, regulation, order, decree, permit, authorization, common law or agency requirement relating to:  (a) the protection or restoration of the environment, health and safety as it relates to hazardous substance exposure or natural resource damages, (b) the handling, use, presence, disposal, release or threatened release of, or exposure to, any hazardous substance or (c) noise, odor, wetlands, indoor air, pollution, contamination or any injury to persons or property from exposure to any hazardous substance (collectively, “Environmental Laws”).  There are no legal, administrative, arbitral or other proceedings, claims or actions or, to the knowledge of Green Dot, any private environmental investigations or remediation activities or governmental investigations of any nature seeking to impose, or that could reasonably be expected to result in the imposition, on Green Dot or any of its Subsidiaries of any liability or obligation arising under any Environmental Law pending or threatened against Green Dot, which liability or obligation would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot.  To the knowledge of Green Dot, there is no reasonable basis for any such proceeding, claim, action or governmental investigation that would impose any liability or obligation that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot.  Green Dot is not subject to any agreement, order, judgment, decree, letter agreement or memorandum of agreement by or with any court, Governmental Entity, Regulatory Agency or other third party imposing any liability or obligation with respect to the foregoing that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot.

 

3.18        Investment Securities and Commodities.  Each of Green Dot and its Subsidiaries has good title to all securities and commodities owned by it (except those sold under repurchase agreements) which are material to Green Dot’s business on a consolidated basis, free and clear of any Lien, except to the extent such securities or commodities are pledged in the ordinary course of business to secure obligations of Green Dot or its Subsidiaries.  Such securities and commodities are valued on the books of Green Dot in accordance with GAAP in all material respects.

 

3.19        Real Property.  Green Dot or a Green Dot Subsidiary (a) has good and marketable title to all the real property reflected in the latest audited balance sheet included in the Green Dot Reports as being owned by Green Dot or a Green Dot Subsidiary or acquired after the date thereof which are material to Green Dot’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business) (the “Green Dot Owned Properties”), free and clear of all material Liens, except (i) statutory Liens securing payments not yet due, (ii) Liens for real property Taxes not yet due and payable, (iii) easements, rights of way, and other similar encumbrances that do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties, (iv) landlords’, lessors’, merchants’, materialmen’s, warehousemen’s, carriers’, workers’ or repairmen’s Liens or similar Liens arising or incurred in the ordinary course of business and (v) such imperfections or irregularities of title or Liens as do not materially affect the value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties (collectively, “Permitted Encumbrances”), and (b) is the lessee of all leasehold estates reflected in the latest audited financial statements included in such Green Dot Reports or acquired after the date thereof which are material to Green Dot’s business on a consolidated basis (except for leases that have expired by their terms since the date thereof) (such leasehold estates, collectively with the Green Dot Owned Properties, the “Green Dot Real Property”), free and clear of all material Liens, except for Permitted Encumbrances, and is in possession of the properties purported to be leased thereunder, and, to the knowledge of Green Dot, each such lease is valid without material default thereunder by the lessee or, to the knowledge of Green Dot, the lessor.  There are no pending or, to the knowledge of Green Dot, threatened condemnation proceedings against the Green Dot Real Property.

 

3.20        Intellectual Property.  Green Dot and each of its Subsidiaries owns (free and clear of any material Liens), or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot:  (a) (1) to the knowledge of Green Dot, the conduct by Green Dot and its Subsidiaries of their respective businesses does not infringe, misappropriate or otherwise violate the rights of any person and (2) no person has asserted in writing to Green Dot that Green Dot or any of its Subsidiaries has infringed, misappropriated or otherwise violated the Intellectual Property rights of such person, (b) to the knowledge of Green Dot, no person is challenging, infringing on, misappropriating or otherwise violating any right of Green Dot or any of its Subsidiaries with respect to any Intellectual Property owned by Green Dot or its Subsidiaries, and (c) neither Green Dot nor any Green Dot Subsidiary has received any written notice of any pending claim challenging the ownership, validity or enforceability of any Intellectual Property owned by Green Dot or any Green Dot Subsidiary, and Green Dot and its Subsidiaries have taken commercially reasonable actions to avoid the abandonment, cancellation or unenforceability of all Intellectual Property owned by Green Dot and its Subsidiaries.  For purposes of this Agreement, “Intellectual Property” means all intellectual property rights or similar industrial or proprietary rights anywhere in the world in or relating to:  (i) trademarks, service marks, brand names, d/b/a’s, internet domain names and URLs, logos, symbols, certification marks, trade dress and other indications of origin, all goodwill associated with the foregoing, and all registrations and applications to register the foregoing, including any extension, modification or renewal of any such registration or application; (ii) inventions, discoveries and ideas, whether patentable or not, patents, applications for patents and invention disclosures (including divisionals, revisions, continuations, continuations in part and renewals), all improvements thereto, and any extensions, substitutes, reissues or re-examinations thereof; (iii) nonpublic information, trade secrets and know-how, including proprietary or confidential processes, technologies, protocols, formulae, prototypes and confidential information and rights to limit the use or disclosure thereof by any person; (iv) writings and other works of authorship, whether copyrightable or not (including software, content, data, databases and other compilations of information) and whether published or unpublished, registrations or applications for registration of copyrights, and any renewals or extensions thereof; and (v) any other intellectual property, industrial or proprietary rights.

 

3.21        Related Party Transactions.  As of the date hereof, except as set forth in any Green Dot Reports, there are no transactions or series of related transactions, agreements, arrangements or understandings, nor are there any currently proposed transactions or series of related transactions, between Green Dot or any of its Subsidiaries, on the one hand, and any current or former director or “executive officer” (as defined in Rule 3b-7 under the Exchange Act) of Green Dot or any of its Subsidiaries or any person who beneficially owns (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) five percent (5%) or more of the outstanding Green Dot Common Stock (or any of such person’s immediate family members or Affiliates) (other than Subsidiaries of Green Dot), on the other hand, of the type required to be reported in any Green Dot Report pursuant to Item 404 of Regulation S-K promulgated under the Exchange Act.

 

3.22        State Takeover Laws.  The Board of Directors of Green Dot has approved this Agreement and the transactions contemplated hereby and has taken all such other necessary actions as required to render inapplicable to such agreements and transactions the provisions of any potentially applicable takeover laws of any state, including any “moratorium,” “control share,” “fair price,” “takeover” or “interested stockholder” law or any similar provisions of the Green Dot Charter or Green Dot Bylaws (collectively, with any similar provisions of the CommerceOne Charter or CommerceOne Bylaws, “Takeover Statutes”).

 

3.23        Opinion.  The Board of Directors of Green Dot has received the opinion of Citigroup Global Markets Inc. to the effect that, as of the date of such opinion and subject to the assumptions, qualifications, limitations and other matters considered in connection with the preparation of such opinion, the Green Dot Merger Consideration to be received by the holders of Green Dot Class A Common Stock in the Mergers pursuant to this Agreement is fair, from a financial point of view, to such holders.  Such opinion has not been amended or rescinded as of the date of this Agreement.

 

3.24        Green Dot Information.  The information relating to Green Dot and its Subsidiaries or that is provided by Green Dot or its Subsidiaries or their respective representatives for inclusion in the Proxy Statement and the S-4, or in any other document filed with any Regulatory Agency or Governmental Entity in connection herewith, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading.  The Proxy Statement (to the extent that portions thereof relate only to Green Dot or any of its Subsidiaries) will comply in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder.

 

 

(a)          As of the date hereof, except as set forth in Section 3.25(a) of the Green Dot Disclosure Schedule, neither Green Dot nor any of its Subsidiaries is a party to any written or oral loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, commitments, guarantees and interest-bearing assets) (collectively, “Loans”) in which Green Dot or any Subsidiary of Green Dot is a creditor that, as of November 21, 2025, had an outstanding balance of $1,000,000 or more and under the terms of which the obligor was, as of November 21, 2025, over ninety (90) days or more delinquent in payment of principal or interest.  Set forth in Section 3.25(a) of the Green Dot Disclosure Schedule is a true, correct and complete list of (A) all of the Loans of Green Dot and its Subsidiaries that, as of November 21, 2025, had an outstanding balance of $1,000,000 or more and were classified by Green Dot as “Other Loans Specially Mentioned,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans,” “Watch List” or words of similar import, together with the principal amount of and accrued and unpaid interest on each such Loan and the identity of the borrower thereunder, together with the aggregate principal amount of and accrued and unpaid interest on such Loans, by category of Loan (e.g., commercial, consumer, etc.), together with the aggregate principal amount of such Loans by category and (B) each asset of Green Dot or any of its Subsidiaries that, as of November 21, 2025, is classified as “Other Real Estate Owned” and the book value thereof.

 

(b)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, each Loan of Green Dot or any of its Subsidiaries (i) is evidenced by notes, agreements or other evidences of indebtedness that are true, genuine and what they purport to be, (ii) to the extent carried on the books and records of Green Dot and its Subsidiaries as secured Loans, has been secured by valid charges, mortgages, pledges, security interests, restrictions, claims, liens or encumbrances, as applicable, which have been perfected and (iii) is the legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms, subject to the Enforceability Exceptions.

 

(c)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, each outstanding Loan of Green Dot or any of its Subsidiaries (including Loans held for resale to investors) was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained, in all material respects in accordance with the relevant notes or other credit or security documents, the written underwriting standards of Green Dot and its Subsidiaries (and, in the case of Loans held for resale to investors, the underwriting standards, if any, of the applicable investors) and with all applicable federal, state and local laws, regulations and rules.

 

3.26        Insurance.  Except as would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect on Green Dot, (a) Green Dot and its Subsidiaries are insured with reputable insurers against such risks and in such amounts as the management of Green Dot reasonably has determined to be prudent and consistent with industry practice, and Green Dot and its Subsidiaries are in compliance in all material respects with their insurance policies and are not in default under any of the terms thereof, (b) each such policy is outstanding and in full force and effect and, except for policies insuring against potential liabilities of officers, directors and employees of Green Dot and its Subsidiaries, Green Dot or the relevant Subsidiary thereof is the sole beneficiary of such policies, (c) all premiums and other payments due under any such policy have been paid, and all claims thereunder have been filed in due and timely fashion, (d) there is no claim for coverage by Green Dot or any of its Subsidiaries pending under any insurance policy as to which coverage has been questioned, denied or disputed by the underwriters of such insurance policy and (e) neither Green Dot nor any of its Subsidiaries has received notice of any threatened termination of, material premium increase with respect to, or material alteration of coverage under, any insurance policies.

 

3.27        IT Systems.

 

(a)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, to the knowledge of Green Dot, no third party has gained unauthorized access to or misused any Personal Data or any hardware, software, code, systems, servers, networks, data communications lines and other information technology and equipment (collectively “IT Systems”) used in the operation of its businesses (collectively, “Green Dot Software and IT Systems”), in each case in a manner that has resulted or is reasonably likely to result in a duty to notify any person.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, Green Dot and its Subsidiaries have taken commercially reasonable steps and implemented commercially reasonable safeguards, consistent with accepted industry practices, Data Protection Laws and all contracts to the extent such contracts relate to the processing of Personal Data, that are designed to protect their products and services and the Green Dot Software and IT Systems from unauthorized access and free from any disabling codes or instructions, spyware, trojan horses, worms, viruses, or other software routines that permit or cause unauthorized access to, or disruption, impairment, disablement, or destruction of software, data or other materials (“Malicious Code”).  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, the Green Dot Software and IT Systems are (i) free from Malicious Code and (ii) have not, since December 31, 2022, experienced any failure or malfunction.

 

(b)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Green Dot, the Green Dot Software and IT Systems have not, since December 31, 2022, suffered an unscheduled outage or other failure.

 

3.28        No Other Representations or Warranties.

 

(a)          Except for the representations and warranties made by Green Dot in this Article III and in Article III of the Separation Agreement, neither Green Dot nor any other person makes any express or implied representation or warranty with respect to Green Dot, its Subsidiaries, or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects, and Green Dot hereby disclaims any such other representations or warranties.  In particular, without limiting the foregoing disclaimer, neither Green Dot nor any other person makes or has made any representation or warranty to CommerceOne or any of its Affiliates or representatives with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to Green Dot, any of its Subsidiaries or their respective businesses or (ii) except for the representations and warranties made by Green Dot in this Article III and Article III of the Separation Agreement, any oral or written information presented to CommerceOne or any of its Affiliates or representatives in the course of their due diligence investigation of Green Dot, the negotiation of this Agreement or in the course of the transactions contemplated hereby.

 

(b)          Green Dot acknowledges and agrees that none of CommerceOne, New CommerceOne, Merger Sub One, Merger Sub Two nor any other person has made or is making any express or implied representation or warranty with respect to CommerceOne, its Subsidiaries, or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects other than those contained in Article IV. The foregoing shall not limit any of the representations or warranties contained in Article V of the Separation Agreement.

 

3.29        Reorganization. Green Dot has not taken any action and is not aware of any fact or circumstance that could reasonably be expected to prevent the CommerceOne Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

 

 

 

Except as disclosed in the disclosure schedule delivered by CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two to Green Dot concurrently herewith (the “CommerceOne Disclosure Schedule”); provided, that (i) no such item is required to be set forth as an exception to a representation or warranty if its absence would not result in the related representation or warranty being deemed untrue or incorrect, (ii) the mere inclusion of an item in the CommerceOne Disclosure Schedule as an exception to a representation or warranty shall not be deemed an admission by CommerceOne that such item represents a material exception or fact, event or circumstance or that such item would reasonably be expected to have a Material Adverse Effect and (iii) any disclosures made with respect to a section of Article IV shall be deemed to qualify (1) any other section of Article IV specifically referenced or cross-referenced and (2) other sections of Article IV to the extent it is reasonably apparent on its face (notwithstanding the absence of a specific cross reference) from a reading of the disclosure that such disclosure applies to such other sections, CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two hereby represent and warrant to Green Dot as follows:

 

 

(a)          CommerceOne is a corporation duly organized, validly existing and in good standing under the laws of the State of Alabama, is a bank holding company duly registered under the BHC Act.  Each of New CommerceOne, Merger Sub One and Merger Sub Two is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  Each of New CommerceOne, Merger Sub One and Merger Sub Two has the corporate power and authority to own, lease or operate all of its properties and assets and to carry on its business as it is now being conducted.  Each of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two is duly licensed or qualified to do business and in good standing in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned, leased or operated by it makes such licensing, qualification or standing necessary, except where the failure to be so licensed or qualified or to be in good standing would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CommerceOne.  True and complete copies of the Certificate of Incorporation of CommerceOne (the “CommerceOne Charter”) and the Bylaws of CommerceOne (the “CommerceOne Bylaws”) and the certificate of incorporation and bylaws of each of New CommerceOne, Merger Sub One and Merger Sub Two, in each case as in effect as of the date of this Agreement, have previously been made available by CommerceOne to Green Dot.

 

(b)          Each Subsidiary of CommerceOne (a “CommerceOne Subsidiary”) (i) is duly organized and validly existing under the laws of its jurisdiction of organization, (ii) is duly licensed or qualified to do business and, where such concept is recognized under applicable law, in good standing in all jurisdictions (whether federal, state, local or foreign) where its ownership, leasing or operation of property or the conduct of its business requires it to be so licensed or qualified or in good standing and in which the failure to be so licensed or qualified or in good standing would reasonably be expected to have a Material Adverse Effect on CommerceOne and (iii) has all requisite corporate power and authority to own, lease or operate its properties and assets and to carry on its business as now conducted.  There are no restrictions on the ability of CommerceOne or any Subsidiary of CommerceOne to pay dividends or distributions except, in the case of CommerceOne or a Subsidiary that is a regulated entity, for restrictions on dividends or distributions generally applicable to all similarly regulated entities.  The deposit accounts of each Subsidiary of CommerceOne that is an insured depository institution are insured by the FDIC through the Deposit Insurance Fund (as defined in Section 3(y) of the Federal Deposit Insurance Act of 1950) to the fullest extent permitted by law, all premiums and assessments required to be paid in connection therewith have been paid when due, and no proceedings for the termination of such insurance are pending or threatened.  Section 4.1(b) of the CommerceOne Disclosure Schedule sets forth a true and complete list of all Subsidiaries of CommerceOne that would constitute significant Subsidiaries.  There is no person whose results of operations, cash flows, changes in stockholders’ equity or financial position are consolidated in the financial statements of CommerceOne other than the CommerceOne Subsidiaries.

 

 

(a)          The authorized capital stock of CommerceOne consists of 10,000,000 shares of CommerceOne Common Stock and 25,000 shares of preferred stock, $1.00 par value per share.  As of November 21, 2025, there were (i) 4,938,928 shares of CommerceOne Common Stock issued and outstanding (including 50,580 shares of CommerceOne Restricted Stock); (ii) 703 shares of CommerceOne Common Stock held in treasury; (iii) 313,500 shares of CommerceOne Common Stock reserved for issuance upon the exercise of CommerceOne Stock Options; and (iv) 526,250 shares of CommerceOne Common Stock reserved for issuance upon the exercise of CommerceOne Warrants.  As of the date of this Agreement, except as set forth in the immediately preceding sentence and for changes since November 21, 2025, resulting from the exercise, vesting or settlement of any CommerceOne Stock Options and CommerceOne Restricted Stock (collectively, the “CommerceOne Equity Awards”) issued prior to the date of this Agreement as described in the immediately preceding sentence, there are no shares of capital stock or other voting securities or equity interests of CommerceOne issued, reserved for issuance or outstanding.  All of the issued and outstanding shares of CommerceOne Common Stock, New CommerceOne Common Stock, Merger Sub One Common Stock and Merger Sub Two Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof.  There are no bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which stockholders of CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two may vote.  Except as set forth in Section 4.2(a) of the CommerceOne Disclosure Schedule, no trust preferred or subordinated debt securities of CommerceOne are issued or outstanding.  Other than CommerceOne Equity Awards issued prior to the date of this Agreement as described in this Section 4.2(a), as of the date of this Agreement there are no outstanding subscriptions, options, warrants, stock appreciation rights, phantom units, scrip, rights to subscribe to, preemptive rights, anti-dilutive rights, rights of first refusal or similar rights, puts, calls, commitments or agreements of any character relating to, or securities or rights convertible or exchangeable into or exercisable for, shares of capital stock or other voting or equity securities of or ownership interest in CommerceOne, or contracts, commitments, understandings or arrangements by which CommerceOne may become bound to issue additional shares of its capital stock or other equity or voting securities of or ownership interests in CommerceOne or that otherwise obligate CommerceOne to issue, transfer, sell, purchase, redeem or otherwise acquire, any of the foregoing.  Other than the CommerceOne Equity Awards, no equity-based awards (including any cash awards where the amount of payment is determined in whole or in part based on the price of any capital stock of CommerceOne or any of its Subsidiaries) are outstanding.  There are no voting trusts, stockholder agreements, proxies or other agreements in effect to which CommerceOne or any of its Subsidiaries is a party with respect to the voting or transfer of CommerceOne Common Stock, capital stock or other voting or equity securities or ownership interests of CommerceOne or granting any stockholder or other person any registration rights.

 

(b)          CommerceOne owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity ownership interests of each of the CommerceOne Subsidiaries, free and clear of any Liens, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable (except, with respect to Subsidiaries that are depository institutions, as provided under 12 U.S.C. § 55 or any comparable provision of applicable state law) and free of preemptive rights, with no personal liability attaching to the ownership thereof.  The authorized capital stock of New CommerceOne consists of 100 shares of the New CommerceOne Common Stock of which, as of the date of this Agreement, 100 shares were issued and outstanding.  All of the issued and outstanding capital stock of New CommerceOne is, and as of immediately prior to the First Effective Time will be, owned by CommerceOne. The authorized capital stock of Merger Sub One consists of 100 shares of the Merger Sub One Common Stock of which, as of the date of this Agreement, 100 shares were issued and outstanding. All of the issued and outstanding capital stock of Merger Sub One is, and as of immediately prior to the First Effective Time will be, owned by New CommerceOne. The authorized capital stock of Merger Sub Two Holdco consists of 100 shares of common stock of which, as of the date of this Agreement, 100 shares were issued and outstanding. All of the issued and outstanding capital stock of Merger Sub Two Holdco is, and as of immediately prior to the First Effective Time will be, owned by New CommerceOne. The authorized capital stock of Merger Sub Two consists of 100 shares of the Merger Sub Two Common Stock of which, as of the date of this Agreement, 100 shares were issued and outstanding. All of the issued and outstanding capital stock of Merger Sub Two is, and as of immediately prior to the First Effective Time will be, owned by Merger Sub Two Holdco. Each of New CommerceOne, Merger Sub Two Holdco, Merger Sub One and Merger Sub Two has not conducted any business other than (i) incident to its formation for the sole purpose of carrying out the transactions contemplated by this Agreement and (ii) in relation to this Agreement, the Mergers and the other transactions contemplated hereby.

 

 

(a)          Each of CommerceOne, New CommerceOne. Each of New CommerceOne, Merger Sub One and Second Merger Sub has full corporate power and authority to execute and deliver this Agreement and, upon receipt of the Requisite CommerceOne Vote (as defined below), to consummate the transactions contemplated hereby.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including the Mergers) have been duly and validly approved by the Board of Directors of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two.  The Board of Directors of CommerceOne has unanimously determined that the transactions contemplated hereby (including the Mergers), on the terms and conditions set forth in this Agreement, are advisable and in the best interests of CommerceOne and its stockholders, has adopted and approved this Agreement and the transactions contemplated hereby (including the Mergers), and has directed that the transactions contemplated hereby be submitted to CommerceOne’s stockholders for approval at a meeting of such stockholders and has adopted a resolution to the foregoing effect.  The Boards of Directors of New CommerceOne, Merger Sub One and Merger Sub Two have determined that the Mergers, on the terms and conditions set forth in this Agreement, is in the best interests of New CommerceOne, Merger Sub One and Merger Sub Two and their respective stockholder(s) and has adopted a resolution to the foregoing effect.  CommerceOne, as the stockholder of New CommerceOne has adopted and approved this Agreement and the transactions contemplated hereby by written consent.  New CommerceOne, as the sole stockholder of Merger Sub One, has adopted and approved this Agreement and the transactions contemplated hereby by written consent.  Merger Sub Two Holdco, as the sole stockholder of Merger Sub Two, has adopted and approved this Agreement and the transactions contemplated hereby by written consent.  Except for (i) the approval of this Agreement and transactions contemplated hereby by the affirmative vote of the holders of shares representing a majority of the outstanding shares of CommerceOne Common Stock in accordance with the ABCL and the organizational documents of CommerceOne (the “Requisite CommerceOne Vote”) (and the approval of Merger Sub Two Holdco of the Conversion following the First Effective Time) and (ii) the adoption of resolutions to give effect to the provisions of Section 1.13(b) in connection with the Closing, no other corporate proceedings on the part of CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two are necessary to approve this Agreement or to consummate the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by each of CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two and (assuming due authorization, execution and delivery by Green Dot) constitutes a valid and binding obligation of each of CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two, enforceable against each of CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two in accordance with its terms (except in all cases as such enforceability may be limited by the Enforceability Exceptions).  The shares of New CommerceOne Common Stock to be issued in the Mergers have been validly authorized (subject to the receipt of the Requisite CommerceOne Vote), and when issued, will be validly issued, fully paid and nonassessable, and no current or past stockholder of CommerceOne will have any preemptive right or similar rights in respect thereof.

 

(b)          Neither the execution and delivery of this Agreement by CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two, nor the consummation by CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two of the transactions contemplated hereby (including the Mergers), nor compliance by CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two with any of the terms or provisions hereof, will (i) violate any provision of the CommerceOne Charter or the CommerceOne Bylaws or the charter or the bylaws of any of New CommerceOne, Merger Sub One or Merger Sub Two (ii) assuming that the consents and approvals referred to in Section 4.4 are duly obtained, (x) violate any law, statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to CommerceOne or any of its Subsidiaries or any of their respective properties or assets or (y) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, accelerate the performance required by, or result in the creation of any Lien upon any of the respective properties or assets of CommerceOne or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which CommerceOne or any of its Subsidiaries is a party, or by which they or any of their respective properties or assets may be bound, except (in the case of clauses (x) and (y) above) for such violations, conflicts, breaches, defaults, terminations, cancellations, accelerations or creations which, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on CommerceOne.

 

4.4          Consents and Approvals.  Except for (a) the filing of any required applications, filings and notices, as applicable, with the NYSE, (b) the filing of any required applications, filings and notices, as applicable, with the Federal Reserve Board under the BHC Act and approval of such applications, filings and notices, (c) the filing of any required applications, filings or notices with FINRA and approval of such applications, filings and notices, (d) the filing of any required applications, filings or notices with any state banking authorities listed on Section 3.4 of the Green Dot Disclosure Schedule or Section 4.4 of the CommerceOne Disclosure Schedule and approval of such applications, filings and notices, (e) the filing of any required applications, filings and notices, as applicable, with the FDIC and approval of such applications, filings and notices, (f) the filing with the SEC of the Proxy Statement and the S-4 in which the Proxy Statement will be included as a prospectus, and the declaration of effectiveness of the S-4, (g) the filing of the CommerceOne Certificates of Merger, Green Dot Certificate of Merger and Upstream Certificates of Merger with the Delaware Secretary pursuant to the DGCL and the Alabama Secretary pursuant to the ABCL, as applicable, (h) such filings and approvals as are required to be made or obtained under the securities or “Blue Sky” laws of various states in connection with the issuance of the shares of New CommerceOne Common Stock pursuant to this Agreement and the approval of the listing of such New CommerceOne Common Stock on the NYSE, and (i) compliance with any applicable requirements of the HSR Act, no consents or approvals of or filings or registrations with any Governmental Entity are necessary in connection with (x) the execution and delivery by CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two of this Agreement or (y) the consummation by CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two of the Mergers, as applicable, and the other transactions contemplated hereby.  As of the date hereof, CommerceOne is not aware of any reason why the necessary regulatory approvals and consents will not be received in order to permit consummation of the Mergers on a timely basis.

