1
EXHIBIT 9
VOTING AGREEMENT
This voting agreement (this "Voting Agreement") is dated this
3rd day of May, 1999, by and between SouthTrust Bank, N. A., a national
association ("ST-Bank"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, residents
of the State of Texas (the "Co-Voting Representatives") and is joined in by
SouthTrust Corporation, a Delaware corporation and the ultimate parent company
of ST-Bank ("SouthTrust"), and SouthTrust of Alabama, Inc., an Alabama
corporation and a subsidiary of SouthTrust ("ST-Sub").
RECITALS
WHEREAS, pursuant to that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated of even date herewith, by and between
ST-Bank and Navigation Bank, a Texas banking corporation (the "Bank"), and
joined in by SouthTrust and ST-Sub, ST-Sub will acquire the assets and business
of the Bank in exchange for shares of common stock, par value $2.50 per share,
of SouthTrust in a transaction that qualifies as a reorganization pursuant to
Section 368(a)(1)(C) of the Internal Revenue Code of 1986 by the merger of the
Bank with and into ST-Bank (the "Merger"), with ST-Bank being the surviving
corporation;
WHEREAS, pursuant to applicable law the shareholders of the
Bank must approve the Merger;
WHEREAS, pursuant to that certain Voting and Stock
Restriction Agreement (the "Voting and Stock Restriction Agreement"), dated
January 6, 1989, by and among certain of the holders (the "Shareholders") of
common stock, par value $32.50 per share, of the Bank, the Shareholders granted
to the Co-Voting Representatives the right to vote all of the shares of common
stock of the Bank held by each of the Shareholders;
WHEREAS, it is a condition precedent to ST-Bank, SouthTrust
and ST-Sub executing the Merger Agreement that the Co-Voting Representatives
execute this Voting Agreement and ST-Bank, SouthTrust and ST-Sub are relying on
the promises given herein by the Co-Voting Representatives, both in their
capacity as a Co-Voting Representative and as a Shareholder, in proceeding with
the filing of applications for regulatory approval for the Merger and in
undertaking other actions necessary for the consummation of the Merger;
NOW, THEREFORE, for and in consideration of the foregoing and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
Section I. Agreement to Vote the Stock. The Co-Voting Representatives
hereby agree to vote at the meeting of the holders of shares of common stock of
the Bank referred to in Section 5.4 (a) of the Merger Agreement (the "Meeting")
the Stock (as that term is defined in the Voting and Stock Restriction
Agreement) and to direct the vote of all such Stock or to give written consent
as to all such Stock to an action in lieu of the Meeting in favor of approval
of the Merger Agreement, the Merger, all agreements and transactions
contemplated by the Merger Agreement and any proposal which is required by
applicable law to be considered by, and voted upon, the holders of shares of
common stock of the Bank which is necessary or desirable to effectuate the
Merger and the other transactions contemplated in the Merger Agreement.
Section II. Voting with respect to Acquisition Transactions. If the Bank
conducts a meeting of, or solicits written consents from or otherwise seeks a
vote of the holders of shares of common stock of the Bank with respect to any
Acquisition Transaction (as that term is defined herein) or any other matter
which may contradict any provision of this Voting Agreement or the Merger
Agreement or may prevent ST-Bank from consummating the Merger, then the
Co-Voting Representatives shall vote the Stock in the manner most favorable to
the consummation of the Merger and the transactions contemplated in the Merger
Agreement. For purposes of this Voting Agreement, "Acquisition Transaction"
shall mean any of the following: (i) a merger or consolidation, or any similar
transaction (other than the Merger) of any company or entity with the Bank,
(ii) a purchase, lease or other acquisition of all or substantially all the
assets of the Bank, (iii) a purchase or other acquisition of "beneficial
ownership" by any "person" or "group" (as such terms are defined in Section
13(d)(3) of the Securities Exchange Act) (including by way of merger,
consolidation, share exchange, or otherwise) which would cause such person or
group to become the beneficial owner of securities representing 20% or more of
the voting power of the Bank after the date of this Voting Agreement, (iv) a
tender or exchange offer to acquire securities
2
representing 20% or more of the voting power of the Bank, (v) a public proxy or
consent solicitation made to the holders of shares of common stock of the Bank
seeking proxies in opposition to any proposal relating to any of the
transactions contemplated by this Voting Agreement, or (vi) the making of a
bona fide offer or proposal to the Board of Directors or holders of shares of
common stock of the Bank, to engage in one or more of the transactions referred
to in (i) through (v) above.
Section III. Representations of the Co-Voting Representatives. Each of the
Co-Voting Representatives, jointly and severally, represents
and warrants to ST-Bank, ST-Sub and SouthTrust as follows:
(1) as of the date of this Voting Agreement, the Co-Voting
Representatives have the full legal capacity and authority to execute, deliver
and perform this Voting Agreement;
(2) this Voting Agreement, when duly and validly executed by the
Co-Voting Representatives and delivered by the Co-Voting Representatives will
constitute a valid and binding obligation of the Co-Voting Representatives, and
will be enforceable against the Co-Voting Representatives in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors rights generally and except that the availability
of the equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be brought; and
(3) as of the date of this Voting Agreement, the Voting and Stock
Restriction Agreement is in full force and effect and has not been terminated.
