Page
	ARTICLE I
	THE MERGER
1.1	The Merger	1
1.2	Closing	1
1.3	Effective Time	2
1.4	Effects of the Merger	2
1.5	Conversion of Veritex Common Stock	2
1.6	Huntington Common Stock	3
1.7	Treatment of Veritex Equity Awards	3
1.8	Bylaws of Surviving Corporation	5
1.9	Tax Consequences	5
1.10	Bank Merger	5

2.1	Huntington to Make Consideration Available	6
2.2	Exchange of Shares	6

3.1	Corporate Organization	9
3.2	Capitalization	11
3.3	Authority; No Violation	12
3.4	Consents and Approvals	13
3.5	Reports	13
3.6	Financial Statements	14
3.7	Broker’s Fees	16
3.8	Absence of Certain Changes or Events	16
3.9	Legal Proceedings	16
3.10	Taxes and Tax Returns	17
3.11	Employees and Employee Benefit Plans.	18
3.12	Compliance with Applicable Law	21
3.13	Certain Contracts	23
3.14	Agreements with Regulatory Agencies	25
3.15	Risk Management Instruments	25
3.16	Environmental Matters	25

3.17	Investment Securities	26
3.18	Real Property	26
3.19	Intellectual Property	27
3.20	Related Party Transactions	27
3.21	Takeover Restrictions	27
3.22	Reorganization	28
3.23	Opinion	28
3.24	Veritex Information	28
3.25	Loan Portfolio	28
3.26	Insurance	29
3.27	No Investment Adviser or Broker-Dealer Subsidiary	29
3.28	No Other Representations or Warranties	30

4.1	Corporate Organization	31
4.2	Capitalization	31
4.3	Authority; No Violation	33
4.4	Consents and Approvals	34
4.5	Reports	34
4.6	Financial Statements	35
4.7	Broker’s Fees	37
4.8	Absence of Certain Changes or Events	37
4.9	Legal Proceedings	37
4.10	Taxes and Tax Returns	37
4.11	Compliance with Applicable Law	38
4.12	Certain Contracts	39
4.13	Agreements with Regulatory Agencies	40
4.14	Information Technology	40
4.15	Related Party Transactions	40
4.16	Reorganization	41
4.17	Investment Securities	41
4.18	Risk Management Instruments	41
4.19	Huntington Information	42
4.20	Employee Benefit Plans	42
4.21	No Other Representations or Warranties	43

5.1	Conduct of Business Prior to the Effective Time; Forbearances	43
5.2	Huntington Forbearances	47

6.1	Regulatory Matters	48
6.2	Access to Information	51
6.3	Veritex Shareholder Approval	52
6.4	Legal Conditions to Merger	52
6.5	Stock Exchange Listing	53
6.6	Employee Matters	53
6.7	Indemnification; Directors’ and Officers’ Insurance	56
6.8	Additional Agreements	57
6.9	Advice of Changes	57
6.10	Dividends	57
6.11	Huntington Foundation:  Texas Commitment	57
6.12	Acquisition Proposals	58
6.13	Public Announcements	59
6.14	Change of Method	59
6.15	Restructuring Efforts	59
6.16	Takeover Restrictions	60
6.17	Exemption from Liability Under Section 16(b)	60
6.18	Litigation and Claims	60
6.19	Assumption of Veritex Debt	61

7.1	Conditions to Each Party’s Obligation to Effect the Merger	61
7.2	Conditions to Obligations of Huntington	62
7.3	Conditions to Obligations of Veritex	63

8.1	Termination	64
8.2	Effect of Termination	65

9.1	Nonsurvival of Representations, Warranties and Agreements	66
9.2	Amendment	66
9.3	Extension; Waiver	67
9.4	Expenses	67

9.5	Notices	67
9.6	Interpretation	68
9.7	Confidential Supervisory Information	69
9.8	Counterparts	69
9.9	Entire Agreement	69
9.10	Governing Law; Jurisdiction.	69
9.11	Waiver of Jury Trial	70
9.12	Assignment; Third-Party Beneficiaries	70
9.13	Specific Performance	71
9.14	Severability	71
9.15	Delivery by Electronic Transmission	71

Exhibit A	-	Form of Bank Merger Agreement

	Page
Adjusted RSU Award	4
affiliate	68
Agreement	1
Annual Bonus	55
Articles of Merger	2
Bank Merger	5
Bank Merger Agreement	5
Bank Merger Certificates	6
BHC Act	9
business day	68
Certificate of Merger	2
Chosen Courts	69
Closing	1
Closing Date	1
Code	1
Confidentiality Agreement	51
Continuing Employees	53
Effective Time	2
Enforceability Exceptions	12
Environmental Laws	25
ERISA	18
ESOP	19
Exception Shares	2
Exchange Act	13
Exchange Agent	6
Exchange Fund	6
Exchange Ratio	2
FDIC	10
Federal Reserve Board	13
GAAP	9
Governmental Entity	13
Huntington	1
Huntington 401(k) Plan	54
Huntington Articles	31
Huntington Benefit Plans	42
Huntington Bylaws	31
Huntington Common Stock	2
Huntington Contract	40
Huntington Deferred Stock Unit Awards	32
Huntington Disclosure Schedule	30
Huntington ERISA Affiliate	42
Huntington Preferred Stock	31
Huntington Regulatory Agreement	40
Huntington Reports	35

Huntington Restricted Stock Unit Awards	32
Huntington Share Closing Price	7
Huntington Stock Options	31
Huntington Stock Plans	32
Huntington Subsidiary	31
Identified Employee	45
Intellectual Property	27
IRS	17
knowledge	68
Liens	11
Loans	28
made available	68
Maryland Department	2
Material Adverse Effect	9
Materially Burdensome Regulatory Condition	49
Merger	1
Merger Consideration	2
Merger Consideration Value	5
MGCL	1
Multiemployer Plan	19
Multiple Employer Plan	19
NASDAQ	7
New Certificates	6
New Plans	53
OCC	13
Old Certificate	2
PBGC	20
Permitted Encumbrances	26
person	68
Personal Data	21
Premium Cap	56
Proxy Statement	13
Regulatory Agencies	13
Representatives	58
Requisite Regulatory Approvals	62
Requisite Veritex Vote	12
S-4	13
Sarbanes-Oxley Act	15
SEC	13
Securities Act	14
SRO	13
Subsidiary	10
Surviving Corporation	1
Takeover Restrictions	27
Tax	17
Tax Return	18

Taxes	17
TBOC	1
Termination Date	64
Termination Fee	66
Texas Secretary	2
Veritex	1
Veritex 401(k) Plan	54
Veritex Acquisition Proposal	58
Veritex Adverse Recommendation Change	52
Veritex Articles	10
Veritex Benefit Plans	18
Veritex Board Recommendation	51
Veritex Bylaws	10
Veritex Common Stock	2
Veritex Contract	24
Veritex Director RSU Award	4
Veritex Disclosure Schedule	9
Veritex Equity Awards	5
Veritex ERISA Affiliate	18
Veritex Incentive Plan	55
Veritex Indemnified Parties	56
Veritex Insiders	60
Veritex Meeting	51
Veritex Owned Properties	26
Veritex Qualified Plans	18
Veritex Real Property	26
Veritex Regulatory Agreement	25
Veritex Reports	14
Veritex Restricted Stock Unit Award	5
Veritex Stock Option	3
Veritex Stock Plans	5
Veritex Subsidiary	10
Veritex Vested RSU Award	4
Vermon Unvested RSU Award	4
Willful Breach	65

(h)          take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;

 

(i)           amend the Veritex Articles, the Veritex Bylaws, or comparable governing documents of its “Significant Subsidiaries” (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Exchange Act);

 

(j)           merge or consolidate itself or any of its Significant Subsidiaries with any other person, or restructure, reorganize or completely or partially liquidate or dissolve it or any of its Significant Subsidiaries;

 

(k)          materially restructure or materially change its investment securities or derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, except as may be required by GAAP or by applicable laws, regulations, guidelines or policies imposed by any Governmental Entity or requested by a Governmental Entity;

 

(l)           implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or by applicable laws, regulations, guidelines or policies imposed by any Governmental Entity;

 

