MUTUAL TERMINATION AGREEMENT
Exhibit
10.1
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
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
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 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, 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 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, 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
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
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 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
H. Xxxxxxx Xxxxx,
III
President and Chief Executive
Officer
SFG
II, Inc.
By: /s/ H. Xxxxxxx
Xxxxx,
III
H. Xxxxxxx Xxxxx,
III
|
|
President and Chief Executive
Officer
|
Greater
Atlantic Financial Corp.
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
|
|
President
and Chief Executive
Officer
|
