<PAGE>
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. 2
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.
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- -------------------------------------------------------------------------------
<PAGE>
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):
<TABLE>
<S> <C>
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
==========
</TABLE>
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
<PAGE>
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
<PAGE>
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
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
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)
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
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*
</TABLE>
- --------
+ 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
<PAGE>
(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
<PAGE>
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
<PAGE>
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/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
</TABLE>
Attorney-in-Fact
(pursuant to a Power of
Attorney previously filed with
this Registration Statement)
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
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**
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
------- ----------- ------------
<C> <S> <C>
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**
</TABLE>
- --------
+ 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.
<PAGE>
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
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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. Further, the opinion contained in this letter is given
as of the date of this letter and is rendered exclusively for your benefit
solely in connection with the Offering, may not be relied upon to state directly
or indirectly any general proposition or for any other purpose, and may not be
relied upon by any other party for any purpose.
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 letter may not be relied
upon by any other person or entity and may not be circulated, quoted, or cited
in whole or in part, without our express prior written consent.
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.
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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
<PAGE>
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.
<PAGE>
[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
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