-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JAr9nIST1cyhs5036e1BzMnyQJ6dJMwK1zWjcyoZPGv0mhk+LnQEPvgcAp7mbvi4 p1BRLcm12pbdpVYnif0x7A== 0000944209-97-000669.txt : 19970520 0000944209-97-000669.hdr.sgml : 19970520 ACCESSION NUMBER: 0000944209-97-000669 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970516 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NATIONAL MERCANTILE BANCORP CENTRAL INDEX KEY: 0000714801 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 953819685 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: 1933 Act SEC FILE NUMBER: 333-21455 FILM NUMBER: 97610787 BUSINESS ADDRESS: STREET 1: 1840 CENTURY PARK EAST CITY: LOS ANGELES STATE: CA ZIP: 90067 BUSINESS PHONE: 3102772265 MAIL ADDRESS: STREET 1: 1840 CENTURY PARK EAST CITY: LOS ANGELES STATE: CA ZIP: 90067 POS AM 1 POST-EFFECTIVE AMENDMENT #3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 16, 1997 REGISTRATION NO. 333-21455 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- POST-EFFECTIVE AMENDMENT NO. 3 TO FORM S-2 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- NATIONAL MERCANTILE BANCORP (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) CALIFORNIA 95-3819685 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 1840 CENTURY PARK EAST LOS ANGELES, CALIFORNIA 90067 (310) 277-2265 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ---------------- SCOTT A. MONTGOMERY EXECUTIVE VICE PRESIDENT AND CHIEF ADMINISTRATIVE OFFICER NATIONAL MERCANTILE BANCORP 1840 CENTURY PARK EAST LOS ANGELES, CALIFORNIA 90067 (310) 277-2265 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------- COPIES TO: NANCY H. WOJTAS MARY M. SJOQUIST SEEMA L. NENE MULDOON, MURPHY & FAUCETTE MANATT, PHELPS & PHILLIPS, LLP 5101 WISCONSIN AVENUE, N.W. 11355 W. OLYMPIC BOULEVARD WASHINGTON, D.C. 20016 LOS ANGELES, CALIFORNIA 90064 (202) 362-0840 (310) 312-4000 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as practicable after the Registration Statement becomes effective. If the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. [_] If the Registrant elects to deliver its latest annual report to security holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1) of this Form, check the following box. [_] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] ---------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The expenses to be paid by the Registrant in connection with the offering described in this Registration Statement, other than underwriting discounts and commissions, are as follows (all amounts are estimated except the SEC, Nasdaq and NASD filing fees): SEC filing fee................................................. $ 2,425 Nasdaq listing fees............................................ 3,250 NASD filing fee................................................ 1,300 Printing and engraving fees.................................... 100,000 Accounting fees and expenses................................... 412,000 Legal fees and expenses........................................ 505,000 Blue sky fees and expenses..................................... 27,000 Transfer agent and registrar's fees and expenses............... 5,000 Subscription agent fees and expenses........................... 5,000 Information agent fees and expenses............................ 12,000 Miscellaneous.................................................. 28,000 ---------- Total...................................................... $1,100,975 ==========
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS Article X of the Registrant's Articles of Incorporation, as amended, provides that the liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. Article XI of the Registrant's Articles of Incorporation, as amended, provides that the corporation is authorized to provide for the indemnification of agents (as defined in Section 317 of the California General Corporation Law) in excess of that expressly permitted by such Section 317, subject to the limitations set forth in the General Corporation Law of California, for breach of duty to the corporation and its stockholders through bylaw provisions or through agreements, or both. Article V of the Registrant's amended Bylaws provides as follows: ARTICLE VI Indemnification Section 5.01. Definitions. For the purposes of this Article, "agent" includes any person who is or was a director, officer, employee, or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of a foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of such predecessor corporation; "proceeding" includes any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative; and "expenses" includes without limitation attorneys' fees and any expenses of establishing a right to indemnification under Section 5.04 or Section 5.05(c) of these Bylaws. II-1 Section 5.02. Indemnification in Actions by Third Parties. The Corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any proceeding (other than an action