AGREEMENT AND PLAN OF REORGANIZATION
dated as of June 9, 2008
by and among
SUMMIT FINANCIAL GROUP, INC.
AND
GREATER ATLANTIC FINANCIAL CORP.
AND
SFG II, INC.
Table of Contents
Page
ARTICLE I Certain Definitions....................................................................................1
1.01 Certain Definitions.............................................................................1
ARTICLE II The Merger............................................................................................7
2.01 The Merger......................................................................................7
2.02 Effective Date and Effective Time...............................................................7
2.03 Indentures, Guarantees and Common Securities....................................................8
ARTICLE III The Bank Merger......................................................................................8
3.01 The Bank Merger.................................................................................8
3.02 Effective Date and Effective Time...............................................................9
ARTICLE IV Consideration; Exchange Procedures....................................................................9
4.01 Merger Consideration............................................................................9
4.02 Rights as Stockholders; Stock Transfers........................................................10
4.03 Fractional Shares..............................................................................10
4.04 Exchange Procedures............................................................................11
4.05 Options........................................................................................12
4.06 Dissenters' Rights.............................................................................12
ARTICLE V Actions Pending the Effective Time....................................................................13
5.01 Forebearances of GAFC..........................................................................13
5.02 Forebearances of Summit........................................................................15
ARTICLE VI Representations and Warranties.......................................................................15
6.01 Disclosure Schedules...........................................................................15
6.02 Standard.......................................................................................16
6.03 Representations and Warranties of GAFC.........................................................16
6.04 Representations and Warranties of Summit.......................................................25
ARTICLE VII Covenants...........................................................................................33
7.01 Reasonable Best Efforts........................................................................33
7.02 Stockholder Approval...........................................................................33
7.03 Registration Statement.........................................................................34
7.04 Press Releases.................................................................................35
7.05 Access; Information............................................................................35
7.06 Acquisition Proposals..........................................................................36
7.07 Takeover Laws..................................................................................36
7.08 Funding of Loan Loss Allowance and Payment of Expenses.........................................36
7.09 Certain Policies...............................................................................36
7.10 Regulatory Applications........................................................................37
7.11 Indemnification................................................................................37
7.12 Benefit Plans..................................................................................38
7.13 Notification of Certain Matters................................................................38
7.14 Contractual Rights of Current Employees........................................................39
7.15 GAFC Trust Preferred Securities................................................................39
7.16 Transition.....................................................................................39
7.17 Compliance with Regulatory Authority Order.....................................................39
7.18 Compliance with Laws...........................................................................40
ARTICLE VIII Conditions to Consummation of the Merger...........................................................40
8.01 Conditions to Each Party's Obligation to Effect the Merger.....................................40
8.02 Conditions to Obligation of GAFC...............................................................41
8.03 Conditions to Obligation of Summit.............................................................41
ARTICLE IX Termination..........................................................................................43
9.01 Termination....................................................................................43
9.02 Effect of Termination and Abandonment..........................................................44
9.03 Fees and Expenses..............................................................................44
ARTICLE X Miscellaneous.........................................................................................45
10.01 Survival.......................................................................................45
10.02 Waiver; Amendment..............................................................................45
10.03 Counterparts...................................................................................45
10.04 Governing Law..................................................................................45
10.05 Expenses.......................................................................................45
10.06 Notices........................................................................................45
10.07 Entire Understanding; No Third Party Beneficiaries.............................................46
10.08 Interpretation; Effect.........................................................................46
ii
AGREEMENT AND PLAN OF REORGANIZATION, dated as of June 9, 2008
(this "Agreement"), by and among GREATER ATLANTIC FINANCIAL CORP. ("GAFC"),
SUMMIT FINANCIAL GROUP, INC. ("Summit") and SFG II, INC. ("Merger Sub").
RECITALS
A. GAFC. GAFC is a Delaware corporation, having its principal place of
business in Reston, Virginia.
B. Summit. Summit is a West Virginia corporation, having its principal
place of business in Moorefield, West Xxxxxxxx.
C. Merger Sub. Merger Sub is a West Virginia corporation, having its
principal place of business in Moorefield, West Xxxxxxxx.
D. Intentions of the Parties. It is the intention of the parties to
this Agreement that the business combination contemplated hereby be treated as a
"reorganization" under Section 368 of the Internal Revenue Code of 1986, as
amended.
E. Board Action. The respective Boards of Directors of each of Summit,
GAFC and Merger Sub have determined that it is advisable and in the best
interests of their respective companies and their stockholders to consummate the
strategic business combination transaction provided for herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements contained herein the
parties agree as follows:
ARTICLE I
Certain Definitions
1.01 Certain Definitions. The following terms are used in this
Agreement with the meanings set forth below:
"Acquisition Proposal" means any tender or exchange offer, proposal for
a merger, consolidation or other business combination involving GAFC or any of
its Subsidiaries or any proposal or offer to acquire in any manner a substantial
equity interest in, or a substantial portion of the assets or deposits of, GAFC
or any of its Subsidiaries, other than the transactions contemplated by this
Agreement.
"Adjusted Shareholders' Equity" has the meaning set forth in Section
4.01(b).
"Agreement" means this Agreement, as amended or modified from time to
time in accordance with Section 10.02.
"Average Closing Price" has the meaning set forth in Section 4.01(a).
"Bank Merger" has the meaning set forth in Section 3.01(a).
"Bank Merger Effective Date" has the meaning set forth in Section 3.02.
"Benchmark Equity" has the meaning set forth in Section 4.01(b).
"Cease and Desist Order" means the Order to Cease and Desist (together
with the accompanying Stipulation and Consent to Issuance of Order to Cease and
Desist) effective April 25, 2008, by and between GAB and the Office of Thrift
Supervision.
"Code" means the Internal Revenue Code of 1986, as amended.
"Compensation and Benefit Plans" has the meaning set forth in Section
6.03(m).
"Consultants" has the meaning set forth in Section 6.03(m).
"Core Deposits" means all deposits (as defined in 12 U.S.C. Section
1813(1)) of GAFC shown on the books and records of GAB, including but not
limited to all interest posted thereon accrued but unpaid interest and both
collected and uncollected funds (including overdrawn accounts), together with
GAB's rights and responsibilities under any customer agreement evidencing or
relating thereto, but excluding (i) deposit accounts associated with a public
body, including but not limited to any municipal, county, state or federal
government, and (ii) brokered deposits and (iii) wholesale deposits, but
including corporate sweep accounts.
"Costs" has the meaning set forth in Section 7.11(a).
"Directors" has the meaning set forth in Section 6.03(m).
"Disclosure Schedule" has the meaning set forth in Section 6.01.
"Dissenters' Shares" has the meaning set forth in Section 4.06.
"DGCL" means the Delaware General Corporation Law, as amended.
"DOL" means the United States Department of Labor.
"Effective Date" has the meaning set forth in Section 2.02(a).
"Effective Time" means the effective time of the Merger, as provided
for in Section 2.02(a).
"Employees" has the meaning set forth in Section 6.03(m).
"Environmental Laws" means all applicable local, state and federal
environmental, health and safety laws and regulations, including, without
limitation, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation, and Liability Act, the Clean Water Act,
the Federal Clean Air Act, and the Occupational Safety and Health Act, each as
amended, regulations promulgated thereunder, and state counterparts.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" has the meaning set forth in Section 6.03(m)(ii).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Exchange Agent" has the meaning set forth in Sections 4.04(a).
"Exchange Fund" has the meaning set forth in Section 4.04(a).
"Exchange Ratio" has the meaning set forth in Section 4.01(a).
"GAB" means Greater Atlantic Bank, a federally-chartered savings bank.
"GAAP" means generally accepted accounting principles in the United
States.
"GAFC Board" means the Board of Directors of GAFC.
"GAFC By-Laws" means the By-laws of GAFC, as amended.
"GAFC Certificate" means the Certificate of Incorporation of GAFC, as
amended.
"GAFC Common Stock" means the common stock, par value $0.01 per share,
of GAFC.
"GAFC Meeting" has the meaning set forth in Section 7.02.
"GAFC Stock Option" has the meaning set forth in Section 4.05.
"GAFC Stock Plans" has the meaning set forth in Section 4.05.
"GAFC Trust Preferred Securities" means preferred shares of stock
issued by Greater Atlantic Capital Trust I, a second tier business trust
subsidiary of GAFC.
"Governmental Authority" means any court, administrative agency or
commission or other federal, state or local governmental authority or
instrumentality.
"Guarantee" shall mean the Guarantee executed by GAFC in connection
with the issuance of the GAFC Trust Preferred Securities.
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"Indenture" shall mean the Trust Indenture executed by GAFC in
connection with the issuance of the GAFC Trust Preferred Securities.
"IRS" has the meaning set forth in Section 6.03(m).
"Indemnified Party" has the meaning set forth in Section 7.11(a).
"Lien" means any charge, mortgage, pledge, security interest,
restriction, claim, lien, or encumbrance,
"Material Adverse Effect" means: with respect to Summit or GAFC, any
effect that (i) is material and adverse to the financial position, results of
operations or business of Summit and its Subsidiaries taken as a whole or GAFC
and its Subsidiaries taken as a whole, respectively, or (ii) would materially
impair the ability of either Summit or GAFC to perform its obligations under
this Agreement or otherwise materially threaten or materially impede the
consummation of the Merger and the other transactions contemplated by this
Agreement; provided, however, that Material Adverse Effect shall not be deemed
to include the impact of (a) changes in banking and similar laws of general
applicability or interpretations thereof by courts or governmental authorities,
except to the extent such changes have a disproportionate impact on Summit or
GAFC, as the case may be, relative to the overall effects on the banking
industry, (b) changes in generally accepted accounting principles or regulatory
accounting requirements applicable to banks and their holding companies
generally, except to the extent changes have a disproportionate impact on Summit
or GAFC, as the case may be, relative to the overall effect on the banking
industry, (c) any modifications or changes to valuation policies and practices
in connection with the Merger or restructuring charges taken in connection with
the Merger, in each case in accordance with generally accepted accounting
principles, (d) actions and omissions of Summit or GAFC taken with the prior
written consent of the other in contemplation of the transactions contemplated
hereby, (e) changes in economic conditions affecting financial institutions
generally, including, without limitation, changes in market interest rates or
the projected future interest rate environment, except to the extent that such
changes have a disproportionate impact on Summit or GAFC, as the case may be,
relative to the overall effect on the banking industry or (f) direct effects of
compliance with this Agreement on the financial condition and operating
performance of the parties, including, without limitation, expenses incurred by
the parties in consummating the transactions contemplated by this Agreement.
"Merger" has the meaning set forth in Section 2.01(b).
"Merger Consideration" has the meaning set forth in Section 4.01(a).
"Merger Sub" has the meaning set forth in the preamble to this
Agreement.
"Monthly Losses" shall have the meaning set forth in Section 4.01(b).
"NASDAQ" means The NASDAQ Stock Market, Inc.'s Capital Market.
4
"Net Additional Loan Losses" shall have the meaning set forth in
Section 4.01(b)(iii).
"New Certificates" has the meaning set forth in Section 4.04(a).
"Non-Performing Loans" shall have the meaning set forth in Section
8.03(h).
"Old Certificates" has the meaning set forth in Section 4.04(a).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" has the meaning set forth in Section 6.03(m).
"Person" means any individual, bank, corporation, limited liability
company, partnership, association, joint-stock company, business trust or
unincorporated organization.
"Previously Disclosed" by a party shall mean information set forth in
its Disclosure Schedule or in Summit's or GAFC's SEC Documents.
"Proxy Statement" has the meaning set forth in Section 7.03(a).
"Registration Statement" has the meaning set forth in Section 7.03(a).
"Regulatory Authorities" has the meaning set forth in Section 6.03(i).
"Rights" means, with respect to any Person, securities or obligations
convertible into or exercisable or exchangeable for, or giving any person any
right to subscribe for or acquire, or any options, calls or commitments relating
to, or any stock appreciation right or other instrument the value of which is
determined in whole or in part by reference to the market price or value of,
shares of capital stock of such person.
"SEC" means the Securities and Exchange Commission.
"Section 9.03(a) Fee" has the meaning set forth in Section 9.03(a).
"Section 9.03(b) Fee" has the meaning set forth in Section 9.03(b).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Shareholders' Equity" means the total shareholders equity presented on
GAFC's balance sheet as of a given date as calculated according to GAAP.
"Specific Reserve Reductions" shall mean the amount by which GAFC may
appropriately reduce the allowance for loan losses specifically allocated to an
extension of credit (and thereby take a negative provision to the allowance for
loan losses) as a result of the amount of principal actually received by GAFC on
such extension of credit.
5
"Stock Option Consideration" has the meaning set forth in Section 4.05.
"Subsidiary" and "Significant Subsidiary" have the meanings ascribed to
them in Rule 1-02 Section 210.1-(2)(w) of Regulation S-X of the SEC.
"Surviving Corporation" has the meaning set forth in Section 2.01(b).
"Summit" has the meaning set forth in the preamble to this Agreement.
"Summit Bank" means Summit Community Bank, a commercial bank chartered
under the laws of the State of West Virginia.
"Summit Board" means the Board of Directors of Summit.
"Summit Common Stock" means the common stock, par value $2.50 per
share, of Summit.
"Summit Compensation and Benefit Plans" has the meaning set forth in
Section 6.04(k)(i).
"Summit Consultants" has the meaning set forth in Section 6.04(k)(i).
"Summit Directors" has the meaning set forth in Section 6.04(k)(i).
"Summit Employees" has the meaning set forth in Section 6.04(k)(i).
"Summit ERISA Affiliate" has the meaning set forth in Section
6.04(k)(iii).
"Summit ERISA Affiliate Plan" has the meaning set forth in Section
6.04(k)(iii).
"Summit Pension Plan" has the meaning set forth in Section 6.04(k)(ii).
"Summit's SEC Documents" has the meaning set forth in Section 6.04(g).
"Superior Proposal" has the meaning set forth in Section 9.01(f).
"Takeover Laws" has the meaning set forth in Section 6.03(o).
"Tax" and "Taxes" means all federal, state, local or foreign taxes,
charges, fees, levies or other assessments, however denominated, including,
without limitation, all net income, gross income, gains, gross receipts, sales,
use, ad valorem, goods and services, capital, production, transfer, franchise,
windfall profits, license, withholding, payroll, employment, disability,
employer health, excise, estimated, severance, stamp, occupation, property,
environmental, unemployment or other taxes, custom duties, fees, assessments or
charges of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any taxing authority whether
arising before, on or after the Effective Date.
6
"Tax Returns" means any return, amended return or other report
(including elections, declarations, disclosures, schedules, estimates and
information returns) required to be filed with respect to any Tax.
"Treasury Stock" shall mean shares of GAFC Common Stock held by GAFC or
any of its Subsidiaries in each case other than in a fiduciary capacity or as a
result of debts previously contracted in good faith.
"WVBCA" shall mean the West Virginia Business Corporation Act, as
amended.
ARTICLE II
The Merger
2.01 The Merger. (a) Prior to the Effective Time, Summit shall take any
and all action necessary to cause Merger Sub to take all actions necessary or
proper to comply with the obligations of Summit and such Merger Sub to
consummate the transactions contemplated hereby.