(m)         (i) enter into any material new line of business or change in any material respect its lending, investment, underwriting, risk and asset liability management and other banking and operating, hedging policies, securitization and servicing policies (including any change in the maximum ratio or similar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof), except as required by such policies or applicable law, regulation or policies imposed by any Governmental Entity or (ii) make any loans or extensions of credit or renewals thereof, except in the ordinary course of business consistent with past practice and (A) in the case of any loan or extension of credit or renewal thereof with a risk rating of 4 or lower/better (as determined in the ordinary course of business consistent with past practice under Veritex’s and its Subsidiaries’ lending policies in effect as of the date hereof), not in excess of $25,000,000 and (B) in the case of any loan or extension of credit or renewal thereof with a risk rating of 5 or higher/worse (as determined in the ordinary course of business consistent with past practice under Veritex’s and its Subsidiaries’ lending policies in effect as of the date hereof), not in excess of $15,000,000; provided, that any consent from Huntington sought pursuant to this clause (ii) shall not be unreasonably withheld; provided, further, that, if Huntington does not respond to any such request for consent within two (2) business days after the relevant loan package is provided to Huntington, such non-response shall be deemed to constitute consent pursuant to this clause (ii);

 

(n)          make, or commit to make, any capital expenditures that exceed Veritex’s capital expenditure budget set forth in Section 5.1(n) of the Veritex Disclosure Schedule by more than five percent (5%);

 

(o)          make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any amended material Tax Return, enter into any closing agreement with respect to Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any right to claim a refund of a material amount of Taxes;

 

(p)          (i) make any application for the opening or relocation of, or open or relocate, any branch office, loan production office or other significant office or operations facility of Veritex or its Subsidiaries, (ii) other than in consultation with Huntington, make any application for the closing of or close any branch or (iii) other than in consultation with Huntington, purchase any new real property (other than other real estate owned (OREO) properties in the ordinary course) in an amount in excess of $250,000 for any individual property or enter into, amend or renew any material lease with respect to real property requiring aggregate payments under any individual lease in excess of $100,000;

 

(q)          knowingly take any action that is intended to or would reasonably be likely to adversely affect or materially delay the ability of Veritex or its Subsidiaries to obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or by the Bank Merger Agreement or the Requisite Veritex Vote or to perform its covenants and agreements under this Agreement or the Bank Merger Agreement or to consummate the transactions contemplated hereby or thereby; or

 

(r)          agree to take, make any commitment to take, or adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.1(r).

 

5.2         Huntington Forbearances.  During the period from the date of this Agreement to the Effective Time or earlier termination of this Agreement, except as set forth in the Huntington Disclosure Schedule, as expressly contemplated or permitted by this Agreement or as required by law, Huntington shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Veritex (such consent not to be unreasonably withheld, conditioned or delayed):

 

(a)          amend the Huntington Articles or the Huntington Bylaws in a manner that would materially and adversely affect the holders of Veritex Common Stock in a manner that adversely affect the holders of Veritex Common Stock relative to other holders of Huntington Common Stock;

 

(b)          adjust, split, combine or reclassify any capital stock of Huntington or make, declare or pay any extraordinary dividend on any capital stock of Huntington;

 

(c)          make any material investment whether by purchase of stock or securities, contributions to capital, property transfers, merger or consolidation or formation of a joint venture or otherwise, in or of any property or assets of any other individual, corporation or other entity, other than a wholly owned Subsidiary of Huntington, except for transactions in the ordinary course of business or in a transaction that, together with such other transactions, is not reasonably likely to prevent or materially delay the receipt of the Requisite Regulatory Approvals or the Closing;

 

(d)          merge or consolidate itself or The Huntington National Bank with any other person (i) where it or The Huntington National Bank is not the surviving person or (ii) if the merger or consolidation is reasonably likely to prevent, materially delay or materially impair the receipt of the Requisite Regulatory Approvals or the Closing;

 

(e)          take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;

 

(f)           knowingly take any action that is intended to or would reasonably be likely to adversely affect or materially delay the ability of Huntington or its Subsidiaries to obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or by the Bank Merger Agreement or to perform its covenants and agreements under this Agreement or the Bank Merger Agreement or to consummate the transactions contemplated hereby or thereby; or

 

(g)          agree to take, make any commitment to take, or adopt any resolutions of its Board of Directors or similar governing body in support of, any of the actions prohibited by this Section 5.2.

 

ARTICLE VI

 

ADDITIONAL AGREEMENTS

 

6.1         Regulatory Matters.

 

(a)          Huntington and Veritex shall promptly prepare and file with the SEC the Proxy Statement and Huntington shall promptly prepare and file with the SEC the S-4, in which the Proxy Statement will be included as a prospectus.  Huntington and Veritex, as applicable, shall use reasonable best efforts to make such filings within thirty (30) days of the date of this Agreement.  Each of Huntington and Veritex shall use their reasonable best efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after such filing and to keep the S-4 effective for so long as necessary to consummate the transactions contemplated by this Agreement, and Veritex shall thereafter mail or deliver the Proxy Statement to its shareholders.  Huntington shall also use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated by this Agreement as promptly as practicable, and Veritex shall furnish all information concerning Veritex and the holders of Veritex Common Stock as may be reasonably requested in connection with any such action.

 

(b)          The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all necessary documentation, to effect all applications, notices, petitions and filings (and in the case of the applications, notices, petitions and filings required to obtain the Requisite Regulatory Approvals, use their reasonable best efforts to make such filings within thirty (30) days of the date of this Agreement), to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including the Merger and the Bank Merger), and to comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such third parties and Governmental Entities.  Huntington and Veritex shall each use, and shall each cause their applicable Subsidiaries to use, reasonable best efforts to obtain each such Requisite Regulatory Approval and any approvals required for the Bank Merger as promptly as reasonably practicable.  The parties shall cooperate with each other in connection therewith (including the furnishing of any information and any reasonable undertaking or commitments that may be required to obtain the Requisite Regulatory Approvals) and shall respond as promptly as practicable to the requests of Governmental Entities for documents and information.  Huntington and Veritex shall have the right to review in advance, and, to the extent practicable, each will consult the other on, in each case subject to applicable laws relating to the exchange of information, all the information relating to Veritex or Huntington, as the case may be, and any of their respective Subsidiaries, which appears in any filing made with, or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement.  In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable.  Each party will provide the other with copies of any applications and all correspondence relating thereto prior to filing and with sufficient opportunity to comment, other than any portions of material filed in connection therewith that contain competitively sensitive business or other proprietary information or confidential supervisory information filed under a claim of confidentiality.  The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein.

 

(c)          In furtherance and not in limitation of the foregoing, each of Huntington and Veritex shall use its reasonable best efforts to (i) avoid the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing, and (ii) avoid or eliminate each and every impediment so as to enable the Closing to occur as soon as possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of businesses or assets of Huntington, Veritex and their respective Subsidiaries.  Notwithstanding the foregoing, nothing contained herein shall be deemed to require Huntington or Veritex or any of their respective Subsidiaries, and neither Huntington nor Veritex nor any of their respective Subsidiaries shall be permitted (without the written consent of the other party), to take any action, or commit to take any action, or agree to any condition or restriction, in connection with the foregoing or obtaining any permits, consents, approvals and authorizations of Governmental Entities that would reasonably be likely to have a material adverse effect on the Surviving Corporation and its Subsidiaries, taken as a whole, after giving effect to the Merger (measured on a scale relative to Veritex and its Subsidiaries, taken as a whole) (a “Materially Burdensome Regulatory Condition”).

 

(d)          Huntington and Veritex shall, upon request, furnish each other with all information concerning themselves, their Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement, the S-4 or any other statement, filing, notice or application made by or on behalf of Huntington, Veritex or any of their respective Subsidiaries to any Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.  Each of Huntington and Veritex agrees, as to itself and its Subsidiaries, that none of the information suppl-ied or to be supplied by it specifically for inclusion or incorporation by reference in (i) the S-4 will, at the time the S-4 and each amendment or supplement thereto, if any, is filed and 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, (ii) the Proxy Statement and any amendment or supplement thereto will, at the time of filing and the date of mailing to the shareholders of Veritex and at the time of the Veritex Meeting, 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, in the light of the circumstances under which such statement was made, not misleading, and (iii) any applications, notices and filings required in order to obtain the Requisite Regulatory Approvals will, at the time each is filed, 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.  Each of Huntington and Veritex further agrees that if it becomes aware that any information furnished by it would cause any of the statements in the S-4 or 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 appropriate steps to correct the S-4 or the Proxy Statement.

