-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Rqk4mdGTc72nR+yIPhJxMMu33ggLG4DhSEfarwtl6hFlyGY+OP1BbtnQHVUPPc2x 7lS4HZomqYMqGlRlGrmpMg== 0000950134-02-016144.txt : 20021230 0000950134-02-016144.hdr.sgml : 20021230 20021230161521 ACCESSION NUMBER: 0000950134-02-016144 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20021230 GROUP MEMBERS: CARL R POHLAD GROUP MEMBERS: ELOISE O POHLAD GROUP MEMBERS: ROBERT C POHLAD GROUP MEMBERS: WILLIAM M POHLAD FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: POHLAD JAMES O CENTRAL INDEX KEY: 0001060442 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 60 S SIXTH ST STREET 2: #8800 CITY: MINNEAPOLIS STATE: MN ZIP: 55402 MAIL ADDRESS: STREET 1: 60 S SIXTH ST STREET 2: #8800 CITY: MINNEAPOLIS STATE: MN ZIP: 55402 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NATIONAL MERCANTILE BANCORP CENTRAL INDEX KEY: 0000714801 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 953819685 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-39312 FILM NUMBER: 02872091 BUSINESS ADDRESS: STREET 1: 1840 CENTURY PARK EAST CITY: LOS ANGELES STATE: CA ZIP: 90067 BUSINESS PHONE: 3102772265 MAIL ADDRESS: STREET 1: 1840 CENTURY PARK EAST CITY: LOS ANGELES STATE: CA ZIP: 90067 SC 13D/A 1 c73731a5sc13dza.txt AMENDMENT NO. 5 TO SCHEDULE 13D SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 UNDER THE SECURITIES EXCHANGE ACT of 1934 (Amendment No. 5) NATIONAL MERCANTILE BANCORP (Name of Issuer) Common Stock (Title of Class of Securities) 636912107 (CUSIP Number) Matthew B. Krush Faegre & Benson LLP 2200 Wells Fargo Center 90 South 7th Street Minneapolis, Minnesota 55402 (612) 766-7000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 26, 2002 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 1 of 13 SCHEDULE 13D CUSIP NO. 636912107 PAGE 2 of 13 PAGES ---- ---- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Carl R. Pohlad, Trustee of the Revocable Trust of Carl R. Pohlad Created U/A dated 6/28/91 as Amended - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (See Instructions) (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Minnesota - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 154,999 BENEFICIALLY ----------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH 0 REPORTING ----------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 154,999 ----------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 154,999 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- 2 of 13 SCHEDULE 13D CUSIP NO. 636912107 PAGE 3 of 13 PAGES ---- ---- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Eloise O. Pohlad, Trustee of the Revocable Trust of Eloise O. Pohlad Created U/A dated 6/28/91, as Amended - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (See Instructions) (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Minnesota - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 154,999 BENEFICIALLY ------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH 0 REPORTING ------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 154,999 ------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 154,999 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- 3 of 13 SCHEDULE 13D CUSIP NO. 636912107 PAGE 4 of 13 PAGES ---- ---- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) James O. Pohlad - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (See Instructions) (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Minnesota - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 648,856 BENEFICIALLY --------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH 0 REPORTING --------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 648,856 --------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 648,856 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.6% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- 4 of 13 SCHEDULE 13D CUSIP NO. 636912107 PAGE 5 of 13 PAGES ---- ---- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) Robert C. Pohlad - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (See Instructions) (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Minnesota - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 648,855 BENEFICIALLY -------------------------------------------- OWNED BY 8 SHARED VOTING POWER EACH 0 REPORTING -------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 648,855 -------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 648,855 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.6% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- 5 of 13 SCHEDULE 13D CUSIP NO. 636912107 PAGE 6 of 13 PAGES ---- ---- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS/I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) William M. Pohlad - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (See Instructions) (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Minnesota - -------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 648,855 BENEFICIALLY ------------------------------------------ OWNED BY 8 SHARED VOTING POWER EACH 0 REPORTING ------------------------------------------ PERSON 9 SOLE DISPOSITIVE POWER WITH 648,855 ------------------------------------------ 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 648,855 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.6% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- 6 of 13 Reference is hereby made to the statement on Schedule 13D originally filed with the Securities and Exchange Commission (the "Commission") on August 16, 2001, as amended by Amendment Number 1 to Schedule 13D filed on December 12, 2001, Amendment Number 2 to Schedule 13D filed on December 17, 2001, Amendment Number 3 to Schedule 13D filed on August 5, 2002 and Amendment Number 4 to Schedule 13D filed on November 12, 2002 (the "Schedule 13D"). The 13D is hereby amended and restated in its entirety as follows: ITEM 1. SECURITY AND ISSUER This statement relates to the Common Stock (the "Common Stock") of National Mercantile Bancorp, a California corporation (the "Issuer"), 1840 Century Park East, Los Angeles, California 90067. ITEM 2. IDENTITY AND BACKGROUND This statement is filed by Carl R. Pohlad, Trustee of the Revocable Trust of Carl R. Pohlad Created U/A dated 6/28/91, as Amended (the "Revocable Trust of Carl R. Pohlad"), Eloise O. Pohlad, Trustee of the Revocable Trust of Eloise O. Pohlad, Created U/A dated 6/28/91, as Amended (the "Revocable Trust of Eloise O. Pohlad"), James O. Pohlad, Robert C. Pohlad and William M. Pohlad (collectively, the "Reporting Persons"). Carl R. Pohlad is the sole trustee and the sole beneficiary of the Revocable Trust of Carl R. Pohlad. Carl R. Pohlad's principal occupation is as President and Director of Marquette Financial Companies (formerly known as Marquette Bancshares, Inc.), a bank holding company which is located at 60 South Sixth Street, Suite 3800, Minneapolis, MN 55402. Eloise O. Pohlad is the sole trustee and the sole beneficiary of the Revocable Trust of Eloise O. Pohlad. Eloise O. Pohlad has no principal occupation. James O. Pohlad's principal occupation is as Executive Vice President and Director of Marquette Financial Companies. Robert C. Pohlad is Chairman and Chief Executive Officer of PepsiAmericas, Inc. (formerly Whitman Corporation), a Pepsi-Cola bottling company, which is located at 60 South Sixth Street, Suite 3880, Minneapolis, MN 55402. William M. Pohlad is principally employed as the President and Chief Executive Officer of the River Road Entertainment, LLC, a media production company located at 60 South Sixth Street, Suite 4050, Minneapolis, MN 55402. The business address of each of the Reporting Persons is 60 South Sixth Street, Suite 3880, Minneapolis, MN 55402. During the last five years, none of the Reporting Persons, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or during the last five years been a party to a civil proceeding as a result of which any of the Reporting Persons was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws. Carl R. Pohlad, Eloise O. Pohlad, James O. Pohlad, Robert C. Pohlad, and William M. Pohlad are residents of the State of Minnesota and citizens of the United States. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION On August 6, 2001, pursuant to a Stock Purchase Agreement dated as of July 24, 2001, Texas Financial Bancorporation, Inc. ("TFBI") sold, assigned and transferred to the Revocable Trust of Carl R. Pohlad 154,999 shares of Common Stock. The consideration was paid with $98,937 in cash and a promissory note from the Revocable Trust of Carl R. Pohlad to TFBI for $890,434. The amount payable under this promissory note has been paid in full. On August 6, 2001, pursuant to a Stock Purchase Agreement dated as of July 24, 2001, TFBI sold, assigned and transferred to the Revocable Trust of Eloise O. Pohlad 154,999 shares of Common Stock. The consideration was paid with $98,937 in cash and a promissory note from the Revocable Trust of Eloise O. Pohlad to TFBI for $890,434. The amount payable under this promissory note has been paid in full. On August 6, 2001, pursuant to a Stock Purchase Agreement dated as of July 24, 2001, TFBI sold, assigned and transferred to James O. Pohlad 84,725 shares of Common Stock and 151,319 shares of 6.5% Series A 7 of 13 Noncumulative Perpetual Convertible Preferred Stock (the "Series A Preferred") of the Issuer. The consideration was paid with $232,572 in cash and a promissory note from James O. Pohlad to TFBI for $2,093,144. The amount payable under this promissory note has been paid in full. On August 6, 2001, pursuant to a Stock Purchase Agreement dated as of July 24, 2001, TFBI sold, assigned and transferred to Robert C. Pohlad 84,726 shares of Common Stock and 151,319 shares of Series A Preferred. The consideration was paid with $232,572 in cash and a promissory note from Robert C. Pohlad to TFBI for $2,093,150. The amount payable under this promissory note has been paid in full. On August 6, 2001, pursuant to a Stock Purchase Agreement dated as of July 24, 2001, TFBI sold, assigned and transferred to William M. Pohlad 84,726 shares of Common Stock and 151,319 shares of Series A Preferred. The consideration was paid with $232,572 in cash and a promissory note from William M. Pohlad to TFBI for $2,093,150. The amount payable under this promissory note has been paid in full. On November 4, 2002, pursuant to a Stock Purchase Agreement dated as of July 31, 2002, by and among Wildwood Enterprises, Inc. Profit Sharing Plan and Trust ("Wildwood") and James O. Pohlad, Robert C. Pohlad and William M. Pohlad, Wildwood sold (i) 16,814 shares of Series A Preferred to James O. Pohlad, (ii) 16,813 shares of Series A Preferred to Robert C. Pohlad and (iii) 16,813 shares of Series A Preferred to William M. Pohlad for an aggregate purchase price of $750,000 payable by each Reporting Person in proportion to the number of shares purchased by such Reporting Person. The consideration was paid in cash. James O. Pohlad, Robert C. Pohlad and William M. Pohlad borrowed the consideration used to pay for such shares from Carl R. Pohlad pursuant to demand promissory notes dated November 4, 2002 bearing interest at 3.06% interest. On November 4, 2002, pursuant to a Stock Purchase Agreement dated as of July 31, 2002, by and among Corporate Management Group Retirement Plan ("Corporate Management") and James O. Pohlad, Robert C. Pohlad and William M. Pohlad, Corporate Management sold 10,000 shares of Common Stock to each of James O. Pohlad, Robert C. Pohlad and William M. Pohlad for an aggregate purchase price of $223,037 payable by each Reporting Person in proportion to the number of shares purchased by such Reporting Person. The consideration was paid in cash. James O. Pohlad, Robert C. Pohlad and William M. Pohlad borrowed the consideration used to pay for such shares from Carl R. Pohlad pursuant to demand promissory notes dated November 4, 2002 bearing interest at 3.06% interest. Pursuant to certain Subscription Agreements dated as of December 18, 2002, by and among the Issuer James O. Pohlad, Robert C. Pohlad and William M. Pohlad, such Reporting Persons each subscribed to purchase 217,865 shares of Common Stock from the Issuer at a purchase price of $7.65 per share. The Issuer accepted these subscriptions by the Reporting Persons on December 26, 2002. The consideration for these shares of Common Stock was paid in cash. James O. Pohlad, Robert C. Pohlad and William M. Pohlad borrowed the consideration to be used to pay for such shares from Carl R. Pohlad pursuant to demand promissory notes dated December 20, 2002 bearing interest at 3.31% interest. Except as otherwise described above, the cash portion of the purchase price under each individual stock purchase was from the personal funds of the Reporting Person making such purchase. ITEM 4. PURPOSE OF TRANSACTION Except