EXHIBIT 10.1
TERMINATION AGREEMENT
BY AND BETWEEN
EL BANCO FINANCIAL CORPORATION
FORMERLY KNOWN AS
NUESTRA TARJETA DE SERVICIOS, INC.
(BUYER)
AND
NBOG BANCORPORATION, INC.
(SELLER)
DATED AS OF
OCTOBER 25, 2006
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT, dated October 25, 2006, is intended to formally
terminate the Agreement And Plan Of Merger (the "Agreement") dated as of May 5,
2006, by and between El Banco Financial Corporation (formerly known as Nuestra
Tarjeta de Servicios, Inc.), a Georgia corporation ("Buyer") and NBOG
Bancorporation, Inc., a Georgia corporation ("Seller").
PREAMBLE
WHEREAS, Section 9.1(a) of the Agreement permits the termination of the
Agreement upon the mutual written agreement of the Buyer and Seller;
WHEREAS, the Buyer and Seller intend for this Termination Agreement to
document the mutual agreement of the Buyer and Seller to terminate the
Agreement;
NOW, THEREFORE, in consideration of the mutual warranties, representations,
covenants, and agreements set forth herein, and other good and valuable
consideration and the receipt and sufficiency of which are acknowledged, the
Parties, intending to be legally bound, agree as follows:
ARTICLE 1
TERMINATION
1.1 The Agreement shall be deemed terminated as of the date hereof and
the Merger contemplated thereunder shall be deemed abandoned as of the date
hereof, subject to Section 9.2 of the Agreement.
1.2 (a) Buyer acknowledges that it is not currently in negotiations
and is not party to any agreement to acquire any other
depository institution; and
(b) Buyer shall notify SunTrust Banks of its intention not to
undertake the Deconversion transaction, as contemplated in the
Transition Agreement between Buyer and SunTrust Banks dated
June 14, 2006 ("Transition Agreement").
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ARTICLE 2
SURVIVING SECTIONS OF THE AGREEMENT
Section 9.2 of the Agreement provides that in the event of the
termination and abandonment of this Agreement by either Buyer or Seller pursuant
to Section 9.1, this Agreement shall become void and have no effect, except that
(i) the provisions of Sections 7.5, 9.2, 9.3, 10.2 and 10.3 shall survive any
such termination and abandonment, and (ii) no such termination shall relieve the
breaching Party from Liability resulting from any breach by that Party of this
Agreement.
ARTICLE 3
TERMINATION FEE
Notwithstanding, Article 2 above and Section 9.3 of the Agreement, Buyer
and Seller each confirm that by entering into this Termination Agreement, that
neither party has any obligation under Section 9.3 of the Agreement with respect
to the payment of a Termination Fee.
ARTICLE 4
MUTUAL WAIVERS AND RELEASE
4.1 Notwithstanding Article 2 above and Section 9.2 of the Agreement, in
order to bring closure to the transactions contemplated by the Agreement, Buyer
on behalf of itself, directors, officers, employees, successors and assigns, and
Seller on behalf of itself, its subsidiary The National Bank of Gainesville and
their directors, officers, employees, successors and assigns (collectively, the
"Releasing Parties") without admitting any fault or liability on the part of any
other Releasing Party, determined it is in their best interest to resolve any
and all claims and disputes that have arisen or could arise among them as a
compromise and settlement of any and all claims.
4.2 Accordingly, the Releasing Parties hereby release one another from any
and all claims, demands, liabilities, actions or causes of action, suits,
proceedings, indemnities, covenants, contracts, agreements, acts occurrences,
omissions, debts, duties, compensation, costs, expenses, attorneys' fees, liens,
sums of money, and damages or other obligations whatsoever, which any Releasing
Party has, has had, or might have in the future, whether known or unknown,
liquidated or unliquidated, contingent or non-contingent, suspected or
unsuspected, past or present, disclosed or undisclosed, directly or indirectly,
foreseeable or unforeseeable, in law, equity, or otherwise, whether based in
contract, tort, or any other theory of recovery, whether for compensatory,
punitive or other damages, which have arisen, or which might arise in the
future, including without limitation, arising out of, or related to, the
Agreement ("Released Claims").
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4.3. Each Releasing Party does hereby jointly and severally, fully and
forever, irrevocably remise, release, acquit, satisfy and forever discharge the
other Releasing Party, its parent and subsidiary corporations, shareholders,
directors, officers, employees, agents, servants, affiliates, successors and
assigns from each of the Released Claims.