 

(e)          Huntington and Veritex shall promptly advise each other upon receiving any communication from any Governmental Entity whose consent or approval is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any Requisite Regulatory Approval will not be obtained or that the receipt of any such approval will be materially delayed.

 

(f)           Without limiting the generality of this Section 6.1, Veritex shall, and shall cause its Subsidiaries to, reasonably cooperate with Huntington and its Subsidiaries (including the furnishing of information and by making employees reasonably available) as is reasonably requested by Huntington in order to comply with the requirements of the Comprehensive Capital Analysis and Review and Dodd-Frank Act Stress Testing programs.

 

6.2         Access to Information.

 

(a)          Subject to Section 9.7, upon reasonable notice and subject to applicable laws, each of Huntington and Veritex, for the purposes of verifying the representations and warranties of the other and preparing for the Merger and the other matters contemplated by this Agreement, shall, and shall cause each of their respective Subsidiaries to, afford to the officers, employees, accountants, counsel, advisors and other representatives of the other party, access, during normal business hours during the period prior to the Effective Time, to all its properties, books, contracts, personnel, information technology systems, and records, and each shall reasonably cooperate with the other party in preparing to execute after the Effective Time the conversion or consolidation of systems and business operations generally (including by entering into customary confidentiality, non-disclosure and similar agreements with such service providers and/or the other party), and, during such period, during normal business hours and in a manner so as not to interfere with normal business operations, each of Huntington and Veritex shall, and shall cause its respective Subsidiaries to, make available to the other party such information concerning its business, properties and personnel as such party may reasonably request.  Each party shall use commercially reasonable efforts to minimize any interference with the other party’s regular business operations during any such access.  Neither Huntington nor Veritex nor any of their respective Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of Huntington’s or Veritex’s, as the case may be, customers, jeopardize the attorney-client privilege of the institution in possession or control of such information (after giving due consideration to the existence of any common interest, joint defense or similar agreement between the parties) or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement.  The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply.

 

(b)          Each of Huntington and Veritex shall hold all information furnished by or on behalf of the other party or any of such party’s Subsidiaries or representatives pursuant to Section 6.2(a) in confidence to the extent required by, and in accordance with, the provisions of the confidentiality agreement, dated June 14, 2025, between Huntington and Veritex (the “Confidentiality Agreement”).

 

(c)          No investigation by either of the parties or their respective representatives shall affect or be deemed to modify or waive the representations and warranties of the other set forth herein.  Nothing contained in this Agreement shall give either party, directly or indirectly, the right to control or direct the operations of the other party prior to the Effective Time.  Prior to the Effective Time, each party shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

6.3         Veritex Shareholder Approval.

 

(a)          Veritex shall take, in accordance with applicable law and the Veritex Articles and Veritex Bylaws, all actions necessary to convene a meeting of its shareholders (the “Veritex Meeting”) to be held as soon as reasonably practicable after the S-4 is declared effective for the purpose of obtaining the Requisite Veritex Vote required in connection with this Agreement and the Merger.  Except in the case of a Veritex Adverse Recommendation Change, the Board of Directors of Veritex shall use its reasonable best efforts to obtain from the shareholders of Veritex the Requisite Veritex Vote, including by communicating to its shareholders its recommendation (and including such recommendation in the Proxy Statement) that they approve this Agreement and the transactions contemplated hereby (the “Veritex Board Recommendation”) and shall not make a Veritex Adverse Recommendation Change except in accordance with this Section 6.3.  Veritex shall engage a proxy solicitor reasonably acceptable to Huntington to assist in the solicitation of proxies from shareholders relating to the Requisite Veritex Vote.  However, subject to Section 8.1 and Section 8.2, if the Board of Directors of Veritex, after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisors, determines in good faith that it would more likely than not result in a violation of its fiduciary duties under applicable law to continue to recommend this Agreement and the Merger, then, prior to the receipt of the Requisite Veritex Vote, in submitting this Agreement and the Merger to its shareholders, the Board of Directors of Veritex may withhold or withdraw or modify or qualify in a manner adverse to Huntington the Veritex Board Recommendation or may submit this Agreement and the Merger to its shareholders without recommendation (each, a “Veritex Adverse Recommendation Change”) (although the resolutions approving this Agreement as of the date hereof may not be rescinded or amended), in which event the Board of Directors of Veritex may communicate the basis for its Veritex Adverse Recommendation Change to its shareholders in the Proxy Statement or an appropriate amendment or supplement thereto; provided, that the Board of Directors of Veritex may not take any actions under this sentence unless (i) it gives Huntington at least three (3) business days’ prior written notice of its intention to take such action and a reasonable description of the event or circumstances giving rise to its determination to take such action (including, in the event such action is taken by the Board of Directors of Veritex in response to a Veritex Acquisition Proposal, the latest material terms and conditions and the identity of the third party in any such Veritex Acquisition Proposal, or any amendment or modification thereof, or describe in reasonable detail such other event or circumstances) and (ii) at the end of such notice period, the Board of Directors of Veritex takes into account any amendment or modification to this Agreement proposed by Huntington and after receiving the advice of its outside counsel and, with respect to financial matters, its financial advisors, determines in good faith that it would nevertheless more likely than not result in a violation of its fiduciary duties under applicable law to continue to recommend this Agreement and the Merger.  Any material amendment to any Veritex Acquisition Proposal will be deemed to be a new Veritex Acquisition Proposal for purposes of this Section 6.3 and will require a new notice period as referred to in this Section 6.3.

 

(b)          Except in the case of a Veritex Adverse Recommendation Change, Veritex shall adjourn or postpone the Veritex Meeting, if, as of the time for which such meeting is originally scheduled, there are insufficient shares of Veritex Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting, or if on the date of such meeting, Veritex has not received proxies representing a sufficient number of shares necessary to obtain the Requisite Veritex Vote.  Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with its terms, the Veritex Meeting shall be convened and this Agreement and the Merger shall be submitted to the shareholders of Veritex at the Veritex Meeting, for the purpose of voting on the approval of this Agreement and the Merger and the other matters contemplated hereby, and nothing contained herein shall be deemed to relieve Veritex of such obligation.  Veritex shall only be required to adjourn or postpone the Veritex Meeting two (2) times pursuant to the first sentence of this Section 6.3(b).

 

6.4         Legal Conditions to Merger.  Subject in all respects to Section 6.1 of this Agreement, each of Huntington and Veritex shall, and shall cause its Subsidiaries to, use their reasonable best efforts, in each case as promptly as practicable, (a) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal and regulatory requirements that may be imposed on such party or its Subsidiaries with respect to the Merger and the Bank Merger and, subject to the conditions set forth in Article VII hereof, to consummate the transactions contemplated by this Agreement, and (b) to obtain (and to cooperate with the other party to obtain) any material consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party that is required to be obtained by Veritex or Huntington or any of their respective Subsidiaries in connection with the Merger, the Bank Merger and the other transactions contemplated by this Agreement.

 

6.5         Stock Exchange Listing.  Huntington shall cause the shares of Huntington Common Stock to be issued in the Merger to be approved for listing on the NASDAQ, subject to official notice of issuance, prior to the Effective Time.

 

6.6         Employee Matters.

 

(a)          Huntington shall provide the employees of Veritex and its Subsidiaries as of the Effective Time (the “Continuing Employees”), during the periods specified below for so long as they are employed following the Effective Time, with the following:  (i) during the period commencing at the Effective Time and ending on the first anniversary thereof, annual base salary or wages, as applicable, that are no less than the annual base salary or wages in effect for each such Continuing Employee immediately prior to the Effective Time, (ii) during the period commencing at the Effective Time and ending on December 31 of the calendar year during which the Effective Time occurs, (A) target incentive opportunities (excluding equity-based awards but including any annual or short-term cash incentive) that are no less favorable than those provided to each such Continuing Employee immediately prior to the Effective Time, and (B) employee benefits (other than severance and retention benefits) that are substantially comparable in the aggregate to those provided to such Continuing Employees immediately prior to the Effective Time; and (iii) during the period commencing on January 1 of the calendar year immediately following the year in which the Effective Time occurs and ending on the first anniversary of the Effective Time, (A) target incentive opportunities (including equity-based awards) that are substantially comparable in the aggregate to those provided to similarly situated employees of Huntington and its Subsidiaries, and (B) employee benefits (other than severance and retention benefits) that are substantially comparable in the aggregate to those provided to similarly situated employees of Huntington and its Subsidiaries (excluding any frozen benefit plans of Huntington and its Subsidiaries or benefit plans that exclusively provide benefits to a grandfathered group of employees of Huntington and its Subsidiaries); provided, that until such time as Huntington fully integrates the Continuing Employees into its plans, participation in the Veritex Benefit Plans shall be deemed to satisfy the foregoing standards, it being understood that the Continuing Employees may commence participating in the plans of Huntington and its Subsidiaries on different dates following the Effective Time with respect to different benefit plans.  For a period beginning at the Effective Time and continuing through the first anniversary thereof, each Continuing Employee who is not party to an individual agreement providing for severance or termination benefits and is terminated under severance-qualifying circumstances shall be eligible to receive severance benefits as set forth on Section 6.6(a) of the Veritex Disclosure Schedule, subject to such employee’s execution (and non-revocation) of a release of claims.