as set forth below, none of the Reporting Persons has any plans or proposals which would relate to or would result in any of the actions required to be described in Item 4 of Schedule 13D. Pursuant to a Series B Convertible Perpetual Preferred Stock Purchase Agreement dated as of December 14, 2001, by and among the Issuer and James O. Pohlad, Robert C. Pohlad and William M. Pohlad, the Issuer sold (i) 334 shares of Series B Convertible Perpetual Preferred Stock (the "Series B Preferred") to James O. Pohlad, (ii) 333 shares of Series B Preferred to Robert C. Pohlad and (iii) 333 shares of Series B Preferred to William M. Pohlad for a purchase price of $1,000 per share in cash. The Series B Preferred is convertible into Common Stock upon the earlier of (i) June 30, 2005 or (ii) any of the following events: the execution of a definitive agreement relating to a merger, consolidation or reorganization of the Issuer with or into any other entity or entities in which the holders of the Issuer's capital stock receive cash, 8 of 13 property or securities (other than securities issued by any party to the merger, consolidation or reorganization which result in the holders of the Issuer's voting capital stock prior to the merger, consolidation or reorganization holding not less than 66.67% of the voting power of the surviving entity), or the execution of a definitive agreement relating to any sale, transfer or other disposition of all or substantially all the Issuer's assets, or adoption of any plan or arrangement relating to dissolution or liquidation of the Issuer. Pursuant to certain Subscription Agreements dated as of November 8, 2002, James O. Pohlad, Robert C. Pohlad and William M. Pohlad subscribed to purchase shares of Common Stock from the Issuer. These subscriptions were not accepted by the Issuer and the Subscription Agreements were terminated. Pursuant to certain Subscription Agreements dated as of December 18, 2002, by and among the Issuer and such Reporting Persons, each of James O. Pohlad, Robert C. Pohlad and William M. Pohlad subscribed to purchase 217,865 shares of Common Stock from the Issuer at a purchase price of $7.65 per share. The Issuer was offering 1,307,190 shares of its Common Stock in a private placement of which these subscriptions by the Reporting Persons were a part. The Issuer accepted these subscriptions by the Reporting Persons on December 26, 2002 and the purchase and sale of the shares of Common Stock closed on such date. Each of the Reporting Persons acquired the shares of Series A Preferred, Common Stock and Series B Preferred such Reporting Person presently owns (the "Mercantile Stock") for investment. While none of the Reporting Persons have any contracts or agreements to purchase shares of Mercantile Stock from any person except as described in this Schedule 13D, depending on various factors, including the Issuer's business affairs, prospects, financial position, price levels of shares of Mercantile Stock, conditions in the securities markets, general economic and industry conditions as well as other opportunities available to the Reporting Persons, and subject to applicable restrictions in the Issuer's Articles of Incorporation, a Reporting Person will take such actions with respect to such Reporting Person's investment in the Issuer, including the purchase of additional shares through open market purchases or privately negotiated transactions, tender offer or otherwise, as such Reporting Person deems appropriate in light of the circumstances existing from time to time. Each Reporting Person may, and reserves the right to, sell some or all holdings of Mercantile Stock in the open market or in privately negotiated transactions to one or more purchasers under appropriate circumstances. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) - (b) The Revocable Trust of Carl R. Pohlad, the Revocable Trust of Eloise O. Pohlad, James O. Pohlad, Robert C. Pohlad and William M. Pohlad may be deemed to own 68.2% of the outstanding shares of Common Stock, as a group under Rule 13d-5(b) of the Securities Exchange Act of 1934. Each of the Reporting Persons disclaims beneficial ownership of the shares held by each other Reporting Person. The filing of this Form 13D shall not be construed as an admission that any Reporting Person is a beneficial owner of the shares owned by any other Reporting Person for the purposes of Sections 13, 14, and 16 of the Securities Exchange Act of 1934. Carl R. Pohlad and Eloise O. Pohlad are the parents of James O. Pohlad, Robert C. Pohlad and William M. Pohlad. The Revocable Trust of Carl R. Pohlad owns 154,999 shares of Common Stock. The Revocable Trust of Carl R. Pohlad may be deemed to own 6.7% of the outstanding shares of Common Stock. Carl R. Pohlad, as trustee of the Revocable Trust of Carl R. Pohlad, has sole voting and investment power as to these shares. Except as set forth herein, neither the Revocable Trust of Carl R. Pohlad, Carl R. Pohlad (individually or as trustee), nor, to the best of his knowledge, any of the other Reporting Persons, is the beneficial owner of any Common Stock. The Revocable Trust of Eloise O. Pohlad owns 154,999 shares of Common Stock. The Revocable Trust of Eloise O. Pohlad may be deemed to own 6.7% of the outstanding shares of Common Stock. Eloise O. Pohlad, as trustee of the Revocable Trust of Eloise O. Pohlad, has sole voting and investment power as to these shares. Except as set forth herein, neither the Revocable Trust of Eloise O. Pohlad, Eloise O. Pohlad (individually or as trustee), nor, to the best of her knowledge, any of the other Reporting Persons, is the beneficial owner of any Common Stock. James O. Pohlad owns 312,590 shares of Common Stock and 168,133 shares of Series A Preferred. Each share of Series A Preferred is currently convertible into two shares of Common Stock. Accordingly, James O. Pohlad may be deemed to own 648,856 shares of Common Stock, or 24.6% of the outstanding shares of Common Stock. 9 of 13 James O. Pohlad has sole voting and investment power as to these shares. Except as set forth herein, neither James O. Pohlad nor, to the best of his knowledge, any of the other Reporting Persons, is the beneficial owner of any Common Stock. Robert C. Pohlad owns 312,591 shares of Common Stock and 168,132 shares of Series A Preferred. Each share of Series A Preferred is currently convertible into two shares of Common Stock. Accordingly, Robert C. Pohlad may be deemed to own 648,855 shares of Common Stock, or 24.6% of the outstanding shares of Common Stock. Robert C. Pohlad has sole voting and investment power as to these shares. Except as set forth herein, neither Robert C. Pohlad nor, to the best of his knowledge, any of the other Reporting Persons, is the beneficial owner of any Common Stock. William M. Pohlad owns 312,591 shares of Common Stock and 168,132 shares of Series A Preferred. Each share of Series A Preferred is currently convertible into two shares of Common Stock. Accordingly, William M. Pohlad may be deemed to own 648,855 shares of Common Stock, or 24.6% of the outstanding shares of Common Stock. William M. Pohlad has sole voting and investment power as to these shares. Except as set forth herein, neither William M. Pohlad nor, to the best of his knowledge, any of the other Reporting Persons, is the beneficial owner of any Common Stock. (c) On December 26, 2002, each of James O. Pohlad, Robert C. Pohlad and William M. Pohlad acquired 217,865 shares of Common Stock from the Issuer at a purchase price of $7.65 per share. The purchases were consummated in Minneapolis, Minnesota pursuant to the terms of certain Subscription Agreements dated as of December 18, 2002 between the Issuer and the various Reporting Persons as discussed in Item 3 above. Neither any Reporting Person nor, to the best of any such Reporting Person's knowledge, any of the individuals named in Item 2, has effected any other transaction in the Common Stock during the past 60 days. (d) No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any of the Common Stock. (e) Inapplicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Except as set forth below, there exist no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 of this Schedule 13D or between such persons and any other person with respect to any securities of the Issuer, including, but not limited to, transfer or voting of such securities, finder's fees, joint ventures, loan or option agreements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies. Pursuant to the terms of the Registration Rights Agreement dated June 30, 1997, between Conrad Company ("Conrad") and the Issuer, Conrad was entitled to two requests that the Issuer register, and the Issuer is obligated to file, a registration statement under the Securities Act of 1933, as amended, covering, shares of Common Stock owned by Conrad at the time of the request (the "Registrable Securities"). Conrad also had the right to request that the Issuer include the Registrable Securities in any registration statement proposed to be filed by the Issuer for its own account and/or upon the request or for the account of any securityholder, subject to certain limitations with respect to the number of Registrable Securities that may be included. Under the terms of the Private Purchase Agreement dated February 6, 1997, as amended, between Conrad and the Issuer, so long as Conrad was a holder of shares of Series A Preferred, the Issuer was obligated to use its reasonable best efforts to cause to be elected as directors of the Issuer that number of persons designated by Conrad which Conrad or any affiliate thereof is entitled to elect based on cumulative voting in the election of directors. In addition, the Private Purchase Agreement provides that except under certain circumstances, in the event the Issuer decides to issue and sell additional shares of any capital stock or any securities convertible into capital stock or other rights to subscribe for and purchase any capital stock of the Issuer, the Issuer shall first offer to sell to Conrad, upon 10 of 13 the same terms and conditions as the Issuer proposed to issue and sell such securities to others, Conrad's pro rata share of such securities. Conrad assigned all of its rights and obligations under these agreements by operation of law to TFBI, Conrad's sole shareholder, pursuant to the merger of Conrad with and into TFBI. Pursuant to the terms of certain Assignment documents dated December 11, 2001, TFBI assigned these rights under the Private Purchase Agreement and the Registration Rights Agreement to the Reporting Persons. As further described in Item 4 above, pursuant to a Series B Convertible Perpetual Preferred Stock Purchase Agreement dated as of December 14, 2001, certain of the Reporting Persons purchased 1,000 shares of the Issuer's Series B Preferred for a total purchase price of $1,000,000 in cash. Pursuant to the terms of the Registration Rights Agreement dated June 30, 1997, between Wildwood and the Issuer, Wildwood was entitled to the right to request that the Issuer include the shares of Common Stock owned by Wildwood at the time of the request in any registration statement proposed to be filed by the Issuer for its own account and/or upon the request or for the account of any security holder, subject to certain limitations with respect to the number of shares that may be included. Under the terms of the Private Purchase Agreement dated February 6, 1997, as amended, between Wildwood and the Issuer, except under certain circumstances, in the event the Issuer decides to issue and sell additional shares of any capital stock or any securities convertible into capital stock or other rights to subscribe for and purchase any capital stock of the Issuer, the Issuer shall first offer to sell to Wildwood, upon the same terms and conditions as the Issuer proposed to issue and sell such securities to others, Wildwood's pro rata share of such securities. Pursuant to the Stock Purchase Agreement by and among Wildwood and James O. Pohlad, Robert C. Pohlad and William M. Pohlad discussed in Item 4, Wildwood assigned these rights to James O. Pohlad, Robert C. Pohlad and William M. Pohlad at the closing of the sale of the shares of Series A Preferred. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit Description 99.1 Joint Filing Agreement among Carl R. Pohlad, as trustee of the Revocable Trust of Carl R. Pohlad, Eloise O. Pohlad, as Trustee of the Revocable Trust of Eloise O. Pohlad, James O. Pohlad, Robert C. Pohlad and William M. Pohlad, dated as of August 16, 2001 (incorporated by reference to Exhibit 99.1 to the Schedule 13D filed by the Reporting Persons on August 16, 2001). 99.2 Promissory Note, dated August 6, 2001 from Revocable Trust of Carl R. Pohlad Created U/A dated June 28, 1991 to Texas Financial Bancorporation (incorporated by reference to Exhibit 99.2 to the Schedule 13D filed by the Reporting Persons on August 16, 2001). 