(b) At the Effective Time, GAFC shall merge with and into Merger Sub
(the "Merger"), the separate corporate existence of GAFC shall cease and Merger
Sub shall survive and continue to exist as a West Virginia corporation (Merger
Sub, as the surviving corporation in the Merger, sometimes being referred to
herein as the "Surviving Corporation"). Summit may at any time prior to the
Effective Time change the method of effecting the combination with GAFC
(including, without limitation, the provisions of this Article II other than
sub-sections (i), (ii), (iii) and (iv) hereof) if and to the extent it deems
such change to be necessary, appropriate or desirable; provided, however, that
no such change shall (i) cause the approval of the stockholders of Summit to be
required as a condition to the Merger, (ii) alter or change the amount or kind
of Merger Consideration (as hereinafter defined), (iii) adversely affect the tax
treatment of GAFC's stockholders as a result of receiving the Merger
Consideration or (iv) materially impede or delay consummation of the
transactions contemplated by this Agreement; and provided further, that Summit
shall provide GAFC prior written notice of such change and the reasons
therefore.
(c) Subject to the satisfaction or waiver of the conditions set forth
in Article VIII, the Merger shall become effective upon the occurrence of the
filing in the offices of the Secretaries of State of the State of Delaware and
the State of West Virginia a certificate of merger in accordance with Section
252 of the DGCL and articles of merger in accordance with Section 31D-11-1106 of
the WVBCA or such later date and time as may be set forth in such certificate of
merger and articles of merger. The Merger shall have the effects prescribed in
the DGCL and the WVBCA.
(d) The Certificate of Incorporation of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended in
accordance with applicable law.
7
2.02 Effective Date and Effective Time. (a) Subject to the satisfaction
or waiver of the conditions set forth in Article VIII, the parties shall cause
the effective date of the Merger (the "Effective Date") to occur on (i) the
fifth business day to occur after the last of the conditions set forth in
Article VIII shall have been satisfied or waived in accordance with the terms of
this Agreement, other than those conditions that by their nature are to be
satisfied at the closing of the Merger (or, at the election of Summit, on the
last business day of the month in which such fifth business day occurs), or (ii)
such other date to which the parties may agree in writing. The time on the
Effective Date when the Merger shall become effective is referred to as the
"Effective Time."
(b) Notwithstanding any other provision in this Agreement to the
contrary, if Summit shall exercise its right to delay the Effective Date
pursuant to Section 2.02(a), and a record date for any dividend or other
distribution in respect of the Summit Common Stock is taken during the period of
such delay such that the GAFC stockholders will not be entitled to participate
in such dividend, each stockholder of GAFC shall be entitled to receive, upon
surrender of the Old Certificates and compliance with the other provisions of
Article IV, a payment equal to the amount and kind of dividend or other
distribution that such holder would have received had such holder been a holder
of record of the shares of Summit Common Stock issuable to such holder in the
Merger on the record date for such dividend or other distribution.
2.03 Indentures, Guarantees and Common Securities. At Closing, as
further consideration for the Merger: Summit shall assume (i) the obligations of
GAFC under the Indenture (including the conversion rights of the debenture
holders set forth in Section 4.4 of the Indenture) pursuant to a supplemental
indenture in form and substance reasonably satisfactory to Summit, GAFC and
Wilmington Trust Company (each, a "Supplemental Indenture") and (ii) the
obligations of GAFC under each of the Guarantees pursuant to a supplemental
guarantee in form and substance reasonably satisfactory to Summit and GAFC.
ARTICLE III
The Bank Merger
3.01 The Bank Merger. (a) After the Effective Time, GAB, a wholly-owned
subsidiary of GAFC, shall merge with and into Summit Bank, a wholly-owned
subsidiary of Summit (the "Bank Merger"), the separate existence of GAB shall
cease and Summit Bank shall survive and continue to exist as a state chartered
banking corporation. Summit may at any time prior to the Effective Time, change
the method of effecting the combination with GAB (including without limitation
the provisions of this Article III other than sub-sections (i), (ii) and (iii)
hereof) if and to the extent it deems such changes necessary, appropriate or
desirable; provided, however that no such change shall (i) alter or change the
amount or kind of Merger Consideration, (ii) adversely affect the tax treatment
of GAFC's stockholders as a result of receiving the Merger Consideration or
(iii) materially impede or delay consummation of the transactions contemplated
by this Agreement, and provided further, that Summit shall provide GAFC with
prior written notice of such change and the reasons therefore.
(b) Subject to the satisfaction or waiver of the conditions set forth
in Article VIII, the Bank Merger shall become effective upon the occurrence of
the filing in the Office of the Secretary of State of West Virginia of articles
of merger in accordance with Section 31D-11-1106 of the WVBCA or such later date
and time as may be set forth in such articles and the issuance of a certificate
of merger by the Secretary of State of West Virginia. The Bank Merger shall have
the effects prescribed in the WVBCA.
8
3.02 Effective Date and Effective Time. Subject to the satisfaction or
waiver of the conditions set forth in Article VIII, the parties shall cause the
effective date of the Bank Merger (the "Bank Merger Effective Date") to occur on
the Effective Date or such later date as Summit may determine in its sole
discretion.
ARTICLE IV
Consideration; Exchange Procedures
4.01 Merger Consideration. Subject to the provisions of this Agreement,
at the Effective Time, automatically by virtue of the Merger and without any
action on the part of any Person:
(a) Merger Consideration. Subject to adjustment as set forth in Section
--------------------
4.01(b), each holder of a share of GAFC Common Stock (other than GAFC or its
Subsidiaries or Summit and its Subsidiaries, except for shares held by them in a
fiduciary capacity, and Dissenters' Shares) shall receive in respect thereof,
subject to the limitations set forth in this Agreement and any adjustment
pursuant to Section 4.01(b), the number of shares of Summit Stock (the "Merger
Consideration") equal to $4.00, divided by the average closing price (the
"Average Closing Price") of Summit Common Stock reported on the NASDAQ for the
twenty (20) trading days prior to the Closing (the "Exchange Ratio"). In no
event shall the Exchange Ratio exceed 0.328625.
(b) Adjustment to Merger Consideration for Decrease in GAFC's
---------------------------------------------------------
Shareholders' Equity and for Net Additional Loan Losses.
-------------------------------------------------------
(i) If as of the Effective Date, GAFC's Shareholders' Equity, as
adjusted to exclude (a) accumulated other comprehensive income or loss, and (b)
the effect of removing the benefit of the net operating loss carry forwards from
the net deferred tax assets (the "Adjusted Shareholders' Equity"), is less than
$4,213,617 (the "Benchmark Equity") determined in accordance with GAAP fairly
applied, then the aggregate value of the Merger Consideration shall be reduced
one dollar for every dollar by which the Adjusted Shareholders' Equity is less
than the Benchmark Equity.
(ii) For purposes of this Section 4.01(b), the Adjusted Shareholders'
Equity shall be increased by: (x) Monthly Losses incurred after March 31, 2008
and prior to September 1, 2008, and (y) fees paid or accrued to Sandler X'Xxxxx
and Partners, LP, and to Xxxxxxx Xxxxxx & Aguggia LLP or Xxxxxxxxxx Xxxxxxxx LLP
after March 31, 2008, up to $150,000. "Monthly Losses" shall mean GAFC's actual
monthly operating losses calculated in accordance with GAAP fairly applied, up
to $250,000.
9
(iii) On the Effective Date, GAFC shall have complied with Section 7.08
of this Agreement with respect to GAFC's allowance for loan losses. If Summit's
due diligence results in a determination by Summit prior to the Effective Date
that additional provisions should be made to GAFC's allowance for loan losses to
meet the requirements of the preceding sentence, then the Merger Consideration
will be reduced dollar for dollar by the amount determined by Summit with the
reasonable agreement of GAFC (the "Net Additional Loan Losses"). In calculating
the amount of the Merger Consideration reduction, Summit and GAFC agree that
Specific Reserve Reductions may be used to offset losses from other loans to
determine the amount of provisions needed to the allowance for loan losses.
(iv) If Summit and GAFC cannot agree as to the amount of the Net
Additional Loan Losses, then GAFC may, at its option, sell the loans that Summit
determines require additional provisions to a third party, provided that the
sale is (x) without recourse and (y) requires the third party purchaser to
assume all collection and servicing costs. If the book value of the loan sold
exceeds the purchase price of the loan sold, such excess will be deemed a Net
Additional Loan Loss and the Merger Consideration will be reduced one dollar for
every dollar of the amount of the Net Additional Loan Loss. If GAFC cannot sell
the loans that Summit determines require additional provisions for loan losses,
then Summit's determination of any Net Additional Loan Losses with respect to
such loans shall be conclusive and binding on the parties, with the concurrence
of GAFC's independent accountants.
(c) Outstanding Summit Stock. Each share of Summit Common Stock issued
and outstanding immediately prior to the Effective Time shall remain issued and
outstanding and unaffected by the Merger.
(d) Treasury Shares. Each share of GAFC Common Stock held as Treasury
Stock immediately prior to the Effective Time shall be canceled and retired at
the Effective Time and no consideration shall be issued in exchange therefore.
(e) Merger Sub. Each share of capital stock of Merger Sub issued and
outstanding immediately prior to the Effective Time shall remain outstanding and
unaffected by the merger, and no consideration shall be issued in exchange
therefore.
4.02 Rights as Stockholders; Stock Transfers. At the Effective Time,
holders of GAFC Common Stock shall cease to be, and shall have no rights as,
stockholders of GAFC, other than to receive the Merger Consideration and any
dividend or other distribution with respect to such GAFC Common Stock with a
record date occurring prior to the Effective Time, the payment, if any, in lieu
of certain dividends on Summit Common Stock provided for in Section 2.02(b), and
the consideration provided under this Article IV. After the Effective Time,
there shall be no transfers on the stock transfer books of GAFC or the Surviving
Corporation of shares of GAFC Common Stock.
4.03 Fractional Shares. Notwithstanding any other provision hereof, no
fractional shares of Summit Common Stock and no certificates or scrip therefore,
or other evidence of ownership thereof, will be issued in the Merger; instead,
Summit shall pay to each holder of GAFC Common Stock who would otherwise be
entitled to a fractional share of Summit Common Stock (after taking into account
all Old Certificates registered in the name of such holder) an amount in cash
(without interest) determined by multiplying such fraction by the closing price
of Summit Common Stock as reported by NASDAQ reporting system (as reported in
the Wall Street Journal) on the Effective Date.
10
4.04 Exchange Procedures.
(a) At or prior to the Effective Time, Summit shall deposit, or shall
cause to be deposited, with Registrar and Transfer Company or a bank or trust
company designated by Summit and reasonably satisfactory to GAFC (the "Exchange
Agent"), for the benefit of the holders of certificates formerly representing
shares of GAFC Common Stock ("Old Certificates"), for exchange in accordance
with this Article IV, (i) certificates representing the shares of Summit Common
Stock ("New Certificates") and (ii) an amount of cash necessary for payments
required by Section 4.03 (the "Exchange Fund"). The Exchange Fund will be
distributed in accordance with the Exchange Agent's normal and customary
procedures established in connection with merger transactions.
(b) As soon as practicable after the Effective Time, and in no event
later than five business days thereafter, Summit shall cause the Exchange Agent
to mail to each holder of record of one or more Old Certificates a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Old Certificates shall pass, only upon delivery of the Old
Certificates to the Exchange Agent) and instructions for use in effecting the
surrender of the Old Certificates in exchange for New Certificates, if any, that
the holders of the Old Certificates are entitled to receive pursuant to Article
IV, any cash in lieu of fractional shares into which the shares of GAFC Common
Stock represented by the Old Certificates shall have been converted pursuant to
this Agreement and any payment required pursuant to Section 2.02(b) of this
Agreement. Upon proper surrender of an Old Certificate for exchange and
cancellation to the Exchange Agent, together with such properly completed letter
of transmittal, duly executed, the holder of such Old Certificates shall be
entitled to receive in exchange therefore (i) a New Certificate representing
that number of whole shares of Summit Common Stock that such holder has the
right to receive pursuant to Article IV, if any, (ii) a check representing the
amount of any cash in lieu of fractional shares which such holder has the right
to receive in respect of the Old Certificates surrendered pursuant to the
provisions of this Article IV, and (iii) any payment required by Section
2.02(b), and the Old Certificates so surrendered shall forthwith be cancelled.
(c) Neither the Exchange Agent, if any, nor any party hereto shall be
liable to any former holder of GAFC Common Stock for any amount properly
delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws.
(d) No dividends or other distributions with respect to Summit Common
Stock with a record date occurring after the Effective Time shall be paid to the
holder of any unsurrendered Old Certificate representing shares of GAFC Common
Stock converted in the Merger into the right to receive shares of such Summit
Common Stock until the holder thereof shall be entitled to receive New
Certificates in exchange therefore in accordance with the procedures set forth
in this Section 4.04. After becoming so entitled in accordance with this Section
4.04, the record holder thereof also shall be entitled to receive any such
dividends or other distributions by the Exchange Agent, without any interest
thereon, which theretofore had become payable with respect to shares of Summit
Common Stock such holder had the right to receive upon surrender of the Old
Certificates.
11
(e) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of GAFC for twelve months after the Effective Time shall be paid to
Summit. Any stockholders of GAFC who have not theretofore complied with this
Article IV shall thereafter look only to Summit for payment of the Merger
Consideration, cash in lieu of any fractional shares and unpaid dividends and
distributions on Summit Common Stock deliverable in respect of each share of
GAFC Common Stock such stockholder holds as determined pursuant to this
Agreement, in each case, without any interest thereon.
(f) In the event any Old Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Old Certificate to be lost, stolen or destroyed and, if reasonably required
by Summit or the Exchange Agent, the posting by such person of a bond in such
amount as Summit may determine is reasonably necessary as indemnity against any
claim that may be made against it with respect to such Old Certificate, the
Exchange Agent will issue in exchange for such lost, stolen or destroyed Old
Certificate the Merger Consideration deliverable in respect thereof pursuant to
this Agreement.
4.05 Options. At the Effective Time, each outstanding option (each, a
"GAFC Stock Option") to purchase shares of GAFC Common Stock under any and all
plans of GAFC under which stock options have been granted and are outstanding
(collectively, the "GAFC Stock Plans") shall vest and holders of GAFC Stock
Options shall be entitled to receive cash in an amount equal to the difference
between the value of (a) the Merger Consideration and (b) the applicable
exercise price (rounded to the nearest cent) for each outstanding GAFC Stock
Option (the "Stock Option Consideration"). At or prior to the Effective Time,
GAFC shall use its reasonable best efforts, including using its reasonable best
efforts to obtain any necessary consents from optionees, with respect to the
GAFC Stock Plans to permit Summit to pay the Stock Option Consideration pursuant
to this Section. At the Effective Time, Summit shall have no obligation to make
any additional grants or awards under the GAFC Stock Plans.