 

(b)          With respect to any employee benefit plans of Huntington or its Subsidiaries in which any Continuing Employees become eligible to participate on or after the Effective Time (the “New Plans”), Huntington and its Subsidiaries shall: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such employees and their eligible dependents under any New Plans, except to the extent such pre-existing conditions, exclusions or waiting periods would apply under the analogous Veritex Benefit Plan; (ii) use commercially reasonable efforts to provide each such employee and their eligible dependents with credit for any co-payments or coinsurance and deductibles paid prior to the Effective Time under a Veritex Benefit Plan that provides health care benefits (including medical, dental and vision), to the same extent that such credit was given under the analogous Veritex Benefit Plan prior to the Effective Time, in satisfying any applicable deductible, co-payment, coinsurance or maximum out-of-pocket requirements under any New Plans; and (iii) use commercially reasonable efforts to recognize all service of such employees with Veritex and its Subsidiaries for all purposes in any New Plan to the same extent that such service was taken into account under the analogous Veritex Benefit Plan prior to the Effective Time; provided, that the foregoing service recognition shall not apply (A) to the extent it would result in duplication of benefits for the same period of service, (B) for purposes of any retiree medical plan or defined benefit pension plan, (C) for purposes of any benefit plan that is a frozen plan or provides grandfathered benefits, or (D) for purposes of any equity incentive awards granted by Huntington.

 

(c)          Effective as of the Effective Time, Huntington agrees to assume and honor all Veritex Benefit Plans in accordance with their terms as of the date hereof, it being understood that this sentence shall not be construed to limit the ability of Huntington or any of its Subsidiaries or affiliates to amend or terminate any Veritex Benefit Plan to the extent that such amendment or termination is permitted by the terms of the applicable plan. Huntington and Veritex shall take the actions necessary to implement the commitments set forth in Section 6.6(c) of the Huntington Disclosure Schedule.

 

(d)          Unless otherwise requested by Huntington in writing at least five (5) business days prior to the Effective Time, Veritex shall cause any 401(k) plan sponsored or maintained by Veritex (the “Veritex 401(k) Plan”) to be terminated effective as of the day immediately prior to the Effective Time and contingent upon the occurrence of the Closing.  In the event that the Veritex 401(k) Plan is terminated, the Continuing Employees shall be eligible to participate, effective as soon as reasonably practicable (and not more than thirty (30) days) after the Effective Time, in a 401(k) plan sponsored or maintained by Huntington or one of its Subsidiaries (a “Huntington 401(k) Plan”).  Veritex and Huntington shall take any and all actions as may be required, including amendments to the Veritex 401(k) Plan and/or Huntington 401(k) Plan to permit the Continuing Employees who are then actively employed to make rollover contributions to the Huntington 401(k) Plan of “eligible rollover distributions” (with the meaning of Section 401(a)(31) of the Code) in the form of cash, notes (in the case of loans) or a combination thereof.  Veritex shall provide Huntington with evidence that the Veritex 401(k) Plan has been terminated or amended, as applicable, in accordance with this Section 6.6(d); provided, that prior to amending or terminating the Veritex 401(k) Plan, Veritex shall provide the form and substance of any applicable resolutions or amendments to Huntington for review and approval (which approval shall not be unreasonably withheld, conditioned or delayed).

 

(e)          On and after the date hereof, any broad-based employee notices or communication materials (including any website posting) to be provided or communicated by Veritex with respect to employment, compensation or benefits matters addressed in this Agreement or related, directly or indirectly, to the transactions contemplated by this Agreement shall be subject to the prior prompt review and comment of Huntington, and Veritex shall consider in good faith revising such notice or communication to reflect any comments or advice that Huntington timely provides.

 

(f)           With respect to each of Veritex’s annual cash incentive plans (each, a “Veritex Incentive Plan”) in place for the fiscal year in which the Effective Time occurs, Huntington shall, or shall cause its applicable Subsidiary (including the Surviving Corporation, as applicable) to, pay to each Continuing Employee who participates in such a Veritex Incentive Plan and remains employed with Huntington, the Surviving Corporation or their respective Subsidiaries through the end of such fiscal year (or, if later, and if required by the applicable Veritex Incentive Plan, through the applicable payment date), at the same time or times that Huntington, the Surviving Corporation or their applicable Subsidiary pays annual bonuses in respect of such fiscal year to other similarly situated employees thereof, but in no event later than March 15 immediately after the end of such fiscal year, a cash bonus for such fiscal year (the “Annual Bonus”) that is equal to the Annual Bonus that such Continuing Employee is entitled to receive under the applicable Veritex Incentive Plan based on actual level of achievement of the applicable performance criteria for such fiscal year (as determined after giving appropriate effect to the transactions contemplated hereby, including any costs, fees and expenses associated with the transactions contemplated hereby or any nonrecurring charges that would not reasonably be expected to have been incurred by Veritex or its Subsidiaries had the transactions contemplated hereby not arisen or occurred) and, with respect to cash bonuses under a Veritex Incentive Plan that provides for discretionary annual cash bonuses, the aggregate amount of the Annual Bonuses paid under each such plan shall generally be the same as the aggregate amount of the discretionary annual cash bonuses paid under such Veritex Incentive Plan with respect to the prior fiscal year (taking into account any necessary adjustments for changes in the number of eligible participants under any such plan), with the individual allocations of the awards under such plans to Continuing Employees to be consistent with past practice.

 

(g)          Nothing in this Agreement shall confer upon any employee, officer, director or consultant of Veritex or any of its Subsidiaries or affiliates any right to continue in the employ or service of the Surviving Corporation, Veritex, Huntington, or any Subsidiary or affiliate thereof, or shall interfere with or restrict in any way the rights of the Surviving Corporation, Veritex, Huntington or any Subsidiary or affiliate thereof to discharge or terminate the services of any employee, officer, director or consultant of Veritex or any of its Subsidiaries or affiliates at any time for any reason whatsoever, with or without cause.  Nothing in this Agreement shall be deemed to (i) establish, amend, or modify any Veritex Benefit Plan, New Plan or any other benefit or employment plan, program, agreement or arrangement, or (ii) alter or limit the ability of the Huntington or any of its Subsidiaries or affiliates to amend, modify or terminate any particular Veritex Benefit Plan, New Plan or any other benefit or employment plan, program, agreement or arrangement after the Effective Time.  Without limiting the generality of Section 9.12, nothing in this Agreement, express or implied, is intended to or shall confer upon any person, including any current or former employee, officer, director or consultant of Veritex or any of its Subsidiaries or affiliates, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

6.7         Indemnification; Directors’ and Officers’ Insurance.

 

(a)          From and after the Effective Time, the Surviving Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law, each present and former director, officer or employee of Veritex and its Subsidiaries (in each case, when acting in such capacity) (collectively, the “Veritex Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, whether arising before or after the Effective Time, arising in whole or in part out of, or pertaining to, the fact that such person is or was a director, officer or employee of Veritex or any of its Subsidiaries or is or was serving at the request of Veritex or any of its Subsidiaries as a director or officer of another person and pertaining to matters, acts or omissions existing or occurring at or prior to the Effective Time, including matters, acts or omissions occurring in connection with the approval of this Agreement and the transactions contemplated by this Agreement, and the Surviving Corporation shall also advance expenses as incurred by the Veritex Indemnified Party to the fullest extent permitted by applicable law; provided, that in the case of advancement of expenses the Veritex Indemnified Party to whom expenses are advanced provides an undertaking (in a reasonable and customary form) to repay such advances if it is ultimately determined that such Veritex Indemnified Party is not entitled to indemnification.

