VOTING AGREEMENT
Exhibit (d)(12)
This
Voting Agreement (“Agreement”), dated as of ___________, 2009, is made by and
between MidAtlantic Bancorp, Inc.. (“Acquisition Corp.”) and the undersigned
shareholder (“Shareholder”) of Greater Atlantic Financial Corp.
(“GAFC”).
RECITALS
WHEREAS,
concurrently with the execution of this Agreement, Acquisition Corp., Merger Sub
and GAFC are entering into an Agreement and Plan of Merger (the “Merger
Agreement”), pursuant to which GAFC will merge with and into GAF Merger Corp.
and, in connection therewith, each outstanding share of GAFC Common Stock will
be converted into the right to receive the Merger Consideration (the
“Merger”);
WHEREAS,
Shareholder owns shares of GAFC Common Stock (such shares, together with
all shares of GAFC Common Stock subsequently acquired by Shareholder during the
term of this Agreement, being referred to as the “Shares”); and
WHEREAS,
it is a condition to the willingness of Acquisition Corp. to enter into the
Merger Agreement that Shareholder execute and deliver this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the promises and agreements contained
herein, and for other good and valuable consideration, the receipt of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
Capitalized terms not defined in this Agreement have the meaning assigned to
those terms in the Merger Agreement.
2. Agreement
to Vote/Tender Trust Preferred Shares. Shareholder agrees that,
prior to the Expiration Date (as defined below), at any meeting of shareholders
of GAFC, however called, or at any adjournment or postponement thereof, or in
connection with any written consent of the shareholders of GAFC, except as
otherwise agreed to in writing in advance by Acquisition Corp., Shareholder
shall:
(a) appear
at each such meeting, in person or by proxy, and thereby cause the Shares to be
counted as present thereat for purposes of calculating a
quorum; and
(b) vote
(or cause to be voted), in person or by proxy, or deliver a written consent (or
cause a consent to be delivered) with respect to, all the Shares (whether
acquired heretofore or hereafter) that are beneficially owned by Shareholder, or
as to which Shareholder has, directly or indirectly, the right to vote or direct
the voting, (i) in favor of approval of the Merger Agreement unless the
Board of Directors of GAFC withdraws its recommendation for approval of the
Merger Agreement; (ii) against any action or agreement that would
reasonably be expected to result in a breach of any covenant, representation or
warranty or any other obligation or agreement of GAFC contained in the Merger
Agreement or of Shareholder contained in this Agreement; and (iii) against
any Acquisition Proposal or any other action, agreement or transaction that is
intended, or could reasonably be expected, to materially impede, interfere or be
inconsistent with, delay, discourage or materially and adversely affect
consummation of the transactions contemplated by the Merger Agreement or any of
Shareholder’s obligations under this Agreement.
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(c) tender
to GAFC each convertible trust preferred share of Greater Atlantic Capital Trust
I (“Trust I”) held of record or beneficially owned by Shareholder at a price of
$0.01 per share, and use Shareholder’s best efforts to have the holders of
convertible trust preferred shares of Trust I held by persons who are not
directors of GAFC tender those shares to GAFC.
3. No
Solicitation. Except
as otherwise expressly permitted under Section 5.1 of the Merger Agreement,
from and after the date hereof until the Expiration Date, Shareholder, in his or
her capacity as a shareholder of GAFC, shall not (a) initiate, solicit,
induce, knowingly encourage, or knowingly take any action that would reasonably
be expected to materially facilitate the making of, any offer, or proposal which
constitutes, or could reasonably be expected to lead to, an Acquisition
Proposal, (b) participate in any discussions or negotiations regarding any
Acquisition Proposal, or furnish or otherwise afford access to any Person (other
than Acquisition Corp., GAFC and Acquisition Sub) any information or data with
respect to GAFC or any of its Subsidiaries or otherwise relating to an
Acquisition Proposal, (c) enter into any agreement, including, without
limitation, any agreement in principle, letter of intent, memorandum of
understanding or similar arrangement with respect to an Acquisition Proposal,
(d) solicit proxies or become a “participant” in a “solicitation” (as such
terms are defined in Regulation 14A under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) with respect to an Acquisition Proposal
(other than the Merger Agreement) or otherwise encourage or assist any party in
taking or planning any action that would reasonably be expected to compete with,
restrain or otherwise serve to interfere with or inhibit the timely consummation
of the Merger in accordance with the terms of the Merger Agreement,
(e) initiate a shareholders’ vote or action by consent of GAFC’s
shareholders with respect to an Acquisition Proposal, or (f) except by
reason of this Agreement, become a member of a “group” (as such term is used in
Section 13(d) of the Exchange Act) with respect to any voting securities of GAFC
that takes any action in support of an Acquisition Proposal.
