Common use of The Merger Agreement Clause in Contracts

The Merger Agreement. The following summary description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which we have Table of Contents included as an exhibit to the Schedule TO, which Stockholders may examine and copy. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The summary description has been included in this Offer to Purchase to provide Stockholders with information regarding the terms of the Merger Agreement. The Merger Agreement is not intended to modify or supplement any factual disclosures about OPAY or ACI in OPAY’s or ACI’s public reports filed with the SEC. In particular, the Merger Agreement and this summary of terms are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to OPAY or ACI without taking into consideration the entirety of public disclosure by XXXX as set forth in its public disclosures. The representations and warranties have been negotiated with the principal purpose of establishing the circumstances in which we may have the right not to consummate the Offer, or a party may have the right to terminate the Merger Agreement, if the representations, warranties and covenants of the other party prove to be untrue due to a change in circumstance or otherwise or covenants are breached, and allocate risk between the parties, rather than establish matters as facts. The representations and warranties may also be subject to a contractual standard of materiality different from those generally applicable to Stockholders. The Merger Agreement is filed as Exhibit (d)(1) to the Schedule TO and is incorporated by reference. The Offer. The Merger Agreement provides that we must commence the Offer as promptly as practicable after the date of the Merger Agreement (but in no event later than October 4, 2013 or such other date as may be agreed to by OPAY and ACI). Our obligation to accept for payment and pay for Shares tendered pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the satisfaction of the other conditions set forth in Section 14—“Conditions of the Offer.” We may waive certain of the conditions to the Offer without the consent of OPAY. We may not, however, waive the Minimum Condition without the consent of OPAY. The Merger Agreement provides that each Stockholder who tenders Shares in the Offer will receive $8.35 for each Share tendered in cash, less any applicable withholding taxes. We have agreed that, without the prior written consent of OPAY, we will not: • decrease the Offer Price or change the form of consideration payable pursuant to the Offer; • reduce the maximum number of Shares to be purchased in the Offer; • impose conditions to the Offer in addition to those set forth in Section 14—“Conditions of the Offer”; • modify or change any condition to the Offer in a manner adverse to the Stockholders; • waive or change the Minimum Condition; or • amend any other term of the Offer in a manner adverse to the Stockholders.

The Merger Agreement. The following summary description of the Merger Agreement does not purport to be complete material provisions of the merger agreement below and elsewhere in this proxy statement is qualified in its entirety by reference to the Merger Agreementmerger agreement, a copy of which we have Table is enclosed with this proxy statement as Annex A. This summary may not contain all of Contents included as an exhibit the information about the merger agreement that is important to the Schedule TO, which Stockholders may examine and copyyou. You are encouraged Sunrise urges you to read carefully the full text of the Merger Agreement because merger agreement in its entirety as it is the legal document that governs governing the Offer and the Mergermergers. The summary description has been included in this Offer to Purchase to provide Stockholders with information regarding the terms of the Merger Agreement. The Merger Agreement is not intended to modify or supplement any factual disclosures about OPAY or ACI in OPAY’s or ACI’s public reports filed with the SEC. In particular, the Merger Agreement and this summary of terms are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to OPAY or ACI without taking into consideration the entirety of public disclosure by XXXX as set forth in its public disclosures. The merger agreement contains representations and warranties that the parties have been negotiated with made to one another as of specific dates. The assertions embodied in the principal purpose of establishing representations and warranties in the circumstances in which we may have the right not to consummate the Offer, or a party may have the right to terminate the Merger Agreement, if the representations, warranties and covenants merger agreement were made solely for purposes of the other party prove merger agreement and the transactions and agreements contemplated thereby among the parties thereto and may be subject to be untrue due important qualifications and limitations agreed to a change by the parties thereto in circumstance or otherwise or covenants are breachedconnection with