 

(b)          For a period of six (6) years after the Effective Time, the Surviving Corporation shall maintain in effect the current policies of directors’ and officers’ liability insurance maintained by Veritex (provided, that the Surviving Corporation may substitute therefor policies with a substantially comparable insurer of at least the same coverage and amounts containing terms and conditions which are no less advantageous to the insured) with respect to claims against the present and former officers and directors of Veritex or any of its Subsidiaries arising from facts or events which occurred at or before the Effective Time (including the transactions contemplated by this Agreement); provided, however, that the Surviving Corporation shall not be obligated to expend, on an annual basis, an amount in excess of three hundred percent (300%) of the current annual premium paid as of the date hereof by Veritex for such insurance (the “Premium Cap”), and if such premiums for such insurance would at any time exceed the Premium Cap, then the Surviving Corporation shall cause to be maintained policies of insurance that, in its good-faith determination, provide the maximum coverage available at an annual premium equal to the Premium Cap.  In lieu of the foregoing, Veritex, in consultation with, but only upon the consent of Huntington, may (and at the request of Huntington, Veritex shall use its reasonable best efforts to) obtain at or prior to the Effective Time a six-year “tail” policy under Veritex’s existing directors’ and officers’ insurance policy providing equivalent coverage to that described in the preceding sentence if and to the extent that the same may be obtained for an amount that, in the aggregate, does not exceed the Premium Cap.  If Veritex purchases such a tail policy, the Surviving Corporation shall maintain such tail policy in full force and effect and continue to honor its obligations thereunder.

 

(c)          The provisions of this Section 6.7 shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Veritex Indemnified Party and his or her heirs and representatives.  If the Surviving Corporation or any of its successors or assigns consolidates with or merges into any other entity and is not the continuing or surviving entity of such consolidation or merger, transfers all or substantially all of its assets or deposits to any other entity or engages in any similar transaction, then in each case, the Surviving Corporation will cause proper provision to be made so that the successors and assigns of the Surviving Corporation will expressly assume the obligations set forth in this Section 6.7.

 

(d)          The obligations of the Surviving Corporation, Huntington and Veritex under this Section 6.7 shall not be terminated or modified in a manner so as to adversely affect any Veritex Indemnified Party or any other person entitled to the benefit of this Section 6.7 without the prior written consent of the affected person.

 

6.8         Additional Agreements.  In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement or to vest Huntington or the Surviving Corporation with full title to all properties, assets, rights, approvals, immunities and franchises of any of the parties to the Merger, the then current officers and directors of each party to this Agreement and their respective Subsidiaries shall take, or cause to be taken, all such necessary action as may be reasonably requested by the other party, at the expense of the party who makes any such request.

 

6.9         Advice of Changes.  Huntington and Veritex shall each promptly advise the other party of any effect, change, event, circumstance, condition, occurrence or development known to it (i) that has had or is reasonably likely to have a Material Adverse Effect on it or (ii) which it believes would or would be reasonably likely to cause or constitute a material breach of any of its representations, warranties or covenants contained herein or that reasonably could be expected to give rise, individually or in the aggregate, to the failure of a condition in Article VII; provided, that any failure to give notice in accordance with the foregoing with respect to any breach shall not be deemed to constitute a violation of this Section 6.9 or the failure of any condition set forth in Section 7.2 or 7.3 to be satisfied, or otherwise constitute a breach of this Agreement by the party failing to give such notice, in each case unless the underlying breach would independently result in a failure of the conditions set forth in Section 7.2 or 7.3 to be satisfied; and provided, further, that the delivery of any notice pursuant to this Section 6.9 shall not cure any breach of, or noncompliance with, any other provision of this Agreement or limit the remedies available to the party receiving such notice.

 

6.10       Dividends.  After the date of this Agreement, each of Huntington and Veritex shall coordinate with the other the declaration of any dividends in respect of Huntington Common Stock and Veritex Common Stock and the record dates and payment dates relating thereto, it being the intention of the parties hereto that holders of Veritex Common Stock shall not receive two (2) dividends, or fail to receive one (1) dividend, in any quarter with respect to their shares of Veritex Common Stock and any shares of Huntington Common Stock any such holder receives in exchange therefor in the Merger.

 

6.11        Huntington Foundation:  Texas Commitment. At or prior to the Closing, Huntington will contribute $10,000,000 to The Huntington Foundation, which amount will be dedicated to the markets in which Veritex operates. The Huntington Foundation will make all decisions regarding the award of such funds, and Huntington Bank’s President, Consumer and Regional Banking will work with Malcolm Holland to identify organizations and opportunities that are consistent with Huntington’s charitable giving guidelines. Huntington anticipates fully distributing such funds over a five (5)-year period following the Closing.

 

6.12       Acquisition Proposals.

 

(a)          Veritex shall not, and shall cause its Subsidiaries and use its reasonable best efforts to cause its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any person concerning or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to, any Veritex Acquisition Proposal, except to notify a person that has made or, to the knowledge of Veritex, is making any inquiries with respect to, or is considering making, a Veritex Acquisition Proposal of the existence of the provisions of this Section 6.12(a); provided, that, prior to the receipt of the Requisite Veritex Vote, in the event Veritex receives an unsolicited bona fide written Veritex Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, further, that, prior to or concurrently with providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Veritex shall have provided such information to Huntington, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such person with any exclusive right to negotiate with Veritex.  Veritex will, and will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any person other than Huntington with respect to any Veritex Acquisition Proposal.  Veritex will promptly (and in any event within one (1) business day) advise Huntington following receipt of any Veritex Acquisition Proposal or any inquiry which could reasonably be expected to lead to a Veritex Acquisition Proposal, and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or Veritex Acquisition Proposal) and will keep Huntington reasonably apprised of any related developments, discussions and negotiations on a current basis, including any amendments to or revisions of the material terms of such inquiry or Veritex Acquisition Proposal.  Veritex shall use its reasonable best efforts, subject to applicable law and the fiduciary duties of the Board of Directors of Veritex, to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof.  During the term of this Agreement, Veritex shall not, and shall cause its Subsidiaries and its and their Representatives not to on its behalf, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (other than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) relating to any Veritex Acquisition Proposal.  As used in this Agreement, “Veritex Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, inquiry or proposal relating to, or any third party indication of interest in, (i) any acquisition or purchase, direct or indirect, of twenty-five percent (25%) or more of the consolidated assets of Veritex and its Subsidiaries or 25% or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, (ii) any tender offer or exchange offer that, if consummated, would result in such third party beneficially owning twenty-five percent (25%) or more of any class of equity or voting securities of Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex, or (iii) a merger, consolidation, share exchange or other business combination, reorganization or similar transaction involving Veritex or its Subsidiaries whose assets, individually or in the aggregate, constitute twenty-five percent (25%) or more of the consolidated assets of Veritex.

 

(b)          Nothing contained in this Agreement shall prevent either party or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to a Veritex Acquisition Proposal or from making any legally required disclosure to such party’s shareholders; provided, that such Rules and disclosures will in no way eliminate or modify the effect that any action pursuant to such Rules or any such disclosures would otherwise have under this Agreement.

 

6.13       Public Announcements.  Veritex and Huntington shall each use their reasonable best efforts to develop a joint communications plan, to ensure that all press releases and other public statements with respect to the transactions contemplated hereby shall be consistent with such joint communications plan, and except in respect of (i) any announcement required by applicable law or regulation, or a request by a Governmental Entity, (ii) communications that are substantially similar to communications previously approved pursuant to this Section 6.13, (iii) communications permitted by Section 6.3 or (iv) an obligation pursuant to any listing agreement with or rules of any securities exchange, Veritex and Huntington agree to consult with each other and to obtain the advance approval of the other party (which approval shall not be unreasonably withheld, conditioned or delayed) before issuing any press release or, to the extent practical, otherwise making any public statement with respect to this Agreement or the transactions contemplated hereby.

 

6.14       Change of Method.  Huntington may at any time change the method of effecting the Merger if and to the extent requested by Huntington, and Veritex agrees to enter into such amendments to this Agreement as Huntington may reasonably request in order to give effect to such restructuring; provided, however, that no such change or amendment shall (i) alter or change the amount or kind of the Merger Consideration provided for in this Agreement, (ii) adversely affect the Tax treatment of the Merger with respect to Veritex’s shareholders or (iii) be reasonably likely to cause the Closing to be materially delayed or the receipt of the Requisite Regulatory Approvals to be prevented or materially delayed.