4.06 Dissenters' Rights. Notwithstanding any other provision of this
Agreement to the contrary, shares of GAFC Common Stock that are outstanding
immediately prior to the Effective Time and which are held by stockholders who
shall have not voted in favor of the Merger or consented thereto in writing and
who properly shall have demanded appraisal for such shares in accordance with
the DGCL (collectively, the "Dissenters' Shares") shall not be converted into or
represent the right to receive the Merger Consideration. Such stockholders
instead shall be entitled to receive payment of the appraised value of such
shares held by them in accordance with the provisions of the DGCL, except that
all Dissenters' Shares held by stockholders who shall have failed to perfect or
who effectively shall have withdrawn or otherwise lost their rights to appraisal
of such shares under the DGCL shall thereupon be deemed to have been converted
into and to have become exchangeable, as of the Effective Time, for the right to
receive, without any interest thereon, the Merger Consideration upon surrender
in the manner provided in Section 4.04 of the Old Certificates that, immediately
prior to the Effective Time, evidenced such shares.
12
ARTICLE V
Actions Pending the Effective Time
5.01 Forebearances of GAFC. From the date hereof until the Effective
Time, except as expressly contemplated by this Agreement or Previously
Disclosed, without the prior written consent of Summit, GAFC will not, and will
cause each of its Subsidiaries not to:
(a) Ordinary Course. Conduct the business of GAFC and its Subsidiaries
other than in the ordinary and usual course or fail to use reasonable efforts to
preserve intact their business organizations and assets and maintain their
rights, franchises and existing relations with customers, suppliers, employees
and business associates, or take any action reasonably likely to have an adverse
affect upon GAFC's ability to perform any of its material obligations under this
Agreement.
(b) Capital Stock. Other than pursuant to Rights Previously Disclosed
and outstanding on the date hereof, (i) issue, sell or otherwise permit to
become outstanding, or authorize the creation of, any additional shares of GAFC
Common Stock or any Rights, (ii) enter into any agreement with respect to the
foregoing, or (iii) permit any additional shares of GAFC Common Stock to become
subject to new grants of employee or director stock options, other Rights or
similar stock-based employee rights.
(c) Dividends, Etc. (a) Make, declare, pay or set aside for payment any
dividend on or in respect of, or declare or make any distribution on any shares
of GAFC Common Stock, or (b) directly or indirectly adjust, split, combine,
redeem, reclassify, purchase or otherwise acquire, any shares of its capital
stock.
(d) Compensation; Employment Agreements; Etc. Enter into or amend or
renew any employment, consulting, severance or similar agreements or
arrangements with any director, officer or employee of GAFC or its Subsidiaries,
or grant any salary or wage increase or increase any employee benefit (including
incentive or bonus payments), except (i) for normal individual payments of
incentives and bonuses to employees in the ordinary course of business
consistent with past practice, not to exceed $10,000 in the aggregate, (ii) for
normal individual payments of incentives and bonuses to employees under GAB's
branch incentive plan, not to exceed $30,000 per quarter in the aggregate, (iii)
for normal individual increases in compensation to employees in the ordinary
course of business consistent with past practice, (iv) for other changes that
are required by applicable law, (v) to satisfy Previously Disclosed contractual
obligations existing as of the date hereof, or (vi) for grants of awards to
newly hired employees consistent with past practice.
(e) Benefit Plans. Enter into, establish, adopt or amend (except (i) as
may be required by applicable law or (ii) to satisfy Previously Disclosed
contractual obligations existing as of the date hereof) any pension, retirement,
stock option, stock purchase, savings, profit sharing, deferred compensation,
consulting, bonus, group insurance or other employee benefit, incentive or
welfare contract, plan or arrangement, or any trust agreement (or similar
arrangement) related thereto, in respect of any director, officer or employee of
GAFC or its Subsidiaries, or take any action to accelerate the vesting or
exercisability of stock options, restricted stock or other compensation or
benefits payable thereunder.
13
(f) Dispositions. Except as Previously Disclosed, sell, transfer,
mortgage, encumber or otherwise dispose of or discontinue any of its assets,
deposits, business or properties except in the ordinary course of business and
in a transaction that is not material to it and its Subsidiaries taken as a
whole.
(g) Acquisitions. Except as Previously Disclosed, acquire (other than
by way of foreclosures or acquisitions of control in a bona fide fiduciary
capacity or in satisfaction of debts previously contracted in good faith, in
each case in the ordinary and usual course of business consistent with past
practice) all or any portion of, the assets, business, deposits or properties of
any other entity.
(h) Governing Documents. Amend the GAFC Certificate, GAFC By-laws or
the certificate of incorporation or by-laws (or similar governing documents) of
any of GAFC's Subsidiaries.
(i) Accounting Methods. Implement or adopt any change in its accounting
principles, practices or methods, other than as may be required by GAAP.
(j) Contracts. Except in the ordinary course of business consistent
with past practice, enter into or terminate any material contract (as defined in
Section 6.03(k)) or amend or modify in any material respect any of its existing
material contracts.
(k) Claims. Except in the ordinary course of business consistent with
past practice, settle any claim, action or proceeding, except for any claim,
action or proceeding which does not involve precedent for other material claims,
actions or proceedings and which involve solely money damages in an amount,
individually or in the aggregate for all such settlements, that is not material
to GAFC and its Subsidiaries, taken as a whole.
(l) Adverse Actions. (a) Take any action while knowing that such action
would, or is reasonably likely to, prevent or impede the Merger from qualifying
as a reorganization within the meaning of Section 368 of the Code; or (b)
knowingly take any action that is intended or is reasonably likely to result in
(i) any of its representations and warranties set forth in this Agreement being
or becoming untrue, subject to the standard set forth in Section 6.02, at any
time at or prior to the Effective Time, (ii) any of the conditions to the Merger
set forth in Article VIII not being satisfied or (iii) a material violation of
any provision of this Agreement except, in each case, as may be required by
applicable law or regulation.
(m) Risk Management. Except as required by applicable law or
regulation, (i) implement or adopt any material change in its interest rate and
other risk management policies, procedures or practices, including, but not
limited to implementation of any leverage strategies; (ii) fail to follow its
existing policies or practices with respect to managing its exposure to interest
rate and other risk; or (iii) fail to use commercially reasonable means to avoid
any material increase in its aggregate exposure to interest rate risk.
14
(n) Indebtedness. Incur any indebtedness for borrowed money other than
in the ordinary course of business.
(o) Loans. Make any loans in a principal amount in excess of $750,000,
or make any loans outside of the District of Columbia, Delaware, Maryland,
Pennsylvania, Virginia and West Virginia.
(p) Commitments. Agree or commit to do any of the foregoing.
5.02 Forebearances of Summit. From the date hereof until the Effective
Time, except as expressly contemplated by this Agreement, without the prior
written consent of GAFC, Summit will not, and will cause each of its
Subsidiaries not to:
(a) Ordinary Course. Conduct the business of Summit and its
Subsidiaries other than in the ordinary and usual course or fail to use
reasonable efforts to preserve intact their business organizations and assets
and maintain their rights, franchises and existing relations with customers,
suppliers, employees and business associates, or take any action reasonably
likely to have an adverse effect upon Summit's ability to perform any of its
material obligations under this Agreement.
(b) Extraordinary Dividends. Make, declare, pay or set aside for
payment any extraordinary dividend.
(c) Adverse Actions. (a) Take any action while knowing that such action
would, or is reasonably likely to, prevent or impede the Merger from qualifying
as a reorganization within the meaning of Section 368 of the Code; or (b)
knowingly take any action that is intended or is reasonably likely to result in
(i) any of its representations and warranties set forth in this Agreement being
or becoming untrue, subject to the standard set forth in Section 6.02, at any
time at or prior to the Effective Time, (ii) any of the conditions to the Merger
set forth in Article VIII not being satisfied or (iii) a material violation of
any provision of this Agreement except, in each case, as may be required by
applicable law or regulation; provided.
(d) Commitments. Agree or commit to do any of the foregoing.
ARTICLE VI
Representations and Warranties
6.01 Disclosure Schedules. On or prior to the date hereof, Summit has
delivered to GAFC a schedule and GAFC has delivered to Summit a schedule
(respectively, its "Disclosure Schedule") setting forth, among other things,
items the disclosure of which is necessary or appropriate either in response to
an express disclosure requirement contained in a provision hereof or as an
exception to one or more representations or warranties contained in Section 6.03
or 6.04 or to one or more of its covenants contained in Article V; provided,
that (a) no such item is required to be set forth in a Disclosure Schedule as an
exception to a representation or warranty if its absence could not be reasonably
likely to result in the related representation or warranty being deemed untrue
or incorrect under the standard established by Section 6.02, and (b) the mere
15
inclusion of an item in a Disclosure Schedule as an exception to a
representation or warranty shall not be deemed an admission by a party that such
item represents a material exception or fact, event or circumstance or that such
item is reasonably likely to result in a Material Adverse Effect on the party
making the representation. All of GAFC's and Summit's representations,
warranties and covenants contained in this Agreement are qualified by reference
to the respective Disclosure Schedule and none thereof shall be deemed to be
untrue or breached as a result of effects arising solely from actions taken in
compliance with a written request of Summit or GAFC, as the case may be.
6.02 Standard. No representation or warranty of GAFC or Summit
contained in Section 6.03 or 6.04 shall be deemed untrue or incorrect, and no
party hereto shall be deemed to have breached a representation or warranty, as a
consequence of the existence of any fact, event or circumstance unless such
fact, circumstance or event, individually or taken together with all other
facts, events or circumstances inconsistent with any representation or warranty
contained in Section 6.03 or 6.04 has had or is reasonably likely to have a
Material Adverse Effect. For purposes of this Agreement, "knowledge" shall mean
(i) with respect to Summit, actual knowledge of H. Xxxxxxx Xxxxx, III, and
Xxxxxx X. Tissue, and (ii) with respect to GAFC, actual knowledge of Xxxxxxx X.
Xxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxx and Xxxx X. Xxxxxx.
6.03 Representations and Warranties of GAFC. Subject to Sections 6.01
and 6.02 and except as Previously Disclosed, GAFC hereby represents and warrants
to Summit:
(a) Organization and Standing. GAFC is a corporation duly organized,
-------------------------
validly existing and in good standing under the laws of the State of Delaware.
GAFC is duly qualified to do business and is in good standing in the
Commonwealth of Virginia and in any foreign jurisdictions where its ownership or
leasing of property or assets or the conduct of its business requires it to be
so qualified.
(b) Capitalization. As of May 31, 2008, the authorized capital stock of
--------------
GAFC consists of (i) 10,000,000 shares of GAFC Common Stock, of which 3,024,220
shares were outstanding and no shares were held in treasury, and (ii) 2,500,000
shares of preferred stock, $0.01 par value, none of which are issued and
outstanding or held in treasury as of the date hereof. As of the date hereof,
except pursuant to the terms of options, stock, and warrants issued pursuant to
the GAFC Stock and/or Warrant Plans, GAFC does not have and is not bound by any
outstanding subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the purchase or issuance of any shares of GAFC
Common Stock or any other equity securities of GAFC or any of its Subsidiaries
or any securities representing the right to purchase or otherwise receive any
shares of GAFC Common Stock or other equity securities of GAFC or any of its
Subsidiaries. As of May 31, 2008, GAFC has 340,171 shares of GAFC Common Stock
(with a weighted average strike price of $6.94 per share) which are issuable and
reserved for issuance upon the exercise of GAFC Stock Options and GAFC Warrants.
The outstanding shares of GAFC Common Stock have been duly authorized and are
validly issued and outstanding, fully paid and nonassessable, and subject to no
preemptive rights (and were not issued in violation of any preemptive rights).
16
(c) Subsidiaries. (i) GAFC has Previously Disclosed a list of all of
------------
its Subsidiaries together with the jurisdiction of organization of each such
Subsidiary. (A) GAFC owns, directly or indirectly, all the issued and
outstanding equity securities of each of its Subsidiaries, (B) no equity
securities of any of its Subsidiaries are or may become required to be issued
(other than to it or its wholly-owned Subsidiaries) by reason of any Right or
otherwise, (C) there are no contracts, commitments, understandings or
arrangements by which any of such Subsidiaries is or may be bound to sell or
otherwise transfer any equity securities of any such Subsidiaries (other than to
it or its wholly-owned Subsidiaries), (D) there are no contracts, commitments,
understandings, or arrangements relating to its rights to vote or to dispose of
such securities and (E) all the equity securities of each Subsidiary held by
GAFC or its Subsidiaries are fully paid and nonassessable and are owned by GAFC
or its Subsidiaries free and clear of any Liens.
(ii) GAFC has Previously Disclosed a list of all equity securities, or
similar interests of any Person or any interest in a partnership or joint
venture of any kind, other than its Subsidiaries, that it beneficially owns,
directly or indirectly, as of May 31, 2008.
(iii) Each of GAFC's Subsidiaries has been duly organized and is
validly existing in good standing under the laws of the jurisdiction of its
organization, and is duly qualified to do business and in good standing in the
jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified.
(d) Corporate Power. Each of GAFC and its Subsidiaries has the
---------------
corporate power and authority to carry on its business as it is now being
conducted and to own all its properties and assets; and GAFC has the corporate
power and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.
(e) Corporate Authority. Subject to receipt of the requisite approval
-------------------
of this Agreement (including the agreement of merger set forth herein) by the
holders of a majority of the outstanding shares of GAFC Common Stock entitled to
vote thereon (which is the only vote of GAFC stockholders required thereon), the
execution and delivery of this Agreement and the transactions contemplated
hereby have been authorized by all necessary corporate action of GAFC and the
GAFC Board. Assuming due authorization, execution and delivery by Summit, this
Agreement is a valid and legally binding obligation of GAFC, enforceable in
accordance with its terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors' rights
or by general equity principles). The GAFC Board of Directors has received the
written opinion of Sandler X'Xxxxx & Partners, L.P. to the effect that as of the
date hereof the consideration to be received by the holders of GAFC Common Stock
in the Merger is fair to the holders of GAFC Common Stock from a financial point
of view.
(f) Consents and Approvals; No Defaults. Except as disclosed in
-----------------------------------
Schedule 6.03(f), (i) no consents or approvals of, or filings or registrations
with, any Governmental Authority or with any third party are required to be made
or obtained by GAFC or any of its Subsidiaries in connection with the execution,
delivery or performance by GAFC of this Agreement or to consummate the Merger
except for (A) filings of applications or notices with federal and state banking
and insurance authorities and (B) the filing of a certificate of merger with the
Secretary of State of the State of Delaware pursuant to the DGCL, the filing of
17
articles of merger with the Secretary of State of the State of West Virginia
pursuant to the WVBCA, and the issuance of a certificate of merger in connection
therewith. As of the date hereof, GAFC is not aware of any reason why the
approvals set forth in Section 8.01(b) will not be received without the
imposition of a condition, restriction or requirement of the type described in
Section 8.01(b).
(ii) Subject to receipt of the regulatory approvals referred to in the
preceding paragraph, and expiration of related waiting periods, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (A) constitute a breach or
violation of, or a default under, or give rise to any Lien, any acceleration of
remedies or any right of termination under, any law, rule or regulation or any
judgment, decree, order, governmental permit or license, or any agreement,
indenture or instrument of GAFC or of any of its Subsidiaries or to which GAFC
or any of its Subsidiaries or properties is subject or bound, (B) constitute a
breach or violation of, or a default under, the GAFC Certificate or the GAFC
By-Laws, or (C) require any consent or approval under any such law, rule,
regulation, judgment, decree, order, governmental permit or license or any
agreement, indenture or instrument.