4.3. Each Releasing Party expressly agrees that it will not, directly or
indirectly, file or cause to be filed, either individually or in any
representative capacity, any claim now or forevermore against any Releasing
Party which claim could have been filed against any Releasing Party as of the
date of the execution hereof. It is the specific intent and purpose of this
Article 4 to be a full, final and complete, remise, release, discharge,
compromise, settlement, accord and satisfaction of any and all claims or causes
of action of any kind or nature whatsoever, whether known or unknown, and
whether specifically mentioned or not, which may exist or might be claimed to
exist from the beginning of time to the date hereof. Each Releasing Party does
hereby specifically waive any claim or right to assert that any cause of action
or alleged cause of action or claim or demand which has, through oversight or
error or intentionally or unintentionally, been included from this Release. Each
Releasing Party acknowledges and agrees that they each are prohibited hereunder
from asserting a Released Claim against any Releasing Party.
ARTICLE 5
PUBLIC COMMUNICATIONS
Seller and Buyer shall agree as to the form and substance of the initial
public disclosure of the termination of the Agreement, PROVIDED, THAT nothing in
this Article 5 shall be deemed to prohibit any Party from making any disclosure
which its counsel deems necessary or advisable in order to satisfy such Party's
disclosure obligations imposed by Law.
The Parties hereby agree and covenant that they shall refrain from
making any statement disparaging each other. Without limiting the generality of
the foregoing, the Parties will refrain from making negative references to any
other Party's services or skills, regulatory condition, practices, policies,
officers, shareholders, employees and agents, or take any other action that may
disparage any other Party or any Party's organization, affiliates, subsidiaries,
directors, officers, employee or agents, any Party's good name, any actions
taken by any Party, or the reputation of any Party, to any member of the public,
to any employee, agent or contractor of any Party, to any representative of the
news media, to any representative of an entity or regulatory body, or to any
representative of or employee of any government, whether state or federal. The
Parties specifically agree and covenant to refrain from publishing false,
deceptive, or disparaging communications to anyone regarding the other Party.
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ARTICLE 6
MISCELLANEOUS
6.1 Any defined terms not explicitly defined herein shall have the meaning
set forth in the Agreement.
6.2 Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation", and such terms shall not be limited
by enumeration or example.
6.3 Each of the Parties shall bear and pay all direct costs and expenses
incurred by it or on its behalf in connection with the transactions contemplated
hereunder.
6.4 Except as otherwise expressly provided herein, this Agreement
constitutes the entire agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral. Nothing in this Agreement
expressed or implied, is intended to confer upon any Person, other than the
Parties or their respective successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement.
6.5 To the extent permitted by Law, this Agreement only may be amended by a
subsequent writing signed by each of the Parties.
6.6 All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered by hand, by facsimile
transmission, by registered or certified mail, postage pre-paid, or by courier
or overnight carrier, to the persons at the addresses set forth below (or at
such other address as may be provided hereunder), and shall be deemed to have
been delivered as of the date so delivered or refused:
BUYER: EL BANCO FINANCIAL CORPORATION
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile Number: (000) 0000000
Attention: Xxxx X. Xxxxxxx
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Copy to Counsel: Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP
Xxxxxxxx Xxxxx, Xxxxx 000
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
SELLER: NBOG BANCORPORATION, INC.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Facsimile Number: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Copy to Counsel: Xxxxxx Xxxxxxxxx LLP
One Atlantic Center - Fourteenth Floor
0000 Xxxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, XX 00000-0000
Facsimile Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxxx
6.7 Regardless of any conflict of law or choice of law principles that
might otherwise apply, the Parties agree that this Agreement shall be governed
by and construed in all respects in accordance with the laws of the State of
Georgia. The Parties all expressly agree and acknowledge that the State of
Georgia has a reasonable relationship to the Parties and/or this Agreement. Each
Party hereto hereby irrevocably waives, to the fullest extent permitted by Law,
(a) any objection that it may now or hereafter have to laying venue of any suit,
action or proceeding brought in such court, (b) any claim that any suit, action
or proceeding brought in such court has been brought in an inconvenient forum,
and (c) any defense that it may now or hereafter have based on lack of personal
jurisdiction in such forum.
6.8 This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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6.9 The captions contained in this Agreement are for reference purposes
only and are not part of this Agreement. Unless otherwise indicated, all
references to particular Articles or Sections shall mean and refer to the
referenced Articles and Sections of this Agreement.
6.10 Neither this Agreement nor any uncertainty or ambiguity herein shall be
construed or resolved against any Party, whether under any rule of construction
or otherwise. No Party to this Agreement shall be considered the draftsman. The
Parties acknowledge and agree that this Agreement has been reviewed, negotiated,
and accepted by all Parties and their attorneys and shall be construed and
interpreted according to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all Parties hereto.
6.11 Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
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IN WITNESS WHEREOF, each of the Parties has caused this Termination
Agreement to be executed on its behalf by its duly authorized officers as of the
day and year first above written.
EL BANCO FINANCIAL CORPORATION
(BUYER)
By: Xxx Xxxxx Xxxxxxx
------------------------------------------
NBOG BANCORPORATION, INC.
(SELLER)
By: W. Xxxxx Xxxxxxx
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