 

6.15       Restructuring Efforts.  If Veritex shall have failed to obtain the Requisite Veritex Vote at the duly convened Veritex Meeting or any adjournment or postponement thereof, the parties shall in good faith use its reasonable best efforts to negotiate a restructuring of the transactions contemplated by this Agreement (provided, however, that no party shall have any obligation to agree to (i) alter or change any material term of this Agreement, including the amount or kind of the Merger Consideration, in a manner adverse to such party or its shareholders or (ii) adversely affect the Tax treatment of the Merger with respect to such party or its shareholders) and/or resubmit this Agreement and the transactions contemplated hereby (or as restructured pursuant to this Section 6.15) to its shareholders for approval.

 

6.16       Takeover Restrictions.  Veritex shall not take any action that would cause any Takeover Restriction to become applicable to this Agreement, the Merger, or any of the other transactions contemplated hereby, and Veritex shall take all necessary steps to exempt (or ensure the continued exemption of) the Merger and the other transactions contemplated hereby from any applicable Takeover Restriction now or hereafter in effect.  If any Takeover Restriction may become, or may purport to be, applicable to the transactions contemplated hereby, Veritex will grant such approvals and take such actions as are necessary so that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to eliminate or minimize the effects of any Takeover Restriction on any of the transactions contemplated by this Agreement, including, if necessary, challenging the validity or applicability of any such Takeover Restriction.

 

6.17       Exemption from Liability Under Section 16(b).  Veritex and Huntington agree that, in order to most effectively compensate and retain those officers and directors of Veritex subject to the reporting requirements of Section 16(a) of the Exchange Act (the “Veritex Insiders”), both prior to and after the Effective Time, it is desirable that Veritex Insiders not be subject to a risk of liability under Section 16(b) of the Exchange Act to the fullest extent permitted by applicable law in connection with the conversion of shares of Veritex Common Stock and Veritex Equity Awards in the Merger, and for that compensatory and retentive purpose agree to the provisions of this Section 6.17.  The Boards of Directors of Huntington and of Veritex, or a committee of non-employee directors thereof (as such term is defined for purposes of Rule 16b-3(d) under the Exchange Act), shall prior to the Effective Time, take all such steps as may be necessary or appropriate to cause (x) in the case of Veritex, any dispositions of Veritex Common Stock or Veritex Equity Awards by Veritex Insiders and (y) in the case of Huntington, any acquisitions of Huntington Common Stock or equity awards of Huntington into which the Veritex Equity awards are converted by any Veritex Insiders who, immediately following the Merger, will be officers or directors of Huntington subject to the reporting requirements of Section 16(a) of the Exchange Act, in each case pursuant to the transactions contemplated by this Agreement, to be exempt from liability pursuant to Rule 16b-3 under the Exchange Act to the fullest extent permitted by applicable law.

 

6.18       Litigation and Claims.  Each of Huntington and Veritex shall, to the extent permitted under applicable law and regulation, promptly notify the other party in writing of any action, arbitration, audit, hearing, investigation, litigation, suit, subpoena or summons issued, commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity or arbitrator pending or, to the knowledge of Huntington or Veritex, as applicable, threatened against Huntington, Veritex or any of their respective Subsidiaries that (a) questions or would reasonably be expected to question the validity of this Agreement, the Bank Merger Agreement or the other agreements contemplated hereby or thereby or any actions taken or to be taken by Huntington, Veritex, or their respective Subsidiaries with respect hereto or thereto, or (b) seeks to enjoin or otherwise restrain the transactions contemplated hereby or thereby.  Veritex shall give Huntington the opportunity to participate at its own expense in the defense or settlement of any shareholder litigation against Veritex and/or its directors or affiliates relating to the transactions contemplated by this Agreement, and no such settlement shall be agreed without Huntington’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).

6.19       Assumption of Veritex Debt.  Effective at the Effective Time (or at the effective time of the Bank Merger for any debt of Veritex Community Bank), Huntington or The Huntington National Bank, as applicable, shall, to the extent permitted thereunder and required thereby, assume the due and punctual performance and observance of the covenants to be performed by Veritex or Veritex Community Bank pursuant to the definitive documents governing the short-term and long-term borrowings set forth on Section 6.19 of the Veritex Disclosure Schedule, and the due and punctual payment of the principal of such borrowings (and premium, if any) and interest thereon.  In connection therewith, (i) Huntington and Veritex shall, and shall cause The Huntington National Bank and Veritex Community Bank respectively to, cooperate and use reasonable best efforts to execute and deliver any supplemental indentures, if applicable, and (ii) Veritex shall, and shall cause Veritex Community Bank to, use reasonable best efforts to execute and deliver any officer’s certificates or other documents, and to provide any opinions of counsel to the trustee thereof, in each case, required to make such assumption effective as of the Effective Time or the effective time of the Bank Merger, as applicable.

 

ARTICLE VII

 

 CONDITIONS PRECEDENT

 

7.1         Conditions to Each Party’s Obligation to Effect the Merger.  The respective obligations of the parties to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following conditions:

 

(a)          Shareholder Approval.  This Agreement shall have been approved by the shareholders of Veritex by the Requisite Veritex Vote.

 

(b)          Stock Exchange Listing.  The shares of Huntington Common Stock that shall be issuable pursuant to this Agreement shall have been authorized for listing on the NASDAQ, in each case subject to official notice of issuance.

 

(c)          S-4.  The S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the S-4 shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC and not withdrawn.

 

(d)          No Injunctions or Restraints; Illegality.  No order, injunction or decree issued by any court or Governmental Entity of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger, the Bank Merger or any of the other transactions contemplated by this Agreement shall be in effect.  No law, statute, rule, regulation, order, injunction or decree shall have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits or makes illegal consummation of the Merger, the Bank Merger or any of the other transactions contemplated by this Agreement.

 

(e)          Regulatory Approvals.  (i) All regulatory authorizations, consents, orders or approvals (x) from the Federal Reserve Board and the OCC and (y) set forth in Sections 3.4 and 4.4 which are necessary to consummate the transactions contemplated by this Agreement, including the Merger and the Bank Merger, or those the failure of which to be obtained would reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect on Huntington or the Surviving Corporation, shall have been obtained and shall remain in full force and effect and all statutory waiting periods in respect thereof shall have expired (such approvals and the expiration of such waiting periods being referred to herein as the “Requisite Regulatory Approvals”) and (ii) no such Requisite Regulatory Approval shall have resulted in the imposition of any Materially Burdensome Regulatory Condition.

 

7.2         Conditions to Obligations of Huntington.  The obligation of Huntington to effect the Merger is also subject to the satisfaction, or waiver by Huntington, at or prior to the Effective Time, of the following conditions:

 

(a)          Representations and Warranties.  The representations and warranties of Veritex set forth in (i) Sections 3.2(a) and 3.8(a) (in each case after giving effect to the lead-in to Article III) shall be true and correct (other than, in the case of Section 3.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and (ii) Sections 3.1(a), 3.1(b) (with respect to Veritex Community Bank only), 3.2(c) (with respect to Veritex Community Bank only) and 3.3(a) (in each case, after giving effect to the lead-in to Article III) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date).  All other representations and warranties of Veritex set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article III) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be likely to have a Material Adverse Effect on Veritex or the Surviving Corporation.  Huntington shall have received a certificate signed on behalf of Veritex by the Chief Executive Officer or the Chief Financial Officer of Veritex to the foregoing effect.

 

(b)          Performance of Obligations of Veritex.  Veritex shall have performed in all material respects the obligations, covenants and agreements required to be performed by it under this Agreement at or prior to the Closing Date, and Huntington shall have received a certificate signed on behalf of Veritex by the Chief Executive Officer or the Chief Financial Officer of Veritex to such effect.

 

(c)          Federal Tax Opinion.  Huntington shall have received the opinion of Wachtell, Lipton, Rosen & Katz (or other nationally recognized tax counsel), in form and substance reasonably satisfactory to Huntington, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code.  In rendering such opinion, counsel may require and rely upon representations contained in certificates of officers of Huntington and Veritex reasonably satisfactory in form and substance to such counsel.