negotiating the terms thereof. Moreover, and allocate risk between the parties, rather than establish matters as facts. The some of those representations and warranties may also not be accurate or complete as of any specified date, may be subject to a contractual standard of materiality that is materially different from those generally applicable to Stockholders. The Merger Agreement is filed as Exhibit (d)(1) stockholders, and may have been used for the purposes of allocating risk among the parties to the Schedule TO and is incorporated by referencemerger agreement rather than establishing matters as fact. The Offer. The Merger Agreement provides that we must commence the Offer as promptly as practicable after the date Form of the Merger Agreement (but in no event later than October 4, 2013 or such other date as may be agreed to by OPAY and ACI). Our obligation to accept for payment and pay for Shares tendered pursuant Mergers Pursuant to the Offer merger agreement, Sunrise will engage in a holding company merger in which each share of Sunrise common stock is subject converted into one share of common stock of the holding company, and, promptly thereafter, Health Care REIT will acquire the holding company and the shares of common stock of the holding company will be converted into the transaction consideration. More specifically: • First, in the holding company merger, Holdco Sub will merge with and into Sunrise, with Sunrise surviving as a direct wholly owned subsidiary of Holdco. In the holding company merger, each share of Sunrise common stock will be automatically converted into one share of Holdco. • After the holding company merger, in the merger, Merger Sub will merge with and into Holdco, with Holdco surviving as a direct wholly owned subsidiary of Health Care REIT. In the merger, each share of Holdco common stock (other than shares held by Health Care REIT, Holdco or any of their respective wholly owned subsidiaries on their own behalf immediately prior to the satisfaction effective time of the Minimum Condition merger, which we refer to as ‘‘excluded shares,’’ and which will be cancelled without consideration) will be converted into the satisfaction right to receive the transaction consideration of the other conditions set forth $14.50 per share in Section 14—“Conditions of the Offer.” We may waive certain cash, plus, if Health Care REIT exercises its extension right, each of the conditions to the Offer without merger (other than those conditions to be satisfied or waived at the consent closing) has been satisfied or waived, and the closing shall not have occurred on or prior to February 21, 2013, $0.007621 in cash for each day during the period commencing on February 21, 2013 and ending on the date the merger is completed. As described under ‘‘—Consideration to Sunrise Stockholders,’’ a portion of OPAYsuch transaction consideration payable to Sunrise stockholders may be paid by means of a special cash dividend. We may notHowever, howeverin all cases, waive the Minimum Condition without overall transaction consideration payable to holders of Sunrise common stock as a result of the consent transactions contemplated by the merger agreement will remain the same regardless of OPAYthe payment of any special cash dividend. As a result of the above mergers, Health Care REIT will acquire Sunrise and the shares of Sunrise common stock will no longer be listed on any stock exchange or quotation system. The following diagrams summarize the organizational structure of Sunrise immediately before and after the mergers. The diagrams do not depict any legal entities owned by Sunrise or Health Care REIT other than those related to the mergers, nor do they depict any aspects of the reorganization, management business sale, management business spin-off or special cash dividend. For a diagram Merger Agreement provides that each Stockholder who tenders Shares in Holdco Merger Sub Sunrise summarizing the Offer will receive $8.35 for each Share tendered in cash, less any applicable withholding taxes. We have agreed that, without structure of Sunrise immediately before and after the prior written consent mergers and giving effect to the reorganization and the sale of OPAY, we will not: • decrease the Offer Price or change the form of consideration payable management business pursuant to the Offer; • reduce the maximum number of Shares to be purchased in the Offer; • impose conditions to the Offer in addition to those set forth in Section 14—“Conditions management business sale agreement (as defined below), see ‘‘—Sale or Spin-Off of the Offer”; • modify or change any condition to the Offer in a manner adverse to the Stockholders; • waive or change the Minimum Condition; or • amend any other term of the Offer in a manner adverse to the StockholdersManagement Business.’’ Holding Company Merger Sunrise Holdco Holdco Sub Immediately Following Holding Company Merger Holdco Sunrise