(g) Financial Reports; Absence of Certain Changes or Events. (i) GAFC's
-------------------------------------------------------
Annual Report on Form 10-K for the fiscal years ended September 30, 2005, 2006
and 2007, and all other reports, registration statements, definitive proxy
statements or information statements filed or to be filed by it or any of its
Subsidiaries subsequent to September 30, 2004, under the Securities Act or under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act in the form filed or to be
filed (collectively "GAFC's SEC Documents"), as of the date filed, (A) as to
form complied or will comply in all material respects with the applicable
requirements under the Securities Act or the Exchange Act, as the case may be,
and (B) did not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and each of the balance sheets or statements of condition
of GAFC contained in or incorporated by reference into any of GAFC's SEC
Documents (including the related notes and schedules thereto) fairly presents,
or will fairly present, the financial position of GAFC and its Subsidiaries as
of its date, and each of the statements of income or results of operations and
changes in stockholders' equity and cash flows or equivalent statements of GAFC
in any of GAFC's SEC Documents (including any related notes and schedules
thereto) fairly presents, or will fairly present, the results of operations,
changes in stockholders' equity and cash flows, as the case may be, of GAFC and
its Subsidiaries for the periods to which they relate, and in each case were
prepared in accordance with generally accepted accounting principles
consistently applied during the periods involved, except in each case as may be
noted therein, and subject to normal year-end audit adjustments in the case of
unaudited statements.
18
(ii) GAFC's Disclosure Schedule lists, and GAFC has delivered or
previously made available to Summit, copies of the documentation creating or
governing all securitization transactions and "off-balance sheet arrangements"
(as defined in Item 303(c) of Regulation S-K) effected by GAFC or its
Subsidiaries, since September 30, 2007. BDO Xxxxxxx, LLP, which has expressed
its opinion with respect to the financial statements of GAFC and its
Subsidiaries (including the related notes) included in the GAFC SEC Documents is
and has been throughout the periods covered by such financial statements (A) a
registered public accounting firm (as defined in Section 2(a)(12) of the
Xxxxxxxx-Xxxxx Act of 2002, (B) "independent" with respect to GAFC within the
meaning of Regulation S-X and C in compliance with subsection (g) through (l) of
Section 10A of the Exchange Act and the related rules of the SEC and the Public
Accounting Oversight Board.
(iii) Except as disclosed on Disclosure Schedule 6.03(g), GAFC has on a
timely basis filed all forms, reports and documents required to be filed by it
with the SEC since September 30, 2005. GAFC's Disclosure Schedule lists, and,
except to the extent available in full without redaction on the SEC's web site
through the Electronic Data Gathering, Analysis and Retrieval System ("XXXXX")
two days prior to the date of this Agreement, GAFC has delivered or previously
made available to Summit copies in the form filed with the SEC of (A) GAFC's
Annual Reports on Form 10-K for each fiscal year of the Company beginning since
September 30, 2004, (B) it Quarterly Reports on form 10-Q for each of the first
three fiscal quarters in each of the fiscal years of the GAFC referred to in
clause (A) above, (C) all proxy statements relating to GAFC's meetings of
stockholders (whether annual or special) held, and all information statements
relating to stockholder consents since the beginning of the first fiscal year
referred to in clause above, (D) all certifications and statements required by
(x) the SEC's Order dated June 27, 2002, pursuant to Section 21(a)(1) of the
Exchange Act (File No. 4-460), (y) Rule 13a-14 or 15d-14 under the Exchange Act
or (z) 18 U.S.C. ss.1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002) with
respect to any report referred to above, (E) all other forms, reports,
registration statements and other documents (other than preliminary materials if
the corresponding definitive materials have been provided to Summit pursuant to
this Section 6.03(g)(iii), filed by GAFC with the SEC since the beginning of the
first fiscal year referred above, and (E) all comment letters received by GAFC
from the Staff of the SEC since December 31, 2004, and all responses to such
comment letters by or on behalf of GAFC.
(iv) Except as Previously Disclosed, GAFC maintains disclosure controls
and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act; such
controls and procedures are effective to ensure that all material information
concerning GAFC and its subsidiaries is made known on a timely basis to the
individuals responsible for the preparation of the Company's filings with the
SEC and other public disclosure documents. GAFC's Disclosure Schedule lists, and
GAFC has delivered to Summit copies of, all written descriptions of, and all
policies, manuals and other documents promulgating, such disclosure controls and
procedures. To GAFC's knowledge, each director and executive officer of GAFC has
filed with the SEC on a timely basis all statements required by Section 16(a) of
the Exchange Act and the rules and regulations thereunder since September 30,
2005. As used in this Section 6.03(q), the term "file" shall be broadly
construed to include any manner in which a document or information is furnished,
supplied or otherwise made available to the SEC.
19
(v) Since September 30, 2007, GAFC and its Subsidiaries have not
incurred any liability other than in the ordinary course of business consistent
with past practice or for legal, accounting, and financial advisory fees and
out-of-pocket expenses in connection with the transactions contemplated by this
Agreement.
(vi) Since September 30, 2007, (A) GAFC and its Subsidiaries have
conducted their respective businesses in the ordinary and usual course
consistent with past practice (excluding matters related to this Agreement and
the transactions contemplated hereby) and (B) no event has occurred or
circumstance arisen that, individually or taken together with all other facts,
circumstances and events (described in any paragraph of Section 6.03 or
otherwise), is reasonably likely to have a Material Adverse Effect with respect
to GAFC.
(h) Litigation. No litigation, claim or other proceeding before any
court or Governmental Authority is pending against GAFC or any of its
Subsidiaries and, to GAFC's knowledge, no such litigation, claim or other
proceeding has been threatened.
(i) Regulatory Matters. (i) Except as disclosed on Disclosure Schedule
6.03(i), neither GAFC nor any of its Subsidiaries or properties is a party to or
is subject to any order, decree, agreement, memorandum of understanding or
similar arrangement with, or a commitment letter or similar submission to, or
extraordinary supervisory letter from, any federal or state governmental agency
or authority charged with the supervision or regulation of financial
institutions (or their holding companies) or issuers of securities or engaged in
the insurance of deposits (including, without limitation, the Office of the
Thrift Supervision, the Federal Reserve Board and the Federal Deposit Insurance
Corporation) or the supervision or regulation of it or any of its Subsidiaries
(collectively, the "Regulatory Authorities").
(ii) Except as disclosed on Disclosure Schedule 6.03(i), neither GAFC
nor any of its Subsidiaries has been advised by any Regulatory Authority that
such Regulatory Authority is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any such order,
decree, agreement, memorandum of understanding, commitment letter, supervisory
letter or similar submission.
(iii) GAFC is not a financial holding company as defined by the
Xxxxx-Xxxxx-Xxxxxx Act of 1999.
(j) Compliance with Laws. Each of GAFC and its Subsidiaries:
---------------------
(i) is in compliance in all material respects with all applicable
federal, state, local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders or decrees applicable thereto or to the employees
conducting such businesses, including, without limitation, the Equal Credit
Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home
Mortgage Disclosure Act and all other applicable fair lending laws and other
laws relating to discriminatory business practices;
(ii) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and registrations with, all
Governmental Authorities that are required in order to permit them to own or
lease their properties and to conduct their businesses as presently conducted;
all such permits, licenses, certificates of authority, orders and approvals are
in full force and effect and, to GAFC's knowledge, no suspension or cancellation
of any of them is threatened;
20
(iii) Except as disclosed on Disclosure Schedule 6.03(j), GAFC has
received, since September 30, 2006, no notification or communication from any
Governmental Authority (A) asserting that GAFC or any of its Subsidiaries is not
in compliance with any of the statutes, regulations, or ordinances which such
Governmental Authority enforces or (B) threatening to revoke any license,
franchise, permit, or governmental authorization (nor, to GAFC's knowledge, do
any grounds for any of the foregoing exist); and
(iv) Since July 1, 2001, is in compliance with the privacy provisions
of the Xxxxx-Xxxxx-Xxxxxx Act, and all other applicable laws relating to
consumer privacy.
(k) Material Contracts; Defaults. Except for this Agreement, neither
----------------------------
GAFC nor any of its Subsidiaries is a party to, bound by or subject to any
agreement, contract, arrangement, commitment or understanding (whether written
or oral) (i) that is a "material contract" within the meaning of Item 601(b)(10)
of the SEC's Regulation S-K or (ii) that restricts or limits in any way the
conduct of business by it or any of its Subsidiaries (including without
limitation a non-compete or similar provision). Neither GAFC nor any of its
Subsidiaries is in default under any contract, agreement, commitment,
arrangement, lease, insurance policy or other instrument to which it is a party,
by which its respective assets, business, or operations may be bound or
affected, or under which it or its respective assets, business, or operations
receive benefits, and there has not occurred any event that, with the lapse of
time or the giving of notice or both, would constitute such a default.
(l) No Brokers. No action has been taken by GAFC that would give rise
----------
to any valid claim against any party hereto for a brokerage commission, finder's
fee or other like payment with respect to the transactions contemplated by this
Agreement, excluding a Previously Disclosed fee to be paid to Sandler X'Xxxxx &
Partners, L.P.
(m) Employee Benefit Plans. (i) GAFC has Previously Disclosed a
----------------------
complete and accurate list of all existing bonus, incentive, deferred
compensation, pension, retirement, profit-sharing, thrift, savings, employee
stock ownership, stock bonus, stock purchase, restricted stock, stock option,
severance, welfare and fringe benefit plans, employment or severance agreements
and all similar practices, policies and arrangements in which any current or
former employee (the "Employees"), current or former consultant (the
"Consultants") or current or former director (the "Directors") of GAFC or any of
its Subsidiaries participates or to which any such Employees, Consultants or
Directors are a party (the "Compensation and Benefit Plans"). Neither GAFC nor
any of its Subsidiaries has any commitment to create any additional Compensation
and Benefit Plan or to modify or change any existing Compensation and Benefit
Plan.
Each Compensation and Benefit Plan has been operated and administered
in all material respects in accordance with its terms and with applicable law,
including, but not limited to, ERISA, the Code, the Securities Act, the Exchange
Act, the Age Discrimination in Employment Act, or any regulations or rules
promulgated thereunder, and all filings, disclosures and notices required by
ERISA, the Code, the Securities Act, the Exchange Act, the Age Discrimination in
Employment Act and any other applicable law have been timely made. Each
21
Compensation and Benefit Plan which is an "employee pension benefit plan" within
the meaning of Section 3(2) of ERISA (a "Pension Plan") and which is intended to
be qualified under Section 401(a) of the Code has received a favorable
determination letter or has applied for a favorable determination letter in
compliance with the Code (including a determination that the related trust under
such Compensation and Benefit Plan is exempt from tax under Section 501(a) of
the Code) from the Internal Revenue Service ("IRS"), and GAFC is not aware of
any circumstances likely to result in the revocation of any existing favorable
determination letter or in not receiving a favorable determination letter. There
is no material pending or, to the knowledge of GAFC, threatened legal action,
suit or claim relating to the Compensation and Benefit Plans other than routine
claims for benefits. Neither GAFC nor any of its Subsidiaries has engaged in a
transaction, or omitted to take any action, with respect to any Compensation and
Benefit Plan that would reasonably be expected to subject GAFC or any of its
Subsidiaries to a tax or penalty imposed by either Section 4975 of the Code or
Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the
taxable period of any such transaction expired as of the date hereof.
(ii) No Compensation and Benefit Plans currently maintained, or
maintained within the last six years, by GAFC or any of its Subsidiaries or any
entity (and "ERISA Affiliate") which is considered one employer with GAFC under
Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code is or was
subject to Title IV of ERISA or is or was a multiemployer plan under Subtitle E
of Title IV of ERISA. To the knowledge of GAFC, there is no pending
investigation or enforcement action by the PBGC, the DOL or IRS or any other
governmental agency with respect to any Compensation and Benefit Plan.
(iii) All contributions required to be made under the terms of any
Compensation and Benefit Plan or any employee benefit arrangements under any
collective bargaining agreement to which GAFC or any of its Subsidiaries is a
party have been timely made or have been reflected on GAFC's financial
statements. None of GAFC, any of its Subsidiaries or any ERISA Affiliate (x) has
provided, or would reasonably be expected to be required to provide, security to
any Pension Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken
any action, or omitted to take any action, that has resulted, or would
reasonably be expected to result, in the imposition of a lien under Section
412(n) of the Code or pursuant to ERISA.
(iv) Neither GAFC nor any of its Subsidiaries has any obligations to
provide retiree health and life insurance or other retiree death benefits under
any Compensation and Benefit Plan, other than benefits mandated by Section 4980B
of the Code, and each such Compensation and Benefit Plan may be amended or
terminated without incurring liability thereunder. There has been no
communication to Employees by GAFC or any of its Subsidiaries that would
reasonably be expected to promise or guarantee such Employees retiree health or
life insurance or other retiree death benefits on a permanent basis.
(v) GAFC and its Subsidiaries do not maintain any Compensation and
Benefit Plans covering foreign Employees.
22
(vi) With respect to each Compensation and Benefit Plan, if applicable,
GAFC has provided or made available to Summit, true and complete copies of
existing: (A) Compensation and Benefit Plan documents and amendments thereto;
(B) trust instruments and insurance contracts; (C) two most recent Forms 5500
filed with the IRS; (D) most recent actuarial report and financial statement;
(E) the most recent summary plan description; (F) most recent determination
letter issued by the IRS; (G) any Form 5310 or Form 5330 filed with the IRS; and
(H) most recent nondiscrimination tests performed under ERISA and the Code
(including 401(k) and 401(m) tests).
(vii) Except as Previously Disclosed, the consummation of the
transactions contemplated by this Agreement would not, directly or indirectly
(including, without limitation, as a result of any termination of employment
prior to or following the Effective Time) reasonably be expected to (A) entitle
any Employee, Consultant or Director to any payment (including severance pay or
similar compensation) or any increase in compensation, (B) result in the vesting
or acceleration of any benefits under any Compensation and Benefit Plan or (C)
result in any material increase in benefits payable under any Compensation and
Benefit Plan.
(viii) Neither GAFC nor any of its Subsidiaries maintains any
compensation plans, programs or arrangements the payments under which would not
reasonably be expected to be deductible as a result of the limitations under
Section 162(m) of the Code and the regulations issued thereunder.
(ix) As a result, directly or indirectly, of the transactions
contemplated by this Agreement (including, without limitation, as a result of
any termination of employment prior to or following the Effective Time), none of
Summit, GAFC or the Surviving Corporation, or any of their respective
Subsidiaries will be obligated to make a payment that would be characterized as
an "excess parachute payment" to an individual who is a "disqualified
individual" (as such terms are defined in Section 280G of the Code), without
regard to whether such payment is reasonable compensation for personal services
performed or to be performed in the future.