 

4.5          Reports.  CommerceOne and each of its Subsidiaries have timely filed (or furnished) all reports, forms, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file (or furnish, as applicable) since December 31, 2022 with any Regulatory Agencies, including any report, form, registration or statement required to be filed (or furnished, as applicable) pursuant to the laws, rules or regulations of the United States, any state, any foreign entity, or any Regulatory Agency, and have paid all fees and assessments due and payable in connection therewith, except where the failure to file (or furnish, as applicable) such report, form, correspondence, registration or statement or to pay such fees and assessments, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on CommerceOne.  Subject to Section 9.15, except for normal examinations conducted by a Regulatory Agency in the ordinary course of business of CommerceOne and its Subsidiaries, no Regulatory Agency has initiated or has pending any proceeding or, to the knowledge of CommerceOne, investigation into the business or operations of CommerceOne or any of its Subsidiaries since December 31, 2022, except where such proceedings or investigations would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne.  Subject to Section 9.15, there (i) is no unresolved violation, criticism, or exception by any Regulatory Agency with respect to any report or statement relating to any examinations or inspections of CommerceOne or any of its Subsidiaries and (ii) have been no formal or informal inquiries by, or disagreements or disputes with, any Regulatory Agency with respect to the business, operations, policies or procedures of CommerceOne or any of its Subsidiaries since December 31, 2022, in each case, which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne.

 

 

(a)          Section 4.6(a) of the CommerceOne Disclosure Schedule contains complete and correct copies of CommerceOne’s audited financial statements (including the related notes and schedules thereto) for the fiscal years ended December 31, 2024, 2023 and 2022 (the “CommerceOne Financial Statements”) (i) have been prepared from, and are in accordance with, the books and records of CommerceOne and its Subsidiaries, (ii) fairly present in all material respects the consolidated results of operations, cash flows, changes in stockholders’ equity and consolidated financial position of CommerceOne and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth (subject in the case of unaudited statements to year-end audit adjustments normal in nature and amount) and (iii) have been prepared in accordance with GAAP consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto.  Since December 31, 2022, no independent public accounting firm of CommerceOne has resigned (or informed CommerceOne that it intends to resign) or been dismissed as independent public accountants of CommerceOne as a result of or in connection with any disagreements with CommerceOne on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.

 

(b)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, neither CommerceOne nor any of its Subsidiaries has any liability of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected or reserved against on the audited balance sheet as of December 31, 2024 included in the CommerceOne Financial Statements (including any notes thereto) and for liabilities incurred in the ordinary course of business consistent with past practice since December 31, 2024, or in connection with this Agreement and the transactions contemplated hereby.

 

(c)          The records, systems, controls, data and information of CommerceOne and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership of CommerceOne or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership that would not reasonably be expected to have a Material Adverse Effect on CommerceOne.  CommerceOne (x) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that material information relating to CommerceOne, including its Subsidiaries, is made known to the chief executive officer and the chief financial officer of CommerceOne by others within those entities as appropriate to allow timely decisions regarding required disclosures, and (y) has disclosed in writing, based on its most recent evaluation prior to the date hereof, to CommerceOne’s outside auditors and the audit committee of the Board of Directors of CommerceOne (i) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect CommerceOne’s ability to record, process, summarize and report financial information, and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in CommerceOne’s internal controls over financial reporting.  There is no reason to believe that CommerceOne’s outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act, without qualification, when next due following the Closing.

 

(d)          Since December 31, 2022, (i) neither CommerceOne nor any of its Subsidiaries, nor, to the knowledge of CommerceOne, any director, officer, auditor, accountant or representative of CommerceOne or any of its Subsidiaries, has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of CommerceOne or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that CommerceOne or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no employee of or attorney representing CommerceOne or any of its Subsidiaries, whether or not employed by CommerceOne or any of its Subsidiaries, has reported evidence of a material violation of securities laws or banking laws, breach of fiduciary duty or similar violation by CommerceOne or any of its Subsidiaries or any of their respective officers, directors, employees or agents to the Board of Directors of CommerceOne or any committee thereof or to the knowledge of CommerceOne, to any director or officer of CommerceOne.

 

4.7          Broker’s Fees.  With the exception of the engagement of Performance Trust Capital Partners, LLC, neither CommerceOne nor any CommerceOne Subsidiary nor any of their respective officers or directors has employed any broker, finder or financial advisor or incurred any liability for any broker’s fees, commissions or finder’s fees in connection with the Mergers or the other transactions contemplated by this Agreement.  CommerceOne has disclosed to Green Dot as of the date hereof the aggregate fees provided for in connection with the engagement by CommerceOne of Performance Trust Capital Partners, LLC related to the Mergers and the other transactions contemplated hereunder.

 

 

(a)          Since December 31, 2024, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne.

 

(b)          Since December 31, 2024, CommerceOne and its Subsidiaries have carried on their respective businesses in all material respects in the ordinary course.

 

 

(a)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, neither CommerceOne nor any of its Subsidiaries is a party to any, and there are no outstanding or pending or, to the knowledge of CommerceOne, threatened in writing, legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against CommerceOne or any of its Subsidiaries or any of their current or former directors or executive officers or challenging the validity or propriety of the transactions contemplated by this Agreement.

 

(b)          There is no injunction, order, judgment, decree, or regulatory restriction imposed upon CommerceOne, any of its Subsidiaries or the assets of CommerceOne or any of its Subsidiaries (or that, upon consummation of the transactions contemplated by this Agreement and the Separation Agreement, would apply to CommerceOne or any of its Affiliates) that would reasonably be expected to be material to CommerceOne and its Affiliates, taken as a whole, after giving effect to the transactions contemplated by this Agreement and the Separation Agreement.

 

 

(a)          Each of CommerceOne and its Subsidiaries has duly and timely filed (including all applicable extensions) all material Tax Returns in all jurisdictions in which Tax Returns are required to be filed by it, and all such Tax Returns are true, correct, and complete in all material respects.

 

(b)          Neither CommerceOne nor any of its Subsidiaries is the beneficiary of any extension of time within which to file any material Tax Return (other than extensions to file Tax Returns obtained in the ordinary course).

 

(c)          All material Taxes of CommerceOne and its Subsidiaries (whether or not shown on any Tax Returns) that are due have been fully and timely paid.

 

(d)          Each of CommerceOne and its Subsidiaries has withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor, stockholder, independent contractor or other third party.

 

(e)          Neither CommerceOne nor any of its Subsidiaries has granted any extension or waiver of the limitation period applicable to any material Tax that remains in effect.

 

(f)          Neither CommerceOne nor any of its Subsidiaries has received written notice of assessment or proposed assessment in connection with any material amount of Taxes, and there are no ongoing, threatened in writing or pending disputes, claims, audits, examinations or other proceedings regarding any material Tax of CommerceOne and its Subsidiaries or the assets of CommerceOne and its Subsidiaries that has not been accrued in the latest audited balance sheet included in the CommerceOne Financial Statements.

 

(g)          There are no Liens for material Taxes (except Taxes not yet due and payable) on any of the assets of CommerceOne or any of its Subsidiaries.

 

(h)          Neither CommerceOne nor any of its Subsidiaries is a party to or is bound by any Tax sharing, allocation or indemnification agreement or arrangement (other than (i) such an agreement or arrangement exclusively between or among CommerceOne and its Subsidiaries or (ii) commercial agreements the principal purpose of which does not relate to Taxes).

 

(i)           Neither CommerceOne nor any of its Subsidiaries (i) has been a member of an affiliated group filing a consolidated federal income Tax Return for which the statute of limitations is open (other than a group the common parent of which was CommerceOne) or (ii) has any liability for the Taxes of any person (other than CommerceOne or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise.

 

(j)           Neither CommerceOne nor any of its Subsidiaries has been, within the past two (2) years or otherwise as part of a “plan (or series of related transactions)” within the meaning of Section 355(e) of the Code of which the Mergers are also a part, a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intending to qualify for tax-free treatment under Section 355 of the Code.

 

(k)          Neither CommerceOne nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).

 

(l)           At no time during the past five (5) years has CommerceOne been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.

 

(m)         Neither CommerceOne nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or any portion thereof) ending after the Closing Date as a result of (i) any change in accounting method made before the Closing under Section 481(c) of the Code (or any similar provision of state, local or foreign law), (ii) any agreement entered into with any Governmental Entity (including a “closing agreement” described in Section 7121 of the Code (or any similar provision of state, local or foreign law)) prior to the Closing, (iii) any installment sale or open transaction disposition or intercompany transaction made on or prior to the Closing, or (iv) any intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state or local law) existing on or prior to the Closing, in each case, as a result of any action or transaction occurring prior to the Closing.

 

 

(a)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, each CommerceOne Benefit Plan has been established, operated and administered in accordance with its terms and the requirements of all applicable laws, including ERISA and the Code.  For purposes of this Agreement, the term “CommerceOne Benefit Plans” means all employee benefit plans (as defined in Section 3(3) of ERISA), whether or not subject to ERISA, and all equity, equity-based, bonus or incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, termination change in control, retention, employment, welfare, insurance, medical, fringe or other benefit plans, programs, agreements, contracts, policies, practices, arrangements or remuneration of any kind, whether or not funded and whether or not in writing, with respect to which CommerceOne or any Subsidiary or any trade or business of CommerceOne or any of its Subsidiaries, whether or not incorporated, all of which together with CommerceOne would be deemed a “single employer” within the meaning of Section 4001 of ERISA (a “CommerceOne ERISA Affiliate”), is a party or has any current or future obligation or that are maintained, contributed to or sponsored by CommerceOne or any of its Subsidiaries for the benefit of any current or former employee, officer, director or independent contractor of CommerceOne or any of its Subsidiaries, excluding, in each case, any Multiemployer Plan or any plan, program or arrangement sponsored by a Governmental Entity.

 

(b)          CommerceOne has made available to Green Dot true and complete copies of each material CommerceOne Benefit Plan and the following related documents, to the extent applicable:  (i) all summary plan descriptions, material amendments, modifications or material supplements, (ii) the most recent annual report (Form 5500) filed with the IRS, (iii) the most recently received IRS determination letter and (iv) the most recently prepared actuarial report.

 

(c)          Except as would not result in any material liability to CommerceOne and its Subsidaries, taken as a whole, each CommerceOne Benefit Plan that is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service or may rely on a favorable opinion letter issued by the Internal Revenue Service and, to CommerceOne’s knowledge, no event has occurred since December 31, 2022 that would adversely affect the qualification or tax exemption of any such CommerceOne Benefit Plan.

 

(d)          No CommerceOne Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code.  During the immediately preceding six (6) years, no liability under Section 302 or Title IV of ERISA has been incurred by CommerceOne or its Subsidiaries or any of their respective ERISA Affiliates, and, to CommerceOne’s knowledge, no condition exists that presents a risk to CommerceOne or its Subsidiaries or any of their respective ERISA Affiliates of incurring any such liability.

 

(e)          None of CommerceOne and its Subsidiaries nor any CommerceOne ERISA Affiliate has, at any time during the last six (6) years, contributed to or been obligated to contribute to a Multiemployer Plan or a Multiple Employer Plan, and none of CommerceOne and its Subsidiaries nor any CommerceOne ERISA Affiliate has incurred any liability that has not been satisfied in full to a Multiemployer Plan or Multiple Employer Plan as a result of a complete or partial withdrawal (as those terms are defined in Part I of Subtitle E of Title IV of ERISA) from a Multiemployer Plan or Multiple Employer Plan.

 

(f)           Except as would not result in any material liability to CommerceOne or its Subsidiaries, taken as a whole, no CommerceOne Benefit Plan provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees or beneficiaries or dependents thereof, except as required by Section 4980 of the Code.

 

(g)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, all contributions required to be made to any CommerceOne Benefit Plan by applicable law or by any plan document or other contractual undertaking, for any period through the date hereof, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of CommerceOne.

 

(h)          There are no pending or, to CommerceOne’s knowledge, threatened claims (in each case other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to CommerceOne’s knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the CommerceOne Benefit Plans, any fiduciaries thereof with respect to their duties to the CommerceOne Benefit Plans or the assets of any of the trusts under any of the CommerceOne Benefit Plans that would reasonably be expected to result in any liability of CommerceOne or any of its Subsidiaries in an amount that, individually or in the aggregate, would be material to CommerceOne and its Subsidiaries, taken as a whole.

 

(i)           Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in (i) the acceleration of vesting, exercisability, funding or delivery of, or increase in the amount or value of, any payment, right or other benefit to any current or former employee, officer, director or other service provider of CommerceOne or any of its Subsidiaries, (ii) result in any limitation on the right of CommerceOne or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any CommerceOne Benefit Plan or related trust on or after the First Effective Time or (iii) otherwise give rise to any material liability under any CommerceOne Benefit Plan.  Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by CommerceOne or any of its Subsidiaries in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code.

 

(j)           Neither CommerceOne nor any Subsidiary has any obligation to provide, and no CommerceOne Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code (or any corresponding provisions of state, local or foreign Tax law), or otherwise.

 

(k)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, there are no pending or, to CommerceOne’s knowledge, threatened labor grievances or unfair labor practice claims or charges against CommerceOne or any of its Subsidiaries, or any strikes or other labor disputes against CommerceOne or any of its Subsidiaries.  Neither CommerceOne nor any of its Subsidiaries is party to or bound by any collective bargaining or similar agreement with any labor organization, or work rules or practices agreed to with any labor organization or employee association applicable to employees of CommerceOne or any of its Subsidiaries and, except as would not reasonably be expected to be material, either individually or in the aggregate, to CommerceOne and its subsidiaries, there are no pending or, to the knowledge of CommerceOne, threatened organizing efforts by any union or other group seeking to represent any employees of CommerceOne or any of its Subsidiaries.  Neither CommerceOne nor any of its Subsidiaries has incurred any material liability or obligation under the WARN Act and the regulations promulgated thereunder or any similar foreign, state or local Law that remains unsatisfied.

 

(l)           Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, each CommerceOne Benefit Plan that is subject to the laws of a jurisdiction other than the United States (whether or not U.S. law also applies) or is otherwise maintained primarily for the benefit of employees outside of the United States (a “Non-U.S. CommerceOne Benefit Plan”) (i) has been maintained in accordance with all applicable requirements, (ii) if intended to qualify for special tax treatment, meets all requirements for such treatment and (iii) if intended to be funded and/or book-reserved, is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions. As of the date hereof, there is no pending or threatened material litigation relating to any Non-U.S. CommerceOne Benefit Plan.

 

 

 

(a)          CommerceOne and each of its Subsidiaries hold, and have at all times since December 31, 2022, held, all licenses, registrations, franchises, certificates, permits charters and authorizations necessary for the lawful conduct of their respective businesses and ownership of their respective properties, rights and assets under and pursuant to each (and have paid all fees and assessments due and payable in connection therewith), except where neither the cost of failure to hold nor the cost of obtaining and holding such license, registration, franchise, certificate, permit, charter or authorization (nor the failure to pay any fees or assessments) would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CommerceOne, and to the knowledge of CommerceOne, no suspension or cancellation of any such necessary license, registration, franchise, certificate, permit, charter or authorization is threatened.

 

(b)          Except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CommerceOne, CommerceOne and each of its Subsidiaries have complied with and are not in default or violation under any law, statute, order, rule, regulation, policy and/or guideline of any Governmental Entity applicable to CommerceOne or any of its Subsidiaries, including all laws related to data protection or privacy (including Data Protection Laws), the USA PATRIOT Act, the Bank Secrecy Act, the Equal Credit Opportunity Act and Regulation B, the Fair Housing Act, the Community Reinvestment Act, the Fair Credit Reporting Act, the Truth in Lending Act and Regulation Z, the Home Mortgage Disclosure Act, the Fair Debt Collection Practices Act, the Electronic Fund Transfer Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, any regulations promulgated by the Consumer Financial Protection Bureau, the Interagency Policy Statement on Retail Sales of Nondeposit Investment Products, the SAFE Mortgage Licensing Act of 2008, the Real Estate Settlement Procedures Act and Regulation X, Title V of the Gramm-Leach-Bliley Act, any and all sanctions or regulations enforced by the Office of Foreign Assets Control of the United States Department of Treasury and any other law, policy or guideline relating to bank secrecy, discriminatory lending, financing or leasing practices, consumer protection, money laundering prevention, foreign assets control, U.S. sanctions laws and regulations, Sections 23A and 23B of the Federal Reserve Act, the Sarbanes-Oxley Act, and all agency requirements relating to the origination, sale and servicing of mortgage and consumer loans.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, since December 31, 2022, there has been no action pending or, to the knowledge of CommerceOne, threatened against CommerceOne and its Subsidiaries by any Governmental Entity or other person alleging any violation of any Data Protection Laws.

 

(c)          CommerceOne Bank has a Community Reinvestment Act rating of “satisfactory” or better.  Except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CommerceOne: (A) CommerceOne has complied with all requirements of the CARES Act and the Paycheck Protection Program, including applicable guidance, in connection with its participation in the Paycheck Protection Program; (B) CommerceOne and each of its Subsidiaries have properly administered all accounts for which it acts as a fiduciary, including accounts for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in accordance with the terms of the governing documents and applicable state, federal and foreign law; and (C) none of CommerceOne, any of its Subsidiaries, or any of its or its Subsidiaries’ directors, officers or employees, has committed any breach of trust or fiduciary duty with respect to any such fiduciary account, and the accountings for each such fiduciary account are true, correct and complete and accurately reflect the assets and results of such fiduciary account.

 

(d)          CommerceOne maintains a written information privacy and security program that includes measures reasonably designed to protect the privacy, confidentiality and security of all Personal Data processed or otherwise handled by or on behalf of CommerceOne against any Security Breach.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, CommerceOne and its Subsidiaries have taken commercially reasonable measures, consistent with general industry practices, designed to ensure the confidentiality, privacy and security of Personal Data processed or otherwise handled by or on behalf of CommerceOne.  To the knowledge of CommerceOne, CommerceOne has not experienced any Security Breach that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CommerceOne.  To the knowledge of CommerceOne, there are no data security or other technological vulnerabilities with respect to its information technology systems or networks that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on CommerceOne.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, CommerceOne and its Subsidiaries are in compliance with all of its and their privacy policies relating to Personal Data.

 

(e)          Without limitation, none of CommerceOne or any of its Subsidiaries or to the knowledge of CommerceOne, any director, officer, employee, agent or other person acting on behalf of CommerceOne or any of its Subsidiaries has, directly or indirectly, (i) used any funds of CommerceOne or any of its Subsidiaries for unlawful contributions, unlawful gifts, unlawful entertainment or other expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic governmental officials or employees or to foreign or domestic political parties or campaigns from funds of CommerceOne or any of its Subsidiaries, (iii) violated any provision that would result in the violation of the Foreign Corrupt Practices Act of 1977, as amended, or any similar law, (iv) established or maintained any unlawful fund of monies or other assets of CommerceOne or any of its Subsidiaries, (v) made any fraudulent entry on the books or records of CommerceOne or any of its Subsidiaries, (vi) made any unlawful bribe, unlawful rebate, unlawful payoff, unlawful influence payment, unlawful kickback or other unlawful payment to any person, private or public, regardless of form, whether in money, property or services, to obtain favorable treatment in securing business, to obtain special concessions for CommerceOne or any of its Subsidiaries, to pay for favorable treatment for business secured or to pay for special concessions already obtained for CommerceOne or any of its Subsidiaries or (vii) is currently subject to any United States sanctions administered by the Office of Foreign Assets Control of the United States Treasury Department, except in each case as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CommerceOne.

 

(f)           As of the date hereof, CommerceOne and CommerceOne Bank each meet the applicable published criteria to be “well-capitalized” (as such term is defined in the relevant regulation of the applicable institution’s primary federal banking regulator).

 

(g)          Except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CommerceOne, (i) CommerceOne and each of its Subsidiaries have properly administered all accounts for which it acts as a fiduciary, including accounts for which it serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment advisor, in accordance with the terms of the governing documents and applicable state, federal and foreign law; and (ii) none of CommerceOne, any of its Subsidiaries, or any of its or its Subsidiaries’ directors, officers or employees, has committed any breach of trust or fiduciary duty with respect to any such fiduciary account, and the accountings for each such fiduciary account are true and correct and accurately reflect the assets and results of such fiduciary account.

 

 

(a)          Except as set forth in Section 4.14(a) of the CommerceOne Disclosure Schedule, as of the date hereof, neither CommerceOne nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral), but excluding any CommerceOne Benefit Plan and any contract, arrangement, commitment or understanding solely among CommerceOne and any wholly owned Subsidiaries of CommerceOne or solely among wholly owned Subsidiaries of CommerceOne:

 

(i)           for the purchase of materials, supplies, goods, services, equipment or other tangible assets (other than those specified elsewhere in this definition) that provides for annual payments of more than $100,000 (other than any such contracts which are terminable by CommerceOne or any of its Subsidiaries on sixty (60) days’ or less notice without any required payment or other conditions, other than the condition of notice);

 

(ii)          which contains a provision that materially restricts the conduct of any line of business by CommerceOne or any of its Subsidiaries or upon consummation of the Mergers will materially restrict the ability of CommerceOne or any of its Affiliates to engage in any line of business or in any geographic region (including any exclusivity or exclusive dealing provisions with such an effect);

 

(iii)         with or to a labor union or guild with respect to any employees of CommerceOne or any its Subsidiaries (including any collective bargaining agreement);

 

(iv)         any of the benefits of or obligations under which will arise or be increased or accelerated by the occurrence of the execution and delivery of this Agreement, receipt of the Requisite CommerceOne Vote or the announcement or consummation of any of the transactions contemplated by this Agreement, or under which a right of cancellation or termination will arise as a result thereof, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, where such increase or acceleration of benefits or obligations, right of cancellation or termination, or change in calculation of value of benefits would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on CommerceOne;

 

(v)          (A) that relates to the incurrence of indebtedness by CommerceOne or any of its Subsidiaries, including any sale and leaseback transactions, securitizations, off-balance sheet financing arrangements, capitalized leases and other similar financing arrangements (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase in each case incurred in the ordinary course of business consistent with past practice), or (B) that provides for the guarantee, support, indemnification, assumption or endorsement by CommerceOne or any of its Subsidiaries of, or any similar commitment by CommerceOne or any of its Subsidiaries with respect to, the obligations, liabilities or indebtedness of any other person, in the case of each of clauses (A) and (B), in the principal amount of $500,000 or more;

 

(vi)         that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of CommerceOne or its Subsidiaries;

 

(vii)        that is a settlement, consent or similar agreement and contains any material continuing obligations of CommerceOne or any of its Subsidiaries; or

 

(viii)       that relates to the acquisition or disposition of any person, business or asset and under which CommerceOne or its Subsidiaries have or may have a material obligation or liability.

 

Each contract, arrangement, commitment or understanding of the type described in this Section 4.14(a), whether or not set forth in the CommerceOne Disclosure Schedule, is referred to herein as a “CommerceOne Contract.”  CommerceOne has made available to Green Dot true, correct and complete copies of each CommerceOne Contract in effect as of the date hereof.

 

(b)          (i)  Each CommerceOne Contract is valid and binding on CommerceOne or one of its Subsidiaries, as applicable, and in full force and effect, except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on CommerceOne, (ii) CommerceOne and each of its Subsidiaries have in all material respects complied with and performed all obligations required to be complied with or performed by any of them to date under each CommerceOne Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on CommerceOne, (iii) to the knowledge of CommerceOne, each third-party counterparty to each CommerceOne Contract has in all material respects complied with and performed all obligations required to be complied with and performed by it to date under such CommerceOne Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on CommerceOne, (iv) neither CommerceOne nor any of its Subsidiaries has knowledge of, or has received notice of, any violation of any CommerceOne Contract by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne and (v) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a material breach or default on the part of CommerceOne or any of its Subsidiaries or, to the knowledge of CommerceOne, any other party thereto, of or under any such CommerceOne Contract, except where such breach or default, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on CommerceOne.

 

4.15        Agreements with Regulatory Agencies.  Subject to Section 9.15, neither CommerceOne nor any of its Subsidiaries is subject to any cease-and-desist or other order or enforcement action issued by, or is a party to any written agreement, consent agreement or memorandum of understanding with, or is a party to any commitment letter or similar undertaking to, or is subject to any order or directive by, or has been ordered to pay any civil money penalty by, or has been since December 31, 2022, a recipient of any supervisory letter from, or since December 31, 2022, has adopted any policies, procedures or board resolutions at the request or suggestion of, any Regulatory Agency or other Governmental Entity that currently restricts in any material respect or would reasonably be expected to restrict in any material respect the conduct of its business or that in any material manner relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management or its business (each, whether or not set forth in the CommerceOne Disclosure Schedule, a “CommerceOne Regulatory Agreement”), nor has CommerceOne or any of its Subsidiaries been advised in writing since December 31, 2022, by any Regulatory Agency or other Governmental Entity that it is considering issuing, initiating, ordering or requesting any such CommerceOne Regulatory Agreement.

 

4.16        Risk Management Instruments.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, all interest rate swaps, caps, floors, option agreements, futures and forward contracts and other similar derivative transactions and risk management arrangements, whether entered into for the account of CommerceOne or any of its Subsidiaries or for the account of a customer of CommerceOne or one of its Subsidiaries, were entered into in the ordinary course of business and in accordance with applicable rules, regulations and policies of any Regulatory Agency and with counterparties reasonably believed to be financially responsible at the time and are legal, valid and binding obligations of CommerceOne or one of its Subsidiaries enforceable in accordance with their terms (except as may be limited by the Enforceability Exceptions).  CommerceOne and each of its Subsidiaries have duly performed in all material respects all of their respective material obligations thereunder to the extent that such obligations to perform have accrued, and, to the knowledge of CommerceOne, there are no material breaches, violations or defaults or allegations or assertions of such by any party thereunder.

