EXHIBIT 99.10
STOCK PURCHASE AGREEMENT
DATE: July 31, 2002
PARTIES: Xxxxx X. Xxxxxx
00 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
and
Xxxxxx X. Xxxxxx
00 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
and
Xxxxxxx X. Xxxxxx
00 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000 (collectively the "Buyers")
Wildwood Enterprises, Inc. ("Seller")
Profit Sharing Plan and Trust
c/o Corporate Management Group, Inc.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
RECITALS:
A. Seller currently own 50,440 shares of Series A Preferred Stock (the
"Shares") of National Mercantile Bancorp ("Company"), a corporation organized
and existing under the laws of the State of California and a registered bank
holding company under the Bank Holding Company Act of 1956, as amended.
B. Pursuant to a Letter Agreement dated February 7, 1997 and First
Amendment dated as of April 30, 1997 (collectively the "Letter Agreement"),
between the Company and Seller and the Registration Rights Agreement, dated June
30, 1997 (the "Registration Rights Agreement"), between the Company and Seller,
Seller acquired certain of the Shares of capital stock of the Company and
certain rights in connection with those shares.
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C. Seller desires to sell the Shares to Buyers, and Buyers desires to
purchase the Shares from Seller, on the terms and subject to the conditions set
forth in this Agreement, and in conjunction with such purchase and sale, Seller
desires to assign all rights under the Letter Agreement and Registration Rights
Agreement to Buyers, pro rata in accordance with the number of the Shares
transferred to each Buyer.
AGREEMENTS:
IN CONSIDERATION for the mutual covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Sale and Purchase of the Shares. On the terms and subject to the
conditions set forth in this Agreement, Seller hereby agrees to sell, assign and
transfer the Shares to Buyers and Buyers hereby agree to purchase and receive
the Shares from Sellers, free and clear of all liens, charges, claims and
encumbrances on the Closing Date (defined below) at the Purchase Price (defined
below). The purchase of the Shares shall be allocated among the Buyers as
follows: 16,814 shares to Xxxxx X. Xxxxxx and 16,813 shares to each of Xxxxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxx.
2. Purchase Price and Terms of Payment. The total purchase price for
the Shares ("Purchase Price") shall be Seven Hundred Fifty Thousand Dollars
($750,000), and shall be allocated to and payable by each Buyer in proportion to
the number of the Shares allocated to each Buyer pursuant to Section 1 of this
Agreement. The Purchase Price shall be paid by Buyers to Seller on the Closing
Date by certified or bank cashier's check or by wire transfer to an account
designated by Seller.
3. Assignment of Contract Rights. Effective on the Closing Date, Seller
does hereby sell, assign and transfer to Buyers all right, title and interest in
and to the rights of Seller under the Letter Agreement and the Registration
Rights Agreement, including, without limitation, the rights of first refusal
under Section 6.8 of the Letter Agreement and the registration rights under the
Registration Rights Agreement, pro rata in accordance with the number of the
Shares transferred to each Buyer. The rights so assigned shall be divided among
each exercisable individually and pro rata in accordance with the number of the
Shares transferred to each Buyer.
4. Closing. The closing ("Closing") of the purchase and sale of the
Shares contemplated by this Agreement will take place in the offices of Sundance
Capital Group, Inc., 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX
00000, at 10:00 a.m. on the first business day following receipt of all
necessary Company and regulatory approvals and expiration of all required
waiting periods, or on such other day or at such other time or place as may
mutually agreed upon by Buyer and Sellers ("Closing Date").
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5. Representations and Warranties of Seller. As an inducement to Buyers
to purchase the Shares, Seller makes the following representations and
warranties to Buyers which shall be true and correct as of the date hereof and
as of the Closing Date and shall survive the Closing Date.
(a) Authority for Agreement. Seller has the requisite power
and authority to execute and deliver, and perform Seller's obligations
under this Agreement. This Agreement has been duly executed and
delivered by Seller and constitutes the valid and legally binding
obligation of Seller and is enforceable in accordance with its terms.
The execution, delivery and performance of this Agreement by Seller,
and the consummation of the transactions contemplated hereby, will not
conflict with or result in any violation of or default under any trust,
guardianship, custody or other agreement, or any understanding,
instrument or order to which Seller is a party or by which the Shares
or the property of Seller is bound. To the best of Seller's knowledge,
no consent, approval, order or authorization of, or registration,
declaration or filing with, any governmental authority is required in
connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby,
except in connection with applications or notices which Buyers must
file for the prior approval of all necessary state and federal bank
regulatory agencies.