The Merger Agreement. The following is a summary description of certain provisions of the Merger Agreement Agreement. This summary does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which we have Table of Contents included as an exhibit to the Schedule TO, which Stockholders may examine and copy. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The summary description has been included in this Offer to Purchase to provide Stockholders with information regarding the terms of the Merger Agreement. The Merger Agreement is not intended to modify or supplement any factual disclosures about OPAY or ACI in OPAY’s or ACI’s public reports filed with the SEC. In particular, the Merger Agreement and this summary of terms are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to OPAY or ACI without taking into consideration the entirety of public disclosure by XXXX as set forth in its public disclosures. The representations and warranties have been negotiated with the principal purpose of establishing the circumstances in which we may have the right not to consummate the Offer, or a party may have the right to terminate the Merger Agreement, if the representations, warranties and covenants of the other party prove to be untrue due to a change in circumstance or otherwise or covenants are breached, and allocate risk between the parties, rather than establish matters as facts. The representations and warranties may also be subject to a contractual standard of materiality different from those generally applicable to Stockholders. The Merger Agreement is filed as Exhibit (d)(1) to the Schedule TO and TO, which is incorporated herein by reference. Copies of the Merger Agreement and the Schedule TO, and any other filings that we make with the SEC with respect to the Offer or the Merger, may be obtained in the manner set forth in Section 8—“Certain Information Concerning Salix, Intermediary and Purchaser—Available Information.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions summarized below. Explanatory Note Regarding the Merger Agreement The Merger Agreement is included to provide investors and stockholders with information regarding its terms. It is not intended to provide any other factual information about Salix, Intermediary, Purchaser or Santarus. The representations, warranties and covenants made in the Merger Agreement by Salix, Purchaser and Santarus were made only as of specified dates for the purposes of such agreement, were solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed to by Salix, Purchaser and Santarus in connection with negotiating the terms of the Merger Agreement. In particular, in your review of the representations, warranties and covenants contained in the Merger Agreement and described in this summary, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk between the parties to the Merger Agreement, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a standard of materiality different from that generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a disclosure letter that was provided by Santarus to the other parties but is not publicly filed as part of the Merger Agreement. Investors and stockholders are not third party beneficiaries under the Merger Agreement. Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Moreover, information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to Purchase, may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures. The Offer. The Merger Agreement provides that we must Purchaser will commence the Offer on or before December 3, 2013. Subject to the conditions of the Offer that are described in Section 15—“Conditions to the Offer” and the conditions of the Merger Agreement, Purchaser will (and Salix will cause Purchaser to) accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly soon as practicable after the date Expiration Date and in accordance with applicable law. The initial Expiration Date will be 12:00 Midnight, New York City time, at the end of the Merger Agreement (but in no event later than October 4day on December 31, 2013 or such other date as may be agreed to by OPAY and ACI). Our obligation to accept for payment and pay for Shares tendered pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the satisfaction of the other conditions set forth in Section 14—“Conditions of the Offer2013.” We may waive certain of the conditions to the Offer without the consent of OPAY. We may not, however, waive the Minimum Condition without the consent of OPAY. The Merger Agreement provides that each Stockholder who tenders Shares in the Offer will receive $8.35 for each Share tendered in cash, less any applicable withholding taxes. We have agreed that, without the prior written consent of OPAY, we will not: • decrease the Offer Price or change the form of consideration payable pursuant to the Offer; • reduce the maximum number of Shares to be purchased in the Offer; • impose conditions to the Offer in addition to those set forth in Section 14—“Conditions of the Offer”; • modify or change any condition to the Offer in a manner adverse to the Stockholders; • waive or change the Minimum Condition; or • amend any other term of the Offer in a manner adverse to the Stockholders.

