EXHIBIT 4
NOTE: Virginia Commerce Bancorp, Inc. ("Bancorp") is the successor to Virginia
Commerce Bank (the "Bank"), pursuant to the Plan of Share Exchange pursuant to
which it became the holding company for the Bank. In accordance with said plan,
each warrant to purchase shares of Bank common stock was converted into an
option to purchase Bancorp common stock on the same terms, and each such warrant
was assumed by Bancorp.
Void after 4:00 p.m. Eastern Standard Time, ___________, 200__
Warrant to Purchase _____ shares of
Common Stock at a price of $____
per share.
WARRANT TO PURCHASE SHARES
OF
VIRGINIA COMMERCE BANK
This is to certify that, FOR VALUE RECEIVED,
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(hereinafter referred to as the "Holder") is entitled to purchase, subject to
the provisions of this Warrant, from Virginia Commerce Bank (the "Bank") at any
time on or after [date of issuance] and not later than 4:00 p.m. Eastern
Standard Time, on [calendar day immediately prior to seventh anniversary of date
of issuance], at a purchase price of $____ per share (the "Price"), ___________
(___________) shares of Common Stock, $5.00 par value (the "Shares") issued by
the Bank. The Price and number of Shares to be issued upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set forth, and
references to such defined terms shall be as adjusted hereunder.
1. Exercise of Warrant. Subject to any limitations imposed herein or by
law, this Warrant may be exercised in whole or in part at any time or from time
to time on or after [date of issuance], or if such date is a day on which
banking institutions are authorized by law to close, then on the next succeeding
day which shall not be such a day, by presentation and surrender hereof to the
Bank or at the office of its stock transfer agent, if any, with the Purchase
Form annexed hereto duly executed and accompanied by payment of the Share Price
for the number of Shares specified in such form, together with all federal and
state taxes applicable upon such exercise. If this Warrant should be exercised
in part only, the Bank, upon surrender of this Warrant for cancellation, shall
execute and deliver a new Warrant evidencing the right of the Holder to purchase
the balance of the Shares purchasable hereunder. Upon receipt by the Bank of
this Warrant at the office or agency of the Bank, in proper form for exercise,
the Holder shall be deemed to be the holder of record of the Shares issuable
upon such exercise, notwithstanding that the stock transfer books of the Bank
shall then be closed or that certificates representing such Shares shall not
then be actually delivered to the Holder.
2. Reservation of Shares; Shares Fully Paid. The Bank hereby agrees
that at all times there shall be reserved for issuance or delivery upon exercise
of this Warrant such number of Shares as shall be required for issuance or
delivery upon exercise of this Warrant. The Bank further agrees that all Shares
issuable upon exercise of the rights represented by this Warrant, will, upon
issuance in accordance with the provisions hereof, be fully paid and
non-assessable, and free from any taxes, liens and charges in respect of
issuance.
3. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any such exercise hereof, the
Bank shall pay to the Holder an amount in cash equal to such fraction multiplied
by $[exercise price].
4. Exchange, Assignment or Loss of Warrant. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Bank or at the office of its stock transfer agent,
if any, for other Warrants of different denominations entitling the holder
thereof to purchase in the aggregate the same
number of Shares purchasable hereunder. This Warrant is restricted from sale,
transfer, assignment, or hypothecation ("Transfer") in any manner whatsoever
except pursuant to the laws of descent and distribution. Any such Transfer shall
be made by surrender of this Warrant to the Bank or at the office of its stock
transfer agent, if any, with the Assignment Form annexed hereto duly executed
and funds sufficient to pay any transfer tax; whereupon the Bank shall, without
charge, execute and deliver a new Warrant in the name of the assignee named in
such instrument of assignment and this Warrant shall promptly be cancelled. This
Warrant may be divided or combined with other Warrants which carry the same
rights upon presentation hereof to the office of the Bank or at the office of
the stock transfer agent, if any, together with a written notice specifying the
name and denomination in which new Warrants are to be issued and signed by the
holder hereof. The term "Warrant" as used herein includes any Warrants issued in
substitution for or replacement of this Warrant, or into which this Warrant may
be divided or exchanged. Upon receipt by the Bank of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification
including a surety bond, and upon surrender and cancellation of this Warrant, if
mutilated, the Bank will execute and deliver a new Warrant of like tenor and
date. Any such new Warrant executed and delivered shall constitute an additional
contractual obligation on the part of the Bank, whether or not the Warrant so
lost, stolen, destroyed, or mutilated shall be at any time enforceable by
anyone.
5. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Bank, either at law or equity,
and the rights of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Bank except to the extent set forth herein.
6. Anti-Dilution Provisions.
(a) Adjustment of Number of Shares and Price. In the event the
Bank, prior to the expiration of this Warrant by its exercise or by its terms,
issues any shares of its Common Stock as a stock dividend or subdivides the
number of its outstanding shares of Common Stock into a greater number of
shares, then, in either of such events, the number of Shares purchasable
pursuant to this Warrant shall be proportionately increased. Conversely, in the
event the Bank shall reduce the number of outstanding shares of Common Stock by
combining such shares into a smaller number of shares, then in such case the
number of Shares purchasable pursuant to this Warrant shall be proportionately
decreased. Upon any adjustment in the number of Shares purchasable, the exercise
price per share also shall be adjusted so that the total purchase price of all
Shares purchasable after adjustment shall be the same as the total price before
adjustment. If the Bank, at any time during the life of this Warrant, shall
declare a dividend payable in cash on its Common Stock and at substantially the
same time shall offer to its shareholders a right to purchase new Common Stock
from the proceeds of such dividend or for an amount substantially equal to the
dividend, for the purpose of this Warrant all Common Stock so issued shall be
deemed to have been issued as a stock dividend. Any dividend paid or distributed
upon the Common Stock in stock of any other class or securities convertible into
shares of Common Stock shall be treated as a dividend paid in Common Stock to
the extent that shares of Common Stock are issuable upon the conversion thereof.
(b) Determination of Date of Issue. In case the Bank shall
take a record of the holders of any Common Stock for the purpose of entitling
them (i) to receive a dividend or other distribution payable in Common Stock or
(ii) to subscribe for or purchase Common Stock, then such record date shall be
deemed to be the date of the issue or sale of the shares of Common Stock deemed
to have been issued or sold upon the declaration of such dividend or the making
of such other distribution or the date of granting of such right of subscription
or purchase, as the case may be.
(c) Common Stock Defined. Whenever reference is made in this
Section 6 to the issue or sale of shares of Common Stock, the term "Common
Stock" shall mean the Common Stock of the Bank of the class authorized as of the
date hereof and any other class of stock ranking on a parity with such Common
Stock. However, subject to the provisions of Section 8 hereof, shares issuable
upon exercise hereof shall include only shares of the class designated as Common
Stock of the Bank as of the date hereof.
(d) Officer's Certificate. Whenever the number of Shares shall
be adjusted as required herein, the Bank shall forthwith file in the custody of
its Secretary or an Assistant Secretary at its principal office, and with its
stock transfer agent, if any, an officer's certificate showing the adjusted
number of Shares determined as herein
provided and setting forth in reasonable detail the facts requiring such
adjustment. Each such officer's certificate shall be made available at all
reasonable times for inspection by the Holder and the Bank shall, promptly after
each such adjustment, deliver a copy of such certificate to the Holder.
7. Notices to Warrant Holders. So long as this Warrant shall be
outstanding and unexercised (a) if the Bank shall pay any dividend or make any
distribution upon the Common Stock or (b) if the Bank shall offer to the holders
of Common Stock for subscription or purchase by them any shares of stock of any
class or any other rights or (c) if any capital reorganization of the Bank,
reclassification of the capital stock of the Bank, consolidation or merger of
the Bank with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Bank to another corporation,
or a spin-off of assets of the Bank shall be effected, then, in any such case,
the Bank shall cause to be delivered to the Holder, at least thirty (30) days
prior to the date specified in (x) or (y) below, as the case may be, a notice
containing a brief description of the proposed action and stating the date on
which (x) a record is to be taken for the purpose of such dividend, distribution
or rights, or (y) such reclassification, reorganization, consolidation, merger,
conveyance, lease, or spin-off is to take place and the date, if any, is to be
fixed, as of which the holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, or spin-off.
8. Reclassification, Reorganization or Merger. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Bank (other than a change in par value, or from par value
to no par value, or from Common Stock by way of dividend or other distribution
or of a subdivision or combination), or in the case of any consolidation or
merger of the Bank with or into another corporation (other than merger with a
subsidiary in which merger the Bank is the continuing corporation and which does
not result in any reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the class issuable upon exercise of this
Warrant) or in case of any sale or conveyance to another corporation of the
property of the Bank as an entirety or substantially as an entirety, the Bank
shall cause effective provision to be made so that the Holder shall have the
right thereafter, by exercising this Warrant during the 30-day notice period
provided in Section 7 hereof, to purchase the kind and amount of shares of stock
and other securities and property receivable upon such reclassification, capital
reorganization or other change, consolidation, merger, sale or conveyance. Any
such provision shall include provisions for adjustments which shall be as nearly
equivalent as may be practicable to the adjustment provided for in this Warrant.