(b) Ownership. Seller has good and marketable title to the
Shares, free and clear of all liens, charges, claims and encumbrances,
and all of which have been duly authorized and validly issued and are
fully paid and nonassessable.
(c) Access to Information. Seller has read and understands
this Agreement and has reviewed the Company's annual and quarterly
financial statements, proxy statements and other publicly available
documents and information and has had the opportunity to request and
review such other documents, records and information as the Seller
deems relevant to the transaction contemplated by this Agreement.
6. Representations and Warranties of Buyers. As an inducement to Seller
to sell the Shares, Buyers make the following representations and warranties to
Buyers which shall be true and correct as of the date hereof and as of the
Closing Date and shall survive the Closing Date.
(a) Authority for Agreement. Buyers have the requisite power
and authority to execute and deliver, and perform Buyers' obligations
under this Agreement. This Agreement has been duly executed and
delivered by Buyers and constitutes the valid and legally binding
obligation of Buyers and is enforceable in accordance with its terms.
The execution, delivery and performance of this Agreement by Buyers,
and the consummation of the transactions contemplated hereby, will not
conflict with or result in any violation of or default under any trust,
guardianship, custody or other agreement, or any
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understanding, instrument or order to which any Buyer is a party. To
the best of Buyers' knowledge, no consent, approval, order or
authorization of, or registration, declaration or filing with, any
governmental authority is required in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, except in connection with
applications or notices which Buyers must file for the prior approval
of all necessary state and federal bank regulatory agencies.
7. Covenants of Buyers and Seller.
(a) Cooperation with Buyer. Seller shall cooperate with Buyer
in support of Buyers' regulatory applications for prior approval of the
purchase and sale contemplated by this Agreement and any required
approval by the board of directors of the Company.
(b) Notification of Certain Matters. Each party shall give
prompt notice to the others of (i) the occurrence or nonoccurrence of
any event, act or omission or the discovery of any information which
would be likely to cause any representation or warranty on its part and
contained in this Agreement to be materially untrue or inaccurate when
made, or at any time on or before the Closing Date and (ii) any
material failure of any such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder.
(c) No Shop. During the term of this Agreement, Seller shall
not solicit or entertain an offer from or negotiate with any person or
entity other than Buyers with respect to the acquisition of the Shares.
Sellers shall immediately notify Buyer upon receipt of any offer,
proposal or request for information regarding the acquisition of the
Shares.
8. Closing Contingent Upon Obtaining Regulatory and Company Approvals.
As soon as practicable, but in no event later than thirty (30) days after the
date all of the parties have executed this Agreement, (a) Buyers shall file
notices and applications with the appropriate bank regulatory agencies, for
prior approval to purchase the Shares as required by applicable laws and
regulations, (b) seek the approval of the board of directors of the Company to
the extent required by the Company's articles of incorporation or bylaws, and
use its best efforts to obtain such approvals. Except as otherwise provided
herein, all of Buyers' obligations under this Agreement are contingent upon
successfully obtaining all necessary regulatory and Company approvals for the
purchase of the Shares by Buyers.
9. Conditions Precedent to the Obligations of Sellers. All of the
agreements and obligations of Seller under this Agreement are subject to the
fulfillment, on or prior to the Closing Date, of the following conditions
precedent, any or all of which may be waived in whole or in part in writing by
Seller:
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(a) Buyers shall have performed and complied with all of the
agreements, covenants and conditions required by this Agreement to be
performed or complied with by it on or prior to the Closing Date;
(b) All necessary state and federal bank regulatory agencies
have approved the acquisition of the Shares and all waiting and appeal
periods prescribed by applicable law or regulation shall have expired;
(c) The board of directors of the Company shall have approved
the acquisition of the Shares to the extent required by the Company's
articles of incorporation and bylaws; and
(d) No court or governmental authority of competent
jurisdiction shall have issued a permanent order restraining, enjoining
or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement.