The Merger Agreement. The following summary description This section of the Offer to Purchase describes certain provisions of the Merger Agreement but does not purport to be complete and describe all of the terms of the Merger Agreement. The following summary is qualified in its entirety by reference to the complete text of the Merger Agreement, a copy of which we have Table of Contents included is filed as an exhibit to the Schedule TO, which Stockholders may examine TO and copyis incorporated herein by reference. You are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The summary description has been included Merger Agreement may be examined and copies may be obtained in this Offer to Purchase to provide Stockholders with information regarding the terms of the Merger Agreement. manner set forth in Section 8—"Certain Information Concerning ArcSight—Available Information." The Merger Agreement is not intended to modify provide you with any other factual information about HP, Purchaser or supplement any factual disclosures about OPAY or ACI ArcSight. Such information can be found elsewhere in OPAY’s or ACI’s public reports filed with the SEC. In particular, the Merger Agreement and this summary of terms are not intended Offer to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to OPAY or ACI without taking into consideration the entirety of public disclosure by XXXX as set forth in its public disclosures. The representations and warranties have been negotiated with the principal purpose of establishing the circumstances in which we may have the right not to consummate the Offer, or a party may have the right to terminate the Merger Agreement, if the representations, warranties and covenants of the other party prove to be untrue due to a change in circumstance or otherwise or covenants are breached, and allocate risk between the parties, rather than establish matters as facts. The representations and warranties may also be subject to a contractual standard of materiality different from those generally applicable to Stockholders. The Merger Agreement is filed as Exhibit (d)(1) to the Schedule TO and is incorporated by reference. The OfferPurchase. The Merger Agreement provides that we must commence following the Offer as promptly as practicable after the date satisfaction or waiver of the Merger Agreement conditions described in this Section 12 under "—Conditions to the Merger," Purchaser will be merged with and into ArcSight and each then outstanding Share (but other than Shares owned directly by HP, Purchaser or ArcSight, or Shares that are held by stockholders, in no event later than October 4each case, 2013 or such other date as may if any, who are entitled to and who properly exercise appraisal rights under the DGCL) will be agreed converted into the right to by OPAY and ACI). Our obligation to accept for payment and pay for Shares tendered pursuant receive cash in an amount equal to the Offer is subject Price, without interest thereon and less any applicable withholding taxes. The Merger Agreement provides that, notwithstanding anything to the satisfaction contrary set forth in the Merger Agreement, (i) we will extend the Offer for any period required by any rule or regulation of the SEC or the NASDAQ, in any such case which is applicable to the Offer; and (ii) in the event that all of the conditions to the Offer, including the Minimum Condition and the satisfaction or any of the other conditions set forth in Section 14—“Conditions 14—"Conditions of the Offer.” We may waive certain ," are not satisfied or waived (if permitted under the Merger Agreement) as of any then scheduled expiration of the Offer, we will extend the Offer for successive extension periods of up to 10 business days each in order to permit the satisfaction of all of the conditions to the Offer. However, we are not obligated under the Merger Agreement to extend the Offer beyond the Initial Termination Date (as defined below) or the Extended Termination Date (as defined below), as applicable, or if the Merger Agreement is terminated pursuant to its terms. In addition, the Merger Agreement provides that, following our acquisition of Shares in the Offer, we may provide a subsequent offering period (in accordance with Rule 14d-11 of the Exchange Act. A subsequent offering period would be an additional period of time of at least 3 business days and not more than 20 business days following the expiration of the Offer during which stockholders may tender Shares not tendered in the Offer and receive the same Offer Price paid in the Offer, without interest thereon and less any applicable withholding taxes. During a subsequent offering period, we will promptly pay for Shares that are validly tendered during such subsequent offering period, and tendering stockholders will not have withdrawal rights. Top-Up Option. Pursuant to the consent terms of OPAYthe Merger Agreement following the Appointment Time, if we acquire more than a majority but less than 90% of the Shares outstanding, we have the option (the "Top-Up Option") to purchase from ArcSight, subject to certain limitations, up to a number of additional Shares (the "Top-Up Option Shares") sufficient to cause HP and Purchaser to own one (1) Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the option, calculated on a fully-diluted basis (assuming the issuance of