Section IV. Covenants and Agreements of the Co-Voting Representatives in
their Capacity as Shareholders.
(1) Each of the Co-Voting Representatives hereby agrees not to (i)
terminate the Voting and Stock Restriction Agreement or (ii) agree to an
amendment to the terms or provisions of the Voting and Stock Restriction
Agreement other than to such amendments as are favorable to the consummation of
the Merger and the transactions contemplated in the Merger Agreement.
(2) Each of the Co-Voting Representatives hereby covenants and
agrees that, until this Voting Agreement is terminated in accordance with its
terms, each of the Co-Voting Representatives will not, and will not agree to,
directly or indirectly, without the prior written consent of SouthTrust, sell,
assign, transfer, hypothecate or dispose of any such Co-Voting Representative's
shares of Bank Stock.
Section V. Representations and Warranties of the Co-Voting
Representatives in their Capacity as Shareholders.
(1) Each of the Co-Voting Representatives hereby represents and
warrants to ST-Bank, ST-Sub and SouthTrust that he beneficially owns or has
dispositive or voting power over that number of shares of common stock, par
value $32.50 per share, of the Bank set forth opposite his name on attached
EXHIBIT A to this Voting Agreement and that each such share is subject to the
terms and provisions of the Voting and Stock Restriction Agreement.
(2) This Voting Agreement, when duly and validly executed by the
Co-Voting Representatives and delivered by the Co-Voting Representatives will
constitute a valid and binding obligation of the Co-Voting Representatives, in
their capacity as Shareholders and will be enforceable against the Co-Voting
Representatives in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors rights generally and except
that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought.
Section VI. Term of this Voting Agreement. This Voting Agreement shall
continue in effect until the later to occur of (i) the consummation of the
Merger and the other transactions contemplated by the Merger Agreement, or (ii)
the termination of the Merger Agreement in accordance with its terms, as
amended from time to time.
Section VII. Entire Agreement. This Voting Agreement and the documents
referred to herein contain the entire agreement among ST-Bank, ST-Sub,
SouthTrust and the Co-Voting Representatives with respect to the transactions
3
contemplated hereunder and this Voting Agreement supersedes all prior
arrangements or understandings with respect thereto, whether written or oral.
Nothing in this Voting Agreement, expressed or implied, is intended to confer
upon any person, firm, corporation or entity, other than the parties hereto and
its successors and assigns, any rights, remedies, obligations or liabilities
under or by reason of this Voting Agreement.
Section VIII. Amendment. None of the terms and conditions of this Agreement
shall be amended or modified unless expressly consented to in writing and
signed by each of the parties hereto.
Section IX. Non-assignability. Neither this Agreement nor any of the
rights, obligations or interests arising hereunder may be assigned by the
Co-Voting Representatives. The rights, obligations or interest arising
hereunder may be assigned by ST-Bank to (i) an Affiliate of ST-Bank, or (ii)
any party with which ST-Bank or SouthTrust merges or consolidates, or to
whomever ST-Bank or SouthTrust may sell all or substantially all of its assets.
For the purposes of this Voting Agreement, "Affiliate" shall mean, with respect
to ST-Bank, any entity which, directly or indirectly, controls, is controlled
by or is under common control with ST-Bank.
Section X. Governing Law. This Agreement is made and shall be governed by
and construed in accordance with the laws of the State of Alabama without
respect to its conflicts of laws principles.
Section XI. Captions. The captions as to contents of particular sections
or paragraphs contained in this Voting Agreement and the table of contents
hereto are inserted only for convenience and are in no way to be construed as
part of this Voting Agreement or as a limitation on the scope of the particular
sections or paragraphs to which they refer.
Section XII. Severability. This Agreement shall be deemed severable and any
part hereof which may be held invalid by a court or other entity of competent
jurisdiction shall be deemed automatically excluded from this Agreement and the
remaining parts shall remain in full force and effect.
Section XIII. Counterparts. This Voting Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document with the same force
and effect as though all parties had executed the same document.
IN WITNESS WHEREOF, the parties hereto have caused this
Voting Agreement to be executed and delivered, and their respective seals
hereunto affixed, by their officers thereunto duly authorized, and have caused
this Agreement to be dated as of the date and year first above written.
SOUTHTRUST BANK,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Its: Senior Vice President
-----------------------------------
ATTEST:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Its: Secretary
----------------------------------
[CORPORATE SEAL]
4
SOUTHTRUST CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Its: Senior Vice President
--------------------------------------
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Its: Secretary
----------------------------------
[CORPORATE SEAL]
SOUTHTRUST OF ALABAMA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Its: Vice President
--------------------------------------
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Its: Secretary
----------------------------------
[CORPORATE SEAL]
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
5
EXHIBIT A
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 8,229.5
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 8,599