 

4.17        Environmental Matters.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, CommerceOne and its Subsidiaries are in compliance, and since December 31, 2022 have complied, with all Environmental Laws.  There are no legal, administrative, arbitral or other proceedings, claims or actions or, to the knowledge of CommerceOne, any private environmental investigations or remediation activities or governmental investigations of any nature seeking to impose, or that could reasonably be expected to result in the imposition, on CommerceOne or any of its Subsidiaries of any liability or obligation arising under any Environmental Law pending or threatened against CommerceOne, which liability or obligation would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne.  To the knowledge of CommerceOne, there is no reasonable basis for any such proceeding, claim, action or governmental investigation that would impose any liability or obligation that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne.  CommerceOne is not subject to any agreement, order, judgment, decree, letter agreement or memorandum of agreement by or with any court, Governmental Entity, Regulatory Agency or other third party imposing any liability or obligation with respect to the foregoing that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne.

 

4.18        Investment Securities and Commodities.  Each of CommerceOne and its Subsidiaries has good title to all securities and commodities owned by it (except those sold under repurchase agreements) which are material to CommerceOne’s business on a consolidated basis, free and clear of any Lien, except to the extent such securities or commodities are pledged in the ordinary course of business to secure obligations of CommerceOne or its Subsidiaries.  Such securities and commodities are valued on the books of CommerceOne in accordance with GAAP in all material respects.

 

4.19        Real Property.  CommerceOne or a CommerceOne Subsidiary (a) has good and marketable title to all the real property reflected in the latest audited balance sheet included in the CommerceOne Financial Statements as being owned by CommerceOne or a CommerceOne Subsidiary or acquired after the date thereof which are material to CommerceOne’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business) (the “CommerceOne Owned Properties”), free and clear of all material Liens, except for Permitted Encumbrances, and (b) is the lessee of all leasehold estates reflected in the latest audited financial statements included in such CommerceOne Financial Statements or acquired after the date thereof which are material to CommerceOne’s business on a consolidated basis (except for leases that have expired by their terms since the date thereof) (such leasehold estates, collectively with the CommerceOne Owned Properties, the “CommerceOne Real Property”), free and clear of all material Liens, except for Permitted Encumbrances, and is in possession of the properties purported to be leased thereunder, and to the knowledge of CommerceOne, each such lease is valid without material default thereunder by the lessee or, to the knowledge of CommerceOne, the lessor.  There are no pending or, to the knowledge of CommerceOne, threatened condemnation proceedings against the CommerceOne Real Property.

 

4.20        Intellectual Property.  CommerceOne and each of its Subsidiaries owns (free and clear of any material Liens), or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne:  (a) (i) to the knowledge of CommerceOne, the conduct by CommerceOne and its Subsidiaries of their respective businesses does not infringe, misappropriate or otherwise violate, and, since December 1, 2022, has not infringed, misappropriated or otherwise violated, the rights of any person and (ii) no person has asserted in writing to CommerceOne that CommerceOne or any of its Subsidiaries has infringed, misappropriated or otherwise violated the Intellectual Property rights of such person, (b) to the knowledge of CommerceOne, no person is challenging, infringing on, misappropriating or otherwise violating any right of CommerceOne or any of its Subsidiaries with respect to any Intellectual Property owned by CommerceOne or its Subsidiaries, and (c) neither CommerceOne nor any CommerceOne Subsidiary has received any written notice of any pending claim challenging the ownership, validity or enforceability of any Intellectual Property owned by CommerceOne or any CommerceOne Subsidiary, and CommerceOne and its Subsidiaries have taken commercially reasonable actions to avoid the abandonment, cancellation or unenforceability of all Intellectual Property owned by CommerceOne and its Subsidiaries.

 

4.21        Related Party Transactions.  As of the date hereof, there are no transactions or series of related transactions, agreements, arrangements or understandings, nor are there any currently proposed transactions or series of related transactions, between CommerceOne or any of its Subsidiaries, on the one hand, and any current or former director or “executive officer” (as defined in Rule 3b-7 under the Exchange Act) of CommerceOne or any of its Subsidiaries or any person who beneficially owns (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) five percent (5%) or more of the outstanding CommerceOne Common Stock (or any of such person’s immediate family members or Affiliates) (other than Subsidiaries of CommerceOne), on the other hand, of the type required to be reported pursuant to Item 404 of Regulation S-K promulgated under the Exchange Act.

 

4.22        State Takeover Laws.  The Board of Directors of each of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two has approved this Agreement and the transactions contemplated hereby and has taken all such other necessary actions as required to render inapplicable to such agreements and transactions the provisions of any potentially applicable Takeover Statutes.

 

4.23        Opinion.  Prior to the execution of this Agreement, CommerceOne has received an opinion (which if initially rendered orally, has been or will be confirmed by written opinion of the same date) from Performance Trust Capital Partners, LLC, to the effect that as of the date thereof and based upon and subject to the matters set forth therein, the Exchange Ratio provided for pursuant to this Agreement is fair, from a financial point of view, to CommerceOne.  Such opinion has not been amended or rescinded as of the date of this Agreement.

 

4.24        CommerceOne Information.  The information relating to CommerceOne and its Subsidiaries or that is provided by CommerceOne or its Subsidiaries or their respective representatives for inclusion in the Proxy Statement and the S-4, or in any other document filed with any Regulatory Agency or Governmental Entity in connection herewith, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading.  The Proxy Statement (to the extent that portions thereof relate only to CommerceOne or any of its Subsidiaries) will comply in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder.  The S-4 (to the extent that portions thereof relate only to CommerceOne or any of its Subsidiaries) will comply in all material respects with the provisions of the Securities Act and the rules and regulations thereunder.

 

 

(a)          As of the date hereof, except as set forth in Section 4.25(a) of the CommerceOne Disclosure Schedule, neither CommerceOne nor any of its Subsidiaries is a party to any written or oral Loan in which CommerceOne or any Subsidiary of CommerceOne is a creditor that, as of November 21, 2025, had an outstanding balance of $1,000,000 or more and under the terms of which the obligor was, as of November 21, 2025, over ninety (90) days or more delinquent in payment of principal or interest.  Set forth in Section 4.25(a) of the CommerceOne Disclosure Schedule is a true, correct and complete list of (A) all of the Loans of CommerceOne and its Subsidiaries that, as of November 21, 2025, had an outstanding balance of $1,000,000 or more and were classified by CommerceOne as “Other Loans Specially Mentioned,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans,” “Watch List” or words of similar import, together with the principal amount of and accrued and unpaid interest on each such Loan and the identity of the borrower thereunder, together with the aggregate principal amount of and accrued and unpaid interest on such Loans, by category of Loan (e.g., commercial, consumer, etc.), together with the aggregate principal amount of such Loans by category and (B) each asset of CommerceOne or any of its Subsidiaries that, as of November 21, 2025, is classified as “Other Real Estate Owned” and the book value thereof.

 

(b)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, each Loan of CommerceOne or any of its Subsidiaries (i) is evidenced by notes, agreements or other evidences of indebtedness that are true, genuine and what they purport to be, (ii) to the extent carried on the books and records of CommerceOne and its Subsidiaries as secured Loans, has been secured by valid charges, mortgages, pledges, security interests, restrictions, claims, liens or encumbrances, as applicable, which have been perfected and (iii) is the legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms, subject to the Enforceability Exceptions.

 

(c)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, each outstanding Loan of CommerceOne or any of its Subsidiaries (including Loans held for resale to investors) was solicited and originated, and is and has been administered and, where applicable, serviced, and the relevant Loan files are being maintained, in all material respects in accordance with the relevant notes or other credit or security documents, the written underwriting standards of CommerceOne and its Subsidiaries (and, in the case of Loans held for resale to investors, the underwriting standards, if any, of the applicable investors) and with all applicable federal, state and local laws, regulations and rules.

 

4.26        Insurance.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, (a) CommerceOne and its Subsidiaries are insured with reputable insurers against such risks and in such amounts as the management of CommerceOne reasonably has determined to be prudent and consistent with industry practice, and CommerceOne and its Subsidiaries are in compliance in all material respects with their insurance policies and are not in default under any of the terms thereof, (b) each such policy is outstanding and in full force and effect and, except for policies insuring against potential liabilities of officers, directors and employees of CommerceOne and its Subsidiaries, CommerceOne or the relevant Subsidiary thereof is the sole beneficiary of such policies, (c) all premiums and other payments due under any such policy have been paid, and all claims thereunder have been filed in due and timely fashion, (d) there is no claim for coverage by CommerceOne or any of its Subsidiaries pending under any insurance policy as to which coverage has been questioned, denied or disputed by the underwriters of such insurance policy and (e) neither CommerceOne nor any of its Subsidiaries has received notice of any threatened termination of, material premium increase with respect to, or material alteration of coverage under, any insurance policies.

 

4.27        IT Systems.

 

(a)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, to the knowledge of CommerceOne, no third party has gained unauthorized access to or misused any Personal Data or any IT Systems used in the operation of their respective businesses (collectively, “CommerceOne Software and IT Systems”), in each case in a manner that has resulted or is reasonably likely to result in a duty to notify any person.  The CommerceOne Software and IT Systems are sufficient for the current needs of the business of CommerceOne and its Subsidiaries and operate and perform in all material respects as required by CommerceOne and its Subsidiaries in connection with their respective businesses.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, CommerceOne and its Subsidiaries have taken commercially reasonable steps and implemented commercially reasonable safeguards, consistent with accepted industry practices, Data Protection Laws and all contracts to the extent such contracts relate to the processing of Personal Data, that are designed to protect their products and services and the CommerceOne Software and IT Systems from unauthorized access and free from any Malicious Code.  Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, the CommerceOne Software and IT Systems are (i) free from Malicious Code and (ii) have not, since December 31, 2022, experienced any failure or malfunction.

 

(b)          Except as would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on CommerceOne, the CommerceOne Software and IT Systems have not, since December 31, 2022, suffered an unscheduled outage or other failure.

 

4.28        No Other Representations or Warranties.

 

(a)          Except for the representations and warranties made by CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two in this Article IV, neither CommerceOne nor New CommerceOne, Merger Sub One, Merger Sub Two or any other person makes any express or implied representation or warranty with respect to CommerceOne, its Subsidiaries, New CommerceOne, Merger Sub One or Merger Sub Two or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects, and CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two hereby disclaim any such other representations or warranties.  In particular, without limiting the foregoing disclaimer, neither CommerceOne nor New CommerceOne, Merger Sub One, Merger Sub Two or any other person makes or has made any representation or warranty to Green Dot or any of its Affiliates or representatives with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two, or any of their respective Subsidiaries or their respective businesses or (ii) except for the representations and warranties made by CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two in this Article IV, any oral or written information presented to Green Dot or any of its Affiliates or representatives in the course of their due diligence investigation of CommerceOne, the negotiation of this Agreement or in the course of the transactions contemplated hereby.  The foregoing shall not limit any of the representations or warranties contained in Article V of the Separation Agreement.

 

(b)          CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two acknowledge and agree that neither Green Dot nor any other person has made or is making any express or implied representation or warranty with respect to Green Dot, its Subsidiaries, or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects other than those contained in Article III and in Article III of the Separation Agreement.

 

4.29        Reorganization. CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two have not taken any action and are not aware of any fact or circumstance that could reasonably be expected to prevent the CommerceOne Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

 

 

5.1          Conduct of Businesses Prior to the First Effective Time.  During the period from the date of this Agreement to the First Effective Time or earlier termination of this Agreement, except as set forth in the CommerceOne Disclosure Schedule or the Green Dot Disclosure Schedule, as expressly contemplated or permitted by this Agreement or the Separation Agreement, required by law or as consented to in writing by the other party (such consent not to be unreasonably withheld, conditioned or delayed), each of CommerceOne and Green Dot shall, and shall cause each of its respective Subsidiaries to, (a) conduct its business in the ordinary course in all material respects, (b) use reasonable best efforts to maintain and preserve intact its business organization, employees and advantageous business relationships, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of either CommerceOne or Green Dot to obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the transactions contemplated hereby or to perform its covenants and agreements under this Agreement or to consummate the transactions contemplated hereby on a timely basis.

 

5.2          Forbearances.  During the period from the date of this Agreement to the First Effective Time or earlier termination of this Agreement, except as set forth in the CommerceOne Disclosure Schedule or the Green Dot Disclosure Schedule, as expressly contemplated or permitted by this Agreement or the Separation Agreement or as required by law, neither CommerceOne nor Green Dot shall, and neither CommerceOne nor Green Dot shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement (such consent not to be unreasonably withheld, conditioned or delayed):

 

(a)          other than (i) federal funds borrowings and Federal Home Loan Bank borrowings, in each case with a maturity not in excess of six (6) months, (ii) entry into repurchase agreements, (iii) deposits, (iv) purchases of federal funds, (v) sales of certificates of deposit and (vi) issuances of letters of credit, in each case in the ordinary course of business, incur any indebtedness for borrowed money (other than indebtedness of Green Dot or any of its wholly-owned Subsidiaries to Green Dot or any of its wholly-owned Subsidiaries, on the one hand, or of CommerceOne or any of its wholly-owned Subsidiaries to CommerceOne or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity;

 

(b)          (i)           adjust, split, combine or reclassify any capital stock;

 

(ii)          make, declare, pay or set a record date for any dividend, or any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exercisable for any shares of its capital stock or other equity or voting securities, including any Green Dot Securities or Green Dot Subsidiary Securities, in the case of Green Dot, or CommerceOne Securities or CommerceOne Subsidiary Securities, in the case of CommerceOne, except, in each case, (A) dividends paid by any of the Subsidiaries of each of CommerceOne and Green Dot to CommerceOne or Green Dot or any of their wholly-owned Subsidiaries, respectively, or (B) the acceptance of shares of Green Dot Common Stock or CommerceOne Common Stock, as the case may be, for withholding Taxes incurred in connection with the vesting or settlement of Green Dot RSU Awards or CommerceOne Equity Awards, in each case, in accordance with past practice and the terms of the applicable Stock Plan and award agreements, in each case as in effect as of the date hereof, or the purchase of shares of Green Dot Common Stock pursuant to the Green Dot ESPP;

 

 

(iii) grant any stock options, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any person any right to acquire any Green Dot Securities or Green Dot Subsidiary Securities, in the case of Green Dot, or CommerceOne Securities or CommerceOne Subsidiary Securities, in the case of CommerceOne; or (iv) issue, sell, transfer, encumber or otherwise permit to become outstanding any shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock or other equity or voting securities, including any Green Dot Securities or Green Dot Subsidiary Securities, in the case of Green Dot, or CommerceOne Securities or CommerceOne Subsidiary Securities, in the case of CommerceOne, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any Green Dot Securities or Green Dot Subsidiary Securities, in the case of Green Dot, or CommerceOne Securities or CommerceOne Subsidiary Securities, in the case of CommerceOne, except pursuant to the settlement of Green Dot RSU Awards or CommerceOne Equity Awards in accordance with their terms or the purchase of shares of Green Dot Common Stock in accordance with the terms of the Green Dot ESPP;

 

(c)          sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a wholly-owned Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business or pursuant to contracts or agreements in force at the date of this Agreement;

 

(d)          except for foreclosure or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith in the ordinary course of business, make any material investment in or acquisition of (whether by purchase of stock or securities, contributions to capital, property transfers, merger or consolidation, or formation of a joint venture or otherwise) any other person or the property or assets of any other person, in each case other than a wholly-owned Subsidiary of Green Dot or CommerceOne, as applicable;

 

 

(e) in each case except for transactions in the ordinary course of business, terminate, materially amend, or waive any material provision of, any Green Dot Contract or CommerceOne Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, other than normal renewals of contracts without material adverse changes of terms with respect to Green Dot or CommerceOne, as the case may be, or enter into any contract that would constitute a Green Dot Contract or CommerceOne Contract, as the case may be, if it were in effect on the date of this Agreement; (f) except as required under applicable law or the terms of any Green Dot Benefit Plan or CommerceOne Benefit Plan existing as of the date hereof, as applicable, (i) enter into, establish, adopt, materially amend or terminate any Green Dot Benefit Plan or CommerceOne Benefit Plan, or any arrangement that would be a Green Dot Benefit Plan or a CommerceOne Benefit Plan if in effect on the date hereof, other than with respect to arrangements that are broad-based health or welfare plans (x) in the ordinary course of business consistent with past practice and (y) as would not reasonably be expected to materially increase the cost of benefits under any Green Dot Benefit Plan, or CommerceOne Benefit Plan, Green Dot Contract or CommerceOne Contract, as the case may be, (ii) increase the compensation or benefits payable to any current or former employee, officer, director or individual consultant, other than increases to current employees and officers the payment of cash incentive compensation for completed performance periods based upon actual corporate performance, the actual performance of such employee and, if applicable, such employee’s business, in the ordinary course of business consistent with past practice, (iii) grant any new equity or equity-based awards or accelerate the vesting of any equity or equity-based awards or other compensation, (iv) enter into any new, or amend any existing, employment, severance, change in control, retention, collective bargaining agreement or similar agreement or arrangement, other than entry into standard offer letters or employment agreements with new hires that are permitted to be hired pursuant to item (vii) hereto in the ordinary course of business consistent with past practice, (v) fund any rabbi trust or similar arrangement or in any other way secure the payment of compensation or benefits under any Green Dot Benefit Plan, CommerceOne Benefit Plan, Green Dot Contract or CommerceOne Contract, as the case may be, (vi) terminate the employment or services of any employee at the level of vice president or above, other than for cause, (vii) hire or promote any employee at or to the level of vice president or above (other than, subject to prior consultation with the other party, as a replacement hire or promotion for a departure occurring in the ordinary course of business receiving substantially similar terms of employment and levels of compensation), or (viii) become a party to, establish, adopt, amend, commence participation in, terminate or enter into any collective bargaining agreement or other agreement with a labor union, works council or similar organization;

 

(g)          settle any material claim, suit, action or proceeding, except involving solely monetary remedies in an amount, individually and in the aggregate, that is not material to Green Dot or CommerceOne, as applicable, and that would not impose any material restriction on, or create any adverse precedent that would be material to, the business of it or its Subsidiaries;

 

(h)          amend its articles or certificate of incorporation, its bylaws or comparable governing documents of its Subsidiaries;

 

(i)           other than in prior consultation with CommerceOne (in the case of Green Dot) or Green Dot (in the case of CommerceOne), materially restructure or materially change its investment securities or derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;

 

(j)           implement or adopt any material change in its accounting principles, practices or methods, other than as may be required by GAAP;

 

(k) enter into any new material line of business or, other than in the ordinary course of business consistent with past practice, change in any material respect its lending, investment, underwriting, risk and asset liability management and other banking and operating, securitization and servicing policies (including any change in the maximum ratio or similar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof), except as required by applicable law, regulation or policies imposed by any Governmental Entity; (l) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any material right to claim a refund of Taxes;

 

 

(m)         take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent the CommerceOne Mergers, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or

 

(n)          agree to take, make any commitment to take, or adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.2.

 

 

 

 

(a)          Promptly after the date of this Agreement, New CommerceOne, CommerceOne and Green Dot shall prepare and Green Dot shall file with the SEC the Proxy Statement, and New CommerceOne shall prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus.  New CommerceOne, CommerceOne and Green Dot, as applicable, shall use reasonable best efforts to make such filings within forty-five (45) days of the date of this Agreement; provided that the definitive Proxy Statement shall not be filed until the S-4 has become effective under the Securities Act.  Each of New CommerceOne, CommerceOne and Green Dot shall use its reasonable best efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after such filings, and CommerceOne and Green Dot shall thereafter mail or deliver the Proxy Statement to their respective stockholders.  New CommerceOne shall also use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement, and Green Dot shall furnish all information concerning Green Dot and the holders of Green Dot Common Stock as may be reasonably requested in connection with any such action and CommerceOne shall furnish all information concerning CommerceOne and the holders of CommerceOne Common Stock as may be reasonably requested in connection with any such action.

 

(b)          The parties hereto shall cooperate with each other and use their reasonable best efforts to (i) promptly prepare and file all necessary documentation to effect all applications, notices, petitions and filings (and in the case of the applications, notices, petitions and filings in respect of the Requisite Regulatory Approvals, use their reasonable best efforts to make such filings within forty-five (45) days of the date of this Agreement), (ii) obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Mergers), and comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such Governmental Entities and (iii) contest, defend and appeal any action or proceeding by a Governmental Entity (other than a bank regulatory agency), whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the transactions contemplated hereby.  CommerceOne, New CommerceOne and Green Dot shall have the right to review in advance, and, unless not practicable, each will consult the other on, and give reasonable time to comment on, in each case subject to applicable laws relating to the exchange of information, any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement.  In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable.  The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein.  Each party shall consult with the other in advance of any meeting or conference with any Governmental Entity in connection with the transactions contemplated by this Agreement and, to the extent permitted by such Governmental Entity, give the other party and/or its counsel the opportunity to attend and participate in such meetings and conferences, in each case subject to applicable law.  As used in this Agreement, the term “Requisite Regulatory Approvals” shall mean all regulatory authorizations, consents, orders and approvals (and the expiration or termination of all statutory waiting periods in respect thereof) (i) as set forth in Section 3.4 and Section 4.4 that are necessary to consummate the Mergers or the Sale Transactions or those the failure of which to be obtained would, following the Closing, reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect on New CommerceOne, and (ii) as set forth in Section 6.1(b) of the Green Dot Disclosure Schedule and Section 6.1(b) of the CommerceOne Disclosure Schedule.

 

(c)          Each party shall use its reasonable best efforts to respond to any request for information and resolve any objection that may be asserted by any Governmental Entity with respect to this Agreement or the transactions contemplated hereby.  Notwithstanding the foregoing, nothing contained herein shall be deemed to require CommerceOne, New CommerceOne or Green Dot or any of their respective Subsidiaries, and neither CommerceOne nor New CommerceOne, on the one hand, nor Green Dot, on the other hand, nor any of their respective Subsidiaries shall be permitted (without the written consent of the other party), to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the foregoing permits, consents, approvals and authorizations of Governmental Entities that would reasonably be expected to have a material adverse effect on New CommerceOne and its Subsidiaries, taken as a whole, after giving effect to the Mergers, the Sale Transactions and other transactions contemplated by this Agreement and the Separation Agreement (a “Materially Burdensome Regulatory Condition”), nor shall CommerceOne propose, negotiate, offer to commit and effect to take any action or agree to any condition or restriction with respect to the Business (as defined in the Separation Agreement) without the prior written consent of Green Dot, which consent shall not be unreasonably withheld or delayed.

 

(d)          CommerceOne, New CommerceOne and Green Dot shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of CommerceOne, New CommerceOne, Green Dot or any of their respective Subsidiaries to any Governmental Entity in connection with the Mergers and the other transactions contemplated by this Agreement.

 

(e)          CommerceOne, New CommerceOne and Green Dot shall promptly advise each other upon receiving any material or substantive communication from any Governmental Entity relating to any Requisite Regulatory Approval or other approval or clearance of any Governmental Entity being sought in connection with the transactions contemplated by this Agreement. For the avoidance of doubt, Section 9.15 shall not preclude either party from fulfilling its obligation under this Section 6.1(e) to the extent permissible under applicable law.

 

 

(a)          Upon reasonable notice and subject to applicable laws, each of CommerceOne and Green Dot, for the purposes of verifying the representations and warranties of the other and preparing for the Mergers and the other matters contemplated by this Agreement, shall, and shall cause each of their respective Subsidiaries to, afford to the officers, employees, accountants, counsel, advisors and other representatives of the other party, access, during normal business hours during the period prior to the First Effective Time, to such properties, books, contracts, personnel and records as reasonably requested by the other party, and each shall cooperate with the other party in preparing to execute after the Second Effective Time the conversion or consolidation of systems and business operations generally, and, during such period, each of CommerceOne and Green Dot shall, and shall cause its respective Subsidiaries to, make available to the other party (i) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal securities laws or federal or state banking laws (other than reports or documents that CommerceOne or Green Dot, as the case may be, is not permitted to disclose under applicable law) and (ii) such other information concerning its business, properties and personnel as such party may reasonably request (other than reports or documents that CommerceOne or Green Dot, as the case may be, is not permitted to disclose under applicable law).  Neither CommerceOne nor Green Dot nor any of their respective Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would violate or prejudice the rights of CommerceOne’s or Green Dot’s, as the case may be, customers, jeopardize the attorney-client privilege of the institution in possession or control of such information (after giving due consideration to the existence of any common interest, joint defense or similar agreement between the parties) or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement.  The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply.

 

(b)          Each of CommerceOne and Green Dot shall hold all information furnished by or on behalf of the other party or any of such party’s Subsidiaries or representatives pursuant to Section 6.2(a) in confidence to the extent required by, and in accordance with, the provisions of the confidentiality agreement, dated June 19, 2025 between CommerceOne Bank and Green Dot (the “Confidentiality Agreement”).