The foregoing provision of this Section 8 shall similarly apply to successive
reclassifications, capital reorganizations and changes of shares of Common Stock
and to successive consolidations, mergers, sales or conveyances. In the event
that in any such capital reorganization or reclassification, consolidation,
merger, sale or conveyance, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole or in part, for or of a
security of the Bank other than Common Stock, any such issue shall be treated as
an issue of Common Stock covered by the provisions of Paragraph 6(a) hereof with
the amount of the consideration received upon the issue thereof being determined
by the Board of Directors of the Bank, such determination to be final and
binding on the Holder.
9. Dissolution. If, at any time prior to the expiration of this Warrant
and prior to the exercise hereof, any dissolution, liquidation or winding up of
the Bank shall be proposed, the Bank shall cause to be mailed at least 30 days
notice by certified mail to the registered Holder of this Warrant Certificate at
his address as it appears on the books of the Bank. Such notice shall specify
the date as of which holders of record of Common Stock shall participate in any
distribution or shall be entitled to exchange their Common Stock for securities
or other property, deliverable upon such dissolution, liquidation or winding up,
as the case may be; to the end that, during such period of 30 days, the Holder
of this Warrant may exercise this Warrant and purchase Shares (or other
securities substituted therefor as hereinbefore provided) and be entitled in
respect of the securities so purchased to all of the rights of the other holders
of Common Stock of the Bank. In case of a dissolution, liquidation or winding up
of the Bank, all purchase rights under this Warrant shall terminate at the close
of business on the date as of which holders of record of the Common Stock shall
be entitled to participate in a distribution of the assets of the Bank in
connection with such dissolution, liquidation or winding up (provided that in no
event shall said date be less than 30 days after completion of service by
certified mail of notice as aforesaid). Any Warrant not exercised prior to such
time shall be void and no rights shall exist thereunder. In any such case of
termination of purchase rights, a statement thereof shall be included in the
notice provided for herein.
10. Spin-Offs. In the event the Bank spins-off a subsidiary by
distributing to the shareholders of the Bank as a dividend or otherwise the
stock of the subsidiary, the Bank shall reserve, for the life of the Warrant,
shares of the subsidiary to be delivered to the holders of the Warrants upon
exercise during the 30-day period provided in Section 7 thereof to the same
extent as if they were owners of record of the Warrant Shares on the record date
for payment of the shares of the subsidiary.
11. Applicable Law. This Warrant shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Virginia.
VIRGINIA COMMERCE BANK
By:
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Xxxxx X. Converse, President
Date: , 199
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PURCHASE FORM
TO BE EXECUTED UPON EXERCISE OF WARRANT
TO: VIRGINIA COMMERCE BANK
The undersigned Holder of the within Warrant hereby (1) irrevocably
elects to exercise the right to purchase represented by the within Warrant for,
and to purchase hereunder, shares of Common Stock which the
undersigned is entitled to purchase hereunder, (2) tenders the full payment
thereof called for by the within Warrant, and (3) directs that the certificates
for such shares be issued as set forth below:
Name:
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Address:
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Social Security Number or other identifying number:
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and be delivered to the undersigned at:
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and, if said number of shares shall not be all the shares purchasable
thereunder, that a new Warrant for the balance remaining of the shares
purchasable under the within Warrant be delivered to the undersigned at the
address for delivery of certificates set forth above.
Signature:
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Dated: Name:
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NOTICE
The signature to the foregoing Purchase Form must correspond to the
name as written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
ASSIGNMENT FORM
TO BE EXECUTED UPON TRANSFER OF WARRANT
FOR VALUE RECEIVED, , hereby sells, assigns, and
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transfers to
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Soc. Sec. No.
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the within Warrant, together with all rights, title and interest therein, and
does hereby irrevocably constitute and appoints
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attorney to transfer such Warrant on the warrant register of the within named
Bank, with full power of substitution.
Signature
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Dated:
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Signature Guaranteed:
NOTICE
The signature to the foregoing assignment must correspond to the name
as written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever and should be guaranteed in
the usual manner.