99.3 Promissory Note, dated August 6, 2001 from Revocable Trust of Eloise O. Pohlad Created U/A dated June 28, 1991 to Texas Financial Bancorporation (incorporated by reference to Exhibit 99.3 to the Schedule 13D filed by the Reporting Persons on August 16, 2001). 99.4 Promissory Note, dated August 6, 2001 from Robert C. Pohlad to Texas Financial Bancorporation (incorporated by reference to Exhibit 99.4 to the Schedule 13D filed by the Reporting Persons on August 16, 2001). 99.5 Promissory Note, dated August 6, 2001 from William M. Pohlad to Texas Financial Bancorporation (incorporated by reference to Exhibit 99.5 to the Schedule 13D filed by the Reporting Persons on August 16, 2001). 11 of 13 99.6 Promissory Note, dated August 6, 2001 from James O. Pohlad to Texas Financial Bancorporation (incorporated by reference to Exhibit 99.6 to the Schedule 13D filed by the Reporting Persons on August 16, 2001). 99.7 Private Purchase Agreement between the Issuer and Conrad Company dated as of February 6, 1997 and as amended on April 30, 1997 (incorporated by reference to Exhibit 10.22 to the Issuer's Registration Statement on Form S-2, File No. 333-21455). 99.8 Series B Convertible Perpetual Preferred Stock Purchase Agreement dated as of December 14, 2001, by and among the Issuer and James O. Pohlad, Robert C. Pohlad and William M. Pohlad (incorporated by reference to Exhibit 99.8 to Amendment No. 2 to Schedule 13D filed by the Reporting Persons on December 17, 2001). 99.9 Stock Purchase Agreement dated as of July 31, 2002, by and among Wildwood Enterprises, Inc. Profit Sharing Plan and Trust and James O. Pohlad, Robert C. Pohlad and William M. Pohlad (incorporated by reference to Exhibit 99.10 to Amendment No. 3 to Schedule 13D filed by the Reporting Persons on August 5, 2002). 99.10 Stock Purchase Agreement dated as of July 31, 2002, by and among Corporate Management Group Retirement Plan and James O. Pohlad, Robert C. Pohlad and William M. Pohlad (incorporated by reference to Exhibit 99.10 to Amendment No. 4 to Schedule 13D filed by the Reporting Persons on November 12, 2002). 99.11 Private Purchase Agreement between the Issuer and Wildwood Enterprises, Inc. Profit Sharing Plan and Trust dated February 6, 1997, and as amended on April 30, 1997 (incorporated by reference to Exhibit 10.23 to the Issuer's Registration Statement on Form S-2, File No. 333-21455). 99.12 Promissory Note, dated November 4, 2002 from Robert C. Pohlad to Carl R. Pohlad, Trustee of the Revocable Trust No. 2 of Carl R. Pohlad Created U/A dated 5/23/93, as amended (incorporated by reference to Exhibit 99.12 to Amendment No. 4 to Schedule 13D filed by the Reporting Persons on November 12, 2002). 99.13 Promissory Note, dated November 4, 2002 from James O. Pohlad to Carl R. Pohlad, Trustee of the Revocable Trust No. 2 of Carl R. Pohlad Created U/A dated 5/23/93, as amended (incorporated by reference to Exhibit 99.13 to Amendment No. 4 to Schedule 13D filed by the Reporting Persons on November 12, 2002). 99.14 Promissory Note, dated November 4, 2002 from William M. Pohlad to Carl R. Pohlad, Trustee of the Revocable Trust No. 2 of Carl R. Pohlad Created U/A dated 5/23/93, as amended (incorporated by reference to Exhibit 99.14 to Amendment No. 4 to Schedule 13D filed by the Reporting Persons on November 12, 2002). 99.15 Stock Subscription Agreement dated December 18, 2002 from Robert C. Pohlad to the Issuer. 99.16 Stock Subscription Agreement dated December 18, 2002 from James O. Pohlad to the Issuer. 99.17 Stock Subscription Agreement dated December 18, 2002 from William M. Pohlad to the Issuer. 99.18 Promissory Note, dated December 20, 2002 from Robert C. Pohlad to Carl R. Pohlad, Trustee of the Revocable Trust No. 2 of Carl R. Pohlad Created U/A dated 5/23/93, as amended. 99.19 Promissory Note, dated December 20, 2002 from James O. Pohlad to Carl R. Pohlad, Trustee of the Revocable Trust No. 2 of Carl R. Pohlad Created U/A dated 5/23/93, as amended. 99.20 Promissory Note, dated December 20, 2002 from William M. Pohlad to Carl R. Pohlad, Trustee of the Revocable Trust No. 2 of Carl R. Pohlad Created U/A dated 5/23/93, as amended. 12 of 13 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. December 30, 2002 /s/ Carl R. Pohlad - -------------------------- ------------------------------------------ Date Signature Carl R. Pohlad, Trustee of Revocable Trust of Carl R. Pohlad Created U/A dated 6/28/91, as amended ------------------------------------------ Name/Title /s/ Eloise O. Pohlad ------------------------------------------ Signature Eloise O. Pohlad, Trustee of Revocable Trust of Eloise O. Pohlad Created U/A dated 6/28/91, as amended ------------------------------------------ Name/Title /s/ James O. Pohlad ------------------------------------------ James O. Pohlad /s/ Robert C. Pohlad ------------------------------------------ Robert C. Pohlad /s/ William M. Pohlad ------------------------------------------ William M. Pohlad 13 of 13 EX-99.15 3 c73731a5exv99w15.txt STOCK SUBSCRIPTION AGREEMENT - ROBERT C. POHLAD EXHIBIT 99.15 NATIONAL MERCANTILE BANCORP STOCK SUBSCRIPTION AGREEMENT This Stock Subscription Agreement (this "SUBSCRIPTION AGREEMENT") is submitted by the undersigned ("PURCHASER") to National Mercantile Bancorp, a California corporation ("NMB"), in connection with NMB's private offering (the "OFFERING") of 1,307,190 shares of Common Stock for a purchase price of $7.65 per share. 1. SUBSCRIPTION Purchaser hereby subscribes (the "SUBSCRIPTION") to purchase the number of shares set forth on the signature page of this Subscription. Purchaser agrees to remit the purchase price for the shares within three business days of request for payment from NMB by check payable to National Mercantile Bancorp or by wire transfer. Purchaser understands that this Subscription is subject to acceptance by NMB, and NMB may accept this Subscription in whole or in part. For purposes of this Subscription Agreement, the "SHARES" shall mean the shares of NMB Common Stock issued and sold by NMB to Purchaser pursuant to this Subscription Agreement. This Subscription is irrevocable unless NMB does not accept this Subscription before December 31, 2002, in which event Purchaser may revoke this Subscription by written notice to NMB at any time prior to its acceptance by NMB. 2. REPRESENTATIONS AND WARRANTIES OF NMB By accepting this Subscription, NMB shall represent and warrant to the Purchasers that, as of the date of acceptance: 2.1. CORPORATE POWER. NMB has been duly incorporated and is validly existing and in good standing in the State of California, and has all requisite legal and corporate power and authority to conduct its business as currently being conducted and to enter into, carry out and perform its obligations under the terms of this Subscription Agreement. NMB is duly qualified to do business and is in good standing in every jurisdiction in which the nature of its business makes such qualification necessary, except where such failure would not have a material adverse effect on (a) the assets, liabilities, financial condition, prospects or results of operation of NMB or (b) the ability of NMB to perform its obligations under this Subscription Agreement ("MATERIAL ADVERSE EFFECT"). 2.2. AUTHORIZATION. This Subscription Agreement has been duly authorized on behalf of NMB by all necessary corporate action, has been duly executed and delivered by NMB, and constitutes a valid, legal and binding obligation of NMB, enforceable against NMB in accordance with its terms. All corporate action on the part of NMB, its directors and its shareholders necessary for the authorization, sale, issuance and delivery of the Shares has been taken. Upon issuance pursuant to this Subscription Agreement, the Shares will be duly authorized, validly issued, fully paid and nonassessable, free of any liens or encumbrances, other than any liens or encumbrances created by or imposed by Purchaser; provided, however, that the Shares will be subject to restrictions on transfer under state or federal securities laws, restrictions set forth in this Agreement and restrictions under Article XIII of the Articles of Incorporation of NMB. 1 2.3. SEC FILINGS. NMB's Annual Report on Form 10-KSB for the year ended December 31, 2001, Proxy Statement for its 2002 Annual Meeting of Shareholders, and Quarterly Report on Form 10-QSB for the quarter ended September 30, 2002 (collectively, the "SEC FILINGS") complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Filings, and none of the SEC Filings, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Since NMB's most recent SEC Filing, there has been no material adverse change in the assets, liabilities, business, properties, operations, financial condition or results of operations of NMB. The financial statements included in the SEC Filings were prepared in all material respects in accordance with generally accepted accounting principles, consistently applied during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of NMB as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of the unaudited statements, to normal year-end adjustments). 2.4. CAPITALIZATION. As of the date hereof, the authorized capital stock of NMB consists of (a) 10,000,000 shares of Common Stock, of which, as of October 31, 2002 (i) 1,648,157 shares were issued and outstanding, (ii) 610,034 shares were reserved for issuance under NMB's stock plans, (iii) 67,037 shares were reserved for issuance upon exercise of outstanding warrants; (iv) 1,491,570 shares were reserved for issuance upon conversion of NMB's Series A Noncumulative Perpetual Convertible Preferred Stock (the "SERIES A PREFERRED") which was outstanding on October 31, 2002; (v) 178,200 shares were reserved for issuance upon conversion of Series A Preferred which may be issued upon exercise of outstanding warrants: (vi) 152,664 shares were reserved for issuance upon conversion of NMB's Series B Convertible Perpetual Preferred Stock (the "SERIES B PREFERRED"); and (vii) 746,000 shares were reserved for issuance in exchange for Series A Preferred Stock of South Bay Bank, N.A. ("SOUTH BAY BANK PREFERRED") and (b) 1,000,000 shares of Preferred Stock (i) 990,000 of which have been designated Series A Preferred, of which, as of October 31, 2002, (A) 745,785 shares were issued and outstanding, and (B) 89,100 shares were reserved for issuance upon exercise of warrants; and (ii) 1,000 of which have been designated as Series B Preferred, all of which are issued and outstanding. There are no outstanding options, warrants, rights to subscribe to purchase from the Company, or securities or rights convertible into, exercisable for or exchangeable for any capital stock of the Company, or any arrangement by which the Company is or may become bound to issue additional shares of capital stock except (i) with respect to the shares of Common Stock and Preferred Stock described in the preceding sentence; (ii) additional shares of Common Stock which may be issuable upon conversion of the Series B Preferred as the liquidation amount of the Series B Preferred increases; (iii) additional shares of Common Stock which may be issuable in exchange for the South Bay Bank Preferred as a result of changes in the fully diluted book value of the Company; and (iv) shares of Common Stock which may be issuable in certain circumstances if dividends are not paid on the South Bay Bank Preferred. 2.5. LITIGATION. Except as disclosed in the SEC Filings, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self- 2 regulatory organization or body pending or, to the knowledge of NMB, threatened against or affecting NMB, its subsidiaries, or any of its officers or directors acting as such, that could, individually or in the aggregate, have a Material Adverse Effect. 2.6. NO CONFLICT. The execution, delivery and performance of and compliance with this Subscription Agreement and the issuance of the Shares will not result in any violation of, or conflict with, or constitute a default under, the Articles of Incorporation or Bylaws of NMB, and will not result in any violation of, or conflict with, or constitute a default under, any agreements to which NMB or its subsidiaries are a party or by which they are bound, or any statute, rule or regulation, or any decree of any court or governmental agency or body having jurisdiction over NMB, its subsidiaries or any of their properties, except for such violations, conflicts, or defaults which would not individually or in the aggregate, have a Material Adverse Effect. 2.7. NO BREACH OR DEFAULT. NMB is not in violation of its Articles of Incorporation or By-laws and is not in default (and no event has occurred, which with notice or lapse of time or both could put NMB in default) under any agreement or indenture to which NMB is a party or by which any property or assets of NMB is bound or affected, except for defaults which would not, individually or in the aggregate, have a Material Adverse Effect. 2.8. GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or designation, declaration or filing with any court or governmental authority or the National Association of Securities Dealers, Inc. ("NASD") on the part of NMB is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Shares, except for notice filings under state securities laws and under Regulation D under the Securities Act, and listing of the Shares on the Nasdaq SmallCap Market. 2.9. NO BROKERS. NMB has taken no action which would give rise to any claim by any person for brokerage commissions, finder's fees or similar payments relating to this Agreement or the transactions contemplated hereby, except for dealings with Wedbush Morgan Securities, whose commissions and fees will be paid for by NMB. 2.10. NO INTEGRATED OFFERING. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration under the Securities Act of the issuance of the Shares. The issuance of the Shares to Purchaser will not be integrated with any other issuance of the Company's securities (past, current or future) for purposes of the Securities Act or any applicable rules of Nasdaq. 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASER The Purchaser hereby represents and warrants to, and agrees with, NMB as follows: 3.1. Purchaser is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (the "SECURITIES ACT"), as follows (check as applicable): [X] a natural person who either (a) has (along with his/her spouse) a net worth which exceeds $1,000,000 at the time of the purchase or (b) has had an individual income in excess of 3 $200,000 (or a joint income with his/her spouse which exceeds $300,000) for each of the two most recent years and has a reasonable expectation of reaching the same income level (or joint income level) in the current year; [ ] any bank or savings and loan association acting in its individual or fiduciary capacity any registered broker-dealer, insurance company, registered investment company, business development company, small business investment company or employee benefit plan (a) if the investment decision is made by a fiduciary which is a bank, savings and loan association, insurance company or registered investment advisor or (b) if the plan has total assets in excess of $5,000,000 or (c) if a self-directed plan, the investment decisions are made solely by persons that are accredited investors; [ ] any private business development company; [ ] any organization under section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; [ ] any trust with assets in excess of $5,000,000 not formed for the specific purpose of buying the securities offered, whose purchase is directed by a "sophisticated person"; a revocable grantor trust will be accredited where each of the grantors is an accredited investor; similarly, an Individual Retirement Account ("IRA") will be accredited where the individual for whose benefit the IRA was established is an accredited investor; [ ] any director or executive officer of NMB; or [ ] any entity in which all equity owners are accredited investors. 3.2. Purchaser is purchasing the Shares for Purchaser's own account for investment and not with a view to, or for resale in connection with, a distribution of the Shares within the meaning of the Securities Act. In that regard, Purchaser understands that (a) the Shares have not been registered under the Securities Act or under any state securities laws and are therefore "restricted securities"; (b) the Shares may not be sold or transferred unless they are registered under the Securities Act or an exemption from such registration is available. 3.3. Purchaser understands that an investment in the Shares involves risk, and Purchaser has the financial ability to bear the economic risk of this investment in the Shares, including a complete loss of such investment; Purchaser has reviewed the risk factors set forth in NMB's SEC Filings under the heading "Factors Which May Affect Future Operating Results" in Management's Discussion and Analysis of Financial Condition and Results of Operations of such SEC Filings. 3.4. Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of an investment in the Shares and in 4 protecting Purchaser's own interests in connection with this transaction; Purchaser has reviewed the SEC Filings to the extent deemed necessary by Purchaser, and Purchaser has had the opportunity to investigate the business and affairs of NMB and to ask questions of NMB's officers either directly or through Purchaser's authorized representatives. 3.5. Purchaser understands and agrees that each certificate evidencing the Shares will bear the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE." Purchaser agrees that NMB may place stop orders on each certificate evidencing any of the Shares with its transfer agent, if any, to the same effect as the legend set forth in this Section 3.5. The legend and stop transfer notice referred to above shall be removed only upon Purchaser furnishing to NMB an opinion of counsel (reasonably satisfactory to NMB) to the effect that such legend may be removed or at such time as the Shares may be sold pursuant to Rule 144(k). 3.6. Purchaser acknowledges that transfers of the Shares are restricted by Article XIII of the Articles of Incorporation of NMB and that certificates evidencing the Shares will bear the legend required by such Article XIII. 3.7. Purchaser hereby agrees to indemnify and defend (with counsel acceptable to NMB) NMB and its directors, officers and agents and hold them harmless from and against any and all liability, loss, damage, cost or expense, including costs and reasonable attorneys' fees, incurred on account of or arising out of: (a) any material breach of or inaccuracy in Purchaser's representations, warranties or agreements herein but not with respect to third party claims arising out of the representations contained in Section 3.3 and 3.4; and (b) any disposition of any of the Shares contrary to any of Purchaser's representations, warranties or agreements in this Subscription Agreement. 3.8. This Subscription Agreement has been duly and validly authorized, executed and delivered on behalf of Purchaser and is a valid, legal and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms. 3.9. Purchaser is a resident of the jurisdiction set forth on the signature page of this Subscription Agreement. 3.10. Purchaser acknowledges that Wedbush Morgan Securities is acting as placement agent (the "PLACEMENT AGENT") for certain of the shares of Common Stock offered in the Offering (but not the Shares) and will be compensated by NMB for acting in such capacity. Purchaser further acknowledges that the Placement Agent has acted solely as placement agent in connection with the Offering, that the information and data provided to Purchaser in connection with the Offering have not been subjected to independent verification by the Placement Agent, and that the Placement Agent makes no representation or warranty with respect to the accuracy or completeness of such 5 information, data or other related disclosure material. Purchaser further acknowledges that in making its decision to enter into this Subscription Agreement and purchase the Shares, it has relied on its own examination of NMB and the terms of, and consequences, of holding the Shares. Purchaser further acknowledges that the provisions of this Section 3.10 are for the benefit of, and may be enforced by, the Placement Agent with respect to Purchaser's Subscription but not with respect to any other subscriber in the Offering. 4. MISCELLANEOUS 4.1. GOVERNING LAW. This Subscription Agreement shall be governed in all respects by the internal laws of the State of California without regard to conflict of laws provisions. 4.2. ENTIRE AGREEMENT. This Subscription Agreement contains the sole and entire agreement and understanding of the parties with respect to the entire subject matter of this Agreement, and any and all prior discussions, negotiations, commitments and understandings, whether oral or otherwise, related to the subject matter of this Agreement are hereby merged herein. 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. 4.3. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, or otherwise delivered by facsimile transmission, by hand or by messenger, addressed: if to a Purchaser, to the address or fax number listed after such Purchaser's name on the signature pages or at such other address as such Purchaser shall have furnished to NMB in accordance with this provision, and if to NMB, to: National Mercantile Bancorp 1840 Century Park East Los Angeles, California 90067 Attn: Scott Montgomery, President Fax: (310) 201-0629 or at such other address as NMB shall have furnished to the Purchaser. Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given when received if delivered personally, if sent by facsimile, the first business day after the date of confirmation that the facsimile has been successfully transmitted to the facsimile number for the party notified, or, if sent by mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid. 4.4. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, and all of which together shall constitute one instrument. 4.5. CAPTIONS. The various captions of this Agreement are for reference only and shall not be considered or referred to in resolving questions of interpretation of this Agreement. 6 4.6. ASSIGNMENT. No party to this Agreement may assign its rights or obligations under this Agreement without the consent of the other party. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto. 4.7. CURRENT REPORTS. If the Company accepts this Subscription in whole or in part, for the period commencing on the date of issuance and sale of the Shares to Purchaser and terminating on the earliest to occur of two years thereafter, a Terminating Event or the date neither the Purchaser nor any of its affiliates owns any of the Shares, the Company agrees: (a) to have available "adequate current public information" within the meaning of Rule 144(c); and (b) not to terminate its status as an issuer required to file reports under the Exchange Act. A "TERMINATING EVENT" shall mean a merger, consolidation, reorganization or other transaction approved by the shareholders of the Company or any tender offer to acquire outstanding capital stock including all of the Shares. 7 INDIVIDUAL SIGNATURE PAGE IN WITNESS WHEREOF, I have executed this Stock Subscription Agreement on December 18, 2002. Robert C. Pohlad - ------------------------------------------ ------------------------------- Name (Please print) Social Security Number /s/ Robert C. Pohlad - ------------------------------------------ Signature - ------------------------------------------ Name of Joint Tenant or Tenant or Tenant-in-Common (if any) - ------------------------------------------ Signature of Joint Tenant or Tenant-in-Common (if any) Address: 60 South 6th St., Suite 3800 - ------------------------------------------ Minneapolis, MN 55402 - ------------------------------------------
NO. OF SHARES SUBSCRIBED OFFERING PRICE TOTAL PURCHASE PRICE 217,865 x $7.65 = $ 1,666,667.25 ------------------ --------------
[ ] ACCEPTED on _______________, 2002 NATIONAL MERCANTILE BANCORP ___ All shares or By: ____________ shares ------------------------- Its: [ ] REJECTED on _______________, 2002 ------------------------ ENTITY SIGNATURE PAGE IN WITNESS WHEREOF, the undersigned has/have executed this Stock Subscription Agreement on ________________, 2002. Type of Entity - ------------------------------------ Name of Entity (Please print) Corporation ----- General Partnership ----- Limited Liability Company By: ----- --------------------------------- Other (Please Describe) Name of Signer (Please print) ----- --------------------------------- ------------------------------------------ Title of Signer State of Incorporation or Organization ------------------------------------------ Taxpayer Identification Number By: --------------------------------- If subscriber is a corporation, please have Name of Signer (Please print) the President and Secretary execute the Agreement where indicated and include a copy --------------------------------- of the certified corporate resolution and Title of Signer other documents authorizing investment. Address: If subscriber is a partnership, please have all general partners execute the Agreement - ------------------------------------ where indicated. - ------------------------------------ If subscriber is a limited liability company, please have the manager or, if none, all of the members execute the Agreement where indicated.
NO. OF SHARES SUBSCRIBED OFFERING PRICE TOTAL PURCHASE PRICE x $7.65 = $ ---------------- ---------------
[ ] ACCEPTED on _______________, 2002 NATIONAL MERCANTILE BANCORP ___ All shares or By: ____________ shares ------------------------- Its: [ ] REJECTED on _______________, 2002 ------------------------ - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SUBSTITUTE FORM W-9 PAYER'S NAME: NATIONAL MERCANTILE BANCORP (SEE THE INSTRUCTIONS THAT ACCOMPANY THE STOCK SUBSCRIPTION AGREEMENT) - -------------------------------------------------------------------------------- To prevent backup withholding of 30% on any cash payments made to you with respect to shares of National Mercantile Bancorp Common Stock, you are required to notify the Company of your correct Taxpayer Identification Number ("TIN") by signing below and certifying that the TIN provided on this Substitute Form W-9 is correct (or that you are awaiting a TIN). - -------------------------------------------------------------------------------- PART I - Please provide your TIN in the Social Security Number OR box at the right and certify by signing Employer Identification Number and dating below. ------------------------------ - -------------------------------------------------------------------------------- PART II - Under penalties of perjury, I certify that: (1) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and (3) I am a U.S. person (including a U.S. resident alien). Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. - ------------------------ ------------------------ Signature Date TO BE SIGNED BY THE PERSON OR ENTITY WHOSE NAME AND ADDRESS APPEAR ABOVE ON THE SUBSCRIPTION WARRANT. - -------------------------------------------------------------------------------- YOU MUST COMPLETE THE FOLLOWING IF YOU ARE WAITING FOR A TAXPAYER IDENTIFICATION NUMBER TO BE ISSUED TO YOU. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days, 30% of all reportable payments made to me thereafter will be withheld until I provide a number. - ----------------------------- ----------------- Signature Date - -------------------------------------------------------------------------------- EX-99.16 4 c73731a5exv99w16.txt STOCK SUBSCRIPTION AGREEMENT - JAMES O. POHLAD EXHIBIT 99.16 NATIONAL MERCANTILE BANCORP STOCK SUBSCRIPTION AGREEMENT This Stock Subscription Agreement (this "SUBSCRIPTION AGREEMENT") is submitted by the undersigned ("PURCHASER") to National Mercantile Bancorp, a California corporation ("NMB"), in connection with NMB's private offering (the "OFFERING") of 1,307,190 shares of Common Stock for a purchase price of $7.65 per share. 1. SUBSCRIPTION Purchaser hereby subscribes (the "SUBSCRIPTION") to purchase the number of shares set forth on the signature page of this Subscription. Purchaser agrees to remit the purchase price for the shares within three business days of request for payment from NMB by check payable to National Mercantile Bancorp or by wire transfer. Purchaser understands that this Subscription is subject to acceptance by NMB, and NMB may accept this Subscription in whole or in part. For purposes of this Subscription Agreement, the "SHARES" shall mean the shares of NMB Common Stock issued and sold by NMB to Purchaser pursuant to this Subscription Agreement. This Subscription is irrevocable unless NMB does not accept this Subscription before December 31, 2002, in which event Purchaser may revoke this Subscription by written notice to NMB at any time prior to its acceptance by NMB. 2. REPRESENTATIONS AND WARRANTIES OF NMB By accepting this Subscription, NMB shall represent and warrant to the Purchasers that, as of the date of acceptance: 2.1. CORPORATE POWER. NMB has been duly incorporated and is validly existing and in good standing in the State of California, and has all requisite legal and corporate power and authority to conduct its business as currently being conducted and to enter into, carry out and perform its obligations under the terms of this Subscription Agreement. NMB is duly qualified to do business and is in good standing in every jurisdiction in which the nature of its business makes such qualification necessary, except where such failure would not have a material adverse effect on (a) the assets, liabilities, financial condition, prospects or results of operation of NMB or (b) the ability of NMB to perform its obligations under this Subscription Agreement ("MATERIAL ADVERSE EFFECT"). 2.2. AUTHORIZATION. This Subscription Agreement has been duly authorized on behalf of NMB by all necessary corporate action, has been duly executed and delivered by NMB, and constitutes a valid, legal and binding obligation of NMB, enforceable against NMB in accordance with its terms. All corporate action on the part of NMB, its directors and its shareholders necessary for the authorization, sale, issuance and delivery of the Shares has been taken. Upon issuance pursuant to this Subscription Agreement, the Shares will be duly authorized, validly issued, fully paid and nonassessable, free of any liens or encumbrances, other than any liens or encumbrances created by or imposed by Purchaser; provided, however, that the Shares will be subject to restrictions on transfer under state or federal securities laws, restrictions set forth in this Agreement and restrictions under Article XIII of the Articles of Incorporation of NMB. 1 2.3. SEC FILINGS. NMB's Annual Report on Form 10-KSB for the year ended December 31, 2001, Proxy Statement for its 2002 Annual Meeting of Shareholders, and Quarterly Report on Form 10-QSB for the quarter ended September 30, 2002 (collectively, the "SEC FILINGS") complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Filings, and none of the SEC Filings, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Since NMB's most recent SEC Filing, there has been no material adverse change in the assets, liabilities, business, properties, operations, financial condition or results of operations of NMB. The financial statements included in the SEC Filings were prepared in all material respects in accordance with generally accepted accounting principles, consistently applied during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of NMB as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of the unaudited statements, to normal year-end adjustments). 2.4. CAPITALIZATION. As of the date hereof, the authorized capital stock of NMB consists of (a) 10,000,000 shares of Common Stock, of which, as of October 31, 2002 (i) 1,648,157 shares were issued and outstanding, (ii) 610,034 shares were reserved for issuance under NMB's stock plans, (iii) 67,037 shares were reserved for issuance upon exercise of outstanding warrants; (iv) 1,491,570 shares were reserved for issuance upon conversion of NMB's Series A Noncumulative Perpetual Convertible Preferred Stock (the "SERIES A PREFERRED") which was outstanding on October 31, 2002; (v) 178,200 shares were reserved for issuance upon conversion of Series A Preferred which may be issued upon exercise of outstanding warrants: (vi) 152,664 shares were reserved for issuance upon conversion of NMB's Series B Convertible Perpetual Preferred Stock (the "SERIES B PREFERRED"); and (vii) 746,000 shares were reserved for issuance in exchange for Series A Preferred Stock of South Bay Bank, N.A. ("SOUTH BAY BANK PREFERRED") and (b) 1,000,000 shares of Preferred Stock (i) 990,000 of which have been designated Series A Preferred, of which, as of October 31, 2002, (A) 745,785 shares were issued and outstanding, and (B) 89,100 shares were reserved for issuance upon exercise of warrants; and (ii) 1,000 of which have been designated as Series B Preferred, all of which are issued and outstanding. There are no outstanding options, warrants, rights to subscribe to purchase from the Company, or securities or rights convertible into, exercisable for or exchangeable for any capital stock of the Company, or any arrangement by which the Company is or may become bound to issue additional shares of capital stock except (i) with respect to the shares of Common Stock and Preferred Stock described in the preceding sentence; (ii) additional shares of Common Stock which may be issuable upon conversion of the Series B Preferred as the liquidation amount of the Series B Preferred increases; (iii) additional shares of Common Stock which may be issuable in exchange for the South Bay Bank Preferred as a result of changes in the fully diluted book value of the Company; and (iv) shares of Common Stock which may be issuable in certain circumstances if dividends are not paid on the South Bay Bank Preferred. 2.5. LITIGATION. Except as disclosed in the SEC Filings, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self- 2 regulatory organization or body pending or, to the knowledge of NMB, threatened against or affecting NMB, its subsidiaries, or any of its officers or directors acting as such, that could, individually or in the aggregate, have a Material Adverse Effect. 2.6. NO CONFLICT. The execution, delivery and performance of and compliance with this Subscription Agreement and the issuance of the Shares will not result in any violation of, or conflict with, or constitute a default under, the Articles of Incorporation or Bylaws of NMB, and will not result in any violation of, or conflict with, or constitute a default under, any agreements to which NMB or its subsidiaries are a party or by which they are bound, or any statute, rule or regulation, or any decree of any court or governmental agency or body having jurisdiction over NMB, its subsidiaries or any of their properties, except for such violations, conflicts, or defaults which would not individually or in the aggregate, have a Material Adverse Effect. 2.7. NO BREACH OR DEFAULT. NMB is not in violation of its Articles of Incorporation or By-laws and is not in default (and no event has occurred, which with notice or lapse of time or both could put NMB in default) under any agreement or indenture to which NMB is a party or by which any property or assets of NMB is bound or affected, except for defaults which would not, individually or in the aggregate, have a Material Adverse Effect. 2.8. GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or designation, declaration or filing with any court or governmental authority or the National Association of Securities Dealers, Inc. ("NASD") on the part of NMB is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Shares, except for notice filings under state securities laws and under Regulation D under the Securities Act, and listing of the Shares on the Nasdaq SmallCap Market. 2.9. NO BROKERS. NMB has taken no action which would give rise to any claim by any person for brokerage commissions, finder's fees or similar payments relating to this Agreement or the transactions contemplated hereby, except for dealings with Wedbush Morgan Securities, whose commissions and fees will be paid for by NMB. 2.10. NO INTEGRATED OFFERING. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration under the Securities Act of the issuance of the Shares. The issuance of the Shares to Purchaser will not be integrated with any other issuance of the Company's securities (past, current or future) for purposes of the Securities Act or any applicable rules of Nasdaq. 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASER The Purchaser hereby represents and warrants to, and agrees with, NMB as follows: 3.1. Purchaser is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (the "SECURITIES ACT"), as follows (check as applicable): [X] a natural person who either (a) has (along with his/her spouse) a net worth which exceeds $1,000,000 at the time of the purchase or (b) has had an individual income in excess of 3 $200,000 (or a joint income with his/her spouse which exceeds $300,000) for each of the two most recent years and has a reasonable expectation of reaching the same income level (or joint income level) in the current year; [ ] any bank or savings and loan association acting in its individual or fiduciary capacity any registered broker-dealer, insurance company, registered investment company, business development company, small business investment company or employee benefit plan (a) if the investment decision is made by a fiduciary which is a bank, savings and loan association, insurance company or registered investment advisor or (b) if the plan has total assets in excess of $5,000,000 or (c) if a self-directed plan, the investment decisions are made solely by persons that are accredited investors; [ ] any private business development company; [ ] any organization under section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; [ ] any trust with assets in excess of $5,000,000 not formed for the specific purpose of buying the securities offered, whose purchase is directed by a "sophisticated person"; a revocable grantor trust will be accredited where each of the grantors is an accredited investor; similarly, an Individual Retirement Account ("IRA") will be accredited where the individual for whose benefit the IRA was established is an accredited investor; [ ] any director or executive officer of NMB; or [ ] any entity in which all equity owners are accredited investors. 3.2. Purchaser is purchasing the Shares for Purchaser's own account for investment and not with a view to, or for resale in connection with, a distribution of the Shares within the meaning of the Securities Act. In that regard, Purchaser understands that (a) the Shares have not been registered under the Securities Act or under any state securities laws and are therefore "restricted securities"; (b) the Shares may not be sold or transferred unless they are registered under the Securities Act or an exemption from such registration is available. 3.3. Purchaser understands that an investment in the Shares involves risk, and Purchaser has the financial ability to bear the economic risk of this investment in the Shares, including a complete loss of such investment; Purchaser has reviewed the risk factors set forth in NMB's SEC Filings under the heading "Factors Which May Affect Future Operating Results" in Management's Discussion and Analysis of Financial Condition and Results of Operations of such SEC Filings. 3.4. Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of an investment in the Shares and in 4 protecting Purchaser's own interests in connection with this transaction; Purchaser has reviewed the SEC Filings to the extent deemed necessary by Purchaser, and Purchaser has had the opportunity to investigate the business and affairs of NMB and to ask questions of NMB's officers either directly or through Purchaser's authorized representatives. 3.5. Purchaser understands and agrees that each certificate evidencing the Shares will bear the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE." Purchaser agrees that NMB may place stop orders on each certificate evidencing any of the Shares with its transfer agent, if any, to the same effect as the legend set forth in this Section 3.5. The legend and stop transfer notice referred to above shall be removed only upon Purchaser furnishing to NMB an opinion of counsel (reasonably satisfactory to NMB) to the effect that such legend may be removed or at such time as the Shares may be sold pursuant to Rule 144(k). 3.6. Purchaser acknowledges that transfers of the Shares are restricted by Article XIII of the Articles of Incorporation of NMB and that certificates evidencing the Shares will bear the legend required by such Article XIII. 3.7. Purchaser hereby agrees to indemnify and defend (with counsel acceptable to NMB) NMB and its directors, officers and agents and hold them harmless from and against any and all liability, loss, damage, cost or expense, including costs and reasonable attorneys' fees, incurred on account of or arising out of: (a) any material breach of or inaccuracy in Purchaser's representations, warranties or agreements herein but not with respect to third party claims arising out of the representations contained in Section 3.3 and 3.4; and (b) any disposition of any of the Shares contrary to any of Purchaser's representations, warranties or agreements in this Subscription Agreement. 3.8. This Subscription Agreement has been duly and validly authorized, executed and delivered on behalf of Purchaser and is a valid, legal and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms. 3.9. Purchaser is a resident of the jurisdiction set forth on the signature page of this Subscription Agreement. 3.10. Purchaser acknowledges that Wedbush Morgan Securities is acting as placement agent (the "PLACEMENT AGENT") for certain of the shares of Common Stock offered in the Offering (but not the Shares) and will be compensated by NMB for acting in such capacity. Purchaser further acknowledges that the Placement Agent has acted solely as placement agent in connection with the Offering, that the information and data provided to Purchaser in connection with the Offering have not been subjected to independent verification by the Placement Agent, and that the Placement Agent makes no representation or warranty with respect to the accuracy or completeness of such 5 information, data or other related disclosure material. Purchaser further acknowledges that in making its decision to enter into this Subscription Agreement and purchase the Shares, it has relied on its own examination of NMB and the terms of, and consequences, of holding the Shares. Purchaser further acknowledges that the provisions of this Section 3.10 are for the benefit of, and may be enforced by, the Placement Agent with respect to Purchaser's Subscription but not with respect to any other subscriber in the Offering. 4. MISCELLANEOUS 4.1. GOVERNING LAW. This Subscription Agreement shall be governed in all respects by the internal laws of the State of California without regard to conflict of laws provisions. 4.2. ENTIRE AGREEMENT. This Subscription Agreement contains the sole and entire agreement and understanding of the parties with respect to the entire subject matter of this Agreement, and any and all prior discussions, negotiations, commitments and understandings, whether oral or otherwise, related to the subject matter of this Agreement are hereby merged herein. 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. 4.3. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, or otherwise delivered by facsimile transmission, by hand or by messenger, addressed: if to a Purchaser, to the address or fax number listed after such Purchaser's name on the signature pages or at such other address as such Purchaser shall have furnished to NMB in accordance with this provision, and if to NMB, to: National Mercantile Bancorp 1840 Century Park East Los Angeles, California 90067 Attn: Scott Montgomery, President Fax: (310) 201-0629 or at such other address as NMB shall have furnished to the Purchaser. Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given when received if delivered personally, if sent by facsimile, the first business day after the date of confirmation that the facsimile has been successfully transmitted to the facsimile number for the party notified, or, if sent by mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid. 4.4. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, and all of which together shall constitute one instrument. 4.5. CAPTIONS. The various captions of this Agreement are for reference only and shall not be considered or referred to in resolving questions of interpretation of this Agreement. 6 4.6. ASSIGNMENT. No party to this Agreement may assign its rights or obligations under this Agreement without the consent of the other party. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto. 4.7. CURRENT REPORTS. If the Company accepts this Subscription in whole or in part, for the period commencing on the date of issuance and sale of the Shares to Purchaser and terminating on the earliest to occur of two years thereafter, a Terminating Event or the date neither the Purchaser nor any of its affiliates owns any of the Shares, the Company agrees: (a) to have available "adequate current public information" within the meaning of Rule 144(c); and (b) not to terminate its status as an issuer required to file reports under the Exchange Act. A "TERMINATING EVENT" shall mean a merger, consolidation, reorganization or other transaction approved by the shareholders of the Company or any tender offer to acquire outstanding capital stock including all of the Shares. 7 INDIVIDUAL SIGNATURE PAGE IN WITNESS WHEREOF, I have executed this Stock Subscription Agreement on December 18, 2002. James O. Pohlad - ---------------------------------------- ------------------------------- Name (Please print) Social Security Number /s/ James O. Pohlad - ---------------------------------------- Signature - ---------------------------------------- Name of Joint Tenant or Tenant or Tenant-in-Common (if any) - ---------------------------------------- Signature of Joint Tenant or Tenant-in-Common (if any) Address: 60 South 6th St., Suite 3800 - ---------------------------------------- Minneapolis, MN 55402 - ----------------------------------------
NO. OF SHARES SUBSCRIBED OFFERING PRICE TOTAL PURCHASE PRICE 217,865 x $7.65 = $ 1,666,667.25 ---------------- --------------
[ ] ACCEPTED on _______________, 2002 NATIONAL MERCANTILE BANCORP ___ All shares or By: ____________ shares ------------------------ Its: [ ] REJECTED on _______________, 2002 ----------------------- ENTITY SIGNATURE PAGE IN WITNESS WHEREOF, the undersigned has/have executed this Stock Subscription Agreement on ________________, 2002. Type of Entity - ------------------------------------ Name of Entity (Please print) Corporation ----- General Partnership ----- Limited Liability Company By: ----- --------------------------------- Other (Please Describe) Name of Signer (Please print) ----- --------------------------------- ------------------------------------------ Title of Signer State of Incorporation or Organization ------------------------------------------ Taxpayer Identification Number By: --------------------------------- If subscriber is a corporation, please have Name of Signer (Please print) the President and Secretary execute the Agreement where indicated and include a copy --------------------------------- of the certified corporate resolution and Title of Signer other documents authorizing investment. Address: If subscriber is a partnership, please have all general partners execute the Agreement - ------------------------------------ where indicated. - ------------------------------------ If subscriber is a limited liability company, please have the manager or, if none, all of the members execute the Agreement where indicated.
NO. OF SHARES SUBSCRIBED OFFERING PRICE TOTAL PURCHASE PRICE x $7.65 = $ --------------- ---------------
[ ] ACCEPTED on _______________, 2002 NATIONAL MERCANTILE BANCORP ___ All shares or By: ____________ shares ----------------------- Its: [ ] REJECTED on _______________, 2002 ---------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SUBSTITUTE FORM W-9 PAYER'S NAME: NATIONAL MERCANTILE BANCORP (SEE THE INSTRUCTIONS THAT ACCOMPANY THE STOCK SUBSCRIPTION AGREEMENT) - -------------------------------------------------------------------------------- To prevent backup withholding of 30% on any cash payments made to you with respect to shares of National Mercantile Bancorp Common Stock, you are required to notify the Company of your correct Taxpayer Identification Number ("TIN") by signing below and certifying that the TIN provided on this Substitute Form W-9 is correct (or that you are awaiting a TIN). - -------------------------------------------------------------------------------- PART I - Please provide your TIN in the Social Security Number OR box at the right and certify by signing Employer Identification Number and dating below. ------------------------------ - -------------------------------------------------------------------------------- PART II - Under penalties of perjury, I certify that: (1) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and (3) I am a U.S. person (including a U.S. resident alien). Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. - ---------------------------------- --------------------------- Signature Date TO BE SIGNED BY THE PERSON OR ENTITY WHOSE NAME AND ADDRESS APPEAR ABOVE ON THE SUBSCRIPTION WARRANT. - -------------------------------------------------------------------------------- YOU MUST COMPLETE THE FOLLOWING IF YOU ARE WAITING FOR A TAXPAYER IDENTIFICATION NUMBER TO BE ISSUED TO YOU. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days, 30% of all reportable payments made to me thereafter will be withheld until I provide a number. - ---------------------------------- --------------------------- Signature Date EX-99.17 5 c73731a5exv99w17.txt STOCK SUBSCRIPTION AGREEMENT - WILLIAM M. POHLAD EXHIBIT 99.17 NATIONAL MERCANTILE BANCORP STOCK SUBSCRIPTION AGREEMENT This Stock Subscription Agreement (this "SUBSCRIPTION AGREEMENT") is submitted by the undersigned ("PURCHASER") to National Mercantile Bancorp, a California corporation ("NMB"), in connection with NMB's private offering (the "OFFERING") of 1,307,190 shares of Common Stock for a purchase price of $7.65 per share. 1. SUBSCRIPTION Purchaser hereby subscribes (the "SUBSCRIPTION") to purchase the number of shares set forth on the signature page of this Subscription. Purchaser agrees to remit the purchase price for the shares within three business days of request for payment from NMB by check payable to National Mercantile Bancorp or by wire transfer. Purchaser understands that this Subscription is subject to acceptance by NMB, and NMB may accept this Subscription in whole or in part. For purposes of this Subscription Agreement, the "SHARES" shall mean the shares of NMB Common Stock issued and sold by NMB to Purchaser pursuant to this Subscription Agreement. This Subscription is irrevocable unless NMB does not accept this Subscription before December 31, 2002, in which event Purchaser may revoke this Subscription by written notice to NMB at any time prior to its acceptance by NMB. 2. REPRESENTATIONS AND WARRANTIES OF NMB By accepting this Subscription, NMB shall represent and warrant to the Purchasers that, as of the date of acceptance: 2.1. CORPORATE POWER. NMB has been duly incorporated and is validly existing and in good standing in the State of California, and has all requisite legal and corporate power and authority to conduct its business as currently being conducted and to enter into, carry out and perform its obligations under the terms of this Subscription Agreement. NMB is duly qualified to do business and is in good standing in every jurisdiction in which the nature of its business makes such qualification necessary, except where such failure would not have a material adverse effect on (a) the assets, liabilities, financial condition, prospects or results of operation of NMB or (b) the ability of NMB to perform its obligations under this Subscription Agreement ("MATERIAL ADVERSE EFFECT"). 2.2. AUTHORIZATION. This Subscription Agreement has been duly authorized on behalf of NMB by all necessary corporate action, has been duly executed and delivered by NMB, and constitutes a valid, legal and binding obligation of NMB, enforceable against NMB in accordance with its terms. All corporate action on the part of NMB, its directors and its shareholders necessary for the authorization, sale, issuance and delivery of the Shares has been taken. Upon issuance pursuant to this Subscription Agreement, the Shares will be duly authorized, validly issued, fully paid and nonassessable, free of any liens or encumbrances, other than any liens or encumbrances created by or imposed by Purchaser; provided, however, that the Shares will be subject to restrictions on transfer under state or federal securities laws, restrictions set forth in this Agreement and restrictions under Article XIII of the Articles of Incorporation of NMB. 1 2.3. SEC FILINGS. NMB's Annual Report on Form 10-KSB for the year ended December 31, 2001, Proxy Statement for its 2002 Annual Meeting of Shareholders, and Quarterly Report on Form 10-QSB for the quarter ended September 30, 2002 (collectively, the "SEC FILINGS") complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Filings, and none of the SEC Filings, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Since NMB's most recent SEC Filing, there has been no material adverse change in the assets, liabilities, business, properties, operations, financial condition or results of operations of NMB. The financial statements included in the SEC Filings were prepared in all material respects in accordance with generally accepted accounting principles, consistently applied during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of NMB as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of the unaudited statements, to normal year-end adjustments). 2.4. CAPITALIZATION. As of the date hereof, the authorized capital stock of NMB consists of (a) 10,000,000 shares of Common Stock, of which, as of October 31, 2002 (i) 1,648,157 shares were issued and outstanding, (ii) 610,034 shares were reserved for issuance under NMB's stock plans, (iii) 67,037 shares were reserved for issuance upon exercise of outstanding warrants; (iv) 1,491,570 shares were reserved for issuance upon conversion of NMB's Series A Noncumulative Perpetual Convertible Preferred Stock (the "SERIES A PREFERRED") which was outstanding on October 31, 2002; (v) 178,200 shares were reserved for issuance upon conversion of Series A Preferred which may be issued upon exercise of outstanding warrants: (vi) 152,664 shares were reserved for issuance upon conversion of NMB's Series B Convertible Perpetual Preferred Stock (the "SERIES B PREFERRED"); and (vii) 746,000 shares were reserved for issuance in exchange for Series A Preferred Stock of South Bay Bank, N.A. ("SOUTH BAY BANK PREFERRED") and (b) 1,000,000 shares of Preferred Stock (i) 990,000 of which have been designated Series A Preferred, of which, as of October 31, 2002, (A) 745,785 shares were issued and outstanding, and (B) 89,100 shares were reserved for issuance upon exercise of warrants; and (ii) 1,000 of which have been designated as Series B Preferred, all of which are issued and outstanding. There are no outstanding options, warrants, rights to subscribe to purchase from the Company, or securities or rights convertible into, exercisable for or exchangeable for any capital stock of the Company, or any arrangement by which the Company is or may become bound to issue additional shares of capital stock except (i) with respect to the shares of Common Stock and Preferred Stock described in the preceding sentence; (ii) additional shares of Common Stock which may be issuable upon conversion of the Series B Preferred as the liquidation amount of the Series B Preferred increases; (iii) additional shares of Common Stock which may be issuable in exchange for the South Bay Bank Preferred as a result of changes in the fully diluted book value of the Company; and (iv) shares of Common Stock which may be issuable in certain circumstances if dividends are not paid on the South Bay Bank Preferred. 