(n) Labor Matters. Neither GAFC nor any of its Subsidiaries is a party
-------------
to or is bound by any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization, nor is GAFC
or any of its Subsidiaries the subject of a proceeding asserting that it or any
such Subsidiary has committed an unfair labor practice (within the meaning of
the National Labor Relations Act) or seeking to compel GAFC or any such
Subsidiary to bargain with any labor organization as to wages or conditions of
employment, nor is there any strike or other labor dispute involving it or any
of its Subsidiaries pending or, to GAFC's knowledge, threatened, nor is GAFC
aware of any activity involving its or any of its Subsidiaries' employees
seeking to certify a collective bargaining unit or engaging in other
organizational activity.
(o) Takeover Laws. GAFC has taken all action required to be taken by it
-------------
in order to exempt this Agreement and the transactions contemplated hereby from,
and this Agreement and the transactions contemplated hereby are exempt from, the
requirements of any "moratorium", "control share", "fair price", "affiliate
transaction", "business combination" or other antitakeover laws and regulations
of any state applicable to GAFC (collectively, "Takeover Laws"), including,
without limitation, Section 203 of the DGCL.
23
(p) Environmental Matters. To GAFC's knowledge, neither the conduct nor
---------------------
operation of GAFC or its Subsidiaries nor any condition of any property
presently or previously owned, leased or operated by any of them (including,
without limitation, in a fiduciary or agency capacity), or on which any of them
holds a Lien, violates or violated Environmental Laws and to GAFC's knowledge,
no condition has existed or event has occurred with respect to any of them or
any such property that, with notice or the passage of time, or both, is
reasonably likely to result in liability under Environmental Laws. To GAFC's
knowledge, neither GAFC nor any of its Subsidiaries has received any notice from
any person or entity that GAFC or its Subsidiaries or the operation or condition
of any property ever owned, leased, operated, or held as collateral or in a
fiduciary capacity by any of them are or were in violation of or otherwise are
alleged to have liability under any Environmental Law, including, but not
limited to, responsibility (or potential responsibility) for the cleanup or
other remediation of any pollutants, contaminants, or hazardous or toxic wastes,
substances or materials at, on, beneath, or originating from any such property.
(q) Tax Matters. (i) All Tax Returns that are required to be filed by
-----------
or with respect to GAFC and its Subsidiaries have been duly filed, (ii) all
Taxes shown to be due on the Tax Returns referred to in clause (i) have been
paid in full, (iii) the Tax Returns referred to in clause (i) have been examined
by the Internal Revenue Service or the appropriate state, local or foreign
taxing authority or the period for assessment of the Taxes in respect of which
such Tax Returns were required to be filed has expired, (iv) all deficiencies
asserted or assessments made as a result of such examinations have been paid in
full, (v) no issues that have been raised by the relevant taxing authority in
connection with the examination of any of the Tax Returns referred to in clause
(i) are currently pending, and (vi) no waivers of statutes of limitation have
been given by or requested with respect to any Taxes of GAFC or its
Subsidiaries. GAFC has made available to Summit true and correct copies of the
United States Federal Income Tax Returns filed by GAFC and its Subsidiaries for
each of the three most recent fiscal years ended on or before December 31, 2004.
Neither GAFC nor any of its Subsidiaries has any liability with respect to
income, franchise or similar Taxes that accrued on or before December 31, 2005
in excess of the amounts accrued with respect thereto that are reflected in the
financial statements of GAFC as of December 31, 2002 for each of the three years
in the period ended December 31, 2004. As of the date hereof, neither GAFC nor
any of its Subsidiaries has any reason to believe that any conditions exist that
might prevent or impede the Merger from qualifying as a reorganization within
the meaning of Section 368(a) of the Code. No Tax is required to be withheld
pursuant to Section 1445 of the Code as a result of the transfer contemplated by
this Agreement.
(r) Risk Management Instruments. Except as disclosed on Disclosure
---------------------------
Schedule 6.03(r), neither GAFC nor any of its Subsidiaries are parties to any
interest rate swaps, caps, floors, option agreements, futures and forward
contracts and other similar risk management arrangements, whether entered into
for GAFC's own account, or for the account of one or more of GAFC's Subsidiaries
or their customers.
24
(s) Books and Records. The books and records of GAFC and its
-----------------
Subsidiaries have been fully, properly and accurately maintained in all material
respects, and there are no material inaccuracies or discrepancies of any kind
contained or reflected therein and they fairly reflect the substance of events
and transactions included therein.
(t) Insurance. GAFC Previously Disclosed all of the insurance policies,
---------
binders, or bonds maintained by GAFC or its Subsidiaries. GAFC and its
Subsidiaries are insured with insurers believed to be reputable against such
risks and in such amounts as the management of GAFC reasonably has determined to
be prudent in accordance with industry practices. All such insurance policies
are in full force and effect; GAFC and its Subsidiaries are not in material
default thereunder; and all claims thereunder have been filed in due and timely
fashion.
(u) Disclosure. The representations and warranties contained in this
----------
Section 6.03 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 6.03, in light of the circumstances in
which they are made, not misleading.
6.04 Representations and Warranties of Summit. Subject to Sections 6.01
and 6.02 and except as Previously Disclosed, Summit hereby represents and
warrants to GAFC:
(a) Organization and Standing. Summit is a corporation duly organized,
-------------------------
validly existing and in good standing under the laws of the State of West
Virginia. Summit is duly qualified to do business and is in good standing in the
foreign jurisdictions where its ownership or leasing of property or assets or
the conduct of its business requires it to be so qualified.
(b) Capitalization. (i) As of May 31, 2008, the authorized capital
--------------
stock of Summit consists solely of 20,000,000 shares of Summit Common Stock, of
which as of May 31, 2008, 7,408,941 shares were outstanding, and 250,000 shares
of Summit Preferred Stock, of which none are issued and outstanding as of May
31, 2008. As of the date hereof, except as set forth in its Disclosure Schedule,
Summit does not have and is not bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of Summit Common Stock or any other equity
securities of Summit or any of its Subsidiaries or any securities representing
the right to purchase or otherwise receive any shares of Summit Common Stock or
other equity securities of Summit or any of its Subsidiaries. As of May 31,
2008, Summit has 337,580 shares of Summit Common Stock which are issuable and
reserved for issuance upon exercise of Summit Stock Options. The outstanding
shares of Summit Common Stock have been duly authorized and are validly issued
and outstanding, fully paid and nonassessable, and subject to no preemptive
rights (and were not issued in violation of any preemptive rights).
(ii) The shares of Summit Common Stock to be issued in exchange for
shares of GAFC Common Stock in the Merger, when issued in accordance with the
terms of this Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, with no personal liability attaching to the ownership thereof,
subject to no preemptive rights and authorized for trading on the NASDAQ Capital
Market.
25
(c) Subsidiaries. Each of Summit's Subsidiaries has been duly organized
-------------
and is validly existing in good standing under the laws of the jurisdiction of
its organization, and is duly qualified to do business and is in good standing
in the jurisdictions where its ownership or leasing of property or the conduct
of its business requires it to be so qualified and it owns, directly or
indirectly, all the issued and outstanding equity securities of each of its
Significant Subsidiaries.
(d) Corporate Power. Each of Summit and its Subsidiaries has the
---------------
corporate power and authority to carry on its business as it is now being
conducted and to own all its properties and assets; and Summit has the corporate
power and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.
(e) Corporate Authority. This Agreement and the transactions
-------------------
contemplated hereby have been authorized by all necessary corporate action of
Summit and the Summit Board. Except as set forth in Section 8.01(a), shareholder
approval of the transactions contemplated hereby is not required. Assuming due
authorization, execution and delivery by GAFC, this Agreement is a valid and
legally binding agreement of Summit, enforceable in accordance with its terms
(except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by general equity
principles).
(f) Consents and Approvals; No Defaults. (i) No consents or approvals
-----------------------------------
of, or filings or registrations with, any Governmental Authority or with any
third party are required to be made or obtained by Summit or any of its
Subsidiaries in connection with the execution, delivery or performance by Summit
of this Agreement or to consummate the Merger except for (A) filings of
applications and notices with the federal and state banking and insurance
authorities; (B) filings with the NASDAQ Capital Market regarding the Summit
Common Stock to be issued in the Merger; (C) the filing and declaration of
effectiveness of the Registration Statement; (D) the filing of a certificate of
merger with the Secretary of State of the State of Delaware pursuant to the
DGCL, the filing of articles of merger with the Secretary of State of the State
of West Virginia pursuant to the WVBCA, and the issuance of the related
certificate of merger; (E) such filings as are required to be made or approvals
as are required to be obtained under the securities or "Blue Sky" laws of
various states in connection with the issuance of Summit Stock in the Merger;
and (F) receipt of the approvals set forth in Section 8.01(b). As of the date
hereof, Summit is not aware of any reason why the approvals set forth in Section
8.01(b) will not be received without the imposition of a condition, restriction
or requirement of the type described in Section 8.01(b).
(ii) Subject to the satisfaction of the requirements referred to in the
preceding paragraph and expiration of the related waiting periods, the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby do not and will not (A) constitute a breach
or violation of, or a default under, or give rise to any Lien, any acceleration
of remedies or any right of termination under, any law, rule or regulation or
any judgment, decree, order, governmental permit or license, or agreement,
indenture or instrument of Summit or of any of its Subsidiaries or to which
Summit or any of its Subsidiaries or properties is subject or bound, (B)
constitute a breach or violation of, or a default under, the certificate of
incorporation or by-laws (or similar governing documents) of Summit or any of
its Subsidiaries, or (C) require any consent or approval under any such law,
rule, regulation, judgment, decree, order, governmental permit or license,
agreement, indenture or instrument.
26
(g) Financial Reports and SEC Documents; Absence of Certain Changes or
------------------------------------------------------------------
Events. (i) Summit's Annual Report on Form 10-K for the fiscal years ended
------
December 31, 2005, 2006 and 2007, and all other reports, registration
statements, definitive proxy statements or information statements filed or to be
filed by it or any of its Subsidiaries subsequent to December 31, 2004, under
the Securities Act or under Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act in the form filed or to be filed (collectively "Summit's SEC Documents"), as
of the date filed, (A) as to form complied or will comply in all material
respects with the applicable requirements under the Securities Act or the
Exchange Act, as the case may be, and (B) did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and each of the
balance sheets or statements of condition of Summit contained in or incorporated
by reference into any of Summit's SEC Documents (including the related notes and
schedules thereto) fairly presents, or will fairly present, the financial
position of Summit and its Subsidiaries as of its date, and each of the
statements of income or results of operations and changes in stockholders'
equity and cash flows or equivalent statements of Summit in any of Summit's SEC
Documents (including any related notes and schedules thereto) fairly presents,
or will fairly present, the results of operations, changes in stockholders'
equity and cash flows, as the case may be, of Summit and its Subsidiaries for
the periods to which they relate, in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except in each case as may be noted therein, and subject to normal year-end
audit adjustments in the case of unaudited statements. Summit's Disclosure
Schedule lists, and upon request, Summit has delivered to GAFC, copies of the
documentation creating or governing all securitization transactions and
"off-balance sheet arrangements" (as defined in Item 303(c) of Regulation S-K)
effected by Summit or its Subsidiaries, since December 31, 2007. Xxxxxx &
Xxxxxx, which has expressed its opinion with respect to the financial statements
of Summit and its Subsidiaries (including the related notes) included in the
Summit SEC Documents is and has been throughout the periods covered by such
financial statements (x) a registered public accounting firm (as defined in
Section 2(a)(12) of the Xxxxxxxx-Xxxxx Act of 2002), (y) "independent" with
respect to Summit within the meaning of Regulation S-Y, and Z in compliance with
subsection (g) through (l) of Section 10A of the Exchange Act and the related
rules of the SEC and the Public Accounting Oversight Board.
(i) Since December 31, 2007, Summit and its Subsidiaries have not
incurred any liability other than in the ordinary course of business consistent
with past practice.
(ii) Since December 31, 2007, (A) Summit and its Subsidiaries have
conducted their respective businesses in the ordinary and usual course
consistent with past practice (excluding matters related to this Agreement and
the transactions contemplated hereby) and (B) no event has occurred or
circumstance arisen that, individually or taken together with all other facts,
circumstances and events (described in any paragraph of Section 6.04 or
otherwise), is reasonably likely to have a Material Adverse Effect with respect
to Summit.
27
(h) Litigation. Except as Previously Disclosed, no litigation, claim or
----------
other proceeding before any court or Governmental Authority is pending against
Summit or any of its Subsidiaries and, to the best of Summit's knowledge, no
such litigation, claim or other proceeding has been threatened.
(i) Regulatory Matters. (i) Neither Summit nor any of its Subsidiaries
------------------
or properties is a party to or is subject to any order, decree, agreement,
memorandum of understanding or similar arrangement with, or a commitment letter
or similar submission to, or extraordinary supervisory letter from, any
Regulatory Authority.
(ii) Neither Summit nor any of its Subsidiaries has been
advised by any Regulatory Authority that such Regulatory Authority is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, commitment letter, supervisory letter or similar submission.
(j) Laws. Each of Summit and its Subsidiaries:
----
(i) is in compliance with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders or
decrees applicable thereto or to the employees conducting such businesses,
including, without limitation, the Equal Credit Opportunity Act, the Fair
Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act
and all other applicable fair lending laws and other laws relating to
discriminatory business practices;
(ii) has all permits, licenses, authorizations, orders and approvals
of, and has made all filings, applications and registrations with, all
Governmental Authorities that are required in order to permit them to own or
lease their properties and to conduct their businesses substantially as
presently conducted; all such permits, licenses, certificates of authority,
orders and approvals are in full force and effect and, to the best of its
knowledge, no suspension or cancellation of any of them is threatened;
(iii) has received, since December 31, 2004, no notification or
communication from any Governmental Authority (A) asserting that Summit or any
of its Subsidiaries is not in compliance with any of the statutes, regulations,
or ordinances which such Governmental Authority enforces or (B) threatening to
revoke any license, franchise, permit, or governmental authorization (nor, to
Summit's knowledge, do any grounds for any of the foregoing exist); and
(iv) since July 1, 2001, is in compliance with the privacy provisions
of the Xxxxx-Xxxxx-Xxxxxx Act, and all other applicable laws relating to
consumer privacy.
28
(k) Employee Benefit Plans. (i) Summit's Disclosure Schedule contains a
----------------------
complete and accurate list of all existing bonus, incentive, deferred
compensation, pension, retirement, profit-sharing, thrift, savings, employee
stock ownership, stock bonus, stock purchase, restricted stock, stock option,
severance, welfare and fringe benefit plans, employment or severance agreements
and all similar practices, policies and arrangements in which any current or
former employee (the "Summit Employees"), current or former consultant (the
"Summit Consultants") or current or former director (the "Summit Directors") of
Summit or any of its Subsidiaries participates or to which any Summit Employees,
Summit Consultants or Summit Directors are a party (the "Summit Compensation and
Benefit Plans").