 

7.3         Conditions to Obligations of Veritex.  The obligation of Veritex to effect the Merger is also subject to the satisfaction or waiver by Veritex at or prior to the Effective Time of the following conditions:

 

(a)          Representations and Warranties.  The representations and warranties of Huntington set forth in (i) Sections 4.2(a) and 4.8(a) (in each case, after giving effect to the lead-in to Article IV) shall be true and correct (other than, in the case of Section 4.2(a), such failures to be true and correct as are de minimis) in each case as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date), and (ii) Sections 4.1(a), 4.1(b) (with respect to The Huntington National Bank only), 4.2(c) (with respect to The Huntington National Bank only) and 4.3(a) (in each case, after giving effect to the lead-in to Article IV) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date).  All other representations and warranties of Huntington set forth in this Agreement (read without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties but, in each case, after giving effect to the lead-in to Article IV) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties speak as of an earlier date, in which case as of such earlier date); provided, however, that for purposes of this sentence, such representations and warranties shall be deemed to be true and correct unless the failure or failures of such representations and warranties to be so true and correct, either individually or in the aggregate, and without giving effect to any qualification as to materiality or Material Adverse Effect set forth in such representations or warranties, has had or would reasonably be likely to have a Material Adverse Effect on Huntington.  Veritex shall have received a certificate signed on behalf of Huntington by the Chief Executive Officer or the Chief Financial Officer of Huntington to the foregoing effect.

 

(b)          Performance of Obligations of Huntington.  Huntington shall have performed in all material respects the obligations, covenants and agreements required to be performed by it under this Agreement at or prior to the Closing Date, and Veritex shall have received a certificate signed on behalf of Huntington by the Chief Executive Officer or the Chief Financial Officer of Huntington to such effect.

 

(c)          Federal Tax Opinion.  Veritex shall have received the opinion of Simpson Thacher & Bartlett LLP (or other nationally recognized tax counsel), in form and substance reasonably satisfactory to Veritex, dated as of the Closing Date, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code.  In rendering such opinion, counsel may require and rely upon representations contained in certificates of officers of Huntington and Veritex reasonably satisfactory in form and substance to such counsel.

 

ARTICLE VIII

 

TERMINATION AND AMENDMENT

 

8.1         Termination.  This Agreement may be terminated at any time prior to the Effective Time, whether before or after receipt of the Requisite Veritex Vote:

 

(a)          by mutual consent of Huntington and Veritex in a written instrument;

 

(b)          by either Huntington or Veritex if any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Merger or the Bank Merger and such denial has become final and nonappealable or any Governmental Entity of competent jurisdiction shall have issued a final nonappealable order, injunction or decree permanently enjoining or otherwise prohibiting or making illegal the consummation of the Merger or the Bank Merger, unless the failure to obtain a Requisite Regulatory Approval shall be due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein;

 

(c)          by either Huntington or Veritex if the Merger shall not have been consummated on or before the first anniversary of the date of this Agreement (the “Termination Date”), unless the failure of the Closing to occur by such date shall be due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein;

 

(d)          by either Huntington or Veritex (provided, that the terminating party is not then in material breach of any representation, warranty, obligation, covenant or other agreement contained herein) if there shall have been a breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Veritex, in the case of a termination by Huntington, or Huntington, in the case of a termination by Veritex, which breach or failure to be true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 7.2, in the case of a termination by Huntington, or Section 7.3, in the case of a termination by Veritex, and which is not cured by the earlier of the Termination Date and 45 days following written notice to Veritex, in the case of a termination by Huntington, or Huntington, in the case of a termination by Veritex, or by its nature or timing cannot be cured during such period; or

 

(e)          by Huntington, prior to such time as the Requisite Veritex Vote is obtained, if Veritex or the Board of Directors of Veritex (i) withholds, withdraws, modifies or qualifies in a manner adverse to Huntington the Veritex Board Recommendation, (ii) fails to make the Veritex Board Recommendation in the Proxy Statement, (iii) adopts, approves, recommends or endorses a Veritex Acquisition Proposal or publicly announces an intention to adopt, approve, recommend or endorse a Veritex Acquisition Proposal, (iv) fails to publicly and without qualification (A) recommend against any Veritex Acquisition Proposal or (B) reaffirm the Veritex Board Recommendation, in each case within ten (10) business days (or such fewer number of days as remains prior to the Veritex Meeting) after a Veritex Acquisition Proposal is made public or any request by Huntington to do so, or (v) materially breaches its obligations under Section 6.3 or Section 6.12.

 

The party desiring to terminate this Agreement pursuant to clause (b), (c), (d) or (e) of this Section 8.1 shall give written notice of such termination to the other party in accordance with Section 9.5, specifying the provision or provisions hereof pursuant to which such termination is effected.

 

8.2         Effect of Termination.

 

(a)          In the event of termination of this Agreement by either Huntington or Veritex as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of Huntington, Veritex, any of their respective Subsidiaries or any of the officers or directors of any of them shall have any liability of any nature whatsoever hereunder, or in connection with the transactions contemplated hereby, except that (i) Section 6.2(b) and this Section 8.2 and Article IX (other than Section 9.13) shall survive any termination of this Agreement, and (ii) notwithstanding anything to the contrary contained in this Agreement, neither Huntington nor Veritex shall be relieved or released from any liabilities or damages arising out of its fraud or Willful Breach of any provision of this Agreement occurring prior to termination (which, in the case of Veritex, shall include the loss to the holders of its capital stock and of Veritex Equity Awards of the economic benefits of the Merger (including the loss of premium offered to the shareholders of Veritex), it being understood that Veritex shall be entitled to pursue damages for such losses and to enforce the right to recover such losses on behalf of its shareholders and the holders of Veritex Equity Awards in its sole and absolute discretion, and any amounts received by Veritex in connection therewith may be retained by Veritex).  “Willful Breach” shall mean a material breach of, or material failure to perform any of the covenants or other agreements contained in this Agreement, that is a consequence of an act or failure to act by the breaching or non-performing party with actual knowledge that such party’s act or failure to act would, or would reasonably be expected to, result in or constitute such breach of or such failure of performance under this Agreement.

 

(b)          In the event that after the date of this Agreement and prior to the termination of this Agreement, a bona fide Veritex Acquisition Proposal shall have been communicated to or otherwise made known to the Board of Directors or senior management of Veritex or shall have been made directly to its shareholders generally or any person shall have publicly announced (and not withdrawn at least two (2) business days prior to the Veritex Meeting) a Veritex Acquisition Proposal with respect to Veritex and (A) thereafter this Agreement is terminated by either Huntington or Veritex pursuant to Section 8.1(c) without the Requisite Veritex Vote having been obtained or (B) thereafter this Agreement is terminated by Huntington pursuant to Section 8.1(d), and (C) prior to the date that is twelve (12) months after the date of such termination, Veritex enters into a definitive agreement or consummates a transaction with respect to a Veritex Acquisition Proposal (whether or not the same Veritex Acquisition Proposal as that referred to above), then Veritex shall, on the earlier of the date it enters into such definitive agreement and the date of consummation of such transaction, pay Huntington, by wire transfer of same day funds, a fee equal to $56,000,000 (the “Termination Fee”); provided, that for purposes of this Section 8.2(b), all references in the definition of Veritex Acquisition Proposal to “25%” shall instead refer to “50%”.

 

 (i)          In the event that this Agreement is terminated by Huntington pursuant to Section 8.1(e), then Veritex shall pay Huntington, by wire transfer of same day funds, the Termination Fee as promptly as reasonably practicable after the date of termination (and in any event, within three (3) business days thereafter).

 

(c)          In no event shall Veritex be required to pay the Termination Fee on more than one occasion.

 

(d)          Each of Huntington and Veritex acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the other party would not enter into this Agreement; accordingly, if either party fails promptly to pay the amount due pursuant to this Section 8.2, and, in order to obtain such payment, the other party commences a suit which results in a judgment against the non-paying party for the Termination Fee or any portion thereof, such non-paying party shall pay the costs and expenses of the other party (including reasonable attorneys’ fees and expenses) in connection with such suit.  In addition, if Veritex fails to pay the amounts payable pursuant to this Section 8.2, then such party shall pay interest on such overdue amounts (for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full) at a rate per annum equal to the “prime rate” (as announced by JPMorgan Chase & Co. or any successor thereto) in effect on the date on which such payment was required to be made for the period commencing as of the date that such overdue amount was originally required to be paid.  The amounts payable by Veritex pursuant to Section 8.2(b) and this Section 8.2(d) constitute liquidated damages and not a penalty, and, except in the case of fraud or Willful Breach by Veritex of any provision herein occurring prior to termination, shall be the sole monetary remedy of Huntington in the event of a termination of this Agreement.