by, or in the right of, the Corporation) by reason of the fact that such person is or was an agent of the Corporation, against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with such proceeding if he acted in good faith and in a manner he reasonably believed to be in the best interests of the Corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in the best interests of the Corporation or that he had reasonable cause to believe that his conduct was unlawful. Section 5.03. Indemnification in Actions by or in the Right of the Corporation. The Corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action by, or in the right of, the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the Corporation against expenses actually and reasonably incurred in connection with the defense or settlement of such action if he acted in good faith, in a manner he believed to be in the best interests of the Corporation, and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section: (A) in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable to the Corporation in the performance of his duty to the Corporation, unless and only to the extent that the court in which such action was brought shall determine upon application that, in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (B) of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval; or (C) of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. Section 5.04. Indemnification Against Expenses. To the extent that an agent of the Corporation has been successful on the merits in defense of any proceeding referred to in Section 5.02 or 5.03 of these Bylaws or in defense of any claim, issue or matter therein, he shall be indemnified against his expenses actually and reasonably incurred in connection therewith. Section 5.05. Required Determinations. Except as provided in Section 5.04 of these Bylaws, any indemnification under this Article shall be made by the Corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper under the circumstances because the agent has met the applicable standard of conduct set forth in Section 5.02 or 5.03 of these Bylaws by: (A) a majority vote of a quorum consisting of directors who are not parties to such proceeding; (B) approval of the shareholders, with the shares owned by the person to be indemnified not being entitled to vote thereon; or (C) the court in which such proceeding is or was pending upon application made by the Corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the Corporation. Section 5.06. Advance of Expenses. Expenses incurred in defending any proceeding may be advanced by the Corporation before the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent or repay such amount unless it shall be determined ultimately that the agent is not entitled to be indemnified as authorized in this Article. II-2 Section 5.07. Other Indemnification. No provision made by the Corporation to indemnify the directors or officers of the Corporation, or a subsidiary of the Corporation for the defense of any proceeding, whether contained in the Articles of Incorporation, Bylaws, a resolution of the shareholders or directors, an agreement or otherwise, shall be valid unless consistent with Section 317 of the California General Corporation Law. Nothing contained in this Article shall affect any right to indemnification to which persons other than such directors and officers may be entitled by contract or otherwise. Section 5.08. Forms of Indemnification Not Permitted. No indemnification or advance shall be made under this Article, except as provided in Section 5.04 or Section 5.05(c) of these Bylaws in any circumstance where it appears: (A) that it would be inconsistent with a provision of the Articles of Incorporation, Bylaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (B) that it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 5.09. Insurance. The Corporation shall have the power to buy and maintain insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such whether or not the Corporation would have the power to indemnify the agent against such liability under the provisions of this Article. Section 5.10. Nonapplicability to Fiduciaries of Employee Benefit Plans. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in his capacity as such, even though he may also be an agent of the Corporation as defined in Section 5.01 of these Bylaws. Nothing contained in this Article shall limit any right to indemnification to which such trustee, investment manager or other fiduciary may be entitled by contract or otherwise which shall be enforceable to the extent permitted by applicable law other than Section 317 of the California General Corporation Law. ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION ------- ----------- 1.1 Form of Agency Agreement** 3.1 Articles of Incorporation of the Company, as amended(1) 3.2 Amended and Restated Bylaws of the Company(3) 3.3 Form of Amended and Restated Articles of Incorporation** 4.1 Subscription Right Certificate** 5. Opinion of Manatt, Phelps & Phillips, LLP+ 8. Tax opinion of Manatt, Phelps & Phillips, LLP+ 10.1 Memorandum of Understanding dated October 25, 1991 between the Federal Reserve Bank of San Francisco and the Company(2) 10.2 Memorandum of Understanding dated October 26, 1995 between the Federal Reserve Bank of San Francisco and the Company(6) 10.3 Formal Agreement dated July 26, 1991 between the Office of the Comptroller of the Currency and Mercantile National Bank(2) 10.4 Amendment to the Agreement by and between Mercantile National Bank and the Office of the Comptroller of the Currency dated December 14, 1995(6) 10.5 Employment Agreement, dated June 21, 1996 between Mercantile National Bank and Scott A. Montgomery(9) 10.6 Financial Institution Services Agreement dated April 8, 1993 between Mercantile National Bank and Linsco/Private Ledger(4) 10.7 Form of Indemnity Agreement between the Company and its directors(1) 10.8 Form of Indemnity Agreement between the Company and its executive officers(1) 10.9 First Floor Lease at 1840 Century Park East, Los Angeles, California, dated as of December 21, 1982 between Northrop Corporation and Mercantile National Bank(3)
II-3
EXHIBIT NO. DESCRIPTION ------- ----------- 10.10 Second Floor Lease at 1840 Century Park East, Los Angeles, California, dated as of December 21, 1982 between Northrop Corporation and Mercantile National Bank for space at 1840 Century Park East, Los Angeles, California, as amended by Amendment to Second Floor Lease dated as of June 7, 1986, and as amended by Second Amendment to Second Floor Lease dated as of December 18, 1992 between California State Teachers' Retirement System and Mercantile National Bank(3) 10.11 Lease Restructure Agreement dated December 31, 1995 by and between California State Teachers' Retirement System and Mercantile National Bank(6) 10.12 Warrant Agreement dated December 31, 1995 by and between National Mercantile Bancorp and California State Teachers' Retirement System(6) 10.13 Registration Rights Agreement dated December 31, 1995 by and between the Company and California State Teachers' Retirement System(6) 10.14 National Mercantile Bancorp 1983 Stock Option Plan, as amended March 22, 1991(2) 10.15 Form of Stock Option Agreement under the 1983 Stock Option Plan(3) 10.16 National Mercantile Bancorp 1990 Stock Option Plan(7) 10.17 Form of Stock Option Agreement under the 1990 Stock Option Plan(3) 10.18 National Mercantile Bancorp 1994 Stock Option Plan(8) 10.19 Form of Stock Option Agreement under the 1994 Stock Option Plan(5) 10.20 Form of Severance Agreement between the Company, Mercantile National Bank and some of its officers(9) 10.21 Form of Stay Bonus Agreement between the Company, Mercantile National Bank and some of its officers(10) 10.22 Private Purchase Agreement (Conrad)** 10.23 Private Purchase Agreement (Wildwood)** 10.24 Form of Standby Purchase Agreement** 10.25 Registration Rights Agreement (Conrad)** 10.26 Form of Registration Rights Agreement (Wildwood)** 10.27 Form of First Amendment to Letter Agreement (Conrad)** 10.28 Form of First Amendment to Letter Agreement (Wildwood)** 11. Statement regarding computation of per share earnings (see "Note 1-- Summary of Significant Accounting Policies--Income (Loss) Per Share"--of the "Notes to the Consolidated Financial Statements" in "Item 8. Financial Statements" in this Annual Report on Form 10-K) 22. Subsidiaries of the Registrant** 23.1 Consent of Deloitte & Touche LLP** 23.2 Consent of Manatt, Phelps & Phillips, LLP (included in Exhibit 5)+ 24. Power of Attorney (see page II-10) 99.1 Instructions as to Use of Subscription Right Certificates** 99.2 Form of Letter to Shareholders** 99.3 Form of Letter to Nominee Holders** 99.4 Form of Nominee Holder Oversubscription Certification** 99.5 Form of Letter from Nominee Holders to Beneficial Owners** 99.6 Form of Special Notice to Shareholders whose addresses are outside the United States and Canada** 99.7 Form of Notice of Guaranteed Delivery** 99.8 DTC Participant Oversubscription Exercise Form** 99.9 Form of Information Agent Agreement** 99.10 Form of Subscription Agent Agreement*
- -------- + Included in this amendment. ** Previously filed. (1) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1990 and incorporated herein by reference. (2) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1991 and incorporated herein by reference. II-4 (3) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1992 and incorporated herein by reference. (4) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1993 and incorporated herein by reference. (5) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1994 and incorporated herein by reference. (6) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1995 and incorporated herein by reference. (7) Filed as an exhibit to the Company's Proxy Statement dated May 24, 1990 and incorporated