2.5. LITIGATION. Except as disclosed in the SEC Filings, there is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government agency, self- 2 regulatory organization or body pending or, to the knowledge of NMB, threatened against or affecting NMB, its subsidiaries, or any of its officers or directors acting as such, that could, individually or in the aggregate, have a Material Adverse Effect. 2.6. NO CONFLICT. The execution, delivery and performance of and compliance with this Subscription Agreement and the issuance of the Shares will not result in any violation of, or conflict with, or constitute a default under, the Articles of Incorporation or Bylaws of NMB, and will not result in any violation of, or conflict with, or constitute a default under, any agreements to which NMB or its subsidiaries are a party or by which they are bound, or any statute, rule or regulation, or any decree of any court or governmental agency or body having jurisdiction over NMB, its subsidiaries or any of their properties, except for such violations, conflicts, or defaults which would not individually or in the aggregate, have a Material Adverse Effect. 2.7. NO BREACH OR DEFAULT. NMB is not in violation of its Articles of Incorporation or By-laws and is not in default (and no event has occurred, which with notice or lapse of time or both could put NMB in default) under any agreement or indenture to which NMB is a party or by which any property or assets of NMB is bound or affected, except for defaults which would not, individually or in the aggregate, have a Material Adverse Effect. 2.8. GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or designation, declaration or filing with any court or governmental authority or the National Association of Securities Dealers, Inc. ("NASD") on the part of NMB is required in connection with the valid execution and delivery of this Agreement, or the offer, sale or issuance of the Shares, except for notice filings under state securities laws and under Regulation D under the Securities Act, and listing of the Shares on the Nasdaq SmallCap Market. 2.9. NO BROKERS. NMB has taken no action which would give rise to any claim by any person for brokerage commissions, finder's fees or similar payments relating to this Agreement or the transactions contemplated hereby, except for dealings with Wedbush Morgan Securities, whose commissions and fees will be paid for by NMB. 2.10. NO INTEGRATED OFFERING. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration under the Securities Act of the issuance of the Shares. The issuance of the Shares to Purchaser will not be integrated with any other issuance of the Company's securities (past, current or future) for purposes of the Securities Act or any applicable rules of Nasdaq. 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASER The Purchaser hereby represents and warrants to, and agrees with, NMB as follows: 3.1. Purchaser is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (the "SECURITIES ACT"), as follows (check as applicable): [X] a natural person who either (a) has (along with his/her spouse) a net worth which exceeds $1,000,000 at the time of the purchase or (b) has had an individual income in excess of 3 $200,000 (or a joint income with his/her spouse which exceeds $300,000) for each of the two most recent years and has a reasonable expectation of reaching the same income level (or joint income level) in the current year; [ ] any bank or savings and loan association acting in its individual or fiduciary capacity any registered broker-dealer, insurance company, registered investment company, business development company, small business investment company or employee benefit plan (a) if the investment decision is made by a fiduciary which is a bank, savings and loan association, insurance company or registered investment advisor or (b) if the plan has total assets in excess of $5,000,000 or (c) if a self-directed plan, the investment decisions are made solely by persons that are accredited investors; [ ] any private business development company; [ ] any organization under section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; [ ] any trust with assets in excess of $5,000,000 not formed for the specific purpose of buying the securities offered, whose purchase is directed by a "sophisticated person"; a revocable grantor trust will be accredited where each of the grantors is an accredited investor; similarly, an Individual Retirement Account ("IRA") will be accredited where the individual for whose benefit the IRA was established is an accredited investor; [ ] any director or executive officer of NMB; or [ ] any entity in which all equity owners are accredited investors. 3.2. Purchaser is purchasing the Shares for Purchaser's own account for investment and not with a view to, or for resale in connection with, a distribution of the Shares within the meaning of the Securities Act. In that regard, Purchaser understands that (a) the Shares have not been registered under the Securities Act or under any state securities laws and are therefore "restricted securities"; (b) the Shares may not be sold or transferred unless they are registered under the Securities Act or an exemption from such registration is available. 3.3. Purchaser understands that an investment in the Shares involves risk, and Purchaser has the financial ability to bear the economic risk of this investment in the Shares, including a complete loss of such investment; Purchaser has reviewed the risk factors set forth in NMB's SEC Filings under the heading "Factors Which May Affect Future Operating Results" in Management's Discussion and Analysis of Financial Condition and Results of Operations of such SEC Filings. 3.4. Purchaser has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating the merits and risks of an investment in the Shares and in 4 protecting Purchaser's own interests in connection with this transaction; Purchaser has reviewed the SEC Filings to the extent deemed necessary by Purchaser, and Purchaser has had the opportunity to investigate the business and affairs of NMB and to ask questions of NMB's officers either directly or through Purchaser's authorized representatives. 3.5. Purchaser understands and agrees that each certificate evidencing the Shares will bear the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE." Purchaser agrees that NMB may place stop orders on each certificate evidencing any of the Shares with its transfer agent, if any, to the same effect as the legend set forth in this Section 3.5. The legend and stop transfer notice referred to above shall be removed only upon Purchaser furnishing to NMB an opinion of counsel (reasonably satisfactory to NMB) to the effect that such legend may be removed or at such time as the Shares may be sold pursuant to Rule 144(k). 3.6. Purchaser acknowledges that transfers of the Shares are restricted by Article XIII of the Articles of Incorporation of NMB and that certificates evidencing the Shares will bear the legend required by such Article XIII. 3.7. Purchaser hereby agrees to indemnify and defend (with counsel acceptable to NMB) NMB and its directors, officers and agents and hold them harmless from and against any and all liability, loss, damage, cost or expense, including costs and reasonable attorneys' fees, incurred on account of or arising out of: (a) any material breach of or inaccuracy in Purchaser's representations, warranties or agreements herein but not with respect to third party claims arising out of the representations contained in Section 3.3 and 3.4; and (b) any disposition of any of the Shares contrary to any of Purchaser's representations, warranties or agreements in this Subscription Agreement. 3.8. This Subscription Agreement has been duly and validly authorized, executed and delivered on behalf of Purchaser and is a valid, legal and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms. 3.9. Purchaser is a resident of the jurisdiction set forth on the signature page of this Subscription Agreement. 3.10. Purchaser acknowledges that Wedbush Morgan Securities is acting as placement agent (the "PLACEMENT AGENT") for certain of the shares of Common Stock offered in the Offering (but not the Shares) and will be compensated by NMB for acting in such capacity. Purchaser further acknowledges that the Placement Agent has acted solely as placement agent in connection with the Offering, that the information and data provided to Purchaser in connection with the Offering have not been subjected to independent verification by the Placement Agent, and that the Placement Agent makes no representation or warranty with respect to the accuracy or completeness of such 5 information, data or other related disclosure material. Purchaser further acknowledges that in making its decision to enter into this Subscription Agreement and purchase the Shares, it has relied on its own examination of NMB and the terms of, and consequences, of holding the Shares. Purchaser further acknowledges that the provisions of this Section 3.10 are for the benefit of, and may be enforced by, the Placement Agent with respect to Purchaser's Subscription but not with respect to any other subscriber in the Offering. 4. MISCELLANEOUS 4.1. GOVERNING LAW. This Subscription Agreement shall be governed in all respects by the internal laws of the State of California without regard to conflict of laws provisions. 4.2. ENTIRE AGREEMENT. This Subscription Agreement contains the sole and entire agreement and understanding of the parties with respect to the entire subject matter of this Agreement, and any and all prior discussions, negotiations, commitments and understandings, whether oral or otherwise, related to the subject matter of this Agreement are hereby merged herein. 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. 4.3. NOTICES, ETC. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, or otherwise delivered by facsimile transmission, by hand or by messenger, addressed: if to a Purchaser, to the address or fax number listed after such Purchaser's name on the signature pages or at such other address as such Purchaser shall have furnished to NMB in accordance with this provision, and if to NMB, to: National Mercantile Bancorp 1840 Century Park East Los Angeles, California 90067 Attn: Scott Montgomery, President Fax: (310) 201-0629 or at such other address as NMB shall have furnished to the Purchaser. Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given when received if delivered personally, if sent by facsimile, the first business day after the date of confirmation that the facsimile has been successfully transmitted to the facsimile number for the party notified, or, if sent by mail, at the earlier of its receipt or 72 hours after the same has been deposited in a regularly maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid. 4.4. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, and all of which together shall constitute one instrument. 4.5. CAPTIONS. The various captions of this Agreement are for reference only and shall not be considered or referred to in resolving questions of interpretation of this Agreement. 6 4.6. ASSIGNMENT. No party to this Agreement may assign its rights or obligations under this Agreement without the consent of the other party. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto. 4.7. CURRENT REPORTS. If the Company accepts this Subscription in whole or in part, for the period commencing on the date of issuance and sale of the Shares to Purchaser and terminating on the earliest to occur of two years thereafter, a Terminating Event or the date neither the Purchaser nor any of its affiliates owns any of the Shares, the Company agrees: (a) to have available "adequate current public information" within the meaning of Rule 144(c); and (b) not to terminate its status as an issuer required to file reports under the Exchange Act. A "TERMINATING EVENT" shall mean a merger, consolidation, reorganization or other transaction approved by the shareholders of the Company or any tender offer to acquire outstanding capital stock including all of the Shares. 7 INDIVIDUAL SIGNATURE PAGE IN WITNESS WHEREOF, I have executed this Stock Subscription Agreement on December 18, 2002. William M. Pohlad - ----------------------------------- ------------------------------ Name (Please print) Social Security Number /s/ William M. Pohlad - ----------------------------------- Signature - ----------------------------------- Name of Joint Tenant or Tenant or Tenant-in-Common (if any) - ----------------------------------- Signature of Joint Tenant or Tenant-in-Common (if any) Address: 60 South 6th St., Suite 3800 - ----------------------------------- Minneapolis, MN 55402 - -----------------------------------
NO. OF SHARES SUBSCRIBED OFFERING PRICE TOTAL PURCHASE PRICE 217,865 x $7.65 = $ 1,666,667.25 ------------------ --------------
[ ] ACCEPTED on _______________, 2002 NATIONAL MERCANTILE BANCORP ___ All shares or By: ____________ shares ------------------------ Its: [ ] REJECTED on _______________, 2002 ----------------------- ENTITY SIGNATURE PAGE IN WITNESS WHEREOF, the undersigned has/have executed this Stock Subscription Agreement on ________________, 2002. Type of Entity - ------------------------------------ Name of Entity (Please print) Corporation ----- General Partnership ----- Limited Liability Company By: ----- --------------------------------- Other (Please Describe) Name of Signer (Please print) ----- --------------------------------- ------------------------------------------ Title of Signer State of Incorporation or Organization ------------------------------------------ Taxpayer Identification Number By: --------------------------------- If subscriber is a corporation, please have Name of Signer (Please print) the President and Secretary execute the Agreement where indicated and include a copy --------------------------------- of the certified corporate resolution and Title of Signer other documents authorizing investment. Address: If subscriber is a partnership, please have all general partners execute the Agreement - ------------------------------------ where indicated. - ------------------------------------ If subscriber is a limited liability company, please have the manager or, if none, all of the members execute the Agreement where indicated.