all Shares issuable upon the conversion or exercise of options, rights and securities that are then convertible into or exercisable for Shares). We may notThe exercise price per Share for the Top-Up Option would equal the Offer Price and would be paid (x) entirely in cash or (y) in cash equal to the aggregate par value of the Top-Up Option Shares and by issuance by us to ArcSight of a full recourse unsecured promissory note. Pursuant to the terms of the Merger Agreement, however, waive the Minimum Condition without Top-Up Option is exercisable at any one time on or prior to the consent fifth business day after the later of OPAY(x) the acceptance for payment of Shares pursuant to the Offer and (y) the expiration of any subsequent offering period. The Top-Up Option will terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of the Merger Agreement in accordance with its terms. The Merger Agreement provides that the Top-Up Option is not exercisable to the extent that the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares. We could also acquire additional Shares after completion of the Offer through other means, such as open market purchases. In any event, if we acquire at least 90% of the issued and outstanding Shares entitled to vote on the adoption of the Merger Agreement, we would effect the Merger under the "short-form" merger provisions of the DGCL. Stockholders who have not sold their Shares in the Offer would have certain appraisal rights with respect to the Merger under the applicable provisions of the DGCL, if those rights are perfected. The Merger. The Merger Agreement provides that, at the Effective Time, Purchaser will be merged with and into ArcSight with ArcSight being the surviving corporation (the "Surviving Corporation"). Following the Merger, the separate existence of Purchaser will cease, and ArcSight will continue as the Surviving Corporation and a wholly-owned, direct or indirect, subsidiary of HP. Pursuant to the Merger Agreement, each Stockholder Share outstanding owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, will be cancelled and extinguished without any conversion thereof or consideration paid therefor. Pursuant to the Merger Agreement, each Share that is outstanding immediately prior to the Effective Time (other than (A) Shares owned by HP, Purchaser or ArcSight, or by any direct or indirect wholly-owned subsidiary of HP, Purchaser or ArcSight, in each case immediately prior to the Effective Time, and (B) any Dissenting Shares (as defined below)) will be canceled and extinguished and automatically converted into the right to receive cash in an amount equal to the Offer Price (the "Merger Consideration"), without interest thereon and less any applicable withholding taxes, upon the surrender of the certificate representing such Share in the manner provided in the Merger Agreement. Shares that are issued and outstanding immediately prior to the Effective Time and held by a stockholder (if any) who tenders is entitled to demand, and who properly demands, appraisal for such Shares in accordance with Section 262 of the DGCL ("Dissenting Shares") will not be converted into, or represent the right to receive, the Merger Consideration but rather such stockholder will be entitled to receive payment of the appraised value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL. However, all Dissenting Shares held by stockholders who have failed to perfect or who have otherwise waived, withdrawn or lost their rights to appraisal of such Dissenting Shares under such Section 262 of the DGCL will no longer be considered to be Dissenting Shares and will thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon and less any applicable withholding taxes, upon surrender of the certificate or certificates that formerly evidenced such Shares in the manner provided in the Merger Agreement. Stockholders who tender their Shares in the Offer will receive $8.35 for each Share tendered in cashnot be entitled to exercise appraisal rights with respect to such Shares, less any applicable withholding taxes. We have agreed thatbut rather, without the prior written consent of OPAY, we will not: • decrease the Offer Price or change the form of consideration payable pursuant subject to the Offer; • reduce the maximum number of Shares to be purchased in the Offer; • impose conditions to the Offer in addition to those set forth in Section 14—“Conditions of the Offer”; • modify or change any condition to , will receive the Offer in a manner adverse to the Stockholders; • waive or change the Minimum Condition; or • amend any other term of the Offer in a manner adverse to the StockholdersPrice.