herein by reference. (8) Filed as an exhibit to the Company's Proxy Statement dated April 18, 1994 and incorporated herein by reference. (9) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and incorporated herein by reference. (10) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. ITEM 17. UNDERTAKINGS The undersigned registrant hereby undertakes as follows: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: i. To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; ii. To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; iii. To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; PROVIDED, HOWEVER, that paragraphs 1(i) and 1(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in the periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference to the registration statement. 2. That, for the purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 4. That, for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of the registration statement as of the time it was declared effective. II-5 5. That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment of the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 6. To supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering. 7. To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to securityholders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. II-6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-2 and has duly caused this Post-Effective Amendment No. 2 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Los Angeles, State of California, on May 16, 1997. NATIONAL MERCANTILE BANCORP By: /s/ Howard P. Ladd ---------------------------------- Howard P. Ladd Chairman of the Board By: /s/ Joseph W. Kiley III ---------------------------------- Joseph W. Kiley III Chief Financial Officer POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, this Post- Effective Amendment No. 2 to the Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ Howard P. Ladd Chairman, President and May 16, 1997 ____________________________________ Chief Executive Officer Howard P. Ladd /s/ Scott A. Montgomery Executive Vice President May 16, 1997 ____________________________________ and Director Scott A. Montgomery /s/ Joseph W. Kiley III Executive Vice President, May 16, 1997 ____________________________________ Chief Financial Officer Joseph W. Kiley III and Director * Alan Grahm Director May 16, 1997 ____________________________________ Alan Grahm * A. Thomas Hickey Director May 16, 1997 ____________________________________ A. Thomas Hickey * Robert E. Thomson Director May 16, 1997 ____________________________________ Robert E. Thomson * Robert E. Gipson Director May 16, 1997 ____________________________________ Robert E. Gipson * /s/ Scott A. Montgomery ____________________________________ Scott A. Montgomery
Attorney-in-Fact (pursuant to a Power of Attorney previously filed with this Registration Statement) II-7 EXHIBIT INDEX
SEQUENTIALLY EXHIBIT NUMBERED NO. DESCRIPTION PAGE ------- ----------- ------------ 1.1 Form of Agency Agreement** 3.1 Articles of Incorporation of the Company, as amended(1) 3.2 Amended and Restated Bylaws of the Company(3) 3.3 Form of Amended and Restated Articles of Incorporation** 4.1 Subscription Right Certificate** 5. Opinion of Manatt, Phelps & Phillips, LLP+ 8. Tax opinion of Manatt, Phelps & Phillips, LLP+ 10.1 Memorandum of Understanding dated October 25, 1991 between the Federal Reserve Bank of San Francisco and the Company(2) 10.2 Memorandum of Understanding dated October 26, 1995 between the Federal Reserve Bank of San Francisco and the Company(6) 10.3 Formal Agreement dated July 26, 1991 between the Office of the Comptroller of the Currency and Mercantile National Bank(2) 10.4 Amendment to the Agreement by and between Mercantile National Bank and the Office of the Comptroller of the Currency dated December 14, 1995(6) 10.5 Employment Agreement, dated June 21, 1996 between Mercantile National Bank and Scott A. Montgomery(9) 10.6 Financial Institution Services Agreement dated April 8, 1993 between Mercantile National Bank and Linsco/Private Ledger(4) 10.7 Form of Indemnity Agreement between the Company and its directors(1) 10.8 Form of Indemnity Agreement between the Company and its executive officers(1) 10.9 First Floor Lease at 1840 Century Park East, Los Angeles, California, dated as of December 21, 1982 between Northrop Corporation and Mercantile National Bank(3) 10.10 Second Floor Lease at 1840 Century Park East, Los Angeles, California, dated as of December 21, 1982 between Northrop Corporation and Mercantile National Bank for space at 1840 Century Park East, Los Angeles, California, as amended by Amendment to Second Floor Lease dated as of June 7, 1986, and as amended by Second Amendment to Second Floor Lease dated as of December 18, 1992 between California State Teachers' Retirement System and Mercantile National Bank(3) 10.11 Lease Restructure Agreement dated