NO. OF SHARES SUBSCRIBED OFFERING PRICE TOTAL PURCHASE PRICE x $7.65 = $ --------------- ---------------
[ ] ACCEPTED on _______________, 2002 NATIONAL MERCANTILE BANCORP ___ All shares or By: ____________ shares ----------------------- Its: [ ] REJECTED on _______________, 2002 ---------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SUBSTITUTE FORM W-9 PAYER'S NAME: NATIONAL MERCANTILE BANCORP (SEE THE INSTRUCTIONS THAT ACCOMPANY THE STOCK SUBSCRIPTION AGREEMENT) - -------------------------------------------------------------------------------- To prevent backup withholding of 30% on any cash payments made to you with respect to shares of National Mercantile Bancorp Common Stock, you are required to notify the Company of your correct Taxpayer Identification Number ("TIN") by signing below and certifying that the TIN provided on this Substitute Form W-9 is correct (or that you are awaiting a TIN). - -------------------------------------------------------------------------------- PART I - Please provide your TIN in the Social Security Number OR box at the right and certify by signing Employer Identification Number and dating below. ------------------------------ - -------------------------------------------------------------------------------- PART II - Under penalties of perjury, I certify that: (1) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and (3) I am a U.S. person (including a U.S. resident alien). Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. - ------------------------------- ----------------------- Signature Date TO BE SIGNED BY THE PERSON OR ENTITY WHOSE NAME AND ADDRESS APPEAR ABOVE ON THE SUBSCRIPTION WARRANT. - -------------------------------------------------------------------------------- YOU MUST COMPLETE THE FOLLOWING IF YOU ARE WAITING FOR A TAXPAYER IDENTIFICATION NUMBER TO BE ISSUED TO YOU. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days, 30% of all reportable payments made to me thereafter will be withheld until I provide a number. - ------------------------------- ----------------------- Signature Date - -------------------------------------------------------------------------------- EX-99.18 6 c73731a5exv99w18.txt PROMISSORY NOTE - ROBERT C. POHLAD EXHIBIT 99.18 PROMISSORY NOTE Amount: $1,666,667.25 Minneapolis, Minnesota Due Date: January 15, 2010 December 20, 2002 Re: National Mercantile Bancorp FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order of CARL R. POHLAD, TRUSTEE OF THE REVOCABLE TRUST NO. 2 OF CARL R. POHLAD CREATED U/A DATED 5/23/93, AS AMENDED, on January 15, 2010, the maturity date, the sum of ONE MILLION SIX HUNDRED SIXTY-SIX THOUSAND SIX HUNDRED SIXTY-SEVEN AND 25/100 DOLLARS ($1,666,667.25) with interest from the date hereof at the RATE OF 3.31% per annum, compounded annually, until paid. Interest accrued hereunder is payable January 15, 2003, and annually thereafter. Interest is calculated on the basis of actual days elapsed in a 365-day year. This Note is payable at 60 South Sixth Street, Suite 3900, Minneapolis, Minnesota, 55402, or at such other place as the holder may designate from time to time. In the event of any default in the payment of principal or interest when due hereunder, the entire principal balance and all accrued interest shall, at the option of the holder of this Note, become immediately due and payable without notice. Upon any default, the undersigned, and all endorsers, sureties and guarantors hereof hereby jointly and severally agree to pay all costs and expenses (including reasonable attorneys' fees) incurred in the collection of this Note and waive presentment for payment, notice of nonpayment, protest, notice of protest and diligence in enforcing payment hereunder or bringing suit against any parties hereto. Each of the endorsers, sureties and guarantors hereof consent that the time for payment may be extended, or this Note renewed or other persons liable on this Note released, from time to time without notice to them and without affecting their liability hereon. This note may be prepaid in full or part at any time without penalty, provided that all such prepayments are applied to accrued interest with the balance to the principal balance hereof. The undersigned, if more than one, shall be jointly and severally liable hereunder, and the term "undersigned" wherever used herein, shall mean the undersigned or any one or more of them. This Note shall be governed by, interpreted and construed in accordance with the laws of the State of Minnesota. MAKER: /s/ Robert C. Pohlad ------------------------------ Robert C. Pohlad 60 South Sixth Street Suite 3900 Minneapolis, Minnesota 55402 EX-99.19 7 c73731a5exv99w19.txt PROMISSORY NOTE - JAMES O. POHLAD EXHIBIT 99.19 PROMISSORY NOTE Amount: $1,666,667.25 Minneapolis, Minnesota Due Date: January 15, 2010 December 20, 2002 Re: National Mercantile Bancorp FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order of CARL R. POHLAD, TRUSTEE OF THE REVOCABLE TRUST NO. 2 OF CARL R. POHLAD CREATED U/A DATED 5/23/93, AS AMENDED, on January 15, 2010, the maturity date, the sum of ONE MILLION SIX HUNDRED SIXTY-SIX THOUSAND SIX HUNDRED SIXTY-SEVEN AND 25/100 DOLLARS ($1,666,667.25) with interest from the date hereof at the RATE OF 3.31% per annum, compounded annually, until paid. Interest accrued hereunder is payable January 15, 2003, and annually thereafter. Interest is calculated on the basis of actual days elapsed in a 365-day year. This Note is payable at 60 South Sixth Street, Suite 3900, Minneapolis, Minnesota, 55402, or at such other place as the holder may designate from time to time. In the event of any default in the payment of principal or interest when due hereunder, the entire principal balance and all accrued interest shall, at the option of the holder of this Note, become immediately due and payable without notice. Upon any default, the undersigned, and all endorsers, sureties and guarantors hereof hereby jointly and severally agree to pay all costs and expenses (including reasonable attorneys' fees) incurred in the collection of this Note and waive presentment for payment, notice of nonpayment, protest, notice of protest and diligence in enforcing payment hereunder or bringing suit against any parties hereto. Each of the endorsers, sureties and guarantors hereof consent that the time for payment may be extended, or this Note renewed or other persons liable on this Note released, from time to time without notice to them and without affecting their liability hereon. This note may be prepaid in full or part at any time without penalty, provided that all such prepayments are applied to accrued interest with the balance to the principal balance hereof. The undersigned, if more than one, shall be jointly and severally liable hereunder, and the term "undersigned" wherever used herein, shall mean the undersigned or any one or more of them. This Note shall be governed by, interpreted and construed in accordance with the laws of the State of Minnesota. MAKER: /s/ James O. Pohlad --------------------------------------- James O. Pohlad 60 South Sixth Street Suite 3900 Minneapolis, Minnesota 55402 EX-99.20 8 c73731a5exv99w20.txt PROMISSORY NOTE - WILLIAM M. POHLAD EXHIBIT 99.20 PROMISSORY NOTE Amount: $1,666,667.25 Minneapolis, Minnesota Due Date: January 15, 2010 December 20, 2002 Re: National Mercantile Bancorp FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order of CARL R. POHLAD, TRUSTEE OF THE REVOCABLE TRUST NO. 2 OF CARL R. POHLAD CREATED U/A DATED 5/23/93, AS AMENDED, on January 15, 2010, the maturity date, the sum of ONE MILLION SIX HUNDRED SIXTY-SIX THOUSAND SIX HUNDRED SIXTY-SEVEN AND 25/100 DOLLARS ($1,666,667.25) with interest from the date hereof at the RATE OF 3.31% per annum, compounded annually, until paid. Interest accrued hereunder is payable January 15, 2003, and annually thereafter. Interest is calculated on the basis of actual days elapsed in a 365-day year. This Note is payable at 60 South Sixth Street, Suite 3900, Minneapolis, Minnesota, 55402, or at such other place as the holder may designate from time to time. In the event of any default in the payment of principal or interest when due hereunder, the entire principal balance and all accrued interest shall, at the option of the holder of this Note, become immediately due and payable without notice. Upon any default, the undersigned, and all endorsers, sureties and guarantors hereof hereby jointly and severally agree to pay all costs and expenses (including reasonable attorneys' fees) incurred in the collection of this Note and waive presentment for payment, notice of nonpayment, protest, notice of protest and diligence in enforcing payment hereunder or bringing suit against any parties hereto. Each of the endorsers, sureties and guarantors hereof consent that the time for payment may be extended, or this Note renewed or other persons liable on this Note released, from time to time without notice to them and without affecting their liability hereon. This note may be prepaid in full or part at any time without penalty, provided that all such prepayments are applied to accrued interest with the balance to the principal balance hereof. The undersigned, if more than one, shall be jointly and severally liable hereunder, and the term "undersigned" wherever used herein, shall mean the undersigned or any one or more of them. This Note shall be governed by, interpreted and construed in accordance with the laws of the State of Minnesota. MAKER: /s/ William M. Pohlad --------------------------------- William M. Pohlad 60 South Sixth Street Suite 3900 Minneapolis, Minnesota 55402 -----END PRIVACY-ENHANCED MESSAGE-----