10. Conditions Precedent to Obligations of Buyers. All of the
agreements and obligations of Buyers under this Agreement are subject to the
fulfillment, on or prior to the Closing Date, of the following conditions
precedent, any or all of which may be waived in whole or in part in writing by
Buyers:
(a) The representations and warranties of Seller set forth in
this Agreement and shall have been true and correct in all material
respects as of the date hereof and as of the Closing Date as if made at
and as of each of such dates;
(b) Seller shall have performed and complied with all of the
agreements, covenants and conditions required by this Agreement to be
performed or complied with by it on or prior to the Closing Date;
(c) The board of directors of the Company shall have approved
the acquisition of the Shares to the extent required by the Company's
articles of incorporation and bylaws; and
(d) Buyers shall have received approval by all state and
federal bank regulatory agencies as may be required by law for the
acquisition of the Shares and all waiting and appeal periods prescribed
by applicable law or regulation shall have expired, such approvals
shall be consistent with the applications as described in Section 8,
and no approval, licenses or consent granted by any regulatory
authority shall contain any requirement, covenant or condition which
materially alters or impairs the consummation of this transaction, as
described in the applications, or which in the reasonable judgment of
Buyers would be unduly burdensome to Buyers;
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(e) No court or governmental authority of competent
jurisdiction shall have issued a permanent order restraining, enjoining
or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement;
11. Delivery of Documents. On the Closing Date, Buyers and Seller shall
execute and/or deliver to the other party the following documents, instruments
and agreements, together with such other documents, instruments and agreements
as the other party (or its/their counsel) may reasonably request to consummate
the purchase and sale contemplated hereby:
(a) By Buyers to Seller:
(i) Cash, certified or bank cashier's checks, or
confirmation of the wire transfer of the amount set forth in
Section 2.
(b) By Seller to Buyers:
(i) Stock Certificate(s) duly endorsed for transfer
representing the Shares.
12. Termination. This Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing Date:
(a) By mutual written consent of Seller and Buyers;
(b) By Buyers in the event of any material breach of any
of the representations, warranties or covenants of Sellers contained in
this Agreement;
(c) By Seller in the event of any material breach of any
of the covenants of Buyer contained this Agreement;
(d) By either Seller or Buyers if the Closing has not
occurred by November 30, 2002, which date may be extended by the mutual
written agreement of the Buyer and Seller.
If this Agreement is terminated, as provided in this Section 12, this
Agreement will become void and there will be no liability or further obligation
hereunder on the part of Buyers or Seller, except pursuant to Sections 13 and
20. Nothing contained in this Section 12 shall relieve any party from liability
for any breach of this Agreement.
13. Confidentiality. Except where Buyers or Seller may be advised by
counsel that disclosure is required under applicable law, Buyers or Seller shall
not make, and shall advise
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their agents not to make, any public statement concerning the transactions
contemplated by this Agreement without first consulting with, and obtaining the
approval of, the other parties hereto.
14. Specific Performance. Seller acknowledge and agree that irreparable
damage would occur to Buyers in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, Seller agrees that Buyers shall be entitled to
obtain an injunction or other equitable relief to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof, in
addition to any other remedy to which Buyers is entitled in law or in equity.
15. Amendment. No amendment, modification, termination or waiver of any
provision of this Agreement will be effective unless in writing and signed by
all parties.
16. Successors in Interest. This Agreement will be binding upon and
inure to the benefit of the Seller and Buyers and their respective successors,
heirs and permitted assigns.
17. Partial Invalidity. Any provision of this Agreement which is
prohibited or unenforceable will be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof.
18. Entire Agreement. Except as otherwise specified herein, this
Agreement contains the entire agreement between the parties hereto with respect
to the sale and purchase contemplated hereby and supersedes all prior agreements
and understandings among the parties, if any, with respect to such sale and
purchase.
19. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Minnesota.
20. Expenses. Buyers and Seller shall each directly pay their
respective expenses incurred in connection with the negotiation and preparation
of this Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, their respective legal fees, expenses,
commissions and filing fees regardless of whether such transactions are
consummated.
21. Waivers. No failure or delay on the part of any party in exercising
any right, power or remedy hereunder will operate as a waiver thereof, nor will
any single or partial exercise of any right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder.
22. Assignability. Buyers and Seller may not assign any of their
rights, liabilities or obligations under this Agreement without the prior
written consent of the other parties hereto.
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23. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given when
personally delivered or deposited in the United States Mail, mailed first class,
certified and return receipt requested, addressed as indicated at the beginning
of this Agreement. Any party may, by notice so given to the other party, change
the address to which notices shall thereafter be sent. In all events, the
postmark date of such notice or notices shall be deemed the effective date of
such notice for all purposes hereunder.
24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
BUYERS:
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
SELLER:
Wildwood Enterprises Inc.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
By Xxxxxx X. Xxxxxx
--------------------------------
Its Vice President
------------------------------
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