 

ARTICLE IX

GENERAL PROVISIONS

 

9.1         Nonsurvival of Representations, Warranties and Agreements.  None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement (other than the Confidentiality Agreement, which shall survive in accordance with its terms) shall survive the Effective Time, except for Section 6.7 and for those other covenants and agreements contained herein and therein which by their terms apply or are to be performed in whole or in part after the Effective Time.

 

9.2         Amendment.  Subject to compliance with applicable law, this Agreement may be amended by the parties hereto at any time before or after the receipt of the Requisite Veritex Vote; provided, however, that after the receipt of the Requisite Veritex Vote there may not be, without further approval of such shareholders of Veritex or Huntington, as applicable, any amendment of this Agreement that requires such further approval under applicable law.  This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed on behalf of each of the parties.

 

9.3         Extension; Waiver.  At any time prior to the Effective Time, the parties hereto may, to the extent legally allowed, extend the time for the performance of any of the obligations or other acts of the other party hereto, waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto, and waive compliance with any of the agreements or satisfaction of any conditions for its benefit contained herein; provided, however, that after the receipt of the Requisite Veritex Vote there may not be, without further approval of such shareholders of Veritex or Huntington, as applicable, any extension or waiver of this Agreement or any portion thereof that requires such further approval under applicable law.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

 

9.4         Expenses.  Except (i) with respect to costs and expenses of printing and mailing the Proxy Statement and all filing and other fees paid to the SEC and any other Governmental Entity in connection with the Merger, the Bank Merger and the other transactions contemplated hereby, which shall be borne equally by Huntington and Veritex, and (ii) as otherwise expressly provided in this Agreement, including in Section 8.2, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees or expenses, whether or not the Merger is consummated.

 

9.5         Notices.  All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (c) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient, provided that no “error” message or other notification of non-delivery is generated, or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.  Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified by like notice):

 

if to Veritex, to:

 

Veritex Holdings, Inc.

8214 Westchester Drive, Suite 400

Dallas, Texas 75525

Attention:     Philip Donnelly, Senior Executive Vice President and

E-mail:          [***]

 

 

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY  10017

Attention:     Sven Mickisch; Timothy Gaffney

E-mail:          sven.mickisch@stblaw.com

timothy.gaffney@stblaw.com

 

and

 

if to Huntington, to:

 

Huntington Bancshares Incorporated

41 South High Street

Columbus, OH 43287

Attention:     Marcy C. Hingst, General Counsel

E-mail:          [***]

 

 

Wachtell, Lipton, Rosen & Katz

51 W. 52nd Street

New York, NY 10019

Attention:     Edward D. Herlihy and Nicholas G. Demmo

E-mail:          EDHerlihy@wlrk.com and NGDemmo@wlrk.com

 

9.6         Interpretation.  The parties have participated jointly in negotiating and drafting this Agreement.  In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.  When a reference is made in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or Schedule to this Agreement unless otherwise indicated.  The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation 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.”  The word “or” shall not be exclusive.  References to “the date hereof” shall mean the date of this Agreement.  As used in this Agreement, the “knowledge” of Veritex means the actual knowledge of any of the officers of Veritex listed on Section 9.6 of the Veritex Disclosure Schedule, and the “knowledge” of Huntington means the actual knowledge of any of the officers of Huntington listed on Section 9.6 of the Huntington Disclosure Schedule.  As used herein, (a) “business day” means any day other than a Saturday, a Sunday or a day on which banks in New York, New York, Columbus, Ohio or Dallas, Texas are authorized by law or executive order to be closed, (b) the term “person” means any individual, corporation (including not‑for‑profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity or other entity of any kind or nature, (c) an “affiliate” of a specified person is any person that directly or indirectly controls, is controlled by, or is under common control with, such specified person, (d) the term “made available” means any document or other information that was (i) provided by one party or its representatives to the other party and its representatives prior to the date hereof, (ii) included in the virtual data room of a party prior to the date hereof or (iii) filed by a party with the SEC and publicly available on EDGAR prior to the date hereof and (e) references to a party’s shareholders shall mean, in the case of Huntington, its stockholders.  The Veritex Disclosure Schedule and the Huntington Disclosure Schedule, as well as all other schedules and all exhibits hereto, shall be deemed part of this Agreement and included in any reference to this Agreement.  All references to “dollars” or “$” in this Agreement are to United States dollars.  This Agreement shall not be interpreted or construed to require any person to take any action, or fail to take any action, if to do so would violate any applicable law.

 

9.7         Confidential Supervisory Information.  No disclosure, representation or warranty shall be made (or any other action taken) pursuant to this Agreement that would involve the disclosure of confidential supervisory information (including confidential supervisory information as defined in 12 C.F.R. § 261.2(b) and as identified in 12 C.F.R. § 4.32(b)) of a Governmental Entity by any party hereto to the extent prohibited by applicable law, and, to the extent legally permissible, appropriate substitute disclosures or actions shall be made or taken under circumstances in which the limitations of this sentence apply.

 

9.8         Counterparts.  This Agreement may be executed in counterparts (including by electronic means), all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.

 

9.9         Entire Agreement.  This Agreement (including the documents and the instruments referred to herein) together with the Confidentiality Agreement constitutes the entire agreement among the parties and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.

 

9.10       Governing Law; Jurisdiction.

 

(a)          This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any applicable conflicts of law principles (except that matters relating to the fiduciary duties of the Board of Directors of Veritex shall be subject to the laws of the State of Texas and matters relating to the fiduciary duties of the Board of Directors of Huntington shall be subject to the laws of the State of Maryland).

 

(b)          Each party agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal or state court of competent jurisdiction located in the State of Delaware (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 9.5.

 

9.11        Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT:  (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUIT, ACTION OR OTHER PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.

 

9.12       Assignment; Third-Party Beneficiaries.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other party.  Any purported assignment in contravention hereof shall be null and void.  Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.  Except as otherwise specifically provided in Section 6.7, which is intended to benefit each Veritex Indemnified Party and his or her heirs and representatives, this Agreement (including the documents and instruments referred to herein) is not intended to and does not confer upon any person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein.  The representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties.  Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance herewith without notice or liability to any other person.  In some instances, the representations and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto.  Consequently, persons other than the parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.  Except as provided in Section 6.7, notwithstanding any other provision in this Agreement to the contrary, no consent, approval or agreement of any third-party beneficiary will be required to amend, modify or waive any provision of this Agreement.

 

9.13       Specific Performance.  The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached.  Accordingly, the parties shall be entitled to specific performance of the terms of this Agreement, including an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof (including the parties’ obligation to consummate the Merger), in addition to any other remedy to which they are entitled at law or in equity.  Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security or a bond as a prerequisite to obtaining equitable relief.

 

9.14       Severability.  Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction such that the invalid, illegal or unenforceable provision or portion thereof shall be interpreted to be only so broad as is enforceable.

 

9.15       Delivery by Electronic Transmission.  This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by e‑mail delivery of a “.pdf” format data file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  No party hereto or to any such agreement or instrument shall raise the use of e‑mail delivery of a “.pdf” format data file to deliver a signature to this Agreement or any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through e‑mail delivery of a “.pdf” format data file as a defense to the formation of a contract and each party hereto forever waives any such defense.

 

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.

 

a.

The approval of the OCC under 12 U.S.C. § 215a-1, 12 U.S.C. § 1831u and 12 U.S.C. § 1828(c) with respect to the Bank Merger shall have been obtained and shall be in full force and effect, and all related waiting periods shall have expired; and all other material consents, approvals, permissions, and authorizations of, filings and registrations with, and notifications to, all governmental authorities required for the consummation of the Bank Merger shall have been obtained or made and shall be in full force and effect and all waiting periods required by law shall have expired.

b.

The Merger shall have been consummated in accordance with the terms of the Merger Agreement.

c.

No jurisdiction or governmental authority 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 Bank Merger.

d.

This Agreement and the Bank Merger shall have been approved, or ratified and confirmed, as applicable, by the sole shareholder of each of The Huntington National Bank and Veritex Community Bank.

	VERITEX COMMUNITY BANK
	By:
	Title:

	THE HUNTINGTON NATIONAL BANK
	By:
	Title: