EXHIBIT 10.26
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF ________, 1997
BY AND BETWEEN
NATIONAL MERCANTILE BANCORP
AND
WILDWOOD ENTERPRISES INC. PROFIT
SHARING PLAN AND TRUST
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of ___________, 1997 is by and
among NATIONAL MERCANTILE BANCORP, a California corporation (the "Company") and
WILDWOOD ENTERPRISES INC. PROFIT SHARING PLAN AND TRUST (the "Investor").
RECITAL
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The Company and the Investor have entered into that certain Standby
Purchase Agreement, dated _______ (the "Purchase Agreement"), providing for,
among other things, the sale by the Company and the purchase by the Investor of
______ shares of 6.5% Series A Noncumulative Convertible Perpetual Preferred
Stock of the Company (the "Shares");
NOW, THEREFORE, in consideration of the premises, and of the mutual covenants,
representations, warranties and agreements herein contained, and to induce the
Investor to enter into the Purchase Agreement, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "CSTRS" shall mean the California State Teachers' Retirement Fund.
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1.2 "Commission" shall mean the Securities and Exchange Commission.
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1.3 "Common Stock" shall mean the common stock, no par value,
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of the Company.
1.4 "Xxxxxx Company" shall mean the Xxxxxx Company, a Montana
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corporation, or any Holder defined under the Registration Rights Agreement dated
________________, 1997 between Xxxxxx Company and the Company.
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1.5 "Exchange Act" shall mean the Securities Exchange Act of 1934,
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or any successor thereto, as the same shall be amended from time to time.
1.6 "Holder" shall mean the Investor.
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1.7 "Person" shall mean a corporation, association, limited liability
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company, partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
1.8 "Registrable Securities" shall mean such Common Stock as
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hereafter may be issued or are issuable upon conversion of the Shares, and any
securities of the Company issued successively in exchange for or in respect of
any of the foregoing, whether as a result of any successive stock split or
reclassification of, or stock dividend on, any of the foregoing or otherwise;
provided, however, that such shares of Common Stock or securities shall cease to
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be Registrable Securities when (i) a registration statement registering such
shares of Common Stock or securities, as the case may be, under the Securities
Act has been declared effective and such shares of Common Stock or securities,
as the case may be, have been sold or otherwise transferred by the Holder
thereof pursuant to such effective registration statement or (ii) such shares of
Common Stock or securities, as the case may be, are sold pursuant to Rule 144
(or any successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such shares of Common Stock or
securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company.
1.9 "Securities Act" shall mean the Securities Act of 1933, or any
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successor thereto, as the same shall be amended from time to time.
1.10 "Selling Shareholder" shall have the meaning assigned to such
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term in Section 2(a) of this Agreement.
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2. "PIGGY-BACK" REGISTRATIONS UNDER THE SECURITIES ACT.
(a) If, at any time, the Company proposes to register any of its
securities under the Securities Act on a registration statement upon the request
or for the account of any securityholder (a "secondary offering") or for
purposes of an offering or sale by or on behalf of the Company for its own
account that is combined with a secondary offering (a "combined offering"), then
each such time the Company shall, at least ten (10) business days prior to the
time when any such registration statement is filed with the Commission, give
prompt written notice to the Holder of its intention to do so. Such notice shall
specify, at a minimum, the number and class of securities so proposed to be
registered, the proposed date of filing of such registration statement, any
proposed means of distribution of such securities, any proposed managing
underwriter or underwriters of such securities and a good faith estimate by the
Company of the proposed maximum offering price thereof, as such price is
proposed to appear on the facing page of such registration statement. Upon the
written direction of the Holder, given within five (5) business days following
the receipt by the Holder of any such written
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notice (which direction shall specify the number of Registrable Securities
intended to be disposed of by the Holder, and the intended method of
distribution thereof), the Company shall include in such registration statement
any or all of the Registrable Securities then held by the Holder requesting such
registration (the Holder, together with any other security holder of the Company
including shares in such registration statement being referred to hereafter as a
"Selling Shareholder") to the extent necessary to permit the sale or other
disposition of such Registrable Securities as the Holder has so directed the
Company to be so registered.
(b) In the event that the Company proposes to register securities for
purposes of a secondary offering, upon the request or for the account of CSTRS
or the Xxxxxx Company (each a "Requesting Shareholder"), and any managing
underwriter shall advise the Requesting Shareholder or Shareholders and the
Selling Shareholders in writing that, in its opinion, the inclusion in the
registration statement of some or all of the securities sought to be registered
by the Requesting Shareholders and the Selling Shareholders creates a
substantial risk that the price per security that such Requesting Shareholder or
Shareholders and such Selling Shareholders will derive from such registration
will be materially and adversely affected or that the number of securities
sought to be registered (including any securities sought to be registered at the
instance of the Requesting Shareholder or Shareholders and those sought to be
registered by the Selling Shareholders) is too large a number to be reasonably
sold, the Company will include in such registration statement first, such number
of securities of the Requesting Shareholders and, second, such number of
securities of CSTRS or the Xxxxxx Company requested by either of them if not a
Requesting Shareholder, and third, such number of securities the Selling
Shareholders are so advised can reasonably be sold in such offering, or can be
sold without such an effect, pro rata in proportion to the number of the
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securities sought to be registered by all such Selling Shareholders (excluding
CSTRS and the Xxxxxx Company).
(c) Nothing herein shall prevent the Company from, at any time,
abandoning or delaying any registration initiated by it.
(d) The Holder of Registrable Securities who has notified the Company
to include any securities in a registration statement pursuant to Section 2
hereof shall have the right to withdraw any or all of the securities designated
for registration thereby by giving written notice to such effect to the Company
at least three business days prior to the anticipated effective date of such
registration statement. In the event of any such withdrawal, the Company shall
amend such registration statement and take such other actions as may be
necessary so that such Registrable Securities of the Holder are not included in
the applicable registration and not sold pursuant thereto, and such Registrable
Securities shall continue to be Registrable Securities in accordance herewith.
No such withdrawal shall affect the obligations of the Company with respect to
Registrable Securities not so withdrawn.
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3. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Section 2 to effect the registration of any Registrable
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Securities under the Securities Act, the Company will:
3.1 Prepare and file with the Commission a registration statement with
respect to the Registrable Securities and use its reasonable best efforts to
cause such registration statement to become and remain effective; for such
period as may be reasonably necessary to effect the sale of such Registrable
Securities, not to exceed six months from the effective date.
3.2 Prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for such period
as may be reasonably necessary to effect the sale of such Registrable
Securities, not to exceed six months from the effective date;
3.3 Furnish to the Holder participating in such registration and to
the underwriters of the Registrable Securities being registered such reasonable
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as the Holder and underwriters may
reasonably request to facilitate the public offering of such Registrable
Securities;
3.4 Use its reasonable best efforts to (i) register or qualify the
Registrable Securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as the Holder and underwriters
may reasonably request and (ii) do any and all other acts and things that may be
necessary or proper to enable the Holder or underwriters to consummate the
public offering of the Registrable Securities; provided, that the Company shall
not be required to execute a general consent to service of process in any
jurisdiction or to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified;
3.5 Notify the Holder participating in such registration, promptly
after it receives notice thereof, of the time when such registration statement
has become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
3.6 Notify the Holder promptly of any request by the Commission for
the amendment of or supplement to such registration statement or prospectus or
for additional information;
3.7 Prepare and file with the Commission, promptly upon the request
of the Holder, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for the Holder, is required under
the Securities Act or the rules and regulations thereunder in connection with
the distribution of the Registrable Securities by the Holder;
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3.8 Prepare and promptly file with the Commission and promptly notify
the Holder of the filing of such amendment or supplement to such registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
3.9 Advise the Holder, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its reasonable
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
3.10 Not file any amendment or supplement to such registration
statement or prospectus to which a majority in interest of Selling Shareholders
shall have reasonably objected on the grounds that such amendment or supplement
does not comply in all material respects with the requirements of the Securities
Act or the rules and regulations thereunder, after having been furnished with a
copy (in substantially final form) at least five business days prior to the
filing thereof, unless in the opinion of counsel for the Company the filing of
such amendment or supplement is reasonably necessary to protect the Company from
any liabilities under any applicable federal or state law and such filing will
not violate applicable law; and
3.11 At the request of the Holder, furnish on the effective date of the
registration statement and, if such registration includes an underwritten public
offering, at the closing provided for in the underwriting agreement: (i)
opinions, dated such respective dates, of the counsel representing the Company
for the purposes of such registration, addressed to the underwriters, if any,
and to the Holder making such request, in which opinion such counsel shall state
that (a) such registration statement has become effective under the Securities
Act; (b) to the best of such counsel's knowledge no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act; (c) the
registration statement and each amendment or supplement thereto comply as to
form in all material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder (except that
such counsel need express no opinion as to financial statements and statistical
data contained therein); (d) such counsel does not know of any material legal or
governmental proceedings, pending or threatened, required to be described in the
registration statement or any amendment or supplement
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thereto which are not described as required nor of any contracts or documents or
instruments of the character required to be described in the registration
statement or amendment or supplement thereto or to be filed as Exhibits to the
registration statement, which are not described or filed as required; and (e)
covering such other matters of law as such underwriter may reasonably request;
and (ii) letters, dated such respective dates, from the independent certified
public accountants of the Company, addressed to the underwriters, if any, and to
the Selling Shareholder(s) making such request, covering such matters as such
underwriters and Selling Shareholder(s) may reasonably request, in which letters
such accountants shall state (without limiting the generality of the foregoing)
that they are independent certified public accountants within the meaning of the
Securities Act and that in the opinion of such accountants the financial
statements and schedules of the Company included in the registration statement
or any amendment or supplement thereto comply in all material respects with the
applicable accounting requirements of the Securities Act.
4. EXPENSES. With respect to each inclusion of Registrable Securities
in a registration pursuant to Section 2 hereof, the Company shall bear the all
expenses of each such registration (the "Registration Fees"). For purposes of
this Section 4, Registration Fees shall mean all expenses incurred by the
Company in complying with this Agreement, including, without limitation, all
registration, filing and NASD fees, exchange listing fees, printing expenses,
fees and disbursements of counsel and accountants for the Company, all internal
Company expenses, the premiums and other costs of policies of insurance against
liability arising out of the public offering, the expense of any special audits
incident to or required by any such registration, and all legal fees and
disbursements and other expenses of complying with state securities or blue sky
laws of any jurisdictions in which the securities to be offered are to be
registered or qualified. Fees and disbursements of counsel for the Holder,
accountants for the Holder, underwriting discounts and underwriting commissions
relating to the Registrable Securities to be sold by the Holder shall be borne
by the Holder.
5. INDEMNIFICATION. In the event that any shares of Registrable
Securities are included in a registration statement pursuant to Section 2:
5.1 The Company will indemnify and hold harmless the Holder whose
shares of Registrable Securities are included in a registration statement
pursuant to the provisions of this Agreement, its directors and officers, and
any underwriter (as defined in the Securities Act) for the Holder and each
person, if any, who controls the Holder or such underwriter within the meaning
of the Securities Act, from and against, and will reimburse each such person
with respect to, any and all loss, damage, liability, cost and expense to which
any of the foregoing persons may become subject under the Securities Act or
otherwise, insofar as such losses, damages, liabilities, costs or expenses are
caused by any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, any prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, damage, liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by the Holder, such underwriter or
such controlling person in writing specifically for use in the preparation
thereof.
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5.2 The Holder whose Shares of Registrable Securities are included
in a registration statement pursuant to the provisions of this Agreement will
indemnify and hold harmless the Company, its directors and officers, any
controlling person, any other participating Selling Shareholder, its officers,
directors, partners, legal counsel and accountants and any underwriter from and
against, and will reimburse each such person with respect to, any and all loss,
damage, liability, cost or expense to which any of the foregoing persons may
become subject under the Securities Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are caused by any untrue or alleged
untrue statement of any material fact contained in such registration statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was so
made in reliance upon and in strict conformity with written information
furnished by the Holder specifically for use in the preparation thereof.
5.3 Promptly after receipt by an indemnified party pursuant to the
provisions of Section 5.1 or 5.2 of notice of the commencement of any action
involving the subject matter of the foregoing indemnity provisions such
indemnified party will, if a claim thereof is to be made against the
indemnifying party pursuant to the provisions of said paragraph (a) or (b),
promptly notify the indemnifying party of the commencement thereof; but the
omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than hereunder.