(ii) Each Summit Compensation and Benefit Plan has been operated and
administered in all material respects in accordance with its terms and with
applicable law, including, but not limited to, ERISA, the Code, the Securities
Act, the Exchange Act, the Age Discrimination in Employment Act, or any
regulations or rules promulgated thereunder, and all filings, disclosures and
notices required by ERISA, the Code, the Securities Act, the Exchange Act, the
Age Discrimination in Employment Act and any other applicable law have been
timely made. Each Compensation and Benefit Plan which is an "employee pension
benefit plan" within the meaning of Section 3(2) of ERISA (a "Summit Pension
Plan") and which is intended to be qualified under Section 401(a) of the Code
has received a favorable determination letter (including a determination that
the related trust under such Summit Compensation and Benefit Plan is exempt from
tax under Section 501(a) of the Code) from the IRS, and Summit is not aware of
any circumstances likely to result in revocation of any such favorable
determination letter. There is no material pending or, to the knowledge of
Summit, threatened legal action, suit or claim relating to the Summit
Compensation and Benefit Plans other than routine claims for benefits. Neither
Summit nor any of its Subsidiaries has engaged in a transaction, or omitted to
take any action, with respect to any Summit Compensation and Benefit Plan that
would reasonably be expected to subject Summit or any of its Subsidiaries to a
tax or penalty imposed by either Section 4975 of the Code or Section 502 of
ERISA, assuming for purposes of Section 4975 of the Code that the taxable period
of any such transaction expired as of the date hereof.
(iii) No liability (other than for payment of premiums to the PBGC
which have been made or will be made on a timely basis) under Title IV of ERISA
has been or is expected to be incurred by Summit or any of its Subsidiaries with
respect to any ongoing, frozen or terminated "single-employer plan", within the
meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any
of them, or any single-employer plan of any entity (an "Summit ERISA Affiliate")
which is considered one employer with Summit under Section 4001(a)(14) of ERISA
or Section 414(b) or (c) of the Code (an "Summit ERISA Affiliate Plan"). None of
Summit, any of its Subsidiaries or any Summit ERISA Affiliate has contributed,
or has been obligated to contribute, to a multiemployer plan under Subtitle E of
Title IV of ERISA at any time since September 26, 1980. No notice of a
"reportable event", within the meaning of Section 4043 of ERISA for which the
30-day reporting requirement has not been waived, has been required to be filed
for any Summit Compensation and Benefit Plan or by any Summit ERISA Affiliate
Plan within the 12-month period ending on the date hereof, and no such notice
will be required to be filed as a result of the transactions contemplated by
this Agreement. The PBGC has not instituted proceedings to terminate any Pension
Plan or Summit ERISA Affiliate Plan and, to Summit's knowledge, no condition
exists that presents a material risk that such proceedings will be instituted.
To the knowledge of Summit, there is no pending investigation or enforcement
action by the PBGC, the DOL or IRS or any other governmental agency with respect
to any Summit Compensation and Benefit Plan. Under each Summit Pension Plan and
Summit ERISA Affiliate Plan, as of the date of the most recent actuarial
valuation performed prior to the date of this Agreement, the actuarially
determined present value of all "benefit liabilities", within the meaning of
Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial
assumptions contained in such actuarial valuation of such Summit Pension Plan or
Summit ERISA Affiliate Plan), did not exceed the then current value of the
assets of such Summit Pension Plan or Summit ERISA Affiliate Plan and since such
date there has been neither an adverse change in the financial condition of such
Summit Pension Plan or Summit ERISA Affiliate Plan nor any amendment or other
change to such Pension Plan or ERISA Affiliate Plan that would increase the
amount of benefits thereunder which reasonably could be expected to change such
result.
29
(iv) All contributions required to be made under the terms of any
Summit Compensation and Benefit Plan or Summit ERISA Affiliate Plan or any
employee benefit arrangements under any collective bargaining agreement to which
Summit or any of its Subsidiaries is a party have been timely made or have been
reflected on Summit's financial statements. Neither any Summit Pension Plan nor
any Summit ERISA Affiliate Plan has an "accumulated funding deficiency" (whether
or not waived) within the meaning of Section 412 of the Code or Section 302 of
ERISA and all required payments to the PBGC with respect to each Summit Pension
Plan or Summit ERISA Affiliate Plan have been made on or before their due dates.
None of Summit, any of its Subsidiaries or any Summit ERISA Affiliate (x) has
provided, or would reasonably be expected to be required to provide, security to
any Summit Pension Plan or to any Summit ERISA Affiliate Plan pursuant to
Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take
any action, that has resulted, or would reasonably be expected to result, in the
imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(v) Neither Summit nor any of its Subsidiaries has any obligations to
provide retiree health and life insurance or other retiree death benefits under
any Summit Compensation and Benefit Plan, other than benefits mandated by
Section 4980B of the Code, and each such Summit Compensation and Benefit Plan
may be amended or terminated without incurring liability thereunder. There has
been no communication to Employees by Summit or any of its Subsidiaries that
would reasonably be expected to promise or guarantee such Employees retiree
health or life insurance or other retiree death benefits on a permanent basis.
(vi) Summit and its Subsidiaries do not maintain any Summit
Compensation and Benefit Plans covering foreign Employees.
(vii) With respect to each Summit Compensation and Benefit Plan, if
applicable, Summit has provided or made available to GAFC, true and complete
copies of existing: (A) Summit Compensation and Benefit Plan documents and
amendments thereto; (B) trust instruments and insurance contracts; (C) two most
recent Forms 5500 filed with the IRS; (D) most recent actuarial report and
financial statement; (E) the most recent summary plan description; (F) forms
filed with the PBGC (other than for premium payments); (G) most recent
determination letter issued by the IRS; (H) any Form 5310 or Form 5330 filed
with the IRS; and (I) most recent nondiscrimination tests performed under ERISA
and the Code (including 401(k) and 401(m) tests).
30
(viii) The consummation of the transactions contemplated by this
Agreement would not, directly or indirectly (including, without limitation, as a
result of any termination of employment prior to or following the Effective
Time) reasonably be expected to (A) entitle any Summit Employee, Summit
Consultant or Summit Director to any payment (including severance pay or similar
compensation) or any increase in compensation, (B) result in the vesting or
acceleration of any benefits under any Summit Compensation and Benefit Plan or
(C) result in any material increase in benefits payable under any Summit
Compensation and Benefit Plan.
(ix) Neither Summit nor any of its Subsidiaries maintains any
compensation plans, programs or arrangements the payments under which would not
reasonably be expected to be deductible as a result of the limitations under
Section 162(m) of the Code and the regulations issued thereunder.
(x) As a result, directly or indirectly, of the transactions
contemplated by this Agreement (including, without limitation, as a result of
any termination of employment prior to or following the Effective Time), none of
Summit, GAFC or the Surviving Corporation, or any of their respective
Subsidiaries will be obligated to make a payment that would be characterized as
an "excess parachute payment" to an individual who is a "disqualified
individual" (as such terms are defined in Section 280G of the Code), without
regard to whether such payment is reasonable compensation for personal services
performed or to be performed in the future.
(l) No Brokers. No action has been or will be taken by Summit that
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would give rise to any valid claim against any party hereto for a brokerage
commission, finder's fee or other like payment with respect to the transactions
contemplated by this Agreement.
(m) Takeover Laws. Summit has taken all action required to be taken by
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it in order to exempt this Agreement and the transactions contemplated hereby
from, and this Agreement and the transactions contemplated hereby are exempt
from, the requirements of any Takeover Laws applicable to Summit.
(n) Environmental Matters. To Summit's knowledge, neither the conduct
---------------------
nor operation of Summit or its Subsidiaries nor any condition of any property
presently or previously owned, leased or operated by any of them (including,
without limitation, in a fiduciary or agency capacity), or on which any of them
holds a Lien, violates or violated Environmental Laws and to Summit's knowledge
no condition has existed or event has occurred with respect to any of them or
any such property that, with notice or the passage of time, or both, is
reasonably likely to result in liability under Environmental Laws. To Summit's
knowledge, neither Summit nor any of its Subsidiaries has received any notice
from any person or entity that Summit or its Subsidiaries or the operation or
condition of any property ever owned, leased, operated, or held as collateral or
in a fiduciary capacity by any of them are or were in violation of or otherwise
are alleged to have liability under any Environmental Law, including, but not
limited to, responsibility (or potential responsibility) for the cleanup or
other remediation of any pollutants, contaminants, or hazardous or toxic wastes,
substances or materials at, on, beneath, or originating from any such property.
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(o) Tax Matters. (i) All Tax Returns that are required to be filed by
-----------
or with respect to Summit and its Subsidiaries have been duly filed, (ii) all
Taxes shown to be due on the Tax Returns referred to in clause (i) have been
paid in full, (iii) the Tax Returns referred to in clause (i) have been examined
by the Internal Revenue Service or the appropriate state, local or foreign
taxing authority or the period for assessment of the Taxes in respect of which
such Tax Returns were required to be filed has expired, (iv) all deficiencies
asserted or assessments made as a result of such examinations have been paid in
full, (v) no issues that have been raised by the relevant taxing authority in
connection with the examination of any of the Tax Returns referred to in clause
(i) are currently pending, and (vi) no waivers of statutes of limitation have
been given by or requested with respect to any Taxes of Summit or its
Subsidiaries. Neither Summit nor any of its Subsidiaries has any liability with
respect to income, franchise or similar Taxes that accrued on or before the end
of the most recent period covered by Summit's SEC Documents filed prior to the
date hereof in excess of the amounts accrued with respect thereto that are
reflected in the financial statements included in Summit's SEC Documents filed
on or prior to the date hereof. As of the date hereof, neither Summit nor any of
its Subsidiaries has any reason to believe that any conditions exist that might
prevent or impede the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code.
(p) Books and Records. The books and records of Summit and its
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Subsidiaries have been fully, properly and accurately maintained in all material
respects, and there are no material inaccuracies or discrepancies of any kind
contained or reflected therein, and they fairly present the substance of events
and transactions included therein.
(q) Insurance. Summit's Disclosure Schedule lists all of the insurance
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policies, binders, or bonds maintained by Summit or its Subsidiaries. Summit and
its Subsidiaries are insured with insurers believed to be reputable against such
risks and in such amounts as the management of Summit reasonably has determined
to be prudent in accordance with industry practices. All such insurance policies
are in full force and effect; Summit and its Subsidiaries are not in material
default thereunder; and all claims thereunder have been filed in due and timely
fashion.
(r) Disclosure. The representations and warranties contained in this
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Section 6.04 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 6.04, in light of the circumstances under
which they are made, not misleading.
(s) Representations and Warranties of Merger Sub.
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(i) Organization, Standing and Authority. The Merger Sub is duly
organized and validly existing in good standing under the laws of the state of
its organization, and is duly qualified to do business and in good standing in
the jurisdictions where its ownership or leasing of property or the conduct of
its business requires it to be so qualified. The Merger Sub has been organized
for the purpose of the transactions contemplated by this Agreement, and Merger
Sub has not previously conducted any business or incurred any liabilities.
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(ii) Power. The Merger Sub has the power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
(iii) Authority. This Agreement and the transactions contemplated
hereby have been authorized by all requisite action on the part of the Merger
Sub. This Agreement is a valid and legally binding agreement of the Merger Sub
enforceable in accordance with its terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or
affecting creditors' rights or by general equity principles).
ARTICLE VII
Covenants
7.01 Reasonable Best Efforts. Subject to the terms and conditions of
this Agreement, each of GAFC and Summit agrees to use its reasonable best
efforts in good faith to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the Merger as promptly as
practicable and otherwise to enable consummation of the transactions
contemplated hereby and shall cooperate fully with the other party hereto to
that end.
7.02 Stockholder Approval. (a) GAFC agrees to take, in accordance with
applicable law and the GAFC Certificate and GAFC By-laws, all action necessary
to convene an appropriate meeting of its stockholders to consider and vote upon
the approval of this Agreement and any other matters required to be approved by
GAFC's stockholders for consummation of the Merger (including any adjournment or
postponement, the "GAFC Meeting"), as promptly as practicable after the
Registration Statement is declared effective. The GAFC Board will recommend that
the GAFC stockholders approve and adopt the Agreement and the transactions
contemplated hereby, provided that the GAFC Board may fail to make such
recommendation, or withdraw, modify or change any such recommendation, if the
GAFC Board, after having consulted with and considered the advice of outside
counsel, has determined that the making of such recommendation, or the failure
to withdraw, modify or change such recommendation, would be reasonably likely to
constitute a breach of the fiduciary duties of the members of the GAFC Board
under applicable law.
(b) If the assumption of the Trust Preferred Securities by Summit
requires Summit to obtain shareholder approval to amend its Restated Articles of
Incorporation (the "Summit Articles"), then Summit agrees to take, in accordance
with applicable law, the Indenture and the Guarantee, and the Summit Articles
and Summit By-laws, all action necessary to convene an appropriate meeting of
its stockholders to consider and vote upon the approval of the amendment to its
Restated Articles of Incorporation (including any adjournment or postponement,
the "Summit Meeting"), as promptly as practicable after the Registration
Statement is declared effective. The Summit Board will recommend that the Summit
stockholders approve and adopt the amendment to its Restated Articles of
Incorporation.
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7.03 Registration Statement. (a) Summit agrees to prepare a
registration statement on Form S-4 (the "Registration Statement") to be filed by
Summit with the SEC in connection with the issuance of Summit Common Stock in
the Merger (including the prospectus of Summit and, if required, the proxy
solicitation materials of Summit (the "Summit Proxy Statement"), and proxy
solicitation materials of GAFC constituting a part thereof (the "Proxy
Statement") and all related documents). GAFC and Summit agree to cooperate, and
to cause their respective Subsidiaries to cooperate, with the other and its
counsel and its accountants in the preparation of the Registration Statement,
the Summit Proxy Statement, if required, and the Proxy Statement; and provided
that GAFC and its Subsidiaries have cooperated as required above, Summit agrees
to file the Registration Statement (including the Proxy Statement in preliminary
form) with the SEC as promptly as reasonably practicable and in any event within
thirty (30) days from the date this Agreement is executed. Each of GAFC and
Summit agrees to use all reasonable efforts to cause the Registration Statement
to be declared effective under the Securities Act as promptly as reasonably
practicable after filing thereof. Summit also agrees to use all reasonable
efforts to obtain, prior to the effective date of the Registration Statement,
all necessary state securities law or "Blue Sky" permits and approvals required
to carry out the transactions contemplated by this Agreement. GAFC agrees to
furnish to Summit all information concerning GAFC, its Subsidiaries, officers,
directors and stockholders as may be reasonably requested in connection with the
foregoing and shall have the right to review and consult with Summit and approve
the form of, and any characterization of such information included in, the
Registration Statement prior to its being filed with the SEC.
(b) Each of GAFC and Summit agrees, as to itself and its Subsidiaries,
that none of the information supplied or to be supplied by it for inclusion or
incorporation by reference in (i) the Registration Statement will, at the time
the Registration Statement and each amendment or supplement thereto, if any,
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (ii) the Proxy
Statement and any amendment or supplement thereto will, at the date of mailing
to stockholders and at the time of the GAFC Meeting, as the case may be, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or any statement which, in the light of the circumstances under which
such statement is made, will be false or misleading with respect to any material
fact, or which will omit to state any material fact necessary in order to make
the statements therein not false or misleading or necessary to correct any
statement in any earlier statement in the Proxy Statement or any amendment or
supplement thereto. Each of GAFC and Summit further agrees that if it shall
become aware prior to the Effective Date of any information furnished by it that
would cause any of the statements in the Proxy Statement to be false or
misleading with respect to any material fact, or to omit to state any material
fact necessary to make the statements therein not false or misleading, to
promptly inform the other party thereof and to take the necessary steps to
correct the Proxy Statement.
