================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of ________, 1997
By and Between
NATIONAL MERCANTILE BANCORP
and
THE XXXXXX COMPANY
================================================================================
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of ___________, 1997 is
by and among NATIONAL MERCANTILE BANCORP, a California corporation (the
"Company") and THE XXXXXX COMPANY, a Montana corporation (the "Investor").
RECITALS
--------
WHEREAS, 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 in
order to induce the Investors 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 "Commission" shall mean the Securities and Exchange
----------
Commission.
1.2 "Common Stock" shall mean the common stock of the Company.
------------
1.3 "Exchange Act" shall mean the Securities Exchange Act of
------------
1934, or any successor thereto, as the same shall be amended from time to time.
1.4 "Holder" and "Holders" shall mean any person or persons
------ -------
holding Registrable Securities and transferees qualifying under Section 8.2
hereof.
1.5 "Initiating Holders" shall mean any Holder or Holders who
------------------
in the aggregate are Holders of a majority of the Registrable Securities.
1.6 The term "Person" shall mean a corporation, association,
------
limited liability company, partnership, organization, business, individual,
government or political subdivision thereof or governmental agency.
1.7 "Registrable Securities" shall mean such Common Stock as
----------------------
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
be Registrable Securities when (i) a registration statement registering such
shares of Common Stock
-1-
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.
1.8 "Securities Act" shall mean the Securities Act of 1933, or
--------------
any successor thereto, as the same shall be amended from time to time.
1.9 "Selling Shareholder" shall have the meaning assigned to
-------------------
such term in Section 2.2(a) of this Agreement.
--------------
2. Registration Under the Securities Act.
2.1 Demand Registrations. If the Company shall receive a
written request therefor from the Initiating Holders, the Company shall prepare
and file as soon as practicable a registration statement under the Securities
Act covering the shares of Registrable Securities which are the subject of such
request and shall use its reasonable best efforts to cause such registration
statement to become effective; provided such registration statement covers
Registrable Securities issued or issuable upon conversion of not less than 25%
of the Shares purchased by Investor (the "Minimum Share Amount"); and, provided,
further, not more than one such request may be made in any 12-month period. In
addition, upon the receipt of such request, the Company shall promptly give
written notice to all other Holders that such registration is to be effected.
The Company shall include in such registration statement such shares of
Registrable Securities for which it has received written requests to register by
such other record holders within 30 days after the delivery of the Company's
written notice to such other record holders. The Company shall be obligated to
prepare, file and cause to become effective two registration statements pursuant
to this Section 2.1. In the event that the Holders of a majority of the
Registrable Securities for which registration has been requested pursuant to
this Section 2.1 determine for any reason not to proceed with a registration at
any time before a registration statement has been declared effective by the
Commission, and such registration statement, if theretofore filed with the
Commission, is withdrawn with respect to the Registrable Securities covered
thereby, and the Holders of such Registrable Securities agree to bear their own
expenses incurred in connection therewith and to reimburse the Company for the
Registration Fees incurred by it attributable to the registration of such
Registrable Securities, then the Holders of such Registrable Securities shall
not be deemed to have exercised their right to require the Company to register
Registrable Securities pursuant to this Section 2.1.
If, at the time any written request for registration is received
by the Company pursuant to this Section 2.1, the Company has determined to
proceed with the actual preparation and filing of a registration statement under
the Securities Act in connection with the proposed offer and sale for cash of
any of its securities by it or any of its security holders, such written request
shall be deemed to have been given pursuant to Section 2.2 hereof rather than
this
-2-
Section 2.1, and the rights of the Holders of Registrable Securities covered by
such written request shall be governed by Section 2.2 hereof.
Without the written consent of the Holders of a majority of the
Registrable Securities for which registration has been requested pursuant to
this Section 2.1, neither the Company nor any other holder of securities of the
Company may include securities in such registration if in the good faith
judgment of the managing underwriter of such public offering the inclusion of
such securities would interfere with the successful marketing of the Registrable
Securities or require the exclusion of any portion of the Registrable Securities
to be registered.
Notwithstanding any of the foregoing, if the Company shall
furnish to the Holders participating in such registration a certificate signed
by the President of the Company stating that in the good faith judgment of the
Board of Directors, it would be seriously detrimental, based on the Company's
own material financing plans or the need for confidentiality due to a pending
material transaction, for the Company to proceed with such registration and it
is therefor essential to defer such registration, the Company shall have the
right to defer action under this Section 2.1 for a period of not more than 90
days after receipt of the request of the Initiating Holders; provided, however,
-----------------
that the Company may not utilize this right more than once in any 12 month
period.
2.2 "Piggy-Back" Registrations.
(a) If, at any time, the Company proposes to register any of
its securities under the Securities Act on a registration statement (other than
a registration statement on a form that does not permit the inclusion of shares
by its security holders) for purposes of an offering or sale by or on behalf of
the Company for its own account (a "primary offering"), or upon the request or
for the account of any securityholder (a "secondary offering"), or for purposes
of a combined primary and 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 Holders 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 any Holder or Holders, given within five (5) business days
following the receipt by such Holder of any such written notice (which direction
shall specify the number of Registrable Securities intended to be disposed of by
such 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 such Holder requesting such registration (such 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 such 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 primary offering or in the event of a proposed
combined offering, and any managing
-3-
underwriter shall advise the Company 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 such Selling Shareholders creates a
substantial risk that the price per security the Company 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 by the Selling Shareholders) is too large a number to be reasonably
sold, then the Company will include in such registration statement such number
of securities as the Company and such Selling Shareholders are so advised can be
sold in such offering without such an effect (the "Maximum Number"), as follows
and in the following order of priority: (A) first, such number of securities of
the Company as the Company, in its reasonable judgment and acting in good faith
and in accordance with sound financial practice, shall have determined to sell
for its account and (B) second, if and to the extent that the number of
securities to be registered under clause (A) is less than the Maximum Number,
securities of each Selling Shareholder (including, without limitation,
Registrable Securities), pro rata in proportion to the number sought to be
--- ----
registered by such Selling Shareholder relative to the number sought to be
registered by all the Selling Shareholders.
(c) In the event that the Company proposes to register
securities for purposes of a secondary offering, upon the request or for the
account of any shareholder (other than a Holder) thereof (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 such number of securities as the Requesting Shareholders
and 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 securities sought to be registered by all such parties.
(d) Nothing herein shall prevent the Company from, at any time,
abandoning or delaying any registration initiated by it; provided, however, that
-------- -------
if the Company determines not to proceed with a registration after the
registration statement has been filed with the Commission and the Company's
decision not to proceed is primarily based upon the anticipated public offering
price of the securities to be sold by the Company, the Company shall promptly
complete the registration for the benefit of those Selling Shareholders who wish
to proceed with a public offering of their securities and who bear all expenses
in excess of $25,000 incurred by the Company as the result of such registration
after the Company has decided not to proceed.
(e) Any Holder of Registrable Securities who has notified the
Company to include any securities in a registration statement pursuant to
Section 2.2 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
-4-
amend such registration statement and take such other actions as may be
necessary so that such Registrable Securities of such 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.
3. Registration Procedures. If and whenever the Company is required
by the provisions of Sections 2.1 or 2.2 to effect the registration of any
------------ ---
Registrable 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 each 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 such Holders and
underwriters may reasonably request in order 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 such participating
Holders and underwriters may reasonably request and (ii) do any and all other
acts and things that may be necessary or proper to enable the Holders 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 Holders 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 Holders 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 any such Holders, any amendments or supplements to such registration
statement or prospectus which, in the opinion of counsel for such Holders, is
required under the Securities Act or the rules
-5-
and regulations thereunder in connection with the distribution of the
Registrable Securities by such Holder;
3.8 Prepare and promptly file with the Commission and promptly
notify such Holders 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 such Holders, 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 such Holders 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 any such 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(s) 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 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
-6-
public accountants of the Company, addressed to the underwriters, if any, and to
the Holder(s) making such request, covering such matters as such underwriters
and Holder(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 one registration pursuant to Section
2.1 of this Agreement (except as otherwise provided in such section with respect
to registrations voluntarily terminated at the request of the requesting Holders
and except as provided in the following sentence) and with respect to each
inclusion of Registrable Securities in a registration pursuant to Section 2.2
hereof (except as otherwise provided in Section 2.2 with respect to
registrations initiated by the Company but as to which the Company has
determined not to proceed), the Company shall bear the all expenses of each such
registration (the "Registration Fees"). The Company shall pay the Registration
Fees of the second registration requested pursuant to Section 2.1 if any Holder
requesting participation in the first registration pursuant to Section 2.1 was
not afforded the opportunity to sell all Registrable Securities that were the
subject of the first such request by Initiating Holders by reason of the
operation of any other right to register securities to which the Company is
subject. 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, fees and disbursements of counsel for the underwriter (if the
Company and/or the selling securityholders are required to bear such expenses),
fees and disbursements (not to exceed $25,000) of one counsel selected by the
participating Holders to represent such Holders as a class, 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 a selling Holder
that do not represent the participating Holders as a class, accountants for a
selling Holder, underwriting discounts and underwriting commissions relating to
the Registrable Securities to be sold by such Holders shall be borne by the
participating Holders.
5. Indemnification. In the event that any shares of Registrable
Securities are included in a registration statement pursuant to Sections 2.1 or
2.2:
5.1 The Company will indemnify and hold harmless each 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 such Holder and each
person, if any, who controls such 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
-7-
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 such Holders, such underwriter
or such controlling person in writing specifically for use in the preparation
thereof.
5.2 Each 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 Holder, 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 such 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
-8-
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.
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 losses,
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. Exception to Registration Obligations. The Company shall not be
obligated to honor a demand to register its Registrable Securities under this
Agreement if all such Registrable Securities which could be registered pursuant
to such demand are otherwise eligible for immediate sale by the Holders under
paragraph (k) of Rule 144.
7. Certain Limitations in Connection with Existing and Future Grants
of Registration Rights. From and after the date of this Agreement, the Company
shall not enter into any agreement with any holder or prospective holder of any
securities of the Company providing for the granting to such holder of
registration rights, unless such agreement: (a) includes a provision that, in
the case of a public offering involving an underwritten registered offering
under Section 2.2, confirms the rights of the Holders to include Registrable
Securities in such offering pursuant to this Agreement; (b) is consistent with
the terms and conditions of the Purchase Agreement; and (c) such new
registration rights are subordinate to the registration rights granted
hereunder. Notwithstanding anything to the contrary herein, the rights of any
Holder hereunder shall at all times be subject to the rights of California State
Teachers' Retirement System (STRS) and permitted assignees under that certain
Registration Rights Agreement dated December 31, 1995 between the Company and
STRS.
-9-
8. Miscellaneous.
8.1 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.
8.2 Successors and Assigns. The rights hereunder of a Holder
may be transferred or assigned in connection with a sale or transfer of Shares
or shares of Registrable Securities; provided if such sale or transfer involves
persons other than affiliates of a Holder, such transferee acquires at least the
Minimum Share Amount. Any assignment of rights hereunder in accordance with the
preceding sentence shall be effective only if written notice of such assignment,
identifying the name and address (for purposes of Section 8.11 hereof) of such
assignee, is given to the Company. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties hereto or
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.3 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 further agree to 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.
8.4 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 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.
8.5 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.
8.6 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.
8.7 Amendment and Waivers. Any term or provisions of this
Agreement requiring performance by or binding upon the Company or 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
-10-
the Holders of at least a majority of the Registrable Securities. Any amendment
or waiver effected in accordance with this Section shall be binding upon each
Holder (including permitted assigns pursuant to Section 8.1 hereof). 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.
8.8 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.
8.9 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.
8.10 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: The Xxxxxx Company
0000 Xxxx Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: President
Any party may change its address for such communications by giving notice
thereof to the Company in conformity with this Section.
-11-
8.11 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., a reference to Section 3 shall include a reference to
----
Sections 3.1 through 3.4 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.
8.12 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.
(Signatures on Following Page)
-12-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.
NATIONAL MERCANTILE BANCORP THE XXXXXX COMPANY
By: By:
------------------------------- -------------------------------------
Its: Its:
--------------------------- ---------------------------------
-13-