The Merger Agreement. ‌ The following summary description section summarizes material provisions of the Merger Agreement does not purport to be complete merger agreement and is qualified in its entirety by reference to the Merger Agreementmerger agreement, a copy of which we have Table is included in this proxy statement as Annex A. The rights and obligations of Contents included as an exhibit to Bank are governed by the Schedule TO, which Stockholders may examine express terms and copyconditions of the merger agreement and not by this summary or any other information contained in this proxy statement. You Bank’s shareholders are encouraged urged to read the full text merger agreement carefully and in its entirety—as well as this proxy statement—before making any decisions regarding the merger, including the approval and adoption of the Merger Agreement because it is the legal document that governs the Offer merger agreement and the Mergertransactions contemplated by the merger agreement, including the merger. The summary description has been merger agreement is included in this Offer to Purchase proxy statement to provide Stockholders you with information regarding the its terms of the Merger Agreement. The Merger Agreement and is not intended to modify or supplement provide any factual disclosures information about OPAY or ACI in OPAY’s or ACI’s public reports filed with the SEC. In particular, the Merger Agreement and this summary of terms are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to OPAY or ACI without taking into consideration the entirety of public disclosure by XXXX as set forth in its public disclosuresBank. The merger agreement contains representations and warranties by each of the parties to the merger agreement. These representations and warranties have been negotiated made solely for the benefit of the other parties to the merger agreement and: • are not necessarily intended as statements of fact, but rather as a way of allocating the risk between the parties in the event that the statements therein prove to be inaccurate; • have been qualified by certain disclosures that were made between the parties in connection with the principal purpose negotiation of establishing the circumstances merger agreement, which disclosures are not reflected in the merger agreement; and • may apply standards of materiality in a way that is different from what may be viewed as material by you. Accordingly, the representations and warranties and other provisions of the merger agreement should not be read alone, but instead should be read together with the information provided elsewhere in this proxy statement. Terms of the Merger; Merger Consideration‌ The merger agreement provides that, on the terms and subject to the conditions set forth in the merger agreement, at the effective time of the merger, Interim Bank will merge with and into Bank, with Bank continuing as the surviving bank in the merger and a direct wholly-owned subsidiary of Parent Bank. At the effective time of the merger, each outstanding share of Bank common stock, other than shares for which we may dissenters’ rights held by Bank shareholders have the right not to consummate the Offerbeen perfected, or a party may have will be automatically converted into the right to terminate receive the Per Share Merger AgreementConsideration. Immediately after the merger, if Bank will merge with and into Parent Bank, with Parent Bank continuing as the representations, warranties and covenants surviving bank in the bank merger. Completion of the other party prove Merger‌ The parties will complete the transactions contemplated by the merger agreement when all of the conditions to be untrue due to a change the completion of the transactions, as provided in circumstance the merger agreement, are satisfied or otherwise or covenants are breached, and allocate risk between the parties, rather than establish matters as factswaived. The representations and warranties may also be subject to a contractual standard of materiality different from those generally applicable to Stockholders. The Merger Agreement is filed as Exhibit (d)(1) to the Schedule TO and is incorporated by reference. The Offer. The Merger Agreement provides that we must commence the Offer as promptly as practicable after merger will become effective at the date and time the parties file the certificate of merger with the Texas Secretary of State or at such subsequent time as agreed to in writing by Parent, Parent Bank and Bank and specified in the certificate of merger. Bank currently expects the closing of the Merger Agreement (but merger to occur in no event later than October 4the third calendar quarter of 2018. However, 2013 or such other date as may be agreed to by OPAY and ACI). Our obligation to accept for payment and pay for Shares tendered pursuant to the Offer merger is subject to the satisfaction or waiver of the Minimum Condition and the satisfaction of the other conditions set forth in Section 14—“Conditions of the Offer.” We may waive certain of the conditions to the Offer without the consent of OPAY. We may not, however, waive the Minimum Condition without the consent of OPAY. The Merger Agreement provides that each Stockholder who tenders Shares described in the Offer will receive $8.35 for each Share tendered in cashmerger agreement, less any applicable withholding taxes. We have agreed that, without it is possible that factors outside the prior written consent control of OPAY, we will not: • decrease the Offer Price or change the form of consideration payable pursuant to the Offer; • reduce the maximum number of Shares to be purchased Bank could result in the Offer; • impose conditions to the Offer in addition to those set forth in Section 14—“Conditions of the Offer”; • modify merger being completed at an earlier time, a later time or change any condition to the Offer in a manner adverse to the Stockholders; • waive or change the Minimum Condition; or • amend any other term of the Offer in a manner adverse to the Stockholdersnot at all.