34
(c) Summit agrees to advise GAFC, promptly after Summit receives notice
thereof, of the time when the Registration Statement has become effective or any
supplement or amendment has been filed, of the issuance of any stop order or the
suspension of the qualification of Summit Stock for offering or sale in any
jurisdiction, of the initiation or threat of any proceeding for any such
purpose, or of any request by the SEC for the amendment or supplement of the
Registration Statement or for additional information.
7.04 Press Releases. Each of GAFC and Summit agrees that it will not,
without the prior approval of the other party, file any material pursuant to SEC
Rules 165 or 425, or issue any press release or written statement for general
circulation relating to the transactions contemplated hereby, except as
otherwise required by applicable law or regulation or NASDAQ rules.
7.05 Access; Information. (a) Each of GAFC and Summit agrees that upon
reasonable notice and subject to applicable laws relating to the exchange of
information, it shall afford the other party and the other party's officers,
employees, counsel, accountants and other authorized representatives, such
access during normal business hours throughout the period prior to the Effective
Time to the books, records (including, without limitation, tax returns, and,
subject to the consent of the independent auditors, work papers of independent
auditors), properties, personnel and to such other information as any party may
reasonably request and, during such period, it shall furnish promptly to such
other party (i) a copy of each material report, schedule and other document
filed by it pursuant to the requirements of federal or state securities or
banking laws, and (ii) all other information concerning the business, properties
and personnel of it as the other may reasonably request.
(b) Each agrees that it will not, and will cause its representatives
not to, use any information obtained pursuant to this Section 7.05 (as well as
any other information obtained prior to the date hereof in connection with the
entering into of this Agreement) for any purpose unrelated to the consummation
of the transactions contemplated by this Agreement. Subject to the requirements
of law, each party will keep confidential, and will cause its representatives to
keep confidential, all information and documents obtained pursuant to this
Section 7.05 (as well as any other information obtained prior to the date hereof
in connection with the entering into of this Agreement) unless such information
(i) was already known to such party, (ii) becomes available to such party from
other sources not known by such party to be bound by a confidentiality
obligation, (iii) is disclosed with the prior written approval of the party to
which such information pertains or (iv) is or becomes readily ascertainable from
published information or trade sources. In the event that this Agreement is
terminated or the transactions contemplated by this Agreement shall otherwise
fail to be consummated, each party shall promptly cause all copies of documents
or extracts thereof containing information and data as to another party hereto
to be returned to the party which furnished the same. No investigation by either
party of the business and affairs of the other shall affect or be deemed to
modify or waive any representation, warranty, covenant or agreement in this
Agreement, or the conditions to either party's obligation to consummate the
transactions contemplated by this Agreement.
35
(c) During the period from the date of this Agreement to the Effective
Time, each party shall promptly furnish the other with copies of all monthly and
other interim financial statements produced in the ordinary course of business
as, the same shall become available.
7.06 Acquisition Proposals. GAFC agrees that it shall not, and shall
cause its Subsidiaries and its Subsidiaries' officers, directors, agents,
advisors and affiliates not to, solicit or encourage inquiries or proposals with
respect to, or engage in any negotiations concerning, or provide any
confidential information to, or have any discussions with any person relating
to, any Acquisition Proposal. It shall immediately cease and cause to be
terminated any activities, discussions or negotiations conducted prior to the
date of this Agreement with any parties other than Summit with respect to any of
the foregoing and shall use its reasonable best efforts to enforce any
confidentiality or similar agreement relating to an Acquisition Proposal.
Notwithstanding the foregoing, if, at any time the GAFC Board determines in good
faith, after consultation with outside counsel, that failure to do so would be
reasonably likely to constitute a breach of its fiduciary duties under
applicable law, GAFC, in response to a written Acquisition Proposal that was
unsolicited or that did not otherwise result from a breach of this Section 7.06,
may furnish non-public information with respect to GAFC to the Person who made
such Acquisition Proposal and participate in negotiations regarding such
Acquisition Proposal.
7.07 Takeover Laws. No party hereto shall take any action that would
cause the transactions contemplated by this Agreement to be subject to
requirements imposed by any Takeover Law and each of them shall take all
necessary steps within its control to exempt (or ensure the continued exemption
of) the transactions contemplated by this Agreement from any applicable Takeover
Law, as now or hereafter in effect.
7.08 Funding of Loan Loss Allowance and Payment of Expenses. If
required, GAFC shall make appropriate accruals, consistent with GAAP fairly
applied and the Interagency Policy Statement on Allowance for Loan and Lease
Losses, to ensure that its allowance for loan losses is adequate to absorb all
estimated inherent losses in the loan portfolio on the Effective Date. Summit
shall determine whether GAFC's allowance for loan losses is adequate, with the
concurrence of GAFC's independent accountants. GAFC shall, consistent with GAAP
fairly applied, prior to the Effective Date, pay or accrue all costs and
expenses incurred by GAFC, and regardless of whether required to do so under
GAAP shall pay prior to the Effective Date, all expenses relating to or arising
from the transactions contemplated hereunder.
7.09 Certain Policies. Immediately prior to the Effective Date, GAFC
shall, consistent with generally accepted accounting principles and on a basis
mutually satisfactory to it and Summit, modify and change its loan, litigation
and real estate valuation policies and practices (including loan classifications
and levels of reserves) so as to be applied on a basis that is consistent with
that of Summit and shall make appropriate accruals for any employee benefits,
plans, arrangements or obligations assumed by Summit under this Agreement;
provided, however, that GAFC shall not be obligated to take any such action
pursuant to this Section 7.09 unless and until Summit acknowledges that all
conditions to its obligation to consummate the Merger have been satisfied and
certifies to GAFC that Summit's representations and warranties, subject to
Section 6.02, are true and correct as of such date and that Summit is otherwise
material in compliance with this Agreement. Summit and GAFC also shall consult
with respect to the character, amount, and timing of restructuring and
Merger-related expense charges to be taken by each of them in connection with
the transactions contemplated by this Agreement and shall take such charges in
accordance with GAAP as may be mutually agreed upon by them. GAFC's
representations, warranties and covenants contained in this Agreement shall not
be deemed to be untrue or breached in any respect for any purpose as a
consequence of any modifications or changes undertaken solely on account of this
Section 7.09.
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7.10 Regulatory Applications. (a) Summit and GAFC and their respective
Subsidiaries shall cooperate and use their respective reasonable best efforts to
prepare all documentation, to effect all filings and to obtain all permits,
consents, approvals and authorizations of all third parties and Governmental
Authorities necessary to consummate the transactions contemplated by this
Agreement. Each of Summit and GAFC shall have the right to review in advance,
and to the extent practicable each will consult with the other, in each case
subject to applicable laws relating to the exchange of information, with respect
to, all material written information submitted to any third party or any
Governmental Authority in connection with the transactions contemplated by this
Agreement. In exercising the foregoing right, each of the parties hereto agrees
to act reasonably and as promptly as practicable. Each party hereto agrees that
it will consult with the other party hereto with respect to the obtaining of all
material permits, consents, approvals and authorizations of all third parties
and Governmental Authorities necessary or advisable to consummate the
transactions contemplated by this Agreement and each party will keep the other
party apprised of the status of material matters relating to completion of the
transactions contemplated hereby.
(b) Each party agrees, upon request, to furnish the other party with
all information concerning itself, its Subsidiaries, directors, officers and
stockholders and such other matters as may be reasonably necessary or advisable
in connection with any filing, notice or application made by or on behalf of
such other party or any of its Subsidiaries to any third party or Governmental
Authority.
7.11 Indemnification. (a) Following the Effective Date and for a period
of three (3) years thereafter, Summit shall indemnify, defend and hold harmless
the present directors, officers and employees of GAFC and its Subsidiaries
(each, an "Indemnified Party") against all costs or expenses (including
reasonable attorneys' fees), judgments, fines, losses, claims, damages or
liabilities (collectively, "Costs") incurred in connection with any claim,
action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of actions or omissions occurring
at or prior to the Effective Time (including, without limitation, the
transactions contemplated by this Agreement) to the fullest extent that GAFC is
permitted or required to indemnify (and advance expenses to) its directors and
officers under the laws of the State of Delaware, the GAFC Certificate, the GAFC
By-Laws and any agreement as in effect on the date hereof; provided that any
determination required to be made with respect to whether an officer's,
director's or employee's conduct complies with the standards set forth under
Delaware law, the GAFC Certificate, the GAFC By-Laws and any agreement shall be
made by independent counsel (which shall not be counsel that provides material
services to Summit) selected by Summit and reasonably acceptable to such officer
or director.
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(b) Any Indemnified Party wishing to claim indemnification under
Section 7.11(a), upon learning of any claim, action, suit, proceeding or
investigation described above, shall promptly notify Summit thereof; provided
that the failure so to notify shall not affect the obligations of Summit under
Section 7.11(a) unless and to the extent that Summit is actually prejudiced as a
result of such failure.
(c) If Summit or any of its successors or assigns shall consolidate
with or merge into any other entity and shall not be the continuing or surviving
entity of such consolidation or merger or shall transfer all or substantially
all of its assets to any entity, then and in each case, proper provision shall
be made so that the successors and assigns of Summit shall assume the
obligations set forth in this Section 7.11.
(d) The provisions of this Section 7.11 shall survive the Effective
Time and are intended to be for the benefit of, and shall be enforceable by,
each Indemnified Party and his or her heirs and representatives.
7.12 Benefit Plans. (a) It is the intention of Summit that within a
reasonable period of time following the Effective Time (i) it will provide
employees of GAFC with employee benefit plans substantially similar in the
aggregate to those provided to similarly situated employees of Summit, (ii)
Summit shall cause any and all pre-existing condition limitations (to the extent
such limitations did not apply to a pre-existing condition under the
Compensation and Benefit Plans) and eligibility waiting periods under group
health plans to be waived with respect to such participants and their eligible
dependents, and (iii) all GAB employees will receive credit for years of service
with GAFC and its predecessors prior to the Effective Time for purposes of
eligibility and vesting and not for purposes of benefit accrual under Summit's
benefit plans. Summit shall maintain GAFC's existing employee benefit plans
until such time as Summit has provided similar plans to GAFC's employees as
contemplated in the preceding sentence. GAB employees shall not be entitled to
accrual of benefits or allocation of contributions under Summit's benefit plans
based on years of service with GAFC and its predecessors prior to the Effective
Date.
(b) Immediately prior to the Effective Date, GAFC shall take such
action as may be necessary to terminate its 401(k) plan, including accruing the
estimated expense associated with terminating the 401(k) plan. Following the
receipt of a favorable determination letter from the IRS relating to the
termination of the 401(k) plan, the assets of the plan shall be distributed to
participants as provided in the plan. Notwithstanding the foregoing, the 401(k)
plan trustee may make distributions to all non-continuing GAB employees before
the receipt of a favorable determination letter. In the event a favorable ruling
is not issued, GAFC agrees that termination of the 401(k) plan shall not occur
and the 401(k) plan shall not be merged with Summit's 401(k) plan.
7.13 Notification of Certain Matters. Each of GAFC and Summit shall
give prompt notice to the other of any fact, event or circumstance known to it
that (i) is reasonably likely, individually or taken together with all other
facts, events and circumstances known to it, to result in any Material Adverse
Effect with respect to it or (ii) would cause or constitute a material breach of
any of its representations, warranties, covenants or agreements contained
herein.
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7.14 Contractual Rights of Current Employees. At and following the
Effective Time, Summit shall honor, and Summit shall continue to be obligated to
perform, in accordance with their terms, all benefit obligations to, and
contractual rights of, current and former employees of GAFC and its Subsidiaries
existing as of the Effective Date, as well as all employment, severance,
deferred compensation, split dollar life insurance or "change-in-control"
agreements, plans or policies of GAFC and its Subsidiaries which are Previously
Disclosed. Summit acknowledges that the consummation of the Merger will
constitute a "change-in-control" of for purposes of any employee benefit plans,
agreements and arrangements of GAFC and its Subsidiaries.
7.15 GAFC Trust Preferred Securities.
(a) GAFC shall cooperate with Summit to permit Summit to assume the
obligations of GAFC under the Indenture and the Guarantee and to receive the
transfer of the Common Securities, including by causing GAFC's counsel to
deliver such opinions as the Trustee may reasonably require with respect to the
assumption of the GAFC Trust Preferred Securities.
(b) From and after the date hereof and until and including the Closing
Date, GAFC shall (i) pay, or accrue, as applicable , and cause the Trust to pay,
or accrue, as applicable, all amounts due (when and as due) and comply, and
cause each Trust to comply, with all of its obligations under the Indenture and
the Guarantee, and such other transaction documents (together the "Operative
Documents"), and (ii) not enter into any agreement (or amend, alter or agree to
amend or alter any Operative Document or other agreement) with the Trust.
7.16 Transition. Commencing on the date hereof, and in all cases
subject to applicable law and regulation, GAFC shall, and shall cause its
Subsidiaries to, cooperate with Summit and its Subsidiaries to facilitate the
integration of the parties and their respective businesses effective as of the
Closing Date or such later date as may be determined by Summit. Without limiting
the generality of the foregoing, from the date hereof through the Closing Date
and consistent with the performance of their day-to-day operations and the
continuous operation of GAFC and its Subsidiaries in the ordinary course of
business, GAFC shall cause the employees and officers of GAFC and its
Subsidiaries to use their reasonable best efforts to provide support, including
support from its outside contractors and vendors, and to assist Summit in
performing all tasks, including equipment installation, reasonably required to
result in a successful integration at the Closing or such later date as may be
determined by Summit. In addition, GAFC shall cooperate with Summit in seeking
to amend certain lease arrangements of GAFC and its Subsidiaries as specified by
Summit, such amendments to be effective only upon consummation of the Merger.
39
7.17 Compliance with Regulatory Authority Order. GAFC shall, and shall
cause its Subsidiaries to, use its reasonable best efforts in good faith to
take, or cause to be taken, all actions, and to do or cause to be done, all
things necessary, proper or desirable, or advisable under applicable law so as
to comply with any order, decree, agreement, memorandum of understanding,
administrative action or similar arrangement with, or commitment letter or
similar submission to, or extraordinary supervisory letter from any Regulatory
Authority relating to GAFC or its Subsidiaries, including, but not limited to,
the Cease and Desist Order, except to the extent the Office of Thrift
Supervision may waive or modify the terms of the Cease and Desist Order (in
which case GAFC shall comply with such waiver or modification). GAFC agrees to
provide to Summit any communication, written or otherwise, from or to a
Regulatory Authority within two days of receipt or submission by GAFC.
