Exhibit 4.4
The warrant represented by this certificate, and
the securities issuable upon the exercise of this warrant, have not
been registered under the Securities Act of 1933 (the
“Act”) or the securities laws of any state (the
“State Acts”), and may not be sold or otherwise
transferred (whether or not for consideration) by the registered
holder hereof except upon the issuance to the Company of a
favorable opinion of its counsel and/or submission to the Company
of such other evidence as may be satisfactory to counsel to the
Company to the effect that any such transfer shall not be in
violation of the Act and the State Acts.
Void after 4:00 p.m. Eastern Time,
September 24, 2013
Warrant to Purchase
shares
of Common Stock at a price of $6.83 per share.
WARRANT TO PURCHASE SHARES
OF
VIRGINIA COMMERCE BANCORP, INC.
This is to certify that, FOR VALUE
RECEIVED,
(hereinafter referred to as the
“Holder”) is entitled to purchase, subject to the
provisions of this Warrant, from Virginia Commerce
Bancorp, Inc. (the “Company”) at any time on or
after September 24, 2008 and not later than
4:00 p.m. Eastern Time, on September 24, 2013, at a
purchase price of $ 6.83 per share (the “Share
Price”),
( )
shares of Common Stock, $1.00 par value, of the Company (the
“Shares”). The Share 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.
(a) 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
September 24, 2008, or if such date is a day on which banking
institutions in the Commonwealth of Virginia 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 Company 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. The Share Price and other amounts
required to be paid in connection with the exercise of this Warrant
may, at the Holder’s election, be paid in cash (including by
check, bank draft or wire transfer), by delivery of shares of
common stock of the Company owned by such owner prior to exercise,
duly endorsed in blank or with endorsed stock powers attached, and
otherwise in form suitable for transfer, valued at such Market
Value (as hereinafter defined) of such shares of common stock, or
by a combination of cash and such shares of common stock, provided
however, that at any time when the Company is not permitted to
repurchase, redeem or otherwise acquire shares of its common stock
or other equity securities under applicable law, regulation or
under the terms of any agreement by which the Company or its assets
are bound, then cash payment of the Share Price shall be
required. For purposes hereof, the “Market Value”
of a share of common stock delivered in payment of all or a portion
of the Share Price shall be equal to the last reported sales price
of the common stock on The Nasdaq Stock Market on the day prior to
exercise (or on such other national securities exchange on which
the common stock is traded on such date), or if there were no sales
on such date, the average of the closing bid and closing asked
prices on such date.
(b)
If this Warrant should be exercised
in part only, the Company, 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 Company of this
Warrant at the office or agency of the Company, 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 Company 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 Company 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
Company 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. Any fraction of a share called for upon any
such exercise hereof, shall be cancelled without the payment of any
consideration or compensation.
4.
Exchange, Assignment or Loss of
Warrant; Securities Law.
(a) This Warrant is
exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company, 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 may be sold, transferred, assigned,
or hypothecated (a “Transfer”) without any limitation
other than those expressly imposed or noted herein or necessary to
comply with applicable state and federal securities laws. Any such
Transfer shall be made by surrender of this Warrant to the Company
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 Company 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 Company 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
Company 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 Company 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 Company,
whether or not the Warrant so lost, stolen, destroyed, or mutilated
shall be at any time enforceable by anyone.
(b)
Unless this Warrant and the Shares
shall have been registered under the Securities Act of 1933, or
successor statute, and any applicable state securities laws, or the
Company shall have received a satisfactory opinion of counsel that
the legend hereinafter referred to is otherwise not required, the
certificates that will evidence the Shares issuable upon the
exercise of the Warrant, or upon any Transfer thereof, will be
imprinted with conspicuous legends in substantially the following
form:
The securities represented by this
certificate have not been registered under the Securities Act of
1933 (the “Act”) or the securities laws of any state
(the “State Acts”), and may not be sold or otherwise
transferred (whether or not for consideration) by the registered
holder hereof except upon the issuance to the Company of a
favorable opinion of its counsel and/or submission to the Company
of such other evidence as may be satisfactory to counsel to the
Company to the effect that any such transfer shall not be in
violation of the Act and the State Acts.
The Holder, by acceptance hereof,
agrees, prior to any transfer of the Shares or the Warrant, to give
written notice to the Company expressing the desire of the
undersigned to effect such transfer and describing briefly the
proposed transfer. Upon receiving such notice, the Company
shall
