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MUTUAL TERMINATION AGREEMENT
This MUTUAL TERMINATION AGREEMENT is entered into as of December 15,
2008 (this "Agreement"), by and among Summit Financial Group, Inc., a West
Virginia corporation ("Summit"), SFG II, Inc., a West Virginia corporation
("SFG"), and Greater Atlantic Financial Corp., a Delaware corporation ("GAFC").
RECITALS
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WHEREAS, Summit, SFG and GAFC are parties to that certain Agreement and
Plan of Reorganization dated as of June 9, 2008 (the "Reorganization Agreement")
(capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Reorganization Agreement); and
WHEREAS, Section 9.1(a) of the Reorganization Agreement provides that
Summit, SFG and GAFC may mutually terminate the Reorganization Agreement; and
WHEREAS, the respective board of directors of Summit, SFG and GAFC have
determined it is in the best interests of their respective corporations and
stockholders to mutually terminate the Reorganization Agreement as provided
herein effective immediately upon execution of this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the agreements set
forth herein, and intending to be legally bound hereby, the parties mutually
agree as follows:
1. Termination of Reorganization Agreement. Summit, SFG and GAFC each
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hereby agree to terminate the Reorganization Agreement effective immediately
upon the execution of this Agreement.
2. Effect of Termination; Mutual Discharge and Release. Each party hereto,
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on behalf of itself and, to the fullest extent permitted by law, its affiliates,
subsidiaries, directors, officers, stockholders, employees, agents, financial
and legal advisors and other representatives, and the successors and assigns of
each of them (each, a "Releasing Party"), hereby fully, finally and forever
releases and discharges each other party hereto and each of their respective
affiliates, subsidiaries, directors, officers, stockholders, employees, agents,
financial and legal advisors and other representatives, and the successors and
assigns of each of them, from any and all liabilities and obligations, claims,
causes of action and suits of whatever kind or character, joint or several, at
law or in equity, whether arising under any United States federal, state or
local law, or otherwise, that any Releasing Party has or has had, whether known
or unknown, accrued or unaccrued and arising out of, relating to, or in
connection with the Reorganization Agreement and the transactions contemplated
thereby, including, without limitation, any liability or obligation arising out
of any breach of any representation, warranty, covenant or agreement contained
in the Reorganization Agreement (including, without limitation, any fee or
expense set forth in Section 9.03 of the Reorganization Agreement); provided,
however, that nothing in this Section 2 shall impair the survival and full force
of the confidentiality provisions of Section 7.05(b) of the Reorganization
Agreement. Notwithstanding the foregoing, the parties agree to share equally
in the expense incurred for test deconversions from GAFC's core processor to
the Summit IT system in an amount not to exceed $60,000.
3. Representations and Warranties. Summit, SFG and GAFC each hereby
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represents and warrants to the other party that: (a) it has full power and
authority to enter into this Agreement and to perform its obligations hereunder
in accordance with the provisions of this Agreement, (b) this Agreement has been
duly authorized, executed and delivered by such party, (c) this Agreement
constitutes a legal, valid and binding obligation of such party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights and remedies generally and to general
principles of equity, whether applied in a court of law or a court of equity,
(d) it has received no inducement to enter into this Agreement, and (e) it has
not assigned or otherwise transferred any of the claims, causes of action, suits
or other matters released by it under this Agreement.
4. Public Announcement. Summit and GAFC each shall issue a press release,
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reasonably agreeable to the other party (the "Initial Release"), upon the
signing of this Agreement with respect to this Agreement and the termination of
the Reorganization Agreement. Except as required by law or applicable listing
agreement, no other press release shall be issued regarding the termination of
the Reorganization Agreement by either Summit (including SFG) or GAFC without
the prior written consent of the other party. Notwithstanding the foregoing,
Summit and GAFC shall be permitted to make reference to the matters addressed in
this Agreement, in other press releases or in required filings or communications
with the Securities and Exchange Commission or filings or communications made to
any other governmental entity or regulation; provided, however, that such
references are substantially consistent with the Initial Release or are required
by applicable law or listing requirements.
5. Governing Law; Successors. This Agreement shall be governed by, and
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interpreted in accordance with, the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State (except to the
extent that mandatory provisions of federal law are applicable). This Agreement
shall be binding upon any successor to Summit (including SFG) or GAFC.
6. Specific Performance. The parties hereto agree that irreparable damage
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would occur if any provision of this Agreement were not performed according to
the terms hereof and that the parties shall be entitled to specific performance
of the terms hereof, in addition to any other remedy at law or in equity. The
parties hereto further agree that in any proceeding seeking specific
performance, each party will waive the defense of adequacy of a remedy at law.
7. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to constitute an original.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
SUMMIT FINANCIAL GROUP, INC.
By: /s/ H. Xxxxxxx Xxxxx, III
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H. Xxxxxxx Xxxxx, III
President and Chief Executive Officer
SFG II, INC.
By: /s/ H. Xxxxxxx Xxxxx, III
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H. Xxxxxxx Xxxxx, III
President and Chief Executive Officer
GREATER ATLANTIC FINANCIAL CORP.
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
President and Chief Executive Officer