December 31, 1995 by and between California State Teachers' Retirement System and Mercantile National Bank(6) 10.12 Warrant Agreement dated December 31, 1995 by and between National Mercantile Bancorp and California State Teachers' Retirement System(6) 10.13 Registration Rights Agreement dated December 31, 1995 by and between the Company and California State Teachers' Retirement System(6) 10.14 National Mercantile Bancorp 1983 Stock Option Plan, as amended March 22, 1991(2) 10.15 Form of Stock Option Agreement under the 1983 Stock Option Plan(3) 10.16 National Mercantile Bancorp 1990 Stock Option Plan(7) 10.17 Form of Stock Option Agreement under the 1990 Stock Option Plan(3) 10.18 National Mercantile Bancorp 1994 Stock Option Plan(8) 10.19 Form of Stock Option Agreement under the 1994 Stock Option Plan(5) 10.20 Form of Severance Agreement between the Company, Mercantile National Bank and some of its officers(9) 10.21 Form of Stay Bonus Agreement between the Company, Mercantile National Bank and some of its officers(10) 10.22 Private Purchase Agreement (Conrad)** 10.23 Private Purchase Agreement (Wildwood)** 10.24 Form of Standby Purchase Agreement**
SEQUENTIALLY EXHIBIT NUMBERED NO. DESCRIPTION PAGE ------- ----------- ------------ 10.25 Registration Rights Agreement (Conrad)** 10.26 Form of Registration Rights Agreement (Wildwood)** 10.27 Form of First Amendment to Letter Agreement (Conrad)** 10.28 Form of First Amendment to Letter Agreement (Wildwood)** 11. Statement regarding computation of per share earnings (see "Note 1--Summary of Significant Accounting Policies--Income (Loss) Per Share"--of the "Notes to the Consolidated Financial Statements" in "Item 8. Financial Statements" in this Annual Report on Form 10-K) 22. Subsidiaries of the Registrant** 23.1 Consent of Deloitte & Touche LLP** 23.2 Consent of Manatt, Phelps & Phillips, LLP (included in Exhibit 5)+ 24. Power of Attorney (see page II-10) 99.1 Instructions as to Use of Subscription Right Certificates** 99.2 Form of Letter to Shareholders** 99.3 Form of Letter to Nominee Holders** 99.4 Form of Nominee Holder Oversubscription Certification** 99.5 Form of Letter from Nominee Holders to Beneficial Owners** 99.6 Form of Special Notice to Shareholders whose addresses are outside the United States and Canada** 99.7 Form of Notice of Guaranteed Delivery** 99.8 DTC Participant Oversubscription Exercise Form** 99.9 Form of Information Agent Agreement** 99.10 Form of Subscription Agent Agreement**
- -------- + Included in this amendment. ** Previously filed. (1) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1990 and incorporated herein by reference. (2) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1991 and incorporated herein by reference. (3) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1992 and incorporated herein by reference. (4) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1993 and incorporated herein by reference. (5) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1994 and incorporated herein by reference. (6) Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1995 and incorporated herein by reference. (7) Filed as an exhibit to the Company's Proxy Statement dated May 24, 1990 and incorporated herein by reference. (8) Filed as an exhibit to the Company's Proxy Statement dated April 18, 1994 and incorporated herein by reference. (9) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and incorporated herein by reference. (10) Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995. EX-5 2 OPINION OF MANATT, PHELPS & PHILLIPS, LLP EXHIBIT 5 [LETTERHEAD OF MANATT, PHELPS & PHILLIPS, LLP] May 13, 1997 National Mercantile Bancorp 1840 Century Park East Los Angeles, CA 90067 RE: NATIONAL MERCANTILE BANCORP Ladies and Gentlemen: As counsel for National Mercantile Bancorp, a California corporation (the "Company"), in connection with the Company's Registration Statement on Form S-2, No. 333-21455 as amended ("Registration Statement"), registering a maximum of 800,000 shares of the Company's noncumulative convertible preferred stock, $10.00 stated valued (the "Preferred Stock") to be issued upon the exercise of nontransferable rights to purchase Preferred Stock ("Rights") and upon the sale of such shares to certain standby purchasers, and as further described in the Registration Statement (the "Offering"), we have been requested to render this opinion. We have examined and reviewed only such questions of law as we have deemed necessary or appropriate for the purpose of rendering the opinion set forth herein. For the purpose of rendering the opinion set forth herein, we have been furnished with and examined only the following documents: 1. The Articles of Incorporation of the Company, as amended and presently in effect; 2. The form of the Amended and Restated Articles of Incorporation of the Company (the "Restatement"); 3. The Bylaws of the Company, as amended and presently in effect; 4. The