In case such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
if the defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or if there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the indemnified party,
the indemnified party or parties shall have the right to select separate counsel
to participate in the defense of such action on behalf of such indemnified party
or parties. After notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party pursuant to the provisions of said
paragraph (a) or (b) for any legal or other expense subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless (i) the indemnified party shall have
employed counsel in accordance with the proviso of the preceding sentence, (ii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
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5.4 If the indemnification provided for in Sections 5.1 and 5.2 above
is unavailable or insufficient to hold harmless an Indemnified Party under
Sections 5.1 and 5.2 above, then each Indemnifying Party shall contribute to the
amount paid or payable by such Indemnified Party as a result of the loses,
claims, damages or liabilities referred to in Sections 5.1 and 5.2 above, in
such proportion as is appropriate to reflect the relative fault of the
respective parties in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or any holder and each party's
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this Section 5.4 shall be deemed to include any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending against any action or claim which is the subject of
this Paragraph. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
6. CERTAIN LIMITATIONS IN CONNECTION WITH EXISTING GRANTS OF REGISTRATION
RIGHTS. Notwithstanding anything to the contrary herein, the rights of the
Holder hereunder shall at all times be subject to the rights of CSTRS and
permitted assignees under that certain Registration Rights Agreement dated
December 31, 1995 between the Company and CSTRS, and the Xxxxxx Company under
that certain Registration Rights Agreement dated _____________________, 1997
between the Xxxxxx Company and the Company.
7. MISCELLANEOUS.
7.1 GOVERNING LAWS. This Agreement shall be governed by and
construed under the internal laws of the State of California without regard to
the conflicts of laws provisions thereof.
7.2 SEVERABILITY. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall be interpreted so as best to reasonably
effect the intent of the parties hereto. The parties shall replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
which will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provision.
7.3 ENTIRE AGREEMENT. This Agreement, the exhibits hereto, the
documents referenced herein and the exhibits thereto, constitute the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and thereof and supersede all prior and contemporaneous agreements
or understandings, inducements or
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conditions, express or implied, written or oral, between the parties with
respect hereto and thereto. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof.
7.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon, and all of which together shall constitute one and
the same instrument.
7.5 OTHER REMEDIES. Any and all remedies herein expressly conferred
upon a party shall be deemed cumulative with, and not exclusive of, any other
remedy conferred hereby or by law on such party, and the exercise of any one
remedy shall not preclude the exercise of any other.
7.6 AMENDMENT AND WAIVERS. Any term or provisions of this Agreement
requiring performance by or binding upon the Company or the Holder may be
amended, and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only by a writing signed by the Company, and the Holder. The
waiver by a party of any breach hereof or default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed to constitute
a waiver of any other default or succeeding breach or default.
7.7 SURVIVAL OF AGREEMENTS. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. The representations, warranties, covenants and agreements of the Company
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of the Holder.
7.8 DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
under this Agreement shall impair any such right, power or remedy of such party
nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in a similar breach of default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
party hereto of any breach of default under the Agreement, or any waiver on the
part of any party of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
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7.9 NOTICES. Whenever any party hereto desires or is required to
give any notice, demand or request with respect to this Agreement, each such
communication shall be in writing and shall be deemed to be valid and duly given
for all proposes when hand-delivered, or five (5) business days after it is
deposited in the mail if marked for registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
Company: National Mercantile Bancorp
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Executive Vice President
Holders: Wildwood Enterprises Inc. Profit Sharing
Plan and Trust
____________________
____________________
____________________
Attention:____________
Any party may change its address for such communications by giving notice
thereof to the Company in conformity with this Section.
7.10 CONSTRUCTION OF AGREEMENT. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof shall
not be construed for or against any party. A reference in this Agreement to any
Section shall include a reference to every Section the number of which begins
with the number of the Section to which reference is specifically made (e.g.,
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a reference to Section 3 shall include a reference to Sections 3.1 through 3.11
inclusive). The titles and headings herein are for reference purposes only and
shall not in any manner limit the construction of this Agreement which shall be
considered as a whole. A reference to a Section means a Section of this
Agreement, unless the context expressly otherwise requires.
7.11 PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
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(Signatures on Following Page)
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
NATIONAL MERCANTILE BANCORP WILDWOOD ENTERPRISES INC.
PROFIT SHARING PLAN AND TRUST
By: By:
Its: Its:
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