7.18 Compliance with Laws. Each of GAFC and its Subsidiaries shall
comply in all material respects with all applicable federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders, or
decrees applicable thereto or to employees conducting such businesses.
ARTICLE VIII
Conditions to Consummation of the Merger
8.01 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each of Summit and GAFC to consummate the Merger is
subject to the fulfillment by Summit and GAFC prior to the Effective Time of
each of the following conditions:
(a) Stockholder Approval. This Agreement shall have been duly approved
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by the requisite vote of the stockholders of (i) GAFC and (ii) Summit, if the
assumption of the Trust Preferred Securities by Summit requires Summit to obtain
shareholder approval to amend the Summit Articles.
(b) Regulatory Approvals. All regulatory approvals required to
--------------------
consummate the transactions contemplated hereby shall have been obtained and
shall remain in full force and effect and all statutory waiting periods in
respect thereof shall have expired and no such approvals shall contain any
conditions, restrictions or requirements which the Summit Board reasonably
determines in good faith would either before or after the Effective Time have a
Material Adverse Effect on the Surviving Corporation and its Subsidiaries taken
as a whole.
(c) No Injunction. No Governmental Authority of competent jurisdiction
-------------
shall have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and prohibits consummation of the
transactions contemplated by this Agreement.
(d) Registration Statement. The Registration Statement shall have
----------------------
become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the SEC.
40
(e) Blue Sky Approvals. All permits and other authorizations under
------------------
state securities laws necessary to consummate the transactions contemplated
hereby and to issue the shares of Summit Common Stock to be issued in the Merger
shall have been received and be in full force and effect.
(f) Listing. To the extent required, the shares of Summit Common Stock
-------
to be issued in the Merger shall have been approved for listing on the NASDAQ
Capital Market, subject to official notice of issuance.
8.02 Conditions to Obligation of GAFC. The obligation of GAFC to
consummate the Merger is also subject to the fulfillment or written waiver by
GAFC prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
------------------------------
of Summit set forth in this Agreement shall be true and correct, subject to
Section 6.02, as of the date of this Agreement and as of the Effective Date as
though made on and as of the Effective Date (except that representations and
warranties that by their terms speak as of the date of this Agreement or some
other date shall be true and correct as of such date), and GAFC shall have
received a certificate, dated the Effective Date, signed on behalf of Summit by
the Chief Executive Officer and the Chief Financial Officer of Summit to such
effect.
(b) Performance of Obligations of Summit. Summit shall have performed
------------------------------------
in all material respects all obligations required to be performed by it under
this Agreement at or prior to the Effective Time, and GAFC shall have received a
certificate, dated the Effective Date, signed on behalf of Summit by the Chief
Executive Officer and the Chief Financial Officer of Summit to such effect.
8.03 Conditions to Obligation of Summit. The obligation of Summit to
consummate the Merger is also subject to the fulfillment or written waiver by
Summit prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
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of GAFC set forth in this Agreement shall be true and correct, subject to
Section 6.02, as of the date of this Agreement and as of the Effective Date as
though made on and as of the Effective Date (except that representations and
warranties that by their terms speak as of the date of this Agreement or some
other date shall be true and correct as of such date) and Summit shall have
received a certificate, dated the Effective Date, signed on behalf of GAFC by
the Chief Executive Officer and the Chief Financial Officer of GAFC to such
effect.
(b) Performance of Obligations of GAFC. GAFC shall have performed in
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all material respects all obligations required to be performed by it under this
Agreement at or prior to the Effective Time, and Summit shall have received a
certificate, dated the Effective Date, signed on behalf of GAFC by the Chief
Executive Officer and the Chief Financial Officer of GAFC to such effect.
41
(c) Opinion of Summit's Counsel. Summit and GAFC shall have received an
---------------------------
opinion of Hunton & Xxxxxxxx, special counsel to Summit, dated the Effective
Date, to the effect that, on the basis of facts, representations and assumptions
set forth in such opinion, (i) the Merger constitutes a reorganization under
Section 368 of the Code (ii) no gain or loss will be recognized by stockholders
of GAFC who receive shares of Summit Common Stock in exchange for shares of GAFC
Common Stock, except that gain or loss may be recognized as to cash received in
lieu of fractional share interests, and (iii) after the Merger, Summit will be
allowed to carry forward GAFC's consolidated net operating losses under Section
382 of the Code. In rendering its opinion, Hunton &Williams may require and rely
upon representations contained in letters from Summit and others.
(d) Core Deposits. The balance of Core Deposits shall not be less than
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$144 million.
(e) Consents to Lease Assignments. All consents or approvals of any
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third party required to be made or obtained by GAFC or any of its Subsidiaries
in connection with the assignment of any real property lease to which GAFC or
its Subsidiaries is a party shall have been obtained in a form reasonably
satisfactory to Summit.
(f) Regulatory Issues. No Regulatory Authority shall have issued any
-----------------
order, decree, agreement, memorandum of understanding, administrative action or
similar arrangement with, or commitment letter or similar submission to, or
extraordinary supervisory letter from such Regulatory Authority relating to GAFC
or its Subsidiaries that shall remain in effect after the Effective Time.
(g) Loan Loss Allowance Fully Funded. GAFC shall have performed in all
--------------------------------
respects its obligations required to be performed by it under Section 7.08 of
this Agreement at or prior to the Effective Date.
(h) Minimum Regulatory Capital Ratios. GAFC and its subsidiary, GAB,
---------------------------------
shall have the following minimum regulatory capital ratios on a consolidated
basis: Tier 1 (core) capital ratio equal to 4.0%; Tier 1 risk-based capital
ratio equal to 4.0 %; and total risk-based capital ratio equal to 8.0%. GAFC's
minimum regulatory capital ratios shall be calculated in accordance with the
regulatory capital regulations issued by the Federal Reserve Board, even though
such regulations do not apply to GAFC, and GAB's regulatory capital ratios shall
be calculated in accordance with the regulatory capital requirements of the
Office of Thrift Supervision. The maximum ratio of the sum of non-performing
loans, OREO, and the net loans charged-off subsequent to March 31, 2008, to
total consolidated assets shall not exceed 2.78%. "Non-performing loans" shall
mean loans that are 90 days or more past due and non-accrual loans.
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ARTICLE IX
Termination
9.01 Termination. This Agreement may be terminated, and the Merger may
be abandoned:
(a) Mutual Consent. At any time prior to the Effective Time, by the
--------------
mutual consent of Summit, GAFC and Merger Sub, if the Board of Directors of each
so determines by vote of a majority of the members of its entire Board.
(b) Breach. At any time prior to the Effective Time, by Summit or GAFC
------
(provided that the party seeking termination is not then in material breach of
any representation, warranty, covenant or other agreement contained herein), if
its Board of Directors so determines by vote of a majority of the members of its
entire Board, in the event of either: (i) a breach by the other party of any
representation or warranty contained herein (subject to the standard set forth
in Section 6.02), which breach cannot be or has not been cured within 30 days
after the giving of written notice to the breaching party of such breach; or
(ii) a breach by the other party of any of the covenants or agreements contained
herein, which breach cannot be or has not been cured within 30 days after the
giving of written notice to the breaching party of such breach, and provided
that with respect to any breach of the covenants and agreements set forth in
Sections 7.03, 7.04, 7.12, and 7.14 only would be reasonably likely,
individually or in the aggregate with other breaches, to result in a Material
Adverse Effect.
(c) Delay. At any time prior to the Effective Time, by Summit or GAFC,
-----
if its Board of Directors so determines by vote of a majority of the members of
its entire Board, in the event that (i) the conditions to consummation of the
Merger (other than the receipt of regulatory approvals set forth in Section
8.01(b) and the receipt of shareholder approvals set forth in Section 8.01(a))
have not been fulfilled by September 30, 2008 or (ii) the Merger is not
consummated by December 31, 2008, except to the extent that the failure of such
conditions to consummation to be fulfilled, or the Merger then to be consummated
arises out of or results from the knowing action or inaction of the party
seeking to terminate pursuant to this Section 9.01(c).
(d) No Approval. By GAFC or Summit, if its Board of Directors so
-----------
determines by a vote of a majority of the members of its entire Board, in the
event (i) the approval of any Governmental Authority required for consummation
of the Merger and the other transactions contemplated by this Agreement shall
have been denied by final nonappealable action of such Governmental Authority or
(ii) the stockholder approval required by Section 8.01(a) herein is not obtained
at the GAFC Meeting, or the Summit Meeting, as applicable.
(e) Failure to Recommend, Etc. At any time prior to the GAFC Meeting,
-------------------------
by Summit if the GAFC Board shall have failed to make its recommendation
referred to in Section 7.02, withdrawn such recommendation or modified or
changed such recommendation in a manner adverse in any respect to the interests
of Summit.
43
(f) Superior Proposal. By GAFC, if the GAFC Board so determines by a
-----------------
vote of the majority of the members of its entire board, at any time prior to
the GAFC Meeting, in order to concurrently enter into an agreement with respect
to an unsolicited Acquisition Proposal that was received and considered by GAFC
in compliance with Section 7.06 and that would, if consummated, result in a
transaction that is more favorable to GAFC's stockholders from a financial point
of view than the Merger (a "Superior Proposal"); provided, however, that (i)
this Agreement may be terminated by GAFC pursuant to this Section 9.01(f) only
after the fifth business day following Summit's receipt of written notice from
GAFC advising Summit that GAFC is prepared to enter into an agreement with
respect to a Superior Proposal and only if, during such five business day period
Summit elects not to make an offer or Summit does not make an offer to GAFC that
the GAFC Board determines in good faith, after consultation with its financial
and legal advisors, is at least as favorable as the Superior Proposal.
9.02 Effect of Termination and Abandonment. In the event of termination
of this Agreement and the abandonment of the Merger pursuant to this Article IX,
no party to this Agreement shall have any liability or further obligation to any
other party hereunder except (i) as set forth in Section 9.03 and (ii) that
termination will not relieve a breaching party from liability for any willful
breach of this Agreement giving rise to such termination.
9.03 Fees and Expenses. (a) In the event that this Agreement shall be
terminated (i) by either party pursuant to Section 9.01(d)(ii), and, at or prior
to the time of the failure of GAFC's stockholders to approve this Agreement and
the Merger, an Acquisition Proposal shall have been made public and not
withdrawn, or (ii) by GAFC pursuant to Section 9.01(f), then GAFC shall pay
Summit in immediately available funds a fee of $550,000 (the "Section 9.03(a)
Fee") as follows: (i) $150,000 no later than two (2) business days after the
date of termination, (ii) $100,000 on the date that is one (1) year after the
termination date, (iii) $100,000 on the date that is two (2) years after the
termination date, and (iv) $200,000 on the date that is three (3) years after
the termination date. Notwithstanding the foregoing, if GAFC consummates the
transaction that is the subject of the Acquisition Proposal, then the remaining
balance shall be due and payable no later than two (2) business days after
consummation.
(b) In the event that (i) this Agreement is terminated pursuant to
Section 9.01(e); or (ii) this Agreement is terminated by Summit pursuant to
Section 9.01(b); then, in any such event, GAFC shall pay Summit promptly (but in
no event later than two business days after the first of such events shall have
occurred) a fee of $250,000 (the "Section 9.03(b) Fee"), which amount shall be
payable in immediately available funds.
(c) In the event that GAFC shall fail to pay the Section 9.03(a) Fee or
the Section 9.03(b) Fee when due, the applicable fee shall be deemed to include
the costs and expenses actually incurred or accrued by Summit (including,
without limitation, fees and expenses of counsel) in connection with the
collection of the applicable fee under the enforcement of this Section 9.03,
together with interest on such applicable unpaid fee, commencing on the date
that the applicable fee became due, at a rate equal to the rate of interest
publicly announced by Citibank, N.A., from time to time, in the City of New
York, as such bank's Base Rate plus 2.00%.
44
(d) In no event shall GAFC be obligated to pay both the Section 9.03(a)
Fee and the Section 9.03(b) Fee.
ARTICLE X
Miscellaneous
10.01 Survival. No representations, warranties, agreements and
covenants contained in this Agreement shall survive the Effective Time (other
than Sections 2.02(b), 4.04, 7.11, 7.12, 7.15 and this Article X which shall
survive the Effective Time) or the termination of this Agreement if this
Agreement is terminated prior to the Effective Time (other than Sections
7.03(b), 7.05(b), 9.02, this Article X which shall survive such termination).
10.02 Waiver; Amendment. Prior to the Effective Time, any provision of
this Agreement may be (i) waived by the party benefited by the provision, or
(ii) amended or modified at any time, by an agreement in writing between the
parties hereto executed in the same manner as this Agreement, except that after
the GAFC Meeting, this Agreement may not be amended if it would violate the
DGCL.
10.03 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
10.04 Governing Law. 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).
10.05 Expenses. Each party hereto will bear all expenses incurred by it
in connection with this Agreement and the transactions contemplated hereby,
except that printing expenses shall be shared equally between GAFC and Summit.
10.06 Notices. All notices, requests and other communications hereunder
to a party shall be in writing and shall be deemed given if personally
delivered, telecopied (with confirmation) or mailed by registered or certified
mail (return receipt requested) to such party at its address set forth below or
such other address as such party may specify by notice to the parties hereto.
If to GAFC, to:
GREATER ATLANTIC FINANCIAL CORP.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxx X00
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
President and Chief Executive Officer
45
With a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
Suite 900
000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Xx., Esq.
If to Summit or Merger Sub, to:
SUMMIT FINANCIAL GROUP, INC.
000 Xxxxx Xxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attn: H. Xxxxxxx Xxxxx, III
President and Chief Executive Officer
Xxxxxx X. Tissue
Chief Financial Officer
With a copy to:
Xxxxxx Xxxx XxXxxxx Xxxxx & Love LLP
000 Xxxxxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
10.07 Entire Understanding; No Third Party Beneficiaries. This
Agreement represents the entire understanding of the parties hereto with
reference to the transactions contemplated hereby and this Agreement supersedes
any and all other oral or written agreements heretofore made. Except for
Sections 7.11 and 7.12, nothing in this Agreement expressed or implied, is
intended to confer upon any person, other than the parties hereto or their
respective successors, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
10.08 Interpretation; Effect. When a reference is made in this
Agreement to Sections, Exhibits or Disclosure Schedules, such reference shall be
to a Section of, or Exhibit or Disclosure Schedule to, this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and are not part of this Agreement.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." No provision of this Agreement shall be construed to require GAFC,
Summit or any of their respective Subsidiaries, affiliates or directors to take
any action which would violate applicable law (whether statutory or common law),
rule or regulation.
46
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in counterparts by their duly authorized officers, all
as of the day and year first above written.
GREATER ATLANTIC FINANCIAL CORP.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Xxxxxxx X. Xxxx
Title: President and Chief Executive Officer
SUMMIT FINANCIAL GROUP, INC.
By: /s/ H. Xxxxxxx Xxxxx, III
-----------------------------------------
H. Xxxxxxx Xxxxx, III
Title: President and Chief Executive Officer
SFG II, INC.
By: /s/ H. Xxxxxxx Xxxxx, III
-----------------------------------------
H. Xxxxxxx Xxxxx, III
Title: President and Chief Executive Officer