The Merger Agreement. The following is a summary description of the Merger Agreement material terms of the merger agreement. The descriptions in this section and elsewhere in this proxy statement/prospectus are qualified in their entirety by reference to the complete text of the merger agreement, a copy of which is attached as Annex A and is incorporated by reference into this proxy statement/prospectus. This summary does not purport to be complete and may not contain all of the information about the merger agreement that is qualified in its entirety by reference important to the Merger Agreement, a copy of which we have Table of Contents included as an exhibit to the Schedule TO, which Stockholders may examine and copyyou. You are encouraged to read the full text merger agreement carefully and in its entirety before making any decisions regarding the transactions, including completing your form of the Merger Agreement because election, as it is the legal document that governs governing the Offer transactions. Explanatory Note Regarding the Merger Agreement The merger agreement and the Merger. The this summary description has been of terms are included in this Offer to Purchase to provide Stockholders you with information regarding the terms of the Merger Agreementmerger agreement. The Merger Agreement is not intended to Factual disclosures about Berry and AEP contained in this proxy statement/prospectus or in the public reports of Berry and AEP filed with the SEC may supplement, update or modify or supplement any the factual disclosures about OPAY or ACI Berry and AEP contained in OPAY’s or ACI’s public reports filed the merger agreement. The merger agreement contains representations and warranties by Berry, on the one hand, and by AEP, on the other hand. The representations, warranties and covenants made in the merger agreement by Berry and AEP were qualified and subject to important limitations agreed to by Berry and AEP in connection with negotiating the SECterms of the merger agreement. In particular, in your review of the Merger Agreement and this summary of terms are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to OPAY or ACI without taking into consideration the entirety of public disclosure by XXXX as set forth in its public disclosures. The representations and warranties have been contained in the merger agreement and described in this summary and elsewhere in this proxy statement/prospectus, it is important to bear in mind that the representations and warranties were negotiated with the principal purpose of establishing the circumstances in which we a party to the merger agreement may have the right not to consummate the Offer, or a party may have the right to terminate the Merger Agreement, mergers if the representations, representations and warranties and covenants of the other party prove to be untrue due to a change in circumstance or otherwise or covenants are breachedotherwise, and allocate allocating risk between the partiesparties to the merger agreement, rather than establish establishing matters as facts. The representations and warranties also may also be subject to a contractual standard of materiality different from those that generally applicable to Stockholdersstockholders and reports and documents filed with the SEC and some were qualified by the matters contained in the confidential disclosure schedules that Berry and AEP each delivered in connection with the merger agreement and certain documents filed with the SEC. The Merger Agreement is filed Moreover, information concerning the subject matter of the representations and warranties, which do not purport to be accurate as Exhibit (d)(1) to of the Schedule TO and is incorporated by reference. The Offer. The Merger Agreement provides that we must commence the Offer as promptly as practicable after date of this proxy statement/prospectus, may have changed since the date of the Merger Agreement (but merger agreement. The representations and warranties in no event later than October 4the merger agreement will not survive the completion of the mergers. For the foregoing reasons, 2013 the representations and warranties or any descriptions of those provisions should not be read alone or relied upon as characterizations of the actual state of facts or condition of Berry or AEP or any of their respective subsidiaries or affiliates. Instead, such provisions or descriptions should be read only in conjunction with the other date as may be agreed to information provided elsewhere in this document or incorporated by OPAY reference into this proxy statement/prospectus. Please see “Where You Can Find More Information.” Berry and ACI). Our obligation to accept for payment and pay for Shares tendered pursuant AEP will provide additional disclosures in their public reports to the Offer is subject extent they are aware of the existence of any material facts that are required to be disclosed under federal securities laws and that might otherwise contradict the terms and information contained in the merger agreement and will update such disclosure as required by federal securities laws. Structure of the Mergers Subject to the satisfaction terms and conditions of the Minimum Condition and merger agreement, at the satisfaction effective time of the other conditions set forth in Section 14—“Conditions First-Step Merger, Berry Plastics Acquisition Corporation XVI (“Merger Sub”), a Delaware corporation and a direct, wholly owned subsidiary of Berry Plastics Corporation, itself a Delaware corporation and a direct, wholly owned subsidiary of Berry, will merge with and into AEP, with AEP continuing as the surviving corporation of the Offer.First-Step Merger. Following this First-Step Merger, but on the same date, AEP will merge with and into Berry Plastics Acquisition Corporation XV, LLC (“Merger Sub LLC”), a Delaware limited liability company and a direct, wholly owned subsidiary of Berry Plastics Corporation, with Merger Sub LLC continuing as the surviving company and as a wholly owned subsidiary of Berry Plastics Corporation. We sometimes refer to Berry, Merger Sub, Merger Sub LLC and Berry Plastics Corporation as the “Berry parties” We may waive certain in this document. AEP and Berry expect to complete the mergers after all of the conditions to completion of the Offer without mergers contained in the consent merger agreement are satisfied or waived, including after receiving the applicable approval of OPAY. We may not, however, waive AEP stockholders at the Minimum Condition without the consent of OPAYAEP special meeting. The Merger Agreement provides that each Stockholder who tenders Shares conditions to completion of the mergers are described below in the Offer will receive $8.35 for each Share tendered in cash, less any applicable withholding taxes. We have agreed that, without the prior written consent of OPAY, we will not: • decrease the Offer Price or change the form of consideration payable pursuant section entitled “— Conditions to the Offer; • reduce the maximum number of Shares Mergers.” Consideration to be purchased Received by AEP Stockholders in the Offer; • impose conditions to the Offer in addition to those set forth in Section 14—“Conditions of the Offer”; • modify or change any condition to the Offer in a manner adverse to the Stockholders; • waive or change the Minimum Condition; or • amend any other term of the Offer in a manner adverse to the Stockholders.Mergers

The Merger Agreement. The following is a summary of the material provisions of the Merger Agreement. The following description of the Merger Agreement does not purport to be complete is only a summary and is qualified in its entirety by reference to the Merger Agreement, a copy of which we have Table is filed as Exhibit (d)(1) of Contents included as an exhibit to the Schedule TOTO and is incorporated herein by reference. For a complete understanding of the Merger Agreement, which Stockholders may examine and copy. You you are encouraged to read the full text of the Merger Agreement because it is the legal document that governs the Offer and the Merger. The summary description has been included in this Offer to Purchase to provide Stockholders with information regarding the terms of the Merger Agreement. The Merger Agreement is not intended to modify or supplement provide you with any factual disclosures information about OPAY Oracle, Parent, Purchaser or ACI NetSuite. Such information can be found elsewhere in OPAY’s or ACI’s public reports this Offer to Purchase. The Merger Agreement has been filed with herewith as required by applicable SEC regulations and solely to inform investors of its terms. The Merger Agreement contains representations, warranties and covenants, which were made only for the SECpurposes of such agreement and as of specific dates, were made solely for the benefit of the parties to the Merger Agreement (and, in the case of certain covenants relating to indemnification of directors and officers, for the benefit of directors and officers of NetSuite designated as third-party beneficiaries), are Table of Contents intended not as statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate. In particularaddition, such representations, warranties and covenants may have been qualified by certain disclosures not reflected in the text of the Merger Agreement and this summary may apply standards of terms materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, NetSuite. The holders of Shares and other investors are not intended to be, third-party beneficiaries under the Merger Agreement and should not be relied upon as, disclosures regarding any facts and circumstances relating to OPAY or ACI without taking into consideration the entirety of public disclosure by XXXX as set forth in its public disclosures. The representations and warranties have been negotiated with the principal purpose of establishing the circumstances in which we may have the right not to consummate the Offer, or a party may have the right to terminate the Merger Agreement, if rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the other party prove to be untrue due to a change in circumstance actual state of facts or otherwise conditions of NetSuite, Oracle, Parent, Purchaser or covenants are breached, and allocate risk between the parties, rather than establish matters as facts. The representations and warranties may also be subject to a contractual standard any of materiality different from those generally applicable to Stockholders. The Merger Agreement is filed as Exhibit (d)(1) to the Schedule TO and is incorporated by referencetheir respective subsidiaries or affiliates. The Offer. The Merger Agreement provides that we must commence the Offer as promptly as practicable after the date of the Merger Agreement (but in no event later than October 4, 2013 or such other date as may be agreed to by OPAY and ACI). Our obligation to accept for payment and pay for Shares tendered pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the satisfaction of the other conditions set forth in Section 14—“Conditions of the Offer.” We may waive certain of the conditions to the Offer without the consent of OPAY. We may not, however, waive the Minimum Condition without the consent of OPAY. The Merger Agreement provides that each Stockholder who tenders Shares in the Offer will receive $8.35 for each Share tendered in cash, less any applicable withholding taxes. We have agreed that, without the prior written consent of OPAY, we will not: • decrease the Offer Price or change the form of consideration payable pursuant to the Offer; • reduce the maximum number of Shares to be purchased in the Offer; • impose conditions to the Offer in addition to those set forth in Section 14—“Conditions of the Offer”; • modify or change any condition to the Offer in a manner adverse to the Stockholders; • waive or change the Minimum Condition; or • amend any other term of the Offer in a manner adverse to the Stockholders.