 

(c)          No investigation by either of the parties or their respective representatives shall affect or be deemed to modify or waive the representations and warranties of the other set forth herein.  Nothing contained in this Agreement shall give either party, directly or indirectly, the right to control or direct the operations of the other party prior to the First Effective Time.  Prior to the First Effective Time, each party shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

 

6.3          Stockholders’ Approvals.  Each of CommerceOne and Green Dot shall call a meeting of its stockholders (the “CommerceOne Meeting” and the “Green Dot Meeting,” respectively) to be held as soon as reasonably practicable after the S-4 is declared effective, for the purpose of obtaining (a) the Requisite Green Dot Vote and the Requisite CommerceOne Vote required in connection with this Agreement and the Mergers and (b) if so desired and mutually agreed, a vote upon other matters of the type customarily brought before a meeting of stockholders in connection with the approval of a merger agreement or the transactions contemplated thereby, and each of Green Dot and CommerceOne shall use its reasonable best efforts to cause such meetings to occur as soon as reasonably practicable and on the same date.  Each of CommerceOne and Green Dot and their respective Boards of Directors shall use its reasonable best efforts to obtain from the stockholders of CommerceOne and Green Dot, as applicable, the Requisite CommerceOne Vote and the Requisite Green Dot Vote, as applicable, including by communicating to the respective stockholders of CommerceOne and Green Dot its respective recommendation (and including such recommendation in the Proxy Statement) that, in the case of CommerceOne, the stockholders of CommerceOne approve the CommerceOne Merger and transactions contemplated hereby (the “CommerceOne Board Recommendation”), and in the case of Green Dot, the stockholders of Green Dot adopt this Agreement and the transactions contemplated by the Separation Agreement (the “Green Dot Board Recommendation”).  Each of CommerceOne and Green Dot and their respective Boards of Directors shall not (i) withhold, withdraw, modify or qualify in a manner adverse to the other party the CommerceOne Board Recommendation, in the case of CommerceOne, or the Green Dot Board Recommendation, in the case of Green Dot, (ii) fail to make the CommerceOne Board Recommendation, in the case of CommerceOne, or the Green Dot Board Recommendation, in the case of Green Dot, in the Proxy Statement, (iii) adopt, approve, recommend or endorse an Acquisition Proposal or publicly announce an intention to adopt, approve, recommend or endorse an Acquisition Proposal, (iv) fail to publicly and without qualification (A) recommend against any Acquisition Proposal or (B) reaffirm the CommerceOne Board Recommendation, in the case of CommerceOne, or the Green Dot Board Recommendation, in the case of Green Dot, in each case within ten (10) business days (or such fewer number of days as remains prior to the CommerceOne Meeting or the Green Dot Meeting, as applicable) after an Acquisition Proposal is made public or any request by the other party to do so, or (v) publicly propose to do any of the foregoing (any of the foregoing a “Recommendation Change”).  However, subject to Section 8.1 and Section 8.2, if the Board of Directors of CommerceOne or Green Dot, after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisors, determines in good faith that it would more likely than not result in a violation of its fiduciary duties under applicable law to make or continue to make the CommerceOne Board Recommendation or the Green Dot Board Recommendation, as applicable, such Board of Directors may, in the case of CommerceOne, prior to the receipt of the Requisite CommerceOne Vote, and in the case of Green Dot, prior to the receipt of the Requisite Green Dot Vote, effect a Recommendation Change; provided that such Board of Directors may not take any actions under this sentence unless it (A) gives the other party at least three (3) business days’ prior written notice of its intention to take such action and a reasonable description of the event or circumstances giving rise to its determination to take such action (including, in the event such action is taken in response to an Acquisition Proposal, the latest material terms and conditions of, and the identity of the third party making, any such Acquisition Proposal, or any amendment or modification thereof, or describe in reasonable detail such other event or circumstances) and (B) at the end of such notice period, takes into account any amendment or modification to this Agreement proposed by the other party and, after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisors, determines in good faith that it would nevertheless more likely than not result in a violation of its fiduciary duties under applicable law to make or continue to make the CommerceOne Board Recommendation or Green Dot Board Recommendation, as the case may be.  Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.3 and will require a new notice period as referred to in this Section 6.3.  CommerceOne or Green Dot shall adjourn or postpone the CommerceOne Meeting or the Green Dot Meeting, as the case may be, if, as of the time for which such meeting is originally scheduled there are insufficient shares of CommerceOne Common Stock or Green Dot Common Stock, as the case may be, represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting, or if on the date of such meeting Green Dot or CommerceOne, as applicable, has not received proxies representing a sufficient number of shares necessary to obtain the Requisite Green Dot Vote or the Requisite CommerceOne Vote. Each of Green Dot and CommerceOne shall only be required to adjourn or postpone the Green Dot Meeting and CommerceOne Meeting, as applicable, pursuant to the foregoing sentence on one occasion.  Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with its terms, the Green Dot Meeting and CommerceOne Meeting shall be convened and this Agreement and the Mergers shall be submitted to the stockholders of Green Dot at the Green Dot Meeting and to the stockholders of CommerceOne at the CommerceOne Meeting, for the purpose of voting on the approval of this Agreement and the Mergers and the other matters contemplated hereby, and nothing contained herein shall be deemed to relieve Green Dot and CommerceOne of such obligation.  As used in this Agreement, “Acquisition Proposal” shall mean, with respect to CommerceOne or Green Dot, as applicable, other than the transactions contemplated by this Agreement and the Separation Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of a party and its Subsidiaries or twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of a party, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of a party, or (iii) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving a party or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of the party.

6.4          Legal Conditions to Merger.  Subject in all respects to Section 6.1 of this Agreement, each of CommerceOne and Green Dot shall, and shall cause its Subsidiaries to, use their reasonable best efforts (a) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements that may be imposed on such party or its Subsidiaries with respect to the Mergers and, subject to the conditions set forth in Article VII hereof, to consummate the transactions contemplated by this Agreement, and (b) to obtain (and to cooperate with the other party to obtain) any material consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party that is required to be obtained by Green Dot or CommerceOne or any of their respective Subsidiaries in connection with the Mergers and the other transactions contemplated by this Agreement.

 

6.5          Stock Exchange Listing.  CommerceOne and New CommerceOne shall cause the shares of New CommerceOne Common Stock to be issued in the Mergers to be approved for listing on the NYSE, subject to official notice of issuance, prior to the First Effective Time.

 

 

(a)          New CommerceOne shall, and shall cause each of its Subsidiaries to, for the one-year period following the Second Effective Time, maintain for each employee of Green Dot and any of its Subsidiaries as of the First Effective Time (after, for the avoidance of doubt, giving effect to the Payments Business Sale) who remains so employed immediately following the First Effective Time (the “Continuing Employees”), for so long as they are employed by New CommerceOne or its Affiliates following the First Effective Time (i) base salary or wages (as applicable) that is no less favorable than that provided to the Continuing Employee as of immediately prior to the First Effective Time, (ii) target annual cash incentive compensation opportunities that are no less favorable than the target annual cash incentive compensation opportunities provided to the Continuing Employee as of immediately prior to the First Effective Time, (iii) target long-term incentive compensation opportunities that are no less favorable than those provided to similarly situated employees of CommerceOne, which shall in all events include a long-term incentive compensation grant to the Continuing Employee in respect of the 2026 fiscal year, (iv) other employee benefits (other than equity, equity-based and long-term incentive compensation, severance, nonqualified deferred compensation, defined benefit pension and retiree welfare plan benefits and any retention, transaction or change in control bonuses) that are substantially comparable in the aggregate to the other employee benefits (other than equity, equity-based and long-term incentive compensation, severance, nonqualified deferred compensation, defined benefit pension and retiree welfare plan benefits and any retention, transaction or change in control bonuses) provided by Green Dot to the Continuing Employees as of immediately prior to the First Effective Time, and (v) severance benefits no less favorable than the severance benefits provided to the Continuing Employees under the plans listed in Section 6.6(a) of the Green Dot Disclosure Schedule.

 

(b)          New CommerceOne, Green Dot and CommerceOne agree that the consummation of the Mergers shall constitute a “change in control,” “change of control,” “corporate transaction” or term of similar import under each applicable Green Dot Benefit Plan.

 

(c)          With respect to any CommerceOne Benefit Plans in which any Continuing Employees become eligible to participate on or after the First Effective Time (after, for the avoidance of doubt, giving effect to the Payments Business Sale), CommerceOne and New CommerceOne shall, and shall cause each of its Subsidiaries to:  (i) use commercially reasonable efforts to waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such employees and their eligible dependents under any such CommerceOne Benefit Plans that provide health care benefits, except to the extent such pre-existing conditions, exclusions or waiting periods would apply under the analogous Green Dot Benefit Plan, (ii) use commercially reasonable efforts toprovide each such employee and their eligible dependents with credit for any co-payments or coinsurance and deductibles paid prior to the First Effective Time under a CommerceOne Benefit Plan that provides health care benefits, to the same extent that such credit was given under the analogous Green Dot Benefit Plan prior to the First Effective Time, in satisfying any applicable deductible, co-payment, coinsurance or maximum out-of-pocket requirements under any such CommerceOne Benefit Plan, and (iii) recognize all service of such employees with Green Dot and its Subsidiaries for purposes of eligibility to participate, vesting and levels of benefits in any such CommerceOne Benefit Plan to the same extent that such service was taken into account under the analogous Green Dot Benefit Plan prior to the First Effective Time; provided, that the foregoing service recognition shall not apply (A) to the extent it would result in a duplication of benefits for the same period of service, (B) for purposes of any pension plan or (C) for purposes of any benefit plan that is a frozen plan or provides grandfathered benefits.

 

(d)          CommerceOne, New CommerceOne and Green Dot shall take all actions as may be required, including amendments to the Green Dot 401(k) Plan and/or the CommerceOne 401(k) Plan, to permit the Continuing Employees to make rollover contributions to the CommerceOne 401(k) Plan of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) in the form of cash, notes (in the case of loans) or a combination thereof.

 

(e)          Nothing in this Agreement shall confer upon any employee, officer, director or consultant of CommerceOne, New CommerceOne or Green Dot or any of their Subsidiaries or Affiliates any right to continue in the employ or service of the Surviving Company, Green Dot, CommerceOne, New CommerceOne or any Subsidiary or Affiliate thereof, or shall interfere with or restrict in any way the rights of the Surviving Company, Green Dot, CommerceOne, New CommerceOne or any Subsidiary or Affiliate thereof to discharge or terminate the services of any employee, officer, director or consultant of the Surviving Company, Green Dot, CommerceOne, New CommerceOne or any of their Subsidiaries or Affiliates at any time for any reason whatsoever, with or without cause.  Nothing in this Agreement shall be deemed to (i) establish, amend, or modify any Green Dot Benefit Plan, CommerceOne Benefit Plan or any other benefit or employment plan, program, agreement or arrangement, or (ii) alter or limit the ability of the Surviving Company, Green Dot, CommerceOne, New CommerceOne or any of their Subsidiaries or Affiliates to amend, modify or terminate any Green Dot Benefit Plan, CommerceOne Benefit Plan or any other benefit or employment plan, program, agreement or arrangement after the First Effective Time.  Without limiting the generality of Section 9.11, nothing in this Section 6.6, express or implied, is intended to or shall confer upon any person, including any current or former employee, officer, director or consultant of the Surviving Company, Green Dot, New CommerceOne, CommerceOne or any of their Subsidiaries or Affiliates, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

 

(a)          From and after the Second Effective Time, New CommerceOne and Green Dot Bank shall indemnify and hold harmless and shall advance expenses as incurred, in each case to the extent (subject to applicable law) such persons are indemnified as of the date of this Agreement by Green Dot pursuant to the Green Dot Charter, the Green Dot Bylaws, the governing or organizational documents of any Subsidiary of Green Dot and any indemnification agreements in existence as of the date hereof and disclosed in Section 6.7(a) of the Green Dot Disclosure Schedule, each present and former director, officer or employee of Green Dot and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Green Dot Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Second Effective Time, arising out of or pertaining to the fact that such person is or was a director, officer or employee of Green Dot or any of its Subsidiaries and pertaining to matters or facts existing or occurring at or prior to the Second Effective Time, including the transactions contemplated by this Agreement; provided, that in the case of advancement of expenses, any Green Dot Indemnified Party to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Green Dot Indemnified Party is not entitled to indemnification.

 

(b)          Green Dot shall obtain at or prior to the First Effective Time a six (6)-year “tail” policy under Green Dot’s existing directors’ and officers’ insurance policy providing at least the same coverage and amounts containing terms and conditions that are no less advantageous to the insured) with respect to claims against the present and former officers and directors of Green Dot and any of its Subsidiaries arising from facts or events which occurred at or before the First Effective Time; provided, however, that Green Dot shall not be obligated to expend, on an annual basis, an amount in excess of 300% of the current annual premium paid as of the date hereof by Green Dot for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then Green Dot shall cause to be maintained policies of insurance which, in Green Dot’s good faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap.   

 

(c)          The provisions of this Section 6.7 shall survive the Second Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Green Dot Indemnified Party and his or her heirs and representatives, each of whom shall be express third-party beneficiaries of this Section 6.7.  If New CommerceOne or Green Dot Bank or any of their successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving entity of such consolidation or merger, or (ii) transfers all or substantially all of its assets or deposits to any other person or engages in any similar transaction, then in each such case, New CommerceOne or Green Dot Bank will cause proper provision to be made so that the successors and assigns of New CommerceOne or Green Dot Bank will expressly assume the obligations set forth in this Section 6.7.  The obligations of New CommerceOne or Green Dot Bank or any of their successors under this Section 6.7 shall not be terminated or modified after the First Effective Time in a manner so as to adversely affect any Green Dot Indemnified Party or any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected Green Dot Indemnified Party or affected person.

 

6.8          Additional Agreements.  In case at any time after the Second Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement (including any merger between a Subsidiary of New CommerceOne, on the one hand, and a Subsidiary of Green Dot, on the other hand) or to vest New CommerceOne with full title to all properties, assets, rights, approvals, immunities and franchises of any of the parties to the Mergers, the proper officers and directors of each party to this Agreement and their respective Subsidiaries shall take all such necessary action as may be reasonably requested by CommerceOne.

 

6.9          Advice of Changes.  CommerceOne and Green Dot shall each promptly advise the other party of any effect, change, event, circumstance, condition, occurrence or development (i) that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on it or (ii) that it believes would or would reasonably be expected to cause or constitute a material breach of any of its (or in the case of CommerceOne, its, New CommerceOne’s, Merger Sub One’s, Merger Sub Two’s) representations, warranties, obligations, covenants or agreements contained herein that reasonably could be expected to give rise, individually or in the aggregate, to the failure of a condition in Article VII; provided, that any failure to give notice in accordance with the foregoing with respect to any breach shall not be deemed to constitute a violation of this Section 6.9 or the failure of any condition set forth in Section 7.2 or 7.3 to be satisfied, or otherwise constitute a breach of this Agreement by the party failing to give such notice, in each case unless the underlying breach would independently result in a failure of the conditions set forth in Section 7.2 or 7.3 to be satisfied; and provided, further, that the delivery of any notice pursuant to this Section 6.9 shall not cure any breach of, or noncompliance with, any other provision of this Agreement or limit the remedies available to the party receiving such notice.

 

6.10        Stockholder Litigation. Each party shall give the other party prompt notice of any stockholder litigation against such party or its directors or officers relating to the transactions contemplated by this Agreement.  Green Dot shall give CommerceOne the opportunity to participate (at CommerceOne’s expense) in the defense or settlement of any such litigation.  Green Dot shall give CommerceOne the right to review and comment on all filings or responses to be made by Green Dot in connection with any such litigation, and will in good faith take such comments into account.  Green Dot shall not agree to settle any such litigation without CommerceOne’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; provided, that CommerceOne shall not be obligated to consent to any settlement which does not include a full release of CommerceOne and its Affiliates or which imposes an injunction or other equitable relief after the Second Effective Time upon CommerceOne or any of its Affiliates.     

 

 

(a)          Each party agrees that it will not, will cause each of its Subsidiaries not to and will cause its and their respective officers, directors and employees not to, and will use its reasonable best efforts to cause its agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any Acquisition Proposal, (ii) engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with any person relating to any Acquisition Proposal or (iv) unless this Agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (whether written or oral, binding or non-binding) (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.11) in connection with or relating to any Acquisition Proposal.  Notwithstanding the foregoing, in the event that after the date of this Agreement and prior to the receipt of the Requisite CommerceOne Vote, in the case or CommerceOne, or the Requisite Green Dot Vote, in the case of Green Dot, a party receives an unsolicited bona fide written Acquisition Proposal, such party may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished confidential or nonpublic information or data and participate in such negotiations or discussions with the person making the Acquisition Proposal if the Board of Directors of such party concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, that (a) prior to furnishing any confidential or nonpublic information permitted to be provided pursuant to this sentence, such party shall have entered into a confidentiality agreement with the person making such Acquisition Proposal on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with such party and (b) such party shall make available to the other party any material nonpublic information concerning such party or its Subsidiaries that is provided to the person making such Acquisition Proposal which was not previously made available to the other party.  Each party will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Green Dot or CommerceOne, as applicable, with respect to any Acquisition Proposal.  Each party will promptly (within twenty-four (24) hours) advise the other party following receipt of any Acquisition Proposal or any inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the terms and conditions of and the identity of the person making such inquiry or Acquisition Proposal), will provide the other party with an unredacted copy of any such Acquisition Proposal and any draft agreements, proposals or other materials received in connection with any such inquiry or Acquisition Proposal, and will keep the other party apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal.  Each party shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof.

 

(b)          Nothing contained in this Agreement shall prevent a party or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal; provided, that such rules will in no way eliminate or modify the effect that any action pursuant to such rules would otherwise have under this Agreement.

 

6.12        Public Announcements.  Green Dot and CommerceOne agree that the initial press release with respect to the execution and delivery of this Agreement shall be a release mutually agreed to by the parties.  Thereafter, each of the parties agrees that no public release or announcement or statement concerning this Agreement or the transactions contemplated hereby shall be issued by any party without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), except (i) as required by applicable law or the rules or regulations of any applicable Governmental Entity or stock exchange to which the relevant party is subject, in which case the party required to make the release or announcement shall consult with the other party about, and allow the other party reasonable time to comment on, such release or announcement in advance of such issuance or (ii) for such releases, announcements or statements that are consistent with other such releases, announcements or statements made after the date of this Agreement in compliance with this Section 6.12.

 

6.13        Change of Method.  Green Dot and CommerceOne shall be empowered, upon their mutual agreement, at any time prior to the First Effective Time, to change the method or structure of effecting the transactions contemplated by this Agreement (including the provisions of Article I), if and to the extent they both deem such change to be necessary, appropriate or desirable; provided, however, that no such change shall (i) alter or change the per share Green Dot Merger Consideration, the Exchange Ratio or the number of shares of New CommerceOne Common Stock received by holders of Green Dot Common Stock in exchange for each share of Green Dot Common Stock, (ii) adversely affect the Tax treatment of Green Dot’s stockholders or CommerceOne’s stockholders pursuant to this Agreement, (iii) adversely affect the Tax treatment of Green Dot or CommerceOne pursuant to this Agreement or (iv) materially impede or delay the consummation of the transactions contemplated by this Agreement in a timely manner.  The parties agree to reflect any such change in an appropriate amendment to this Agreement executed by both parties in accordance with Section 9.1.

 

6.14        Takeover Statutes.  None of Green Dot, CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two or their respective Boards of Directors shall take any action that would cause any Takeover Statute to become applicable to this Agreement, the Mergers, or any of the other transactions contemplated hereby, and each shall take all necessary steps to exempt (or ensure the continued exemption of) the Mergers and the other transactions contemplated hereby from any applicable Takeover Statute now or hereafter in effect.  If any Takeover Statute may become, or may purport to be, applicable to the transactions contemplated hereby, each party and the members of their respective Boards of Directors will grant such approvals and take such actions as are necessary so that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to eliminate or minimize the effects of any Takeover Statute on any of the transactions contemplated by this Agreement, including, if necessary, challenging the validity or applicability of any such Takeover Statute.

 

6.15        Exemption from Liability Under Section 16(b).  Green Dot and CommerceOne agree that, in order to most effectively compensate and retain Green Dot Insiders, both prior to and after the Second Effective Time, it is desirable that Green Dot Insiders not be subject to a risk of liability under Section 16(b) of the Exchange Act to the fullest extent permitted by applicable law in connection with the conversion of shares of Green Dot Common Stock into shares of New CommerceOne Common Stock in the Mergers and the conversion of Green Dot RSU Awards into corresponding New CommerceOne RSU Awards in the Mergers, and for that compensatory and retentive purpose agree to the provisions of this Section 6.15.  Green Dot shall deliver to CommerceOne in a reasonably timely fashion prior to the First Effective Time accurate information regarding those officers and directors of Green Dot subject to the reporting requirements of Section 16(a) of the Exchange Act (the “Green Dot Insiders”), and the Board of Directors of CommerceOne and of Green Dot, or a committee of non-employee directors thereof (as such term is defined for purposes of Rule 16b-3(d) under the Exchange Act), shall reasonably promptly thereafter, and in any event prior to the First Effective Time, take all such steps as may be required to cause (in the case of Green Dot) any dispositions of Green Dot Common Stock or Green Dot RSU Awards by the Green Dot Insiders, and (in the case of CommerceOne) any acquisitions of New CommerceOne Common Stock or CommerceOne Equity Awards by any Green Dot Insiders who, immediately following the Mergers, will be officers or directors of CommerceOne subject to the reporting requirements of Section 16(a) of the Exchange Act, in each case pursuant to the transactions contemplated by this Agreement, to be exempt from liability pursuant to Rule 16b-3 under the Exchange Act to the fullest extent permitted by applicable law.

 

6.16        Conduct of Merger Subs.  Prior to the First Effective Time, CommerceOne shall take all actions necessary to cause New CommerceOne, Merger Sub One and Merger Sub Two to perform its obligations under this Agreement.

 

 

 

 

(a)          Stockholder Approvals.  (i) The Merger Agreement and the transactions contemplated hereby shall have been approved by the stockholders of CommerceOne by the Requisite CommerceOne Vote and (ii) this Agreement and the transactions contemplated by the Separation Agreement shall have been adopted by the stockholders of Green Dot by the Requisite Green Dot Vote.

 

(b)          NYSE Listing.  The shares of New CommerceOne Common Stock that shall be issuable pursuant to this Agreement shall have been authorized for listing on the NYSE, subject to official notice of issuance.

 

(c)          Regulatory Approvals.  (i) All Requisite Regulatory Approvals shall have been obtained and shall remain in full force and effect and all statutory waiting periods in respect thereof shall have expired or been terminated and (ii) no such Requisite Regulatory Approval shall have resulted in the imposition of any Materially Burdensome Regulatory Condition.

 

(d)          S-4.  The S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the S-4 shall have been issued, and no proceedings for such purpose shall have been initiated or threatened by the SEC and not withdrawn.

 

(e)          No Injunctions or Restraints; Illegality.  No order, injunction or decree issued by any court or Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Mergers or any of the other transactions contemplated by this Agreement shall be in effect.  No law, statute, rule, regulation, order, injunction or decree shall have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits or makes illegal consummation of the Mergers or any of the other transactions contemplated by this Agreement.

 

(f)           Separation Agreement.  Each of the conditions set forth in Article IX of the Separation Agreement shall have been satisfied or waived, other than the condition in Section 9.1(c) thereof (and other than those conditions under the Separation Agreement that by their nature are to be satisfied at the Closing (as defined in the Separation Agreement), provided that such conditions would be satisfied if the Closing (as defined in the Separation Agreement) were then to occur, and those conditions that have been waived in accordance with Article IX of the Separation Agreement).

 

7.2          Conditions to Obligations of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two.  The obligation of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two to effect the Mergers is also subject to the satisfaction, or waiver by CommerceOne, at or prior to the First Effective Time of the following conditions:

 

(a)          Representations and Warranties.  The representations and warranties of Green Dot set forth in Section 3.2(a) and Section 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and the representations and warranties of Green Dot set forth in Section 3.1(a), Section 3.1(b) (but only with respect to Green Dot Bank), Section 3.2(b) (but only with respect to Green Dot Bank), Section 3.3(a) and Section 3.7 (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date).  All other representations and warranties of Green Dot set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on Green Dot.  CommerceOne shall have received a certificate dated as of the Closing Date and signed on behalf of Green Dot by the Chief Executive Officer or the Chief Financial Officer of Green Dot to the foregoing effect.

 

(b)          Performance of Obligations of Green Dot.  Green Dot shall have performed in all material respects the obligations, covenants and agreements required to be performed by it under this Agreement at or prior to the Closing Date, and CommerceOne shall have received a certificate dated as of the Closing Date and signed on behalf of Green Dot by the Chief Executive Officer or the Chief Financial Officer of Green Dot to such effect.

 

(c)          Payments Buyer Funding.  Payments Buyer shall have funded the Purchase Price (as defined in the Separation Agreement) immediately prior to the Closing in accordance with Section 6.20 of the Separation Agreement.

 

 

(a)          Representations and Warranties.  The representations and warranties of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two set forth in Section 4.2(a) and Section 4.8(a) (in each case, after giving effect to the lead-in to Article IV) shall be true and correct (other than, in the case of Section 4.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and the representations and warranties of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two set forth in Section 4.1(a), Section 4.1(b) (but only with respect to CommerceOne Bank), Section 4.2(b) (but only with respect to CommerceOne Bank), Section 4.3(a) and Section 4.7 (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article IV) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date).  All other representations and warranties of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article IV) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be expected to have a Material Adverse Effect on CommerceOne.  Green Dot shall have received a certificate dated as of the Closing Date and signed on behalf of CommerceOne by the Chief Executive Officer or the Chief Financial Officer of CommerceOne to the foregoing effect.

 

(b)          Performance of Obligations of CommerceOne and Merger Sub.  CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two shall have performed in all material respects the obligations, covenants and agreements required to be performed by it under this Agreement at or prior to the Closing Date, and Green Dot shall have received a certificate dated as of the Closing Date and signed on behalf of CommerceOne by the Chief Executive Officer or the Chief Financial Officer of CommerceOne to such effect.