Registration Statement; 5. Records of the meetings of the Board of Directors of the Company pertaining to the Offering; and 6. Such other agreements, instruments, documents and records as we have deemed to be necessary in connection with furnishing the opinion expressed below. With respect to all of the foregoing documents, we have assumed, without investigation, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as certified or reproduced LOGO FOR MANATT, PHELPS & PHILLIPS, LLP National Mercantile Bancorp Page 2 copies. We also have obtained from the officers of the Company such advice as to such factual matters as we consider necessary for the purpose of this opinion, and insofar as this opinion is based on such matters of fact, we have relied on such advice. For the purposes of this opinion, we have further assumed that the Restatement will be duly authorized by the Board of Directors of the Company and the shareholders of the Company, and will be filed with the Secretary of State for the State of California. Based on the foregoing, we are of the opinion that: (a) The shares of Preferred Stock when issued and delivered in the manner and on the terms described in the Registration Statement (after and while the Registration Statement is declared effective), will be validly issued, fully paid and nonassessable. (b) The shares of the Company's common stock, no par value, issuable upon conversion of the shares of Preferred Stock in the manner and on the terms described in the Registration Statement, in accordance with the Restatement as described in the Registration Statement, when issued upon such conversion in accordance with the Restatement, will be validly issued, fully paid and nonassessable. Our opinion expressed herein is limited to those matters expressly set forth herein, and no opinion may be implied or inferred beyond the matters expressly stated herein. We hereby disclaim any obligation to notify any person or entity after the date hereof if any change in fact or law should change our opinion with respect to any matter set forth in this letter. This opinion is limited to the current laws of the State of California and the United States of America, to present judicial interpretations thereof and to facts as they presently exist. In rendering this opinion, we have no obligation to revise or supplement it should the current laws of the State of California or the United States of America be changed by legislative action, judicial decision or otherwise. LOGO FOR MANATT, PHELPS & PHILLIPS, LLP National Mercantile Bancorp Page 3 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the caption "Legal Matters" in the prospectus which is part of the Registration Statement. Respectfully submitted, /s/ Manatt, Phelps & Phillips, LLP EX-8 3 TAX OPINION OF MANATT, PHELPS & PHILLIPS, LLP EXHIBIT 8 [LETTERHEAD OF MANNATT, PHELPS & PHILLIPS, LLP] May 13, 1997 National Mercantile Bancorp 1840 Century Park East Los Angeles, California 90067 Ladies and Gentlemen: We have acted as counsel to National Mercantile Bancorp in connection with the proposed offering to holders of record of its common stock, no par value, of nontransferable subscription rights (the "Rights") to subscribe for and purchase shares of Preferred Shares (the "Rights Offering"). The Rights Offering also includes the entry into certain Private Purchase Agreements with certain Private Purchasers and certain Standby Purchase Agreements with certain Standby Purchasers by National Mercantile Bancorp. In our capacity as counsel, we hereby confirm to you our opinion that the summaries set forth under the captions "Certain Federal Income Tax Consequences", "Possible Loss of Tax Benefits" and "Tax Limitation" in the Prospectus included in the Registration Statement filed by National Mercantile Bancorp with the Securities and Exchange Commission on February 10, 1997, in connection with the Rights Offering accurately describe the material federal income tax consequences applicable to holders of the Rights with regard to issuance, exercise and expiration of the Rights, the material federal income tax consequences applicable to Standby Purchasers with regard to the entry into, exercise and expiration of the Standby Purchase Agreements and the material federal income tax considerations relevant to an "ownership change" within the meaning of Section 382 of the Internal Revenue Code of 1986. We express no opinion whether such an "ownership change" will or will not occur in connection with the Rights Offering or otherwise. See the opinion letter of Deloitte & Touche, LLP, concerning this subject. [LOGO FOR MANATT, PHELPS & PHILLIPS, LLP] National Mercantile Bancorp MAY 13, 1997 Page 2 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us in the Prospectus forming part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, By /s/ Manatt, Phelps & Phillips, LLP ------------------------------------ -----END PRIVACY-ENHANCED MESSAGE-----