4. No
Inconsistent Agreements. Shareholder
hereby agrees not to enter into any voting agreement or grant a proxy or power
of attorney with respect to the Shares that is inconsistent with Shareholder’s
obligations under this Agreement.
5. No
Transfers. From
and after the date hereof until the Expiration Date and except as contemplated
by this Agreement or the Merger Agreement, Shareholder agrees not to, directly
or indirectly, sell, transfer, pledge, assign or otherwise dispose of, or enter
into any contract option, commitment or other arrangement or understanding with
respect to the sale, transfer, pledge, assignment or other disposition of, any
of the Shares, except the following transfers shall be permitted:
(a) transfers by will or operation of law, in which case this Agreement
shall bind the transferee, (b) transfers pursuant to any pledge agreement
in existence on the date hereof, subject to the pledgee agreeing in writing to
be bound by the terms of this Agreement, (c) transfers in connection with
estate or tax planning or similar purposes, including transfers to family
members, trusts, foundations and charitable organizations, subject to the
transferee first agreeing in writing to be bound by the terms of this Agreement,
and (d) such transfers as Acquisition Corp. may otherwise permit in its
sole discretion. Any transfer or other disposition in violation of the terms of
this Section 5 shall be null and void.
6. Remedies.
Shareholder acknowledges that it is a condition to the willingness of
Acquisition Corp. to enter into the Merger Agreement that Shareholder execute
and deliver this Agreement and that it will be impossible to measure in money
the damage to Acquisition Corp. if Shareholder fails to comply with the
obligations imposed by this Agreement and that, in the event of any such
failure, Acquisition Corp. will not have an adequate remedy at law or in equity.
Accordingly, Shareholder agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or in damages, is the appropriate remedy
for any such failure and will not oppose the granting of such relief on the
basis that Acquisition Corp. has an adequate remedy at law. Shareholder further
agrees that Shareholder will not seek, and agrees to waive any requirement for,
the securing or posting of a bond in connection with Acquisition Corp.’s seeking
or obtaining such equitable relief. Shareholder also agrees that if Shareholder
fails to comply in any material respect with the obligations imposed by this
Agreement, Shareholder shall pay to Acquisition Corp. all of Acquisition Corp.’s
reasonable costs and expenses (including attorneys’ fees) in connection with
enforcing its rights under this Agreement.
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7. Termination. As
used in this Agreement, the term “Expiration Date” shall mean the earlier to
occur of (a) the Effective Time, (b) such date and time as the Merger
Agreement shall be terminated pursuant to Article VII thereof, or
(c) upon mutual written agreement of the parties to terminate this
Agreement. Upon termination of the Merger Agreement prior to the
Effective Time, no party shall have any further obligations or liabilities
hereunder; provided, however, such termination shall not relieve any party from
liability for any willful breach of this Agreement prior to such
termination.
8. Governing
Law and Enforceability.
This Agreement is governed by, and will be interpreted in accordance with, the
laws of the State of Virginia. If any court determines that the restrictions set
forth in this Agreement are unenforceable, then the parties request such court
to reform these provisions to the maximum restrictions, term, scope or
geographical area that such court finds enforceable.
9. Entire
Agreement; Amendments. This
Agreement supersedes all prior agreements, written or oral, among the parties
hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by each
party hereto. No waiver of any provision hereof by either party shall be deemed
a waiver of any other provision hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such
party.
10. Capacity
as Shareholder. The
covenants contained herein shall apply to Shareholder solely in his or her
capacity as a shareholder of the Company, and no covenant contained herein shall
apply to Shareholder in his or her capacity as a director, officer or employee
of the Company or in any other capacity. Nothing contained in this
Agreement shall be deemed to apply to, or limit in any manner, the obligations
of Shareholder to comply with whatever fiduciary duties he or she may have as a
director, officer or employee of the Company.
11. Counterparts.
The parties may execute this Agreement in one or more counterparts, including
facsimile counterparts. All the counterparts will be construed together and will
constitute one Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
| MIDATLANTIC BANCORP, INC. | ||
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| Shareholder | ||
| Signature | ||
| Print name | ||
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Shares
owned:
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