 

 

 

8.1          Termination.  Notwithstanding anything to the contrary in this Agreement, this Agreement will be automatically terminated and the transaction contemplated by this Agreement abandoned if the Separation Agreement is terminated prior to the First Effective Time.  In addition, this Agreement may be terminated at any time prior to the First Effective Time, whether before or after receipt of the Requisite Green Dot Vote or the Requisite CommerceOne Vote:

 

(a)          by mutual written consent of CommerceOne and Green Dot;

 

(b)          by either CommerceOne or Green Dot if any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Mergers and such denial has become final and nonappealable or any Governmental Entity of competent jurisdiction shall have issued a final and nonappealable order, injunction, decree or other legal restraint or prohibition permanently enjoining or otherwise prohibiting or making illegal the consummation of the Mergers, unless the failure to obtain a Requisite Regulatory Approval shall be due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein;

 

(c) by either CommerceOne or Green Dot if the Mergers shall not have been consummated on or before November 23, 2026 (the “Termination Date”); provided, that (i) if on such date, any of the conditions to the Closing set forth in (A) Section 7.1(c), (B) Section 7.1(e) (to the extent related to a matter set forth in Section 7.1(c)), (C) Section 7.1(d) or Sections 7.1(a) or 7.1(b) (in the case of Sections 7.1(a) or 7.1(b), to the extent related to a failure of Section 7.1(d) to have been satisfied), or (D) Section 7.1(f) (to the extent related to a matter set forth in Section 9.1(a) or 9.1(d) of the Separation Agreement), shall not have been satisfied or waived on or prior to such date, but all other conditions set forth in Article VII shall have been satisfied or waived (or in the case of conditions that by their nature are to be satisfied at the Closing, shall then be capable of being satisfied if the Closing were to take place on such date), then the Termination Date shall be automatically extended to February 23, 2027, and such date shall become the Termination Date for purposes of this Agreement; (ii) if all the conditions set forth in Article VII are satisfied (or in the case of conditions that by their nature are to be satisfied at the Closing, shall then be capable of being satisfied if the Closing were to take place on such date) on a date that occurs on or prior to the Termination Date but the Closing would thereafter occur in accordance with Section 1.2 on a date (the “Specified Date”) after the Termination Date, then the Termination Date shall automatically be extended to such Specified Date and the Specified Date shall become the Termination Date for all purposes of this Agreement; and (iii) the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to a party if the failure of the Mergers to have been consummated on or before the Termination Date was caused by the failure of such party to perform any of its obligations under this Agreement; (d) by either CommerceOne or Green Dot (provided, that the terminating party is not then in material breach of any representation, warranty, obligation, covenant or other agreement contained herein) if there shall have been a breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Green Dot, in the case of a termination by CommerceOne, or CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two, in the case of a termination by Green Dot, which breach or failure to be true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 7.2, in the case of a termination by CommerceOne, or Section 7.3, in the case of a termination by Green Dot, and which is not cured within forty-five (45) days following written notice to Green Dot, in the case of a termination by CommerceOne, or CommerceOne, in the case of a termination by Green Dot, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date);

 

 

(e)          by Green Dot, prior to the time the Requisite CommerceOne Vote is obtained, if (i) CommerceOne or the Board of Directors of CommerceOne shall have made a Recommendation Change or (ii) CommerceOne or the Board of Directors of CommerceOne shall have breached its obligations under Section 6.3 or 6.11 in any material respect;

 

(f)           by CommerceOne, prior to the time the Requisite Green Dot Vote is obtained, if (i) Green Dot or the Board of Directors of Green Dot shall have made a Recommendation Change or (ii) Green Dot or the Board of Directors of Green Dot shall have breached its obligations under Section 6.3 or 6.11 in any material respect; or

 

(g)          by either CommerceOne or Green Dot, if the Requisite Green Dot Vote shall not have been obtained upon a vote taken thereon at the Green Dot Meeting duly convened therefor or at any adjournment or postponement thereof.

 

 

(a)          In the event of termination of this Agreement by either CommerceOne or Green Dot as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of CommerceOne, Green Dot, any of their respective Subsidiaries or any of the officers or directors of any of them shall have any liability of any nature whatsoever hereunder, or in connection with the transactions contemplated hereby, except that (i) Section 6.2(b), Section 6.12, this Section 8.2 and Article IX shall survive any termination of this Agreement, and (ii) notwithstanding anything to the contrary contained in this Agreement, none of Green Dot, CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two shall be relieved or released from any liabilities or damages arising out of its willful and material breach of any provision of this Agreement.

 

(b)          (i)           In the event that after the date of this Agreement and prior to the termination of this Agreement, a bona fide Acquisition Proposal shall have been communicated to or otherwise made known to the Board of Directors or senior management of Green Dot or shall have been made directly to the stockholders of Green Dot or any person shall have publicly announced (and not withdrawn at least two (2) business days prior to the Green Dot Meeting) an Acquisition Proposal, in each case with respect to Green Dot and (A) (x) thereafter this Agreement is terminated by either CommerceOne or Green Dot pursuant to Section 8.1(c) without the Requisite Green Dot Vote having been obtained (and all other conditions set forth in Section 7.1 and Section 7.3 were satisfied or were capable of being satisfied prior to such termination) or (y) thereafter this Agreement is terminated (1) by CommerceOne pursuant to Section 8.1(d) as a result of a willful breach or (2) by CommerceOne or Green Dot pursuant to Section 8.1(g), and (B) prior to the date that is twelve (12) months after the date of such termination, Green Dot enters into a definitive agreement or consummates a transaction with respect to an Acquisition Proposal (whether or not the same Acquisition Proposal as that referred to above), then Green Dot shall, on the earlier of the date it enters into such definitive agreement and the date of consummation of such transaction, pay CommerceOne, by wire transfer of same-day funds, a fee equal to $27 million (the “Termination Fee”); provided, that for purposes of this Section 8.2(b)(i), all references in the definition of Acquisition Proposal to “twenty-five percent (25%)” shall instead refer to “fifty percent (50%).”

 

(ii)          In the event that this Agreement is terminated by CommerceOne pursuant to Section 8.1(f), then Green Dot shall pay CommerceOne, by wire transfer of same-day funds, the Termination Fee within two (2) business days of the date of termination.

 

(c)          (i)           In the event that after the date of this Agreement and prior to the termination of this Agreement, a bona fide Acquisition Proposal shall have been communicated to or otherwise made known to the Board of Directors or senior management of CommerceOne or shall have been made directly to the stockholders of CommerceOne or any person shall have publicly announced (and not withdrawn at least two (2) business days prior to the CommerceOne Meeting) an Acquisition Proposal, in each case with respect to CommerceOne and (A) (x) thereafter this Agreement is terminated by either CommerceOne or Green Dot pursuant to Section 8.1(c) without the Requisite CommerceOne Vote having been obtained (and all other conditions set forth in Section 7.1 and Section 7.2 were satisfied or were capable of being satisfied prior to such termination) or (y) thereafter this Agreement is terminated by Green Dot pursuant to Section 8.1(d) as a result of a willful breach, and (B) prior to the date that is twelve (12) months after the date of such termination, CommerceOne enters into a definitive agreement or consummates a transaction with respect to an Acquisition Proposal (whether or not the same Acquisition Proposal as that referred to above), then CommerceOne shall, on the earlier of the date it enters into such definitive agreement and the date of consummation of such transaction, pay Green Dot an amount equal to $3.5 million (the “Reverse Termination Fee”) by wire transfer of same-day funds; provided, that for purposes of this Section 8.2(c)(i), all references in the definition of Acquisition Proposal to “twenty-five percent (25%)” shall instead refer to “fifty percent (50%).”

 

(ii)          In the event that this Agreement is terminated by Green Dot pursuant to Section 8.1(e), then CommerceOne shall pay Green Dot, by wire transfer of same-day funds, the Reverse Termination Fee within two (2) business days of the date of termination.

 

(d)          Notwithstanding anything to the contrary herein, but without limiting the right of any party to recover liabilities or damages to the extent permitted herein, in no event shall either party be required to pay the Termination Fee or the Reverse Terminatin Fee, as applicable, more than once.

 

(e)          Each of CommerceOne and Green Dot acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other party would not enter into this Agreement; accordingly, if CommerceOne or Green Dot, as the case may be, fails promptly to pay the amount due pursuant to this Section 8.2, and, in order to obtain such payment, the other party commences a suit which results in a judgment against the non-paying party for the Termination Fee or the Reverse Terminatin Fee, as applicable, or any portion thereof, such non-paying party shall pay the costs and expenses of the other party (including attorneys’ fees and expenses) in connection with such suit.  In addition, if CommerceOne or Green Dot, as the case may be, fails to pay the amounts payable pursuant to this Section 8.2, then such party shall pay interest on such overdue amounts (for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) at a rate per annum equal to the “prime rate” published in The Wall Street Journal on the date on which such payment was required to be made for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full.

 

 

 

9.1          Amendment.  Subject to compliance with applicable law, this Agreement may be amended by the parties hereto at any time before or after the receipt of the Requisite CommerceOne Vote or the Requisite Green Dot Vote; provided, however, that after the receipt of the Requisite CommerceOne Vote or the Requisite Green Dot Vote, there may not be, without further approval of the stockholders of CommerceOne or Green Dot, as applicable, any amendment of this Agreement that requires such further approval under applicable law.  This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.

 

9.2          Extension; Waiver.  At any time prior to the First Effective Time, each of the parties hereto may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of CommerceOne, New CommerceOne, Merger Sub One and Merger Sub Two, in the case of Green Dot, or Green Dot, in the case of CommerceOne, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto on the part of CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two, in the case of Green Dot, or Green Dot, in the case of CommerceOne, and (c) waive compliance with any of the agreements or satisfaction of any conditions for its benefit contained herein; provided, however, that after the receipt of the Requisite CommerceOne Vote or the Requisite Green Dot Vote, there may not be, without further approval of the stockholders of CommerceOne or Green Dot, as applicable, any extension or waiver of this Agreement or any portion thereof that requires such further approval under applicable law.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.  The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

 

9.3          Nonsurvival of Representations, Warranties and Agreements.  None of the representations, warranties, obligations, covenants and agreements in this Agreement (or in any certificate delivered pursuant to this Agreement) shall survive the Second Effective Time, except for those set forth in Section 6.6 and Section 6.7 and for those other obligations, covenants and agreements contained herein which by their terms apply in whole or in part after the Second Effective Time.

 

9.4          Expenses.  Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expense; provided, however, that the costs and expenses of printing and mailing the Proxy Statement and all filing and other fees paid to Governmental Entities in connection with the Mergers and the other transactions contemplated hereby shall be borne equally by CommerceOne and Green Dot.

 

9.5          Notices.  All notices and other communications hereunder shall be in writing and shall be deemed given (a) on the date of delivery if delivered personally, or if by e-mail transmission (with confirmation of receipt requested), (b) on the earlier of confirmed receipt or the fifth (5th) business day following the date of mailing if mailed by registered or certified mail (return receipt requested) or (c) on the first (1st) business day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier (with confirmation) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

 

(a)          if to Green Dot, to:

 

Attention:	Amy Pugh
Email:	[***]

 

Attention:	Edward D. Herlihy
	Matthew M. Guest
	Matthew T. Carpenter
E-mail:	[***]
	[***]
	[***]

and

 

(b)          if to CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two, to:

 

Attention:	Kenneth Till
	Alan Deer
Email:	[***]
	[***]

 

 

Attention:	H. Rodgin Cohen
	Stephen M. Salley
Email:	[***]
	[***]

9.6          Interpretation.  The parties have participated jointly in negotiating and drafting this Agreement.  In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.  When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or Schedule to this Agreement unless otherwise indicated.  The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The word “or” shall not be exclusive.  References to “the date hereof” shall mean the date of this Agreement.  As used in this Agreement, the “knowledge” of Green Dot means the actual knowledge of any of the representatives of Green Dot listed on Section 9.6 of the Green Dot Disclosure Schedule, and the “knowledge” of CommerceOne means the actual knowledge of any of the representatives of CommerceOne listed on Section 9.6 of the CommerceOne Disclosure Schedule.  As used herein, (a) the term “person” means any individual, corporation (including not‑for‑profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity or other entity of any kind or nature, (b) an “Affiliate” of a specified person is any person that directly or indirectly controls, is controlled by, or is under common control with, such specified person, and (c) the term “made available” means any document or other information that was (i) in the case of Green Dot, provided by CommerceOne or its representatives to Green Dot and its representatives, or in the case of CommerceOne, by Green Dot or its representatives to CommerceOne and its representatives, in each case at least one (1) day prior to the date hereof, (ii) included in the virtual data room of a CommerceOne or Green Dot at least one (1) day prior to the date hereof or (iii) filed by a party with the SEC and publicly available on EDGAR at least one (1) day prior to the date hereof and (d) the “transactions contemplated hereby” and “transactions contemplated by this Agreement” shall include the Mergers.  The Green Dot Disclosure Schedule and the CommerceOne Disclosure Schedule, as well as all other schedules and all exhibits hereto, shall be deemed part of this Agreement and included in any reference to this Agreement.  Nothing contained herein shall require any party or person to take any action in violation of applicable law.

 

9.7          Counterparts.  This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.

 

9.8          Entire Agreement.  This Agreement and the Separation Agreement (including the documents and instruments referred to herein and therein) together with the Confidentiality Agreement constitutes the entire agreement among the parties and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

 

 

(a)          This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any applicable conflicts of law principles (except that matters relating to the fiduciary duties of the Board of Directors of CommerceOne shall be subject to the laws of the State of Alabama).

 

(b)          Each party agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal or state court of competent jurisdiction located in the State of Delaware (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 9.5.

 

9.10        Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY LAW AT THE TIME OF INSTITUTION OF THE APPLICABLE LITIGATION, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT:  (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.

 

9.11        Assignment; Third-Party Beneficiaries.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of Green Dot, in the case of CommerceOne, New CommerceOne, Merger Sub One or Merger Sub Two, or CommerceOne, in the case of Green Dot.  Any purported assignment in contravention hereof shall be null and void.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.  Except as otherwise specifically provided in Section 6.7, this Agreement (including the documents and instruments referred to herein) is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein.  The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties.  Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance herewith without notice or liability to any other person.  In some instances, the representations and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto.  Consequently, persons other than the parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

 

9.12        Specific Performance. The parties hereto agree that irreparable damage, for which monetary damages (even if available) would not be an adequate remedy, would occur if any provision of this Agreement were not performed in accordance with the terms hereof and, accordingly, that the parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches or threatened breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof (including the parties’ obligation to consummate the Mergers), in addition to any other remedy to which they are entitled at law or in equity.  Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate or that an award of specific performance is not an appropriate remedy for any reason at law or equity and (b) any requirement under any law to post security or a bond as a prerequisite to obtaining equitable relief.  If any party hereto brings any action to enforce specifially the performance of this Agreement, the Termination Date shall automatically be extended by the amount of time during which such action (including any appeals with respect thereto) is pending, plus twenty (20) Business Days or such other time period established by the Chosen Court presiding over such action.

 

9.13        Severability.  Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the invalid, illegal or unenforceable provision or portion thereof shall be interpreted to be only so broad as is enforceable.

 

9.14        Headings.  The table of contents and headings herein are for convenience and reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.

 

9.15        Confidential Supervisory Information.  Notwithstanding any other provision of this Agreement, no provision of this Agreement shall require or be interpreted to require, and no disclosure, representation or warranty shall be made (or other action taken) pursuant to this Agreement that would involve, the disclosure of confidential supervisory information (including confidential supervisory information as defined in 12 C.F.R. § 261.2(b) and as identified in 12 C.F.R. § 309.5(g)(8) or any similar state law) of a Governmental Entity by any party to this Agreement to the extent prohibited by applicable law; provided that, to the extent legally permissible, appropriate substitute disclosures or actions shall be made or taken under circumstances in which the limitations of the preceding sentence apply.

 

9.16        Delivery by Facsimile or Electronic Transmission.  This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means of a facsimile machine or by e‑mail delivery of a “.pdf” format data file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or e‑mail delivery of a “.pdf” format data file to deliver a signature to this Agreement or any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or e‑mail delivery of a “.pdf” format data file as a defense to the formation of a contract and each party hereto forever waives any such defense.

 

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.

 

 

Form of New CommerceOne Charter

 

 

 

Form of New CommerceOne Bylaws

 

 

	COMMERCEONE FINANCIAL CORPORATION
	By:

	Name:	[•]
	Title:	[•]

 

 

 

 

and

 

 

 

 

 

This SEPARATION AGREEMENT (this “Agreement”), dated as of November 23, 2025, is by and among Green Dot Corporation, a Delaware corporation (“Parent”), Green Dot OpCo, LLC, a Delaware limited liability company (“Purchaser”), and Compass Sub North, Inc., a Delaware corporation (“New CommerceOne”).

 

 

WHEREAS, New CommerceOne and Parent desire to sell and transfer, and Purchaser desires to purchase, the LLC Interests, pursuant to which Purchaser will acquire the Business (including by way of acquiring the Business Assets and assuming the Business Liabilities), in each case subject to the terms and conditions set forth in this Agreement;

 

WHEREAS, concurrently with the execution of this Agreement, Parent is entering into an Agreement and Plan of Merger, dated as of the date of this Agreement (the “Merger Agreement”), with CommerceOne Financial Corporation, an Alabama corporation (“CommerceOne”), New CommerceOne, Compass Sub East, Inc., a Delaware corporation and a direct, wholly-owned Subsidiary of New CommerceOne (“Merger Sub One”) and Compass Sub West, Inc., a Delaware corporation and an indirect, wholly-owned Subsidiary of New CommerceOne (“Merger Sub Two”), pursuant to which, among other things, immediately prior to the consummation of the Conversion, Distribution and Sale of the Business contemplated hereby, (i) Merger Sub One will merge with and into CommerceOne, with CommerceOne surviving as a direct wholly-owned Subsidiary of New CommerceOne and (ii) Merger Sub Two will merge with and into Parent, with Parent surviving as a direct, wholly-owned Subsidiary of Compass Sub Northwest, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of New CommerceOne (“Merger Sub Two Holdco”) (such mergers, the “Mergers”), subject to the terms and conditions set forth in the Merger Agreement;

 

WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to Parent’s willingness to enter into this Agreement, certain Equity Investors or their affiliates (the “Guarantors”) have duly executed and delivered to Parent a guaranty, dated as of the date of this Agreement, in favor of Parent (the “Limited Guaranty”);

 

WHEREAS, concurrently with the execution of this Agreement, certain stockholders of CommerceOne have executed and delivered to Parent a Support Agreement (the “Support Agreement”), pursuant to which such stockholders have agreed to, among other things, certain limitations on the transfer of their shares of common stock of CommerceOne and to vote to approve the Merger Agreement and in favor of the transactions contemplated thereby; and

 

WHEREAS, the parties desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:

 

 

 

Section 1.1           Defined Terms.  For the purposes of this Agreement, the following terms shall have the following meanings:

 

“Action” shall mean any claim, action, suit, arbitration, litigation or proceeding by or before any Governmental Entity.

 

“Affiliate” shall mean, with respect to any Person, any other Person that directly, or through one or more intermediaries, controls or is controlled by or is under common control with such Person; provided that, from and after the Closing, (a) none of the Transferred Entities shall be considered an Affiliate of Parent Bank, New CommerceOne or any of their respective Affiliates and (b) none of Parent Bank, New CommerceOne nor any of their respective Affiliates shall be considered an Affiliate of any Transferred Entity.

 

“Ancillary Agreements” shall mean the Merger Agreement, the Transition Services Agreement, the Master Services Agreement, the Equity Commitment Letter (and the Subscription Agreements referred to therein and the letter agreement entered into in connection therewith), the Limited Guaranty, the Confidentiality Agreements, the Support Agreement, any certificate delivered pursuant to Section 9.2(d) or Section 9.3(c), and the Assignment and Assumption Agreement, if applicable.

 

“Bank Benefit Plan” shall mean each Benefit Plan that is (a) sponsored or maintained by Parent Bank or (b) maintained solely and exclusively for the benefit of employees of the Retained Businesses.

 

“Benefit Plan” shall mean each employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), whether or not subject to ERISA, and all equity, equity-based, bonus or incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, termination, change in control, retention, employment, welfare, insurance, medical, fringe or other benefit plans, programs, agreements, contracts, policies, practices, arrangements or remuneration of any kind, whether or not funded and whether or not in writing, with respect to which Parent or any Subsidiary or the Business, whether or not incorporated, all of which together with Parent would be deemed a “single employer” within the meaning of Section 4001 of ERISA, is a party or has any current or future obligation or that are maintained, contributed to or sponsored by Parent or any of its Subsidiaries for the benefit of any Business Employee or current or former service provider of a Transferred Entity, excluding, in each case, any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA or any plan, program or arrangement sponsored by a Governmental Entity.

 

“Business” shall mean the business, operations, products, services and activities of Parent and its Subsidiaries, other than the Retained Businesses, and shall include the business, operations, products, services and activities of providing program management, issuing support, stored-value or wallet, processing, gateway, fraud or risk and related payments services, as conducted by Parent and its Subsidiaries (other than Parent Bank) prior to the Closing.  For the avoidance of doubt, the “Business” shall not include the Retained Businesses, and the Retained Businesses shall not, directly or indirectly, be transferred to Purchaser in connection with the Sale.

 

“Business Assets” shall have the meaning given to such term in Schedule I hereto.

 

“Business Day” shall mean any day that is not a Saturday, a Sunday or other day on which commercial banks in the City of New York, New York are required or authorized by Law to be closed.

 

“Business Employee” shall mean each individual employed (a) by a Transferred Entity, other than each such employee who has devoted a majority of his or her working time to one or more Retained Businesses in the twelve (12) months prior to the date of this Agreement, or (b) by Parent Bank who has devoted a majority of his or her working time to the Business in the twelve (12) months prior to the date of this Agreement, including the individuals set forth on Section 1.1(a) of the Parent Disclosure Schedule, in each case, except as mutually agreed by Parent and Purchaser prior to the Closing, including as contemplated by Section 7.12(b).

 

“Business Employee List” shall mean a document setting forth, for each Business Employee, (a) such individual’s name or identification number, (b) such individual’s job title, (c) such individual’s hiring date, (d) such individual’s classification status, including whether the individual is classified as exempt or non-exempt for wage and hour purposes under applicable U.S. Laws, (e) whether such individual is part-time or full-time, (f) such individual’s annual base salary or wage rate, (g) such individual’s target commission or other short-term incentive opportunity (on a plan-by-plan basis), (h) estimates of any statutory or contractual severance obligations, (i) whether such individual is employed by one of the Transferred Entities or Parent Bank, and, if by a Transferred Entity, the name of the Transferred Entity, (j) such individual’s work location, (k) whether such employee is currently on leave (and if on leave, the type of leave and anticipated date of return), (l) such individual’s visa status, if applicable (including type of visa, sponsoring entity, and expiration date), and (m) such individual’s accrued but unused vacation and paid time off amounts, as it may be updated from time to time to reflect actions permitted under the terms of this Agreement.

 

“Business Financial Information” shall mean (a) the audited consolidated balance sheets of Parent as of December 31, 2024 and December 31, 2023 and the related audited consolidated statements of comprehensive income and loss and consolidated statements of cash flows for the fiscal years then ended and (b) the unaudited consolidated balance sheet of Parent as of September 30, 2025 and the related unaudited consolidated statement of comprehensive income and loss for the nine-month period then ended.

 

“Business Liabilities” shall have the meaning given to such term in Schedule II hereto.

 

“Business Material Adverse Effect” shall mean any effect, change, event, circumstance, condition, occurrence or development that, either individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on (i) the business, properties, assets, results of operations or financial condition of the Business taken as a whole, provided, however, that, with respect to this clause (i), Business Material Adverse Effect shall not be deemed to include the impact of (A) changes, after the date hereof, in GAAP or applicable regulatory accounting requirements, (B) changes, after the date hereof, in laws, rules or regulations of general applicability to companies in the industries in which the Business operates or in which any of the Transferred Entities operate, or interpretations thereof by courts or Governmental Entities, (C) changes, after the date hereof, in global, national or regional political conditions (including the outbreak of war or acts of terrorism) or in economic or market (including equity, credit and debt markets, as well as changes in interest rates) conditions affecting the financial services industry generally and not specifically relating to the Business or the Transferred Entities, (D) changes, after the date hereof, resulting from hurricanes, earthquakes, tornados, floods or other natural disasters or from any outbreak of any disease or other public health events, (E) public disclosure of the transactions contemplated hereby or by the Merger Agreement (including any effect on the Business’s relationships with its customers, vendors or employees), (F) any stockholder litigation arising out of this Agreement, the Merger Agreement or the transactions contemplated hereby and thereby that is brought or threatened against Parent, the Business or any of the Transferred Entities or Parent’s Board of Directors from and following the date of this Agreement and prior to the Closing or actions expressly required by this Agreement or the Merger Agreement or that are taken with the prior written consent of Purchaser or New CommerceOne in contemplation of the transactions contemplated hereby or thereby or (G) a decline in the trading price of Parent’s common stock or the failure, in and of itself, to meet earnings projections or internal financial forecasts, but not, in either case, including any underlying causes thereof; except, with respect to subclauses (A), (B), (C) or (D), to the extent that the effects of such change are materially disproportionately adverse to the business, properties, results of operations or financial condition of the Business, taken as a whole, as compared to other companies in the industry in which the Business operates or (ii) the ability of Parent to timely perform its obligations under this Agreement and consummate the transactions contemplated hereby, including the Sale.

 

“Cash” means, of any Person and as of any time, all cash and cash equivalents, bank and other depositary accounts and safe deposit boxes, demand accounts, certificates of deposit, time deposits, checks, negotiable instruments, marketable securities and securities and brokerage accounts (including deposits in transit), in each case of such Person as of such time.

 

“Code” shall mean the U.S. Internal Revenue Code of 1986, as amended.

 

“CommerceOne Confidentiality Agreement” shall mean the nondisclosure agreement, dated as of June 19, 2025, by and between Parent and CommerceOne Bank.

 

“CommerceOne Group” shall mean New CommerceOne and its Subsidiaries (other than the Transferred Entities), after giving effect to the Mergers, the Conversion, the Distribution and the Sale.

 

“Competition Laws” shall mean any local, state, domestic, federal, foreign or supranational Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade means.

 

“Confidentiality Agreements” shall mean (a) the Smith Confidentiality Agreement and (b) the CommerceOne Confidentiality Agreement.

 

“Contract” shall mean any written and legally binding lease, contract, license, arrangement, option, instrument or other agreement, other than a Permit or Benefit Plan.

 

“control” shall mean, as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise (and the terms “controlled by” and “under common control with” shall have correlative meanings).

 

“Environmental Laws” shall mean any federal, state, local or foreign Law relating to the protection of the environment or to human health or safety (in the case of human health or safety, as it relates to exposure to Hazardous Substances).

 

“Equity Award Obligations” shall mean all cash amounts to be paid to the Business Employees in respect of the Vesting PSU Awards and Vesting RSU Awards.

 

“Equity Award Tax Obligations” shall mean the employer portion of any employment or payroll Taxes relating to the payment of the Green Dot Merger Consideration (as defined in the Merger Agreement) in respect of the Vesting PSU Awards and Vesting RSU Awards.

 

“Excluded Assets” shall have the meaning given to such term in Schedule III hereto.

 

“Excluded Liabilities” shall have the meaning given to such term in Schedule IV hereto.

 

“Financing Parties” means (a) each Person (including each agent and arranger) that commits to provide Purchaser or any of its Subsidiaries the Debt Financing pursuant to the Debt Commitment Letter, or has otherwise entered into agreements in connection with the Debt Financing (including any Alternative Financing), including any parties to any commitment letters, joinder agreements, credit agreements or other definitive documentation for the Debt Financing, together with their respective successors and assigns and Affiliates, and (b) the officers, directors, employees, agents, representatives, stockholders, limited partners, managers, members and partners of the Persons identified in clause (a) in each case, in their respective capacities as such; provided that neither Purchaser nor any Affiliate thereof shall be a Financing Party.

 

“Former Business Employee” shall mean each former employee of (a) Parent Bank who devoted a majority of his or her working time to the Business as of his or her last date of employment with Parent Bank, or (b) any of the Transferred Entities.

 

“Fraud” means actual common law fraud (as opposed to any fraud claim based on constructive knowledge, negligent or reckless misrepresentation or a similar theory) under Delaware law with respect to the representations and warranties set forth in Article III, Article IV or Article V, as applicable.

 

“GAAP” shall mean generally accepted accounting principles in the United States.

 

“Governmental Entity” shall mean any foreign, domestic, supranational, federal, territorial, state or local governmental entity, self-regulatory organization, court, tribunal, judicial body, commission, board, bureau, agency or instrumentality, or any regulatory, administrative or other department, or agency, or any political or other subdivision, department or branch of any of the foregoing.

 

“Hazardous Substance” shall mean any substance listed, defined, designated or classified as hazardous, toxic, or radioactive, or otherwise regulated, under any Environmental Law, including any petroleum or any derivative or byproduct thereof, asbestos, or asbestos-containing material, or polychlorinated biphenyls.

 

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

 

“Intellectual Property” shall mean any and all intellectual property rights arising anywhere in the world, whether registered or unregistered, including intellectual property rights in or to, or arising from, any of the following:  (a) all patents and patent applications, statutory invention registrations, registered designs, and similar or equivalent rights in inventions and designs, and all rights therein provided by international treaties and conventions; (b) trademarks, service marks, trade dress, trade names, slogans, logos and corporate names and similar designations of origin (“Marks”); (c) domain names and social media handles; (d) copyrights, and any equivalent rights in works of authorship (including rights in software or databases as a work of authorship); and (e) trade secrets and other rights in know-how, data, and confidential or proprietary business or technical information, in each case, that derives independent economic value, whether actual or potential, from not being known to other Persons.

 

“IRS” shall mean the United States Internal Revenue Service.

 

“IT Systems” shall mean all information technology systems, infrastructure, and assets, including (a) computer hardware, servers, workstations, mobile devices, networking and telecommunications equipment, (b) software, applications, platforms, and tools (whether owned, licensed, or software-as-a-service), (c) databases and data storage systems, (d) websites, portals, and related internet properties, (e) networks, cloud computing services, and hosted environments, and (f) all related documentation, source code and object code.

 

“Law” shall mean any federal, state, local, foreign or supranational law, statute, regulation, ordinance, rule, Order or decree by any Governmental Entity.

 

“Liability” shall mean all indebtedness, obligations and other liabilities, whether absolute, accrued, matured, contingent (or based upon any contingency), known or unknown, fixed or otherwise, or whether due or to become due, including any fines, penalties, losses, costs, interest, charges, expenses, damages, assessments, deficiencies, judgments, awards or settlements.

 

“Liens” shall mean all liens, pledges, charges, claims, security interests, purchase agreements, options, restrictions on transfer or other similar encumbrances.  For the avoidance of doubt, licenses, covenants not to sue and similar rights granted with respect to Intellectual Property are not “Liens” as defined hereunder.

 

“Losses” shall mean all losses, damages, Taxes, penalties, liabilities, fines, costs and expenses (including reasonable attorney’s fees), incurred or suffered by an Indemnified Party, in each case excluding the items set forth in Section 11.7.

 

“Master Services Agreement” shall mean the Master Services Agreement to be entered into at the Closing substantially in the form of Exhibit B hereto, as it may be amended from time to time.

 

“Merger Effective Time” shall have the meaning given to the term “First Effective Time” in the Merger Agreement.

 

“Order” shall mean any outstanding order, judgment, writ, injunction, stipulation, award or decree of any Governmental Entity.

 

“Parent Transaction Expenses” means all fees, costs and expenses of brokers, finders, outside counsel, financial advisors, accountants, consultants and other professional advisors incurred by Parent or any of its Subsidiaries at or prior to the Closing in connection with the Sale Process, the negotiation, execution, performance or consummation of this Agreement, the Merger Agreement and the other Ancillary Agreements and the transactions contemplated hereby and thereby.

 

“Permits” shall mean all licenses, permits, franchises, approvals, registrations, authorizations, consents, or orders of, or filings with, any Governmental Entity.  For the avoidance of doubt, Permits shall not include licenses of Intellectual Property.

 

“Permitted Liens” shall mean:  (a) statutory Liens of landlords and mechanics’, carriers’, workmen’s, repairmen’s, warehousemen’s, materialmen’s or other like Liens arising or incurred in the ordinary course of business, Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; (b) Liens for Taxes, assessments or other governmental charges or levies that are not due or payable or that are being contested by appropriate Actions or that may thereafter be paid without material penalty; (c) Liens disclosed on or reflected in the Parent Reports; (d) defects or imperfections of title or other Liens not materially interfering with the ordinary conduct of the Business as a whole; (e) leases, subleases and similar agreements with respect to the Business Leased Real Property; (f) Liens listed in the applicable title insurance policies, and any easements, covenants, rights-of-way, restrictions of record and other similar charges not materially interfering with the ordinary conduct of the Business as a whole; (g) any conditions that would be shown by a current, accurate survey or physical inspection of any Business Leased Real Property; (h) zoning, building and other similar restrictions; (i) Liens that have been placed by any developer, landlord or other third party on property owned by third parties over which Parent or the Transferred Entities have easement rights and subordination or similar agreements relating thereto, not materially interfering with the ordinary conduct of the Business as a whole; (j) Liens incurred or deposits made in connection with workers’ compensation, unemployment insurance or other types of social security; (k) Liens not created by Parent or any of its Subsidiaries that affect the underlying fee interest of any Business Leased Real Property; (l) Liens created under federal, state or foreign securities Laws; and (m) licenses, covenants not to sue and similar rights granted with respect to Intellectual Property.

 

“Person” shall mean an individual, partnership (general or limited), corporation, limited liability company, joint venture, association or other form of business organization (whether or not regarded as a legal entity under applicable Law), trust or other entity or organization, including a Governmental Entity.

 

“Personal Data” shall mean all data relating to one or more individual(s) that is personally identifying (i.e., data that identifies an individual or, in combination with any other reasonably available information or data, is capable of identifying an individual) that is regulated or protected by one or more federal or state Laws, statutes or regulations concerning the privacy or security of personal data of or concerning an individual or the subject of applicable data protection or security Laws.

 

“Purchaser Material Adverse Effect” shall mean any event, change, development or effect that is or would reasonably be expected to be, individually or in the aggregate, materially adverse to the ability of Purchaser to timely perform its obligations under this Agreement including to consummate the Sale.

 

“Retained Businesses” shall mean the businesses, operations, products, services and activities of Parent Bank as conducted by Parent Bank prior to the Closing, including the businesses, operations, products, services and activities set forth on Section 1.1(b) of the Parent Disclosure Schedule.

 

“Sale Process” shall mean all matters relating to the review of strategic alternatives with respect to Parent and its Subsidiaries and the sale of Parent or the Business, and all activities in connection therewith, including matters relating to (a) the solicitation of proposals from and negotiations with third parties in connection with the sale of Parent or the Business or (b) the drafting, negotiation or interpretation of any of the provisions of this Agreement or the Ancillary Agreements.

 

“SEC” shall mean the United States Securities and Exchange Commission.

 

“Securities Act” shall mean the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Smith Confidentiality Agreement” shall mean the nondisclosure agreement, dated as of April 22, 2025, by and between Parent and Smith Ventures, LLC.

 

“Subsidiary” shall mean, with respect to any Person, any corporation, entity or other organization, whether incorporated or unincorporated, of which (a) such first Person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions or (b) such first Person is a general partner or managing member; provided that, from and after the Closing, none of the Transferred Entities shall be considered a Subsidiary of New CommerceOne or any of New CommerceOne’s Affiliates.

 

“Tax” (and with a correlative meaning, “Taxable”) shall mean any tax of any kind, including any federal, state, local or foreign income, profits, license, severance, occupation, windfall profits, capital gains, capital stock, transfer, registration, social security (or similar), production, franchise, gross receipts, payroll, sales, employment, use, property, customs, tariffs, value added, estimated, stamp, alternative or add-on minimum, environmental or withholding tax, and any other duty, assessment or governmental charge, together with all interest and penalties imposed with respect to such amounts.

 

“Tax Proceeding” shall mean any notice of deficiency, proposed adjustment, adjustment, assessment, audit, examination, contest, litigation, dispute, claim or other proceeding in respect (in whole or in part) of any Taxes.

 

“Tax Return” shall mean any return, declaration, report, claim for refund or information return or statement filed or required to be filed with any taxing authority relating to Taxes, including any amendment thereof.

 

“Transferred Entity” shall mean Parent and each of its Subsidiaries other than Parent Bank.

 

“Transferred Entity Benefit Plan” shall mean each Benefit Plan that is not a Bank Benefit Plan.

 

“Transition Services Agreement” shall mean the Transition Services Agreement to be entered into at the Closing substantially in the form of Exhibit A hereto, as it may be amended from time to time.

 

“Used” means, with respect to any asset of Parent or any of its Subsidiaries, that such asset is primarily or exclusively used in the operation or conduct of the Business.

 

Section 1.2           Other Definitions.  The following terms shall have the meanings defined in the Section indicated:

 

TSA Schedules	6.15
under common control with	Definition of control, 1.1
Vesting PSU Award	7.8(a)(i)
Vesting RSU Award	7.8(b)(i)

 

Section 2.1           Sale and Purchase of the Payment Business.  Upon the terms and subject to the conditions set forth in this Agreement, (a) immediately following the Mergers, Parent will convert into a limited liability company pursuant to Section 266 of the Delaware General Corporation Law (the “DGCL”) and Section 18-214 of the Delaware Limited Liability Company Act (the “DLLCA”) (such conversion, the “Conversion”) and, as a result of the Conversion, Parent will become a disregarded entity for U.S. federal income tax purposes, (b) immediately following the Conversion, Parent will distribute the stock of Parent Bank, a Utah-chartered bank and wholly owned Subsidiary of Parent (“Parent Bank”), to Merger Sub Two Holdco (the “Distribution”), (c) immediately following the Distribution and subject to Section 6.9, New CommerceOne shall transfer, convey, assign and deliver to Purchaser, or cause to be transferred, conveyed, assigned and delivered to Purchaser, and Purchaser shall purchase and acquire, all of New CommerceOne’s and its Subsidiaries’ right, title and interest in and to the Business Assets, free and clear of all Liens (other than Permitted Liens) (the “Sale”) and (d) in connection with the Sale, Purchaser shall, or shall cause one or more of its Subsidiaries (including, following the Closing, the Transferred Entities) to, assume, pay, satisfy, discharge, perform and fulfill when due all Business Liabilities.  Notwithstanding anything in this Agreement to the contrary, it is understood and agreed that New CommerceOne and its Affiliates (other than the Transferred Entities) shall (x) retain, and Parent and its applicable Subsidiaries will transfer out of the Transferred Entities prior to the Closing, the Excluded Assets, and (y) retain and be responsible for the Excluded Liabilities to the extent held by any of them.

 

Section 2.2           Closing.

 

(a)          Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) shall occur concurrently with the closing of the transactions contemplated by the Merger Agreement, and the Sale shall occur only if the Merger Effective Time, the Conversion and the Distribution occur immediately prior thereto, and will take place by electronic exchange of documents at 10:00 a.m., New York City time, on a date which shall be no later than three (3) Business Days after the satisfaction or waiver (subject to applicable law) of all of the conditions set forth in Article IX hereof (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof), unless another date, time or place is agreed to in writing by Parent and Purchaser.  The date on which the Closing occurs is referred to as the “Closing Date.”

 

(b)          At the Closing:

 

(i)           New CommerceOne shall (or shall cause its Subsidiaries to):

 

(A)         deliver to Purchaser customary evidence of the assignment of the LLC Interests;

 

(B)         to the extent any Business Asset (other than the LLC Interests) or Business Liability is not held by a Transferred Entity, deliver to Purchaser a counterpart of an Assignment and Assumption Agreement providing for, subject to Section 6.9, the transfer of all of Parent’s and its Subsidiaries’ right, title and interest as of the Closing in and to the Business Assets (other than the Purchased Interests and LLC Interests) and the assumption by Purchaser of the Business Liabilities in accordance with and subject to this Agreement, by and among New CommerceOne and/or its applicable Subsidiaries and Purchaser, in customary form (the “Assignment and Assumption Agreement”), duly executed by New CommerceOne or its applicable Subsidiaries;

 

(C)         deliver to Purchaser the certificate required to be delivered pursuant to Section 9.2(d);

 

(D)         deliver to Purchaser a duly executed IRS Form W-9;

 

(E)         deliver to the other parties hereto a duly executed counterpart to each of the Ancillary Agreements (other than the Merger Agreement, Confidentiality Agreements, Equity Commitment Letter, Limited Guaranty, Support Agreement and any other Ancillary Agreement entered into substantially concurrently with entry into this Agreement) to which any member of the CommerceOne Group is a party.

 

(ii)         Purchaser shall:

 

(A)         in accordance with Section 6.20, deliver to New CommerceOne (or to one or more of New CommerceOne’s designees) by wire transfer, at an account or accounts designated by New CommerceOne (or by such Affiliate) at least three (3) Business Days prior to the Closing, immediately available funds in an aggregate amount of $690,000,000 (the “Purchase Price”);

 

(B)         to the extent any Business Asset (other than the LLC Interests) or Business Liability is not held by a Transferred Entity, deliver to New CommerceOne a counterpart of the Assignment and Assumption Agreement, duly executed by Purchaser;

 

 

(C) deliver to Parent the certificate required to be delivered pursuant to Section 9.3(c); and (D) deliver to the other parties hereto a duly executed counterpart to each of the Ancillary Agreements (other than the Merger Agreement, Confidentiality Agreements, Equity Commitment Letter, Limited Guaranty, Support Agreement and any other Ancillary Agreement entered into substantially concurrently with the entry into this Agreement) to which Purchaser or any of its Affiliates is a party.

 

(iii)        Parent shall:

 

(A)         deliver to Purchaser a copy of a duly executed IRS Form 8832 evidencing the DRE Election; and

 

(B)         deliver to the other parties hereto a duly executed counterpart to each of the Ancillary Agreements (other than the Merger Agreement, Confidentiality Agreements, Equity Commitment Letter, Limited Guaranty, Support Agreement and any other Ancillary Agreement entered into substantially concurrently with this Agreement) to which any Transferred Entity is a party.

 

Section 2.3           Separation Financial Information.  Schedule 2.3 of the Parent Disclosure Schedule sets forth a pro forma balance sheet of Parent Bank as of September 30, 2025 reflecting the parties’ expectation of the allocation of assets and liabilities of Parent Bank as if the Sale had occurred on September 30, 2025 (the “Separation Financial Information”).  For the avoidance of doubt, the Separation Financial Information is intended to be illustrative and demonstrate, on a pro forma basis, the pro forma allocation of assets and Liabilities between Parent Bank, on the one hand, and Purchaser and the Transferred Entities, on the other hand, as provided in this Agreement, and is not a guarantee as to actual amounts or the amounts or applicability of any accounting adjustments.

 

Section 2.4           Withholding.  Notwithstanding anything in this Agreement to the contrary, Purchaser and any other applicable withholding agent shall each be entitled to deduct and withhold (or cause to be deducted and withheld) from the amounts otherwise payable pursuant to this Agreement such amounts as such Person is required to deduct and withhold with respect to the making of such payment under the Code or any other provision of applicable Law; provided, however, that except with respect to amounts in the nature of compensation, Purchaser shall use commercially reasonable efforts to provide advance notice to any Person whose payment is subject to deduction or withholding to permit such Person to reduce or eliminate any such deduction or withholding in accordance with applicable Law.  To the extent that amounts are so deducted or withheld and paid over to the appropriate Tax authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding were made.

 

 

 

Except as disclosed in (a) the reports, schedules, forms, statements and other documents filed by Parent with, or furnished to, the SEC since December 31, 2022 and prior to the date of this Agreement (the “Parent Reports”) and to the extent relating to the Business (but disregarding risk factor disclosures contained under the heading “Risk Factors,” or disclosures of risks set forth in any “forward-looking statements” disclaimer or any other statements that are similarly cautionary, predictive or forward-looking in nature) or (b) the disclosure schedule delivered to Purchaser concurrently with the execution of this Agreement (the “Parent Disclosure Schedule”), it being agreed that disclosure of any item in any section or subsection of the Parent Disclosure Schedule shall also be deemed disclosure with respect to any other section or subsection of this Agreement to which the relevance of such item is reasonably apparent on its face, Parent hereby represents and warrants to Purchaser as follows:

 

Section 3.1           Organization and Qualification.  Each Transferred Entity is a legal entity duly organized, validly existing and in good standing (to the extent such concept is recognized under applicable Law) under the Laws of its jurisdiction of organization.  Each Transferred Entity has all requisite corporate or other organizational power and authority to carry on its businesses as now being conducted and is qualified to do business and is in good standing (to the extent such concept is recognized under applicable Law) as a foreign corporation or other legal entity in each jurisdiction where the conduct of its business requires such qualification, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.  As of the date hereof, Section 3.1 of the Parent Disclosure Schedule sets forth a list of all Transferred Entities.

 

Section 3.2           Capitalization of the Transferred Entities.  The Purchased Interests are, and at the time of the Sale, the LLC Interests will be, duly authorized, validly issued, and, to the extent applicable, fully paid and non-assessable and owned by Parent or a Subsidiary thereof (in the case of the Purchased Interests) or Merger Sub Two Holdco (in the case of the LLC Interests), free and clear of all Liens, except Permitted Liens.  Except for the Purchased Interests, there are no equity interests of the Transferred Entities (other than Parent) issued or outstanding, and there are no preemptive or other outstanding rights, subscriptions, options, warrants, stock appreciation rights, redemption rights, repurchase rights, convertible, exercisable, or exchangeable securities or other equity interests in the Transferred Entities (other than Parent) or any other securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any equity securities of the Transferred Entities (other than Parent), and no securities evidencing such rights are issued or outstanding.  Parent or one of its Subsidiaries has good and valid title to the Purchased Interests, free and clear of all Liens, except Permitted Liens.  At the time of the Sale, (i) except for the LLC Interests, there will be no equity interests of Parent issued or outstanding, and there will be no preemptive or other outstanding rights, subscriptions, options, warrants, stock appreciation rights, redemption rights, repurchase rights, convertible, exercisable, or exchangeable securities or other equity interests in Parent or any other securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any equity securities of Parent, and (ii) Merger Sub Two Holdco will have good and valid title to the LLC Interests, free and clear of all Liens, except Permitted Liens.

 

Section 3.3           Authority Relative to this Agreement.  Parent has all necessary corporate or similar power and authority to execute, deliver, and, upon the adoption of the Merger Agreement and the transactions contemplated by this Agreement by the affirmative vote of the holders of a majority of the outstanding shares of common stock of Parent (the “Requisite Parent Vote”), consummate the transactions contemplated by this Agreement in accordance with the terms hereof.  This Agreement has been duly and validly executed and delivered by Parent, and, assuming the due authorization, execution and delivery of this Agreement by Purchaser and New CommerceOne, constitutes a valid, legal and binding agreement of Parent, enforceable against Parent in accordance with its terms, subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general principles of equity (the “Enforceability Exceptions”).

 

Section 3.4           Consents and Approvals; No Violations.  No filing with or notice to, and no permit, authorization, registration, consent or approval of, any Governmental Entity is required on the part of Parent for the execution, delivery and performance by Parent of this Agreement or by Parent or any Subsidiary thereof of the Ancillary Agreements to which it is a party or the consummation by Parent or any Subsidiary thereof of the transactions contemplated hereby or thereby, except (a) compliance with any applicable requirements of the HSR Act; (b) the filing by Parent with the SEC of a proxy statement in definitive form (including any amendments or supplements thereto, the “Proxy Statement”), and the registration statement on Form S-4 in which the Proxy Statement will be included as a prospectus, to be filed with the SEC by New CommerceOne in connection with the transactions contemplated by the Merger Agreement and this Agreement (the “S-4”) and the declaration of effectiveness of the S-4; (c) the filing of any required applications, filings and notices, as applicable, with the New York Stock Exchange (the “NYSE”); (d) the filing of any required applications, filings and notices, as applicable, with the Board of Governors of the Federal Reserve System under the Bank Holding Company Act of 1956, as amended, and approval of such applications, filings and notices; (e) the filing of any required applications, filings or notices with the Financial Industry Regulatory Authority (“FINRA”) and approval of such applications, filings and notices; (f) the filing of any required applications, filings or notices with any state banking or financial authorities listed on Section 3.4 of the Parent Disclosure Schedule and approval of such applications, filings and notices; (g) the filing of any required applications, filings and notices, as applicable, with the Federal Deposit Insurance Corporation (“FDIC”) and approval of such applications, filings and notices; (h) the filing of the CommerceOne Certificates of Merger, Green Dot Certificate of Merger and Upstream Certificates of Merger (as such terms are defined in the Merger Agreement) and certificates of conversion with the Secretary of State of the State of Delaware pursuant to the Delaware General Corporation Law and the Secretary of State of the State of Alabama pursuant to the Alabama Business and Nonprofit Entities Code, as applicable; (i) such filings and approvals as are required to be made or obtained under the securities or “Blue Sky” laws of various states in connection with the issuance of the shares of common stock of New CommerceOne pursuant to the Merger Agreement and the approval of the listing of such common stock of New CommerceOne on the NYSE; or (j) any such filings, notices, permits, authorizations, registrations, consents or approvals required in connection with this Agreement, the Sale or the other transactions contemplated by this Agreement, the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.  Assuming compliance with the items described in clauses (a) through (j) of the preceding sentence, neither the execution, delivery and performance of this Agreement by Parent or the Ancillary Agreements by Parent or any applicable Affiliate thereof, nor the consummation by Parent or any Affiliate thereof of the transactions contemplated hereby or thereby, will (i) conflict with or result in any breach, violation or infringement of any provision of the respective articles of incorporation or bylaws (or similar governing documents) of any Transferred Entity, (ii) result in a breach, violation or infringement of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to the creation of any Lien, except for Permitted Liens, or any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any Contract to which Parent or any Subsidiary thereof is a party and that is material to the Business, taken as whole, or (iii) violate any Law applicable to Parent or any Transferred Entity or any of their respective properties or assets, except, in the case of the preceding clause (ii) or this clause (iii), as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.  A list of material Permits Used in the Business as of the date hereof is set forth on Section 3.4 of the Parent Disclosure Schedule.

 

Section 3.5           Litigation.  There is no Action outstanding, pending or, to the knowledge of Parent, threatened against Parent or any of its Subsidiaries, except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.  Neither Parent nor any of its Subsidiaries is subject to any outstanding Order, except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.

 

Section 3.6           Sufficiency of Assets.  At the Closing, (a) after giving effect to the Ancillary Agreements and the Pre-Closing Transfers and (b) assuming all Approvals as may be required in connection with the consummation of the transactions contemplated by this Agreement and the Merger Agreement have been obtained and the transactions contemplated by this Agreement and the Merger Agreement have occurred in accordance with the terms of this Agreement and the Merger Agreement, the Transferred Entities will own or have the right to use (including by means of ownership or rights pursuant the Specified Business Contracts and the applicable Ancillary Agreements) all of the assets, properties and rights (excluding any Commingled Contracts) Used in the Business immediately following the Closing in substantially the same manner in all material respects as conducted by Parent and its Subsidiaries as of the date hereof.  Except as would not, individually or in the aggregate, be material to the Business and Transferred Entities, taken as a whole, the Transferred Entities will (assuming all Approvals as may be required in connection with the consummation of the transactions contemplated by this Agreement and the Merger Agreement have been obtained and the transactions contemplated by this Agreement and the Merger Agreement have occurred in accordance with the terms of this Agreement and the Merger Agreement) have as of the Closing good and valid title to, or in the case of leased assets, have valid leasehold interests in, or other legal rights to possess and use, all of the Business Assets, free and clear of all Liens, other than Permitted Liens.

 

Section 3.7           Brokers.  With the exception of Citigroup Global Markets Inc., no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from any of the Transferred Entities in connection with the transactions contemplated by this Agreement and the Ancillary Agreements for which Purchaser or any of its Affiliates (including, following the Closing, the Transferred Entities) would have any Liability.

 

Section 3.8           No Other Representations or Warranties; No Reliance.  Parent acknowledges and agrees that except for the representations and warranties contained in Article IV, Article IV of the Merger Agreement and in the other Ancillary Agreements, neither Purchaser nor any other Person or entity on behalf of Purchaser has made or makes, and Parent has not relied upon, any representation or warranty, whether express or implied, with respect to Purchaser, its Subsidiaries or their respective businesses, affairs, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information provided or made available to Parent or any of its representatives by or on behalf of Purchaser.

 

 

Purchaser hereby represents and warrants to Parent as follows:

 

Section 4.1           Organization and Qualification.  Purchaser is a limited liability company and each Affiliate of Purchaser that is a party to any Ancillary Agreement is a legal entity, in each case duly organized, validly existing and in good standing (to the extent such concept is recognized under applicable Law) under the Laws of its jurisdiction of organization, and Purchaser and each Affiliate of Purchaser that is a party to any Ancillary Agreement has all requisite corporate or other organizational power and authority to carry on its businesses as now being conducted and is qualified to do business and is in good standing (to the extent such concept is recognized under applicable Law) as a foreign corporation or other legal entity in each jurisdiction where the conduct of its business requires such qualification, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

 

Section 4.2           Authority Relative to this Agreement.  Purchaser and each Affiliate of Purchaser that is a party to any Ancillary Agreement has all necessary corporate or similar power and authority, and has taken all corporate or similar action necessary, to execute, deliver and perform this Agreement and the Ancillary Agreements and to consummate the transactions contemplated by this Agreement and the Ancillary Agreements in accordance with the terms hereof and thereof.  No vote or other approval of the stockholders or equity holders of Purchaser or any of its Affiliates is required in connection with the execution, delivery or performance of this Agreement and the Ancillary Agreements or to consummate the transactions contemplated by this Agreement and the Ancillary Agreements in accordance with the terms hereof and thereof, whether by reason of applicable Law, the organizational documents of Purchaser or its Affiliates, the rules or requirements of any securities exchange, or otherwise.  This Agreement has been duly and validly executed and delivered by Purchaser, and, assuming the due authorization, execution and delivery of this Agreement by Parent and New CommerceOne, will constitute, and the Ancillary Agreements when executed and delivered by Purchaser or its applicable Affiliates, and, assuming the due authorization, execution and delivery of the Ancillary Agreements by New CommerceOne, Parent or their Affiliate, as applicable, will constitute, a valid, legal and binding agreement of Purchaser and its applicable Affiliates, enforceable against Purchaser and such Affiliates in accordance with its terms, subject to the Enforceability Exceptions.

 

Section 4.3           Consents and Approvals; No Violations.  No filing with or notice to, and no permit, authorization, registration, consent or approval of, any Governmental Entity is required on the part of Purchaser or any of its Affiliates for the execution, delivery and performance by Purchaser or its Affiliates, as applicable, of this Agreement or the Ancillary Agreements or the consummation by Purchaser or its Affiliates, as applicable, of the transactions contemplated hereby or thereby, except (a) compliance with any applicable requirements of the HSR Act; (b) compliance with any Permits relating to the Business; or (c) any such filings, notices, permits, authorizations, registrations, consents or approvals required in connection with this Agreement, the Sale or the other transactions contemplated by this Agreement, the failure of which to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.  Assuming compliance with the items described in clauses (a) through (c) of the preceding sentence, neither the execution, delivery and performance of this Agreement or the Ancillary Agreements by Purchaser or its Affiliates, as applicable, nor the consummation by Purchaser or its Affiliates, as applicable, of the transactions contemplated hereby or thereby will (i) conflict with or result in any breach, violation or infringement of any provision of the respective articles of incorporation or bylaws (or similar governing documents) of Purchaser or its Affiliates, (ii) result in a breach, violation or infringement of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to the creation of any Lien, except for Permitted Liens, or any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any Contract to which Purchaser or any of its Affiliates is a party or any of their respective properties or assets are bound, or (iii) violate any Law applicable to Purchaser or any of its Affiliates or any of their respective properties or assets, except, in the case of the preceding clause (ii) or this clause (iii), as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

 

Section 4.4           Litigation.  There is no Action outstanding, pending or, to the knowledge of Purchaser, threatened, against Purchaser or any of its Affiliates except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.  Neither Purchaser nor any of its Affiliates is subject to any outstanding Order, except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

 

Section 4.5           Brokers.  No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from Purchaser or any of its Subsidiaries in connection with the transactions contemplated by this Agreement and the Ancillary Agreements for which Parent or any of its Subsidiaries would have any Liability.

 

Section 4.6           Financing.

 

(a)          Purchaser will have at the Closing all funds necessary for the satisfaction of all of Purchaser’s obligations under this Agreement and the Ancillary Agreements, including the payment of the Purchase Price, and any fees and expenses of or payable by Purchaser, Purchaser’s Affiliates or the Transferred Entities, and for any repayment or refinancing of any outstanding indebtedness of Purchaser and/or the Transferred Entities contemplated by, or required in connection with the transactions described in, this Agreement and the Ancillary Agreements.

 

(b)          Purchaser is a party to and has accepted a fully executed debt commitment letter, dated as of the date of this Agreement (together with all exhibits and schedules thereto, the “Debt Commitment Letter”), from the lenders party thereto (collectively, the “Lenders”) pursuant to which the Lenders have agreed, subject to the terms and conditions thereof, to provide debt financing in the amounts set forth therein.  The debt financing committed pursuant to the Debt Commitment Letter is collectively referred to in this Agreement as the “Debt Financing.”

 

(c)          Purchaser is a party to and has accepted a fully executed equity commitment letter, dated as of the date of this Agreement, by and among certain equity investors (the “Equity Investors”) and Purchaser (together with all exhibits and schedules thereto, the “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”), pursuant to which, upon the terms and subject to the conditions set forth therein, the Equity Investors have agreed to invest in Purchaser the cash amount set forth therein.  The equity financing committed pursuant to the Equity Commitment Letter is referred to in this Agreement as the “Equity Financing.”  The Equity Financing and the Debt Financing are collectively referred to as the “Financing.”

 

(d)          The Equity Commitment Letter provides that (i) Parent is an express third party beneficiary of, and is entitled to enforce, the Equity Commitment Letter, (ii) each of the Equity Investors and Purchaser has waived any defenses related to the adequacy of money damages, the appropriateness of specific performance or the enforceability of such third party beneficiary rights and (iii) the Equity Investors and Purchaser will not oppose the granting of an injunction, specific performance or other equitable relief in connection with the exercise by Parent of such third party beneficiary rights on the basis that there is an adequate remedy at law.

 

(e)          Purchaser has delivered to Parent a true, complete and correct copy, as of the date hereof, of the executed Commitment Letters and any fee letters related thereto, subject, in the case of such fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this type and that would not in any event affect the conditionality, enforceability, availability, termination or amount of the Financing.

 

(f)          Except as expressly set forth in the Commitment Letters, there are no conditions precedent to the obligations of the Equity Investors and the Lenders to provide the Equity Financing or the Debt Financing or any contingencies that would permit the Equity Investors or the Lenders to reduce the aggregate principal amount of the Financing. As of the date hereof, Purchaser does not have any reason to believe that it will be unable to satisfy on a timely basis all terms and conditions to be satisfied by it in any of the Commitment Letters on or prior to the Closing Date, nor does Purchaser as of the date hereof have knowledge that any Equity Investor or Lender will not perform its obligations thereunder.  There are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Commitment Letters or the Financing that would affect the availability, conditionality, enforceability, termination or amount of the Financing.

 

(g)          The Financing, when funded in accordance with the Commitment Letters, shall provide Purchaser with cash proceeds on the Closing Date sufficient for the satisfaction of all of Purchaser’s obligations under this Agreement, the Ancillary Agreements and the Commitment Letters on the Closing Date, including the payment of the Purchase Price, and any fees and expenses of or payable by Purchaser, Purchaser’s Affiliates or the Transferred Entities, and for any repayment or refinancing of any outstanding indebtedness of Purchaser, any of its Subsidiaries and/or the Transferred Entities contemplated by, or required in connection with the transactions described in, this Agreement, the Ancillary Agreements or the Commitment Letters (such amounts, collectively, the “Financing Amounts”).

 

(h)          The Commitment Letters constitute the legal, valid, binding and enforceable obligations of Purchaser and, to the knowledge of Purchaser, all the other parties thereto and are in full force and effect.  As of the date hereof, no event has occurred which (with or without notice, lapse of time or both) constitutes, or could constitute, a default, breach or failure to satisfy a condition by Purchaser or, to the knowledge of Purchaser, any other party thereto under the terms and conditions of the Commitment Letters.  As of the date hereof, Purchaser does not have any reason to believe that any of the conditions to the Financing will not be satisfied on a timely basis or that the full amount of the Financing will not be available to Purchaser on the Closing Date.  Purchaser has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Commitment Letters on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date as and when due.  As of the date hereof, the Commitment Letters have not been modified, amended or altered and will not be modified, amended or altered at any time through the Closing without Parent’s prior written consent, except as permitted by Section 6.10(b) (with any such modification, amendment or alteration promptly notified in writing to Parent), and, as of the date hereof, none of the respective commitments under any of the Commitment Letters have been terminated, reduced, withdrawn or rescinded in any respect, and, to the knowledge of Purchaser, no termination, reduction, withdrawal, modification, amendment, alteration or rescission thereof is contemplated.

 

(i)          In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Purchaser or any of its Affiliates or any other financing or other transactions be a condition to any of Purchaser’s obligations under this Agreement.

 

Section 4.7           Limited Guaranty.  The Guarantors have delivered to Parent a true, complete and correct copy of the executed Limited Guaranty.  The Limited Guaranty is in full force and effect and constitutes the legal, valid, binding and enforceable obligation of the Guarantors in favor of Parent, enforceable by Parent in accordance with its terms.  The Guarantors are not in default or breach under the terms and conditions of the Limited Guaranty and no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or a failure to satisfy a condition under the terms and conditions of the Limited Guaranty.

 

Section 4.8           Solvency.  As of the Closing, after giving effect to any indebtedness being incurred on such date in connection herewith, and assuming satisfaction of the conditions set forth in Section 9.2(a), (a) each of Purchaser and the Transferred Entities will be able to pay their indebtedness and Liabilities (whether direct, subordinated, contingent or otherwise), as such indebtedness and Liabilities become absolute and matured; (b) the then present fair saleable value of the assets of each of Purchaser and the Transferred Entities, on a consolidated basis, will exceed the amount that will be required to pay their probable Liabilities (including the probable amount of all contingent Liabilities) and indebtedness as such Liabilities and indebtedness become absolute or matured; (c) the assets of each of Purchaser and the Transferred Entities, at a fair valuation, will exceed their respective probable Liabilities (including the probable amount of all contingent Liabilities) and indebtedness; and (d) each of Purchaser and the Transferred Entities will not have unreasonably small capital to carry on their businesses as presently conducted or as proposed to be conducted.  The transactions contemplated by this Agreement are not being made and no obligation is being incurred by Purchaser or any of its Affiliates in connection with such transactions with the intent to hinder, delay or defraud either present or future creditors of Purchaser, Parent or any of their Affiliates.

 

Section 4.9           Investment Decision.  Purchaser is acquiring the Purchased Interests and LLC Interests for investment and not with a view toward or for the sale in connection with any distribution thereof, or with any present intention of distributing or selling the Purchased Interests or LLC Interests.  Purchaser acknowledges that the Purchased Interests and LLC Interests have not been registered under the Securities Act or any other federal, state, foreign or local securities Law, and agrees that the Purchased Interests and LLC Interests may not be sold, transferred, offered for sale, pledged, distributed, hypothecated or otherwise disposed of without registration under the Securities Act, except pursuant to an exemption from such registration available under the Securities Act, and in compliance with any other federal, state, foreign or local securities Law, in each case, to the extent applicable.

 

Section 4.10         Independent Investigation.  Purchaser has conducted its own independent investigation, review and analysis of the business, operations, assets, liabilities, results of operations, financial condition, technology, management and prospects of the Transferred Entities and the Business, which investigation, review and analysis was done by Purchaser and its representatives.  In entering into this Agreement, Purchaser acknowledges that it has relied solely upon the aforementioned investigation, review and analysis and not on any factual representations or opinions of any of Parent, the Transferred Entities, their respective Affiliates or any of their respective representatives (except the representations and warranties of Parent expressly set forth in Article III and Article III of the Merger Agreement).  Purchaser hereby acknowledges and agrees that none of Parent, the Transferred Entities, their respective Affiliates or any of their respective representatives or any other Person will have or be subject to any Liability to Purchaser resulting from the distribution to Purchaser, or Purchaser’s use of, any information relating to Parent, the Transferred Entities or the Business, including any information, documents or material made available to Purchaser, whether orally or in writing, in any data room, any management presentations (formal or informal), functional “break-out” discussions, responses to questions submitted on behalf of Purchaser or in any other form in connection with the transactions contemplated by this Agreement.  Purchaser further acknowledges that no representative of Parent, the Transferred Entities or their respective Affiliates has any authority, express or implied, to make any representations, warranties or agreements not specifically set forth in this Agreement or the Ancillary Agreements and subject to the limited remedies herein or therein provided.  Purchaser acknowledges that, should the Closing occur, Purchaser shall acquire the Transferred Entities and the Business without any representation or warranty as to merchantability or fitness thereof for any particular purpose, in an “as is” condition and on a “where is” basis, except as otherwise expressly set forth in this Agreement.

 

Section 4.11         Investments.  None of Purchaser or any of its Affiliates, or any entities that would be deemed affiliates of Purchaser pursuant to the HSR Act, has an interest greater than five percent (5%) in a Person that owns, controls or operates a business engaged in any of the lines of business in which the Business is engaged; provided that, with respect to Purchaser, entities that would be deemed affiliates of Purchaser pursuant to the HSR Act shall include any Person, trust, investment fund or other pooled investment or co-investment vehicle that is controlled or otherwise managed by or in conjunction with, or is under common control with, Purchaser or any of its Affiliates, and any portfolio company or similar asset in which such Person or any of its Affiliates has a greater than five percent (5%) investment.  There is no fact relating to Purchaser’s or any of its Affiliates’ businesses, operations, financial condition or legal status that would or would reasonably be expected to:  (a) prevent or prohibit the obtaining of, impose any material delay in the obtaining of or increase the risk of not satisfying any of the conditions set forth in Article IX or (b) have, individually or in the aggregate, a Purchaser Material Adverse Effect.

 

Section 4.12         No Other Representations or Warranties; No Reliance.  Purchaser acknowledges (on behalf of itself, the Equity Investors, the Guarantors and its other Affiliates and their respective representatives and equity holders) and agrees that except for the representations and warranties of Parent or its Affiliates contained in Article III or Article III of the Merger Agreement, none of Parent nor any Affiliate thereof, or any other Person or entity on behalf of Parent or any Affiliate thereof, has made or makes, and Purchaser, the Equity Investors, the Guarantors and its other Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to the Business, Parent, the Transferred Entities or any Affiliate thereof, or their respective businesses, affairs, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information provided or made available to Purchaser, the Equity Investors, the Guarantors or its other Affiliates or any of their respective representatives by or on behalf of Parent or any Affiliate or representative thereof.  Purchaser (on behalf of itself, the Equity Investors, the Guarantors and its other Affiliates and their respective representatives and equity holders) acknowledges and agrees that none of Parent or any Affiliate thereof, or any other Person or entity on behalf of Parent or any Affiliate thereof, has made or makes, and Purchaser, the Equity Investors, the Guarantors and its other Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to Purchaser, its Affiliates or any of its representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of any of Parent, the Transferred Entities or any Affiliates thereof, the Business, the Business Assets or the Business Liabilities, except as expressly set forth in Article III or Article III of the Merger Agreement.  Purchaser (on behalf of itself, the Equity Investor, the Guarantors and its other Affiliates and their respective representatives and equity holders) acknowledges and agrees that none of Parent nor any Affiliate thereof, or any other Person or entity on behalf of Parent or any Affiliate thereof, has made or makes, and Purchaser, the Equity Investor, the Guarantors and its other Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to the Retained Businesses, the Excluded Assets or the Excluded Liabilities.

 

 

 

New CommerceOne hereby represents and warrants to Parent and Purchaser as follows:

 

Section 5.1           Organization and Qualification.  New CommerceOne is a corporation duly organized, validly existing and in good standing under the Laws of Delaware, and it has all requisite corporate power and authority to carry on its businesses as now being conducted and is qualified to do business and is in good standing (to the extent such concept is recognized under applicable Law) as a foreign corporation or other legal entity in each jurisdiction where the conduct of its business requires such qualification, in each case except as would not reasonably be expected to be, individually or in the aggregate, materially adverse to the ability of New CommerceOne to timely perform its obligations under this Agreement, including to consummate the Sale.

 

Section 5.2           Authority Relative to this Agreement.  New CommerceOne has all necessary corporate power and authority, and has taken all corporate action necessary, to execute, deliver and perform this Agreement and the Ancillary Agreements to which it is a party and to consummate the transactions contemplated by this Agreement and the Ancillary Agreements to which it is a party in accordance with the terms hereof and thereof.  Other than the affirmative vote of the holders of shares representing a majority of the outstanding shares of the common stock of New CommerceOne (or, following the Mergers, in the case of Parent and its Subsidiaries, as set forth in Section 4.2), no vote or other approval of the stockholders or equity holders of New CommerceOne or any of its Affiliates is required in connection with the execution, delivery or performance of this Agreement and the Ancillary Agreements to which it is a party or to consummate the transactions contemplated by this Agreement and the Ancillary Agreements to which it is a party in accordance with the terms hereof and thereof, whether by reason of applicable Law, the organizational documents of New CommerceOne or its Affiliates, the rules or requirements of any securities exchange, or otherwise.  This Agreement has been duly and validly executed and delivered by New CommerceOne, and, assuming the due authorization, execution and delivery of this Agreement by Parent and Purchaser, will constitute, and the Ancillary Agreements to which it is a party when executed and delivered by Purchaser or its applicable Affiliates, and, assuming the due authorization, execution and delivery of such Ancillary Agreements by Purchaser or its applicable Affiliate, will constitute, a valid, legal and binding agreement of New CommerceOne and its applicable Affiliates, enforceable against New CommerceOne and such Affiliates in accordance with its terms, subject to the Enforceability Exceptions.  At the Closing, the Ancillary Agreements to be executed and delivered by New CommerceOne or its applicable Affiliate at the Closing will be duly and validly executed and delivered by New CommerceOne or its applicable Affiliate, and, assuming the due authorization, execution and delivery of the Ancillary Agreements by the other parties thereto, will constitute valid, legal and binding agreements of New CommerceOne or its applicable Affiliate, enforceable against it in accordance with the terms thereof, subject to the Enforceability Exceptions.

 

Section 5.3           Brokers.  No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from New CommerceOne in connection with the transactions contemplated by this Agreement and the Ancillary Agreements for which Purchaser or any of its Affiliates (including, following the Closing, the Transferred Entities) would have any Liability.

 

Section 5.4           No Other Representations or Warranties; No Reliance.  Purchaser acknowledges (on behalf of itself, the Equity Investors, the Guarantors and its other Affiliates and their respective representatives and equity holders) and agrees that except for the representations and warranties of New CommerceOne or its Affiliates contained in Article V or Article IV of the Merger Agreement, none of New CommerceOne nor any Affiliate thereof, or any other Person or entity on behalf of New CommerceOne or any Affiliate thereof, has made or makes, and Purchaser, the Equity Investors, the Guarantors and its other Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to the Business, New CommerceOne, Parent the Transferred Entities or any Affiliate thereof, or their respective businesses, affairs, assets, liabilities, financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or with respect to the accuracy or completeness of any other information provided or made available to Purchaser, the Equity Investors, the Guarantors or its other Affiliates or any of their respective representatives by or on behalf of New CommerceOne or any Affiliate or representative thereof.  Purchaser (on behalf of itself, the Equity Investors, the Guarantors and its other Affiliates and their respective representatives and equity holders) acknowledges and agrees that none of New CommerceOne or any Affiliate thereof, or any other Person or entity on behalf of New CommerceOne or any Affiliate thereof, has made or makes, and Purchaser, the Equity Investors, the Guarantors and its other Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to Purchaser, its Affiliates or any of its representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of any of New CommerceOne, Parent, the Transferred Entities or any Affiliates thereof, the Business, the Business Assets or the Business Liabilities, except as expressly set forth in Article V or Article IV of the Merger Agreement.  Purchaser (on behalf of itself, the Equity Investors, the Guarantors and its other Affiliates and their respective representatives and equity holders) acknowledges and agrees that none of New CommerceOne nor any Affiliate thereof, or any other Person or entity on behalf of New CommerceOne or any Affiliate thereof, has made or makes, and Purchaser, the Equity Investors, the Guarantors and its other Affiliates have not relied upon, any representation or warranty, whether express or implied, with respect to the Retained Businesses, the Excluded Assets or the Excluded Liabilities.

 

 

 

Section 6.1           Access to Books and Records.

 

(a)          After the date of this Agreement until the Closing, and subject to the requirements of applicable Law and Section 6.1(b), Parent shall, and shall cause the Transferred Entities to, afford to representatives of Purchaser reasonable access, upon reasonable request and notice and solely in furtherance of the transactions contemplated by this Agreement, to the books and records of the Transferred Entities (solely to the extent related to the Business) during normal business hours consistent with applicable Law and in accordance with the procedures established by Parent to prepare the Transferred Entities for transition to Purchaser at the Closing and Purchaser’s acceptance of the Transferred Entities, Business Assets, Business Liabilities and Business Employees at Closing; provided that none of Parent or the Transferred Entities shall be required to make available Business Employee personnel files until after the Closing Date; provided, further, that Parent and the Transferred Entities shall not be required to make available medical records, workers’ compensation records, the results of any drug testing or other sensitive or personal information if doing so would reasonably be expected to result in a violation of applicable Law.  Purchaser shall indemnify and hold Parent Bank and its Affiliates harmless against any Liabilities arising out of or relating to any transfer requested by or on behalf of Purchaser or its Affiliates of any such personnel files.

 

(b)          Purchaser agrees that any access granted under Section 6.1(a) shall not interfere unreasonably with the operation of the Business or any other business of Parent or its Affiliates.  Purchaser and its Affiliates and its and their respective representatives shall not communicate with any of the employees of Parent or its Affiliates without the prior written consent of Parent, which consent shall not be unreasonably withheld.  Notwithstanding anything to the contrary in this Agreement, neither Parent nor any of its Affiliates shall be required to provide access to or disclose information if such access or disclosure would (i) jeopardize or forfeit the attorney-client, work product or other applicable legal privilege or protection of such party, (ii) contravene any Laws, contracts or obligation of confidentiality, (iii) include information concerning the valuation of the Business or the Sale Process or (iv) include information that Parent reasonably determines is competitively sensitive; provided that Parent or its Affiliates, as applicable, shall use reasonable best efforts to provide Purchaser with access to any such information in a manner that would not reasonably be expected to result in the foregoing clauses (i)-(iv).  In the event that any information shared pursuant to Section 6.1(a) does result in the disclosure of such information described in clauses (i)-(ii) of the immediately preceding sentence, then (x) Purchaser shall, upon discovering that the disclosure occurred, promptly notify Parent of such disclosure, use reasonable efforts to preserve the confidentiality of such information, promptly return all such information, including any copies or extracts thereof, to Parent, and not retain any copies or extracts thereof and (y) such disclosure shall not be deemed to be a waiver of any attorney-client, work product or other applicable legal privilege or protection, which shall be retained by Parent or its Affiliate, as applicable.

 

(c)          At and after the Closing, Purchaser shall, and shall cause its Subsidiaries to, afford New CommerceOne and its Affiliates and their respective representatives, during normal business hours, upon reasonable notice, consistent with applicable Law, access to the books, records, properties and employees of each Transferred Entity and the Business to the extent that such access may be reasonably requested for reasonable business purposes, including in connection with financial statements, Taxes, any potential Action or investigation by or before a Governmental Entity (including in connection with the matters covered under Section 6.8) and SEC or other Governmental Entity reporting obligations; provided that nothing in this Agreement shall limit any rights of discovery of New CommerceOne or its Affiliates.

 

(d)          Except as otherwise required by applicable Law, Purchaser agrees to hold, and to cause the applicable Transferred Entities to hold, all the books and records (including Tax books and records) of each Transferred Entity or the Business existing on the Closing Date and not to destroy or dispose of any thereof for a period of ten (10) years from the Closing Date or such longer time as may be required by Law, and thereafter, if any of them desires to destroy or dispose of such books and records, to offer first in writing at least sixty (60) days prior to such destruction or disposition to surrender them to New CommerceOne.

 

Section 6.2           Confidentiality.  The parties expressly agree that, notwithstanding any provision of the Smith Confidentiality Agreement to the contrary, the terms of the Smith Confidentiality Agreement are incorporated into this Agreement by reference and shall continue in full force and effect; provided that to the extent not already a direct party thereto, Purchaser assumes the Smith Confidentiality Agreement and agrees to be bound by the provisions thereof applicable to Smith Ventures, LLC.  The parties expressly agree that, notwithstanding any provision of the Smith Confidentiality Agreement to the contrary, including with respect to termination thereof, if, for any reason, the Sale is not consummated, the Smith Confidentiality Agreement as incorporated herein shall continue in full force and effect for a period of twenty-four (24) months following termination of this Agreement and otherwise in accordance with its terms, and this Agreement shall constitute the requisite consent of the parties to amend the Smith Confidentiality Agreement accordingly.

 

Section 6.3           Required Actions.

 

(a)          Purchaser, New CommerceOne and Parent shall, and shall cause their Affiliates to, use reasonable best efforts to take all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to cause all conditions set forth in Article IX to be satisfied and to consummate and make effective in the most expeditious manner possible the Sale, the Mergers and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity required to be obtained or made by Purchaser, New CommerceOne or Parent or any of their respective Affiliates in connection with the Sale, the Mergers and the other transactions contemplated by this Agreement and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale, the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.  Neither Purchaser, New CommerceOne nor Parent shall, and each shall cause its Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing or would reasonably be expected to result in the failure to satisfy, or any delay in satisfying, any condition set forth in Article IX, including acquiring or agreeing to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agreeing to, soliciting, offering, proposing or recommending any of the foregoing, to the extent it would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be obtained at or prior to the Closing or would reasonably be expected to result in the failure to satisfy, or any delay in satisfying, any condition set forth in Article IX.  For avoidance of doubt, any action taken by New CommerceOne or Parent or their respective Affiliates pursuant to and consistent with the terms of the Merger Agreement shall not be deemed a breach of the foregoing.

 

(b)          Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser, New CommerceOne and Parent shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement, including the expiration or termination of the waiting period applicable to the Sale and the other transactions contemplated by this Agreement under the HSR Act or any other applicable Competition Laws, and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity relating to the completion of the Sale and the other transactions contemplated by this Agreement.  In that regard, each party shall (i) promptly provide any information and assistance as the other party may reasonably request with respect to all notices, submissions or filings made by or on behalf of such party or any of its Affiliates with any Governmental Entity in connection with this Agreement, the Sale, the Mergers and the other transactions contemplated by this Agreement, and (ii) promptly inform the other party to this Agreement, and, if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from or to any Governmental Entity regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication or submission with or to any such Governmental Entity.  Neither Purchaser, New CommerceOne nor Parent shall participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any proceeding or Action by a private party relating to the HSR Act or any other applicable Competition Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat.  Notwithstanding the foregoing, Purchaser, New CommerceOne and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.”  Such designated materials provided by Purchaser to Parent or New CommerceOne, New CommerceOne to Purchaser or Parent or by Parent to Purchaser or New CommerceOne pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser, New CommerceOne or Parent, as the case may be); it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business or the Sale Process, (ii) as necessary to comply with contractual arrangements or applicable Law and (iii) as necessary to address reasonable privilege concerns.

 

(c)          Purchaser, New CommerceOne and Parent shall file or cause to be filed, any required notifications under the HSR Act as promptly as practicable, but in any event no later than thirty days after the date of this Agreement, and will supply as promptly as practicable any additional information and documentary materials that may be required or advisable and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as practicable.

 

(d)          Purchaser, New CommerceOne and Parent shall, and shall cause their Affiliates to, use their respective reasonable best efforts (including agreeing to amendments to this Agreement or any Ancillary Agreement) to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale, the Mergers and the other transactions contemplated by this Agreement under any applicable Law, including the HSR Act and any other applicable Competition Laws.  In connection therewith, if any Action is instituted (or threatened to be instituted) challenging this Agreement, the Sale or the other transactions contemplated by this Agreement as violative of any applicable Law, including the HSR Act or any other applicable Competition Laws, Purchaser, New CommerceOne and Parent shall jointly (to the extent practicable) use their reasonable best efforts to initiate and participate in any proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity that would prevent, delay or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity the effect of which would be to block consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement resulting from any such Action.  Notwithstanding the foregoing, nothing contained in this Section 6.3(d) shall be deemed to require (1) Parent or New CommerceOne or any of their respective Affiliates to take, and neither Parent nor New CommerceOne or any of their respective Affiliates shall be permitted (without the written consent of the other) to take, any action, or commit to take any action, that (A) would reasonably be expected to have a material adverse effect on New CommerceOne and its Subsidiaries, taken as a whole, after giving effect to the Mergers, the Conversion, the Distribution, the Sale and other transactions contemplated by this Agreement and the Merger Agreement, or (B) is not conditioned on the Closing or (2) Purchaser or any of its Affiliates to take any action, or commit to take any action, that (A) would reasonably be expected to have a Business Material Adverse Effect after giving effect to the Sale and other transactions contemplated by this Agreement, or (B) is not conditioned on the Closing.

 

(e)          Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party so as to cause the conditions in Article IX to be satisfied so as to enable the Closing to occur as promptly as practicable.  Whether or not the Sale is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal, economist and other professional fees) to any third party or any Governmental Entity in order to obtain any consent, finding of suitability, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3, other than the fees of and payments to Parent’s legal and professional advisors.

 

Section 6.4           Commingled Contracts.

 

(a)          Parent and Purchaser acknowledge that Parent and its Affiliates (including the Transferred Entities) are parties to certain Contracts (collectively, the “Commingled Contracts”) that relate in part to both (i) the operations or conduct of the Business and (ii) the operations or conduct of the Retained Businesses; provided that in no event shall Commingled Contracts include any enterprise-wide Contracts or Contracts with respect to off-the-shelf software, or Contracts the benefits of which are delivered under the Ancillary Agreements.  With respect to each of the Commingled Contracts, during the period prior to Closing and for six (6) months following the Closing, Parent, prior to the Closing, and Purchaser and the Transferred Entities, after the Closing, shall reasonably cooperate with Parent Bank and its Affiliates and use their reasonable best efforts, to the extent reasonably within the control of Parent or its Affiliates, prior to the Closing, or Purchaser and the Transferred Entities, after the Closing, and at no cost to Parent or its Affiliates, prior to the Closing, or Purchaser and the Transferred Entities, after the Closing, to assist Parent Bank and its Affiliates in procuring services from the counterparty or counterparties to each such Commingled Contract, which may include apportioning such Commingled Contract or assisting Parent Bank and its Affiliates with entering into a new agreement with such counterparty or counterparties, on the one hand, and Parent Bank or one or more of its Affiliates, on the other hand, pursuant to which Parent Bank and/or its Affiliates will receive the applicable benefits currently available under such Commingled Contract that relate to the Retained Businesses and assume the related burdens and obligations; provided, however, that in no event shall any party be required to assign or amend, either in its entirety or in part, any Commingled Contract that is not assignable or cannot be amended, as applicable, by its terms without obtaining one or more consents or approvals unless such consents or approvals are obtained.  Until assignment, Parent, prior to the Closing, or Purchaser and the Transferred Entities, after the Closing, shall not amend or terminate any Commingled Contract in a manner adverse to Parent Bank or the Retained Businesses.

 

(b)          Notwithstanding anything to the contrary contained herein, subject to Section 6.9, (i) Parent Bank, Purchaser and their respective Affiliates shall not have any further obligation with respect to any third party consents that are not obtained prior to the Closing Date and (ii) none of Parent Bank, Purchaser or their respective Affiliates shall have any obligation to make any payments or incur any Liability or offer or grant any concession or accommodation (financial or otherwise) or commence or participate in any Action in order to obtain any consents or approvals of third parties or effect the transfers or arrangements contemplated by this Section 6.4, and neither Parent Bank nor any of its Affiliates, on the one hand, or Purchaser nor any of its Affiliates, on the other hand, shall have any Liability whatsoever to Purchaser or any of its Affiliates or Parent Bank or any of its Affiliates, as applicable, arising out of or relating to the failure to obtain any such consents or approvals, and the failure to receive any such consents or approvals or to effect any such transfers or arrangements shall not be taken into account with respect to whether any condition to the Closing set forth in Article IX shall have been satisfied.

 

Section 6.5           Public Announcements.  Purchaser, New CommerceOne and Parent agree that the initial press release with respect to the execution and delivery of this Agreement shall be a release mutually agreed to by the parties.  Thereafter, each of the parties agrees that no public release or announcement or statement concerning this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby shall be issued by any party without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), except (i) as required by applicable law or the rules or regulations of any applicable Governmental Entity or stock exchange to which the relevant party is subject, in which case the party required to make the release or announcement shall consult with the other party about, and allow the other party reasonable time to comment on, such release or announcement in advance of such issuance or (ii) for such releases, announcements or statements that are consistent with other such releases, announcements or statements made after the date of this Agreement in compliance with this Section 6.5.

 

Section 6.6           Intercompany Accounts.  At or prior to the Closing, all intercompany accounts, except for those accounts governed by an Ancillary Agreement or listed on Section 6.6 of the Parent Disclosure Schedule, between Parent Bank, on the one hand, and any Transferred Entity, on the other hand, shall be settled or otherwise eliminated in such a manner as Parent shall determine in its sole discretion. For the avoidance of doubt, intercompany accounts solely between and among any of the Transferred Entities shall not be required to have been eliminated at the Closing.

 

Section 6.7           Termination of Intercompany Arrangements.

 

(a)          Effective at or prior to the Closing, other than any intercompany arrangement governing the intercompany accounts governed by Section 6.6, all arrangements, understandings or Contracts, including all obligations to provide goods, services or other benefits, by Parent Bank, on the one hand, and any Transferred Entity on the other hand, shall be terminated without any party having any continuing obligations or Liability to the other, except for (i) this Agreement and the Ancillary Agreements (and each other agreement or instrument expressly contemplated by this Agreement or any Ancillary Agreement to be entered into by any member of the CommerceOne Group, on the one hand, and any Transferred Entity on the other hand), (ii) any Contracts to which any third party is a party (including the Commingled Contracts) and (iii) the other arrangements, understandings or Contracts listed in Section 6.7 of the Parent Disclosure Schedule.

 

(b)          Except to the extent provided to the contrary in Section 6.6 or this Section 6.7, effective as of the Closing, Purchaser, on behalf of itself and its Affiliates, including the Transferred Entities, hereby releases New CommerceOne and each of its Affiliates (including Parent Bank) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, or the operations of the Transferred Entities prior to the Closing, or relating to or arising out of Parent’s or its Affiliates’ ownership or operation of the Transferred Entities, except for any obligation pursuant to the provisions of this Agreement or the Ancillary Agreements and any arrangements, understandings or Contracts set forth in Section 6.6 or Section 6.7 of the Parent Disclosure Schedule.

 

(c)          Except to the extent provided to the contrary in Section 6.6 or this Section 6.7, effective as of the Closing, New CommerceOne, on behalf of itself and its Affiliates (including Parent Bank), hereby releases Purchaser and each of its Affiliates (including the Transferred Entities) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, or the ownership or operations of the Transferred Entities prior to the Closing, except for any obligation pursuant to the provisions of this Agreement or the Ancillary Agreements and any arrangements, understandings or Contracts set forth in Section 6.6 or Section 6.7 of the Parent Disclosure Schedule.

 

Section 6.8           Litigation Support.

 

(a)          From and after the Closing, New CommerceOne (or an applicable member of the CommerceOne Group) shall assume and be responsible for managing, and shall have the authority to manage, the defense or prosecution, as applicable, and resolution (including settlement) of, any Action the Liabilities related to which are solely Excluded Liabilities.  From and after the Closing, Purchaser (or one of its Subsidiaries) shall assume and be responsible for managing, and shall have the authority to manage, the defense or prosecution, as applicable, and resolution (including settlement) of, any Action the Liabilities related to which are solely Business Liabilities.  From and after the Closing, New CommerceOne (or an applicable member of the CommerceOne Group) and Purchaser (or one of its Subsidiaries) shall cooperate reasonably in managing the defense or prosecution, as applicable, and resolution (including settlement) of, any Action the Liabilities related to which include both Excluded Liabilities and Business Liabilities.

 

(b)          In the event and for so long as (x) Parent Bank or any of its Affiliates or (y) Purchaser or any of its Affiliates (such party, the “controlling party”) is prosecuting, contesting or defending any Action, investigation, charge, claim, or demand by or against a third party or otherwise addressing, negotiating, disputing, investigating, complying with, mitigating, discharging or otherwise performing or managing any obligation, Liability or Loss in connection with (a) any transactions contemplated under this Agreement or any Ancillary Agreement or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction relating to, in connection with or arising from the Business or the Transferred Entities, Purchaser or Parent Bank, as applicable, shall, and shall cause its Subsidiaries (including the Transferred Entities) and Affiliates (and its and their officers, employees, and representatives) to, cooperate with the controlling party and its counsel in such prosecution, contest or defense, including making available its personnel, participating in meetings, providing such testimony and access to their books and records and taking such other actions as shall be reasonably necessary in connection with such prosecution, contest or defense; provided that (i) any reasonable out-of-pocket costs incurred in providing such cooperation shall be reimbursed by the controlling party and (ii) such cooperation does not unreasonably interfere with the conduct of the Business; provided, further, that this Section 6.8(b) shall not apply in respect of any proceedings, or threatened proceedings, between Parent Bank and Purchaser.

 

(c)          Without limiting the foregoing, the parties shall use their commercially reasonable efforts to cooperate and consult to the extent reasonably necessary with respect to any Actions or threatened or contemplated Actions against each party, or such party’s Affiliates, in respect of which New CommerceOne, Parent Bank or their respective Affiliates, on the one hand, and Purchaser and its Affiliates, on the other hand, may have Liabilities or may possess relevant information, other than an Action by a party (or such party’s Affiliates) against another party (or such party’s Affiliates).

 

(d)          Upon the reasonable request of Parent, New CommerceOne or Purchaser, in connection with any Action as to which cooperation contemplated by this Section 6.8 is requested or provided, the applicable parties will enter into a mutually acceptable common interest agreement so as to maintain, to the extent appropriate and practicable, any applicable attorney-client privilege or work product immunity, or other privilege, immunity or protection of any such party.

 

(e)          Notwithstanding anything in this Section 6.8 to the contrary, Transaction Litigation shall be managed in accordance with and subject to Section 6.18 and not this Section 6.8.

 

Section 6.9           Pre-Closing Transfers; Misallocated Assets and Misdirected Payments.

 

(a)          Notwithstanding anything to the contrary in this Agreement, but subject to Section 12.7, at or prior to the Closing, Parent shall use its commercially reasonable efforts to contribute, convey, transfer, assign and deliver, or cause to be contributed, conveyed, transferred, assigned and delivered (i) to one or more of the Transferred Entities the Business Assets (other than the LLC Interests) and the Business Liabilities that are not owned, held or assumed by one of the Transferred Entities, and (ii) from the Transferred Entities to Parent Bank the Excluded Assets and the Excluded Liabilities that are owned, held or assumed by a Transferred Entity (all such actions pursuant to this Section 6.9(a), collectively, the “Pre-Closing Transfers”).

 

(b)          To the extent that any Pre-Closing Transfers shall not have been consummated at or prior to the Closing, the Closing shall nonetheless take place subject only to the satisfaction or waiver of the conditions set forth in Article IX, and the parties shall use commercially reasonable efforts to effect such transfers as promptly following the Closing as shall be practicable.  Notwithstanding anything else in this Agreement to the contrary, this Agreement and the Ancillary Agreements shall not constitute an agreement to assign, license, sublicense, lease, sublease, convey or transfer any Business Assets or Excluded Assets or any claim or right or any benefit arising thereunder or resulting therefrom as to which consent or approval from any Person other than Parent or any of its Affiliates or, after the Closing, New CommerceOne or any of its Affiliates (including any and all licenses to be granted by, and any and all consents and approvals of, Governmental Entities) to the assignment, license, sublicense, lease, sublease, conveyance or transfer thereof or amendment thereof (collectively, “Approvals”) is required but has not been obtained (such asset, a “Delayed Asset”); provided that none of Parent Bank, Purchaser or any of their respective Affiliates shall have any obligation to make any payments or incur any Liability or offer or grant any concession or accommodation (financial or otherwise) or commence or participate in any Action with respect to any Delayed Asset, or have any Liability whatsoever to the other party hereto or any of its Affiliates, arising out of or relating to the failure to effect any transfers with respect to the Delayed Assets, and the failure to effect any such transfers (in and of itself) shall not be taken into account with respect to whether any condition to the Closing set forth in Article IX shall have been satisfied.  Upon obtaining the requisite Approvals, unless otherwise provided in any Ancillary Agreement, such Delayed Asset shall be automatically transferred and assigned to (i) the relevant Transferred Entity or such other Person designated by Purchaser (in the case of any Business Asset) in writing or (ii) Parent Bank or such other Person designated by New CommerceOne (in the case of any Excluded Asset) in writing without additional consideration therefor effective as of the Closing.

 

(c)          From and after the Closing until such time as (i) New CommerceOne or its applicable Affiliate transfers any Business Asset or Business Liability to Purchaser or an Affiliate thereof as required pursuant to and in accordance with the terms of this Section 6.9, or (ii) Purchaser or its applicable Affiliate transfers any Excluded Asset or Excluded Liability to one or more members of the CommerceOne Group as required pursuant to and in accordance with the terms of this Section 6.9, the applicable party hereto shall, and shall cause its Subsidiaries to, use reasonable best efforts to, in each case, subject to the terms of the Ancillary Agreements, cooperate in any arrangement, reasonable and lawful as to New CommerceOne and Purchaser, so that all the benefits and burdens relating to such asset or Liability are to inure from and after the Closing to Purchaser or a Transferred Entity (in the case of any Business Asset or Business Liability) or one or more members of the CommerceOne Group (in the case of any Excluded Asset or Excluded Liability).

 

(d)          Subject to Section 6.9(b), if, at any time and from time to time following the Closing, any right, property or asset which is an Excluded Asset is found to have been transferred to or retained, held or owned, directly or indirectly, by Purchaser, the Transferred Entities or their Affiliates, or Purchaser, any Transferred Entity or any of their Affiliates is, directly or indirectly, subject to or otherwise liable or responsible for, any Excluded Liability, (i) Purchaser shall transfer, or cause the applicable Transferred Entity or its applicable Affiliate to transfer, without further consideration, such Excluded Asset (free and clear of all Liens, other than Permitted Liens) or Excluded Liability to the applicable member of the CommerceOne Group, and (ii) New CommerceOne shall, or shall cause the applicable member of the CommerceOne Group to, accept and assume, without further consideration, such Excluded Asset or Excluded Liability, as applicable, in each case as soon as practicable.  Subject to Section 6.9(b), if, at any time and from time to time following the Closing, any right, property, asset which is a Business Asset is found to have been transferred to or retained, held or owned, directly or indirectly, by a member of the CommerceOne Group, or any member of the CommerceOne Group is, directly or indirectly, subject to or otherwise liable or responsible for, any Business Liability, (i) New CommerceOne shall transfer, or cause the applicable member of the CommerceOne Group to transfer, without further consideration, such Business Asset (free and clear of all Liens, other than Permitted Liens) or Business Liability to Purchaser or its applicable Affiliate and (ii) Purchaser shall, or shall cause its applicable Affiliate to, accept and assume, without further consideration, such Business Asset or Business Liability, as applicable, in each case as soon as practicable.  Except as otherwise provided in this Agreement or the Ancillary Agreements, following the Closing, (i) if any payments due with respect to the Business or to the extent relating to any Business Assets, or which otherwise constitute a Business Asset, are paid to any member of the CommerceOne Group, New CommerceOne shall, or shall cause the applicable member of the CommerceOne Group to, promptly remit by wire or draft such payment to an account designated in writing by Purchaser and (ii) if any payments due with respect to the Retained Businesses or to the extent relating to any Excluded Assets, or which otherwise constitute an Excluded Asset, are paid to Purchaser, the Transferred Entities or their Affiliates, Purchaser shall, or shall cause its Affiliates to, promptly remit by wire or draft such payment to an account designated in writing by New CommerceOne.

 

Section 6.10         Financing.

 

(a)          Purchaser shall, and shall cause each of its Subsidiaries to, take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to fund the Financing Amounts on or prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof.  In furtherance and not in limitation of the foregoing, Purchaser shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Financing on the terms and subject only to the conditions described in the Commitment Letters as promptly as possible but in any event prior to the date upon which the Sale is required to be consummated pursuant to the terms hereof, including by (i) maintaining in effect the Commitment Letters, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein and without any Prohibited Modification, (iii) satisfying on a timely basis all conditions in the Commitment Letters and the Definitive Agreements and complying with its obligations thereunder, (iv) enforcing its rights under the Commitment Letters and (v) if the conditions to the Financing have been satisfied, drawing upon and consummating the Financing at or prior to the time at which the Sale is required to be consummated.  Purchaser shall comply with its obligations, and enforce its rights, under the Commitment Letters and the Definitive Agreements in a timely and diligent manner.

 

(b)          Neither Purchaser nor any of its Subsidiaries shall, without the prior written consent of Parent:  (i) permit, consent to or agree to any amendment, replacement, supplement or modification to, or waiver of any provision or remedy under the Equity Commitment Letter; (ii) permit, consent to or agree to any amendment, replacement, supplement, termination or modification to, or any waiver of, any provision or remedy under, the Debt Commitment Letter or the Definitive Agreements if such amendment, replacement, supplement, modification, waiver or remedy (A) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (B) reduces the aggregate principal amount of the Debt Financing, (C) adversely affects the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, (D) could otherwise reasonably be expected to prevent, impede or delay the consummation of the Sale and the other transactions contemplated by this Agreement or (E) adds lenders, lead arrangers, syndication agents or similar entities, unless such entities are of similar creditworthiness as the Financing Parties that have executed the Debt Commitment Letter as of the date hereof (the effects described in clauses (A) through (E), collectively, the “Prohibited Modifications”); or (iii) terminate or cause the termination of the Commitment Letters or any Definitive Agreement.  Purchaser shall promptly deliver to Parent copies of any amendment, replacement, supplement, termination, modification or waiver to the Commitment Letters or Definitive Agreements.

 

(c)          In the event that any portion of the Financing becomes unavailable (other than as a result of a replacement thereof permitted as set forth below), regardless of the reason therefor, Purchaser shall (i) promptly notify Parent in writing of such unavailability and the reason therefor and (ii) use reasonable best efforts, and cause each of its Subsidiaries to use their reasonable best efforts, to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing for any such unavailable portion from the same or alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing, to consummate the transactions contemplated by this Agreement and to pay the Financing Amounts and, without limiting the foregoing, shall use reasonable best efforts to cause such Alternative Financing to not include any Prohibited Modifications or conditions to the consummation thereof that are more onerous than those set forth in Debt Commitment Letter as of the date hereof; provided that, notwithstanding the foregoing, it is agreed that Purchaser shall not have any obligation to pay any fees or economics (including in respect of rate, call premium, fees or similar amounts) in excess of what it was obligated to pay under the original Debt Commitment Letter as in effect on the date of this Agreement.  Purchaser shall provide Parent with prompt oral and written notice of any actual or threatened breach, default, termination or repudiation by any party to the Commitment Letters or any Definitive Agreement and a copy of any written notice or other written communication from any Lender, Equity Investor or other financing source with respect to any actual or threatened breach, default, cancellation, termination or repudiation by any party to the Commitment Letters or any Definitive Agreement of any provision thereof.  Purchaser shall inform Parent in reasonable detail on a current basis of the status of its efforts to consummate the Financing, including any Alternative Financing.  The foregoing notwithstanding, compliance by Purchaser with this Section 6.10 shall not relieve Purchaser of its obligations to consummate the transactions contemplated by this Agreement whether or not the Financing or any Alternative Financing is available.  To the extent Purchaser obtains Alternative Financing or amends, replaces, supplements, terminates, modifies or waives any of the Financing, in each case pursuant to this Section 6.10 and without any Prohibited Modification, references to the “Financing,” “Financing Parties,” “Commitment Letters” and “Definitive Agreements” (and other like terms in this Agreement) shall be deemed to refer to such Alternative Financing, the commitments thereunder and the agreements with respect thereto, or the Financing as so amended, replaced, supplemented, terminated, modified or waived.

 

     
 

	GREEN DOT CORPORATION
	By:	/s/ William I Jacobs
		Name: William I Jacobs
		Title: Chief Executive Officer
	GREEN DOT OPCO, LLC
	By:	/s/ Bill Smith
		Name: Bill Smith
		Title: President
	COMPASS SUB NORTH, INC.
	By:	/s/ Kenneth Till
		Name: Kenneth Till
		Title: President, Treasurer and Secretary

MSA Category

Description

Pricing Amt

Pricing Metric

Calculation Summary

	Retail		Represents transactions originating from retail distribution partners (e.g., in- store card loads, cash reloads, or purchases at participating merchants)
	Direct		Applies to direct- to-consumer transactions initiated via Green Dot’s proprietary platforms (e.g., website, mobile app, or call center)		Tiered as a percentage of Net Interchange Revenue for each program as follows:   $0 – 2.5mm (87.5% / 12.5%)   $2.5 – 5.0mm (88.75% / 11.25%)   > $5mm (90.0% / 10.0%)		For each of Retail, Direct, Paycard, and BaaS, the applicable amounts shall be calculated on a monthly basis in accordance with the tiered program structure specified in this Agreement
	Paycard		Covers payroll card programs (excluded from Pathward) where BankCo issues cards for employer- sponsored wage disbursement
	BaaS		Represents programs delivered through third-party BaaS partners offering Green Dot- branded or co- branded accounts; includes servicing, tech integration, etc.

MSA Category

Description

Pricing Amt

Pricing Metric

Calculation Summary

	Money Processing		Encompasses disbursement and money movement services, including ACH transfers, GDN loads, and retail cash Txs.; pricing by volume		•          $0.042 per ACH transaction •          $4.11 per inbound wire transaction •          $4.11 per outbound wire transaction •          {GDN} •          {Other}				Total bank sponsorship costs attributable to Money Processing segment calculated as a summation of i) monthly ACH units multiplied by pricing per ACH transaction, ii) monthly wires sent multiplied by pricing per outbound wire transaction and iii) monthly wires received multiplied by pricing per inbound wire transaction
	LBP		Fees for handling deposits and balance loads into consumer accounts associated with the largest banking partner		0.05% of monthly deposits or 0.60% of the average annual deposit balance				Total bank sponsorship costs attributable to the largest BaaS partner calculated as total monthly deposits attributable to the BaaS segment multiplied by a fixed rate of 0.05% per month
	Tax		Covers refund transfer for tax programs (e.g., IRS and state refunds processed via BankCo); includes Professional, Franchise and DIY		Franchise, Pro and DIY: $0.20 per refund transfer				Total bank sponsorship costs attributable to the Tax segment calculated as the total monthly refund transfers across Franchise, Pro, and DIY, each multiplied by the fixed rate of $0.20 per transfer
	ODP		Applies to overdraft protection services offered on eligible consumer accounts; fees based on a % of revenue generated from program participation and usage		2.0%		% of gross revenue		Total ODP bank sponsorship payout calculated as 2% of monthly gross Overdraft Protection revenue

MSA Category

Description

Pricing Amt

Pricing Metric

Calculation Summary

	Interest Share / Non-swept Deposit Pricing		Represents allocation of interest income between OpCo and BankCo on non-interest sharing deposit balances		40.0% of interest income flows to OpCo based on the applied ADB Balance, which is calculated as total non-BaaS deposits multiplied by IORB minus a floor of 50 bps				Total interest share attributable to non-swept deposits calculated on a monthly basis as total non- BaaS deposits multiplied by the applicable base rate or IORB minus a floor of 50 bps to determine the non-BaaS deposit yield; the resulting yield is then multiplied by 40.0% to determine total interest share
	Brand Incentive Proceeds		Rebates, incentives, marketing funds, and similar amounts paid by a card network or brand in connection with a Program’s card activity. Brand Incentive Proceeds are excluded from Net Interchange and are accounted for separately		10%		% of proceeds		Total Brand Incentive Proceeds calculated on a monthly basis as total program-level brand incentive revenue (including rebates, incentives, marketing funds, and other brand-paid amounts) multiplied by the fixed 10% share to determine the bank sponsorship payout

1.

ADB =Average Deposit Balance; IORB = Interest on Reserve Balance

2.

TX = Transaction; DIY = Do It Yourself