Table of Contents
Filed Pursuant to Rule 424(b)(3)
Registration No. 333-156639
Prospectus
71,000 Shares of Fixed Rate Cumulative Perpetual Preferred Stock Series A
Warrants to Purchase 2,696,203 Shares of Common Stock
2,696,203 Shares of Common Stock
This
prospectus relates to the potential resale from time to time by selling
securityholders of some or all of the shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series A, referred to as the Series A
Preferred Stock, the warrant to purchase 2,696,203 shares of our common stock,
referred to as the warrant, and some or all of the shares of our common stock
issuable from time to time upon exercise of the warrant. In this prospectus, we refer to the Series A
Preferred Stock, the warrant and the shares of common stock issuable upon
exercise of the warrant, collectively, as the securities. The Series A
Preferred Stock and the warrant were originally issued by us pursuant to a
Letter Agreement dated December 12, 2008, and the related Securities
Purchase Agreement Standard Terms, between us and the United States
Department of the Treasury, which we refer to as the Treasury or the initial
selling securityholder, in a transaction exempt from the registration
requirements of the Securities Act of 1933, as amended, or the Securities Act.
The
initial selling securityholder and its successors, including transferees, which
we collectively refer to as the selling securityholders, may offer the
securities from time to time directly or through underwriters, broker-dealers
or agents and in one or more public or private transactions and at fixed
prices, prevailing market prices, at prices related to prevailing market prices
or at negotiated prices. If these securities are sold through
underwriters, broker-dealers or agents, the selling securityholders will be
responsible for underwriting discounts or commissions or agents commissions.
We
will not receive any proceeds from the sale of securities by the selling
securityholders.
Our
common stock is listed on the Nasdaq Stock Market under the symbol
VCBI. On January 22, 2009, the closing price for the common
stock was $4.08 per share. You are urged
to obtain current quotations for the common stock.
The
Series A Preferred Stock and the warrant are not listed on any exchange,
and unless required and requested under the Letter Agreement and Securities
Purchase Agreement Standard Terms, we do not have any intention of listing
the Series A Preferred Stock or the warrant on any exchange.
An
investment in the securities involves investment risks. See Risk Factors at page 5.
The securities are not deposits, savings accounts, or
other obligations of a depository institution and are not insured by the
Federal Deposit Insurance Corporation or any other governmental agency. Investing in our securities involves
investment risks.
Neither the Securities and Exchange Commission nor any
state securities commission has approved or disapproved of the securities or
determined if this prospectus is accurate or adequate. Any representation to
the contrary is a criminal offense.
The date of this prospectus is January 23,
2009.
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TABLE OF CONTENTS
Virginia
Commerce Bancorp has not authorized anyone to give any information or make any
representation about the offering that differs from, or adds to, the
information in this prospectus or in its documents that are publicly filed with
the Securities and Exchange Commission. Therefore, if anyone does give you
different or additional information, you should not rely on it. The delivery of this prospectus and/or the
sale of shares of Preferred Stock do not mean that there have not been any
changes in Virginia Commerce Bancorps condition since the date of this
prospectus. If you are in a jurisdiction
where it is unlawful to offer to sell, or to ask for offers to buy, the
securities offered by this prospectus, or if you are a person to whom it is
unlawful to direct such activities, then the offer presented by this prospectus
does not extend to you. This prospectus
speaks only as of its date except where it indicates that another date applies.
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SUMMARY
This
section highlights selected material information from this prospectus. This summary is not a complete description of
the offering or the securities offered, and does not contain all of the
information that may be important to you. For a more complete understanding of
us and the terms of the securities offered by the selling securityholders, you
should read carefully this entire prospectus, including the Risk Factors
section, and the other documents we refer to and incorporate by reference. In
particular, we incorporate important business and financial information into
this prospectus by reference.
Unless
the context requires otherwise, in this prospectus, we use the terms we, us,
our, and the Company to refer to Virginia Commerce Bancorp, Inc. and
its subsidiaries. The term the Bank refers to our principal operating
subsidiary, Virginia Commerce Bank (unless the context indicates another
meaning).
Virginia Commerce Bancorp, Inc.
5350
Lee Highway
Arlington,
Virginia 22207
(703)
534-0700
We
are the registered bank holding company for Virginia Commerce Bank, a Virginia
chartered commercial bank which is a member of the Federal Reserve System.
We engage in a general commercial banking business through the Bank, our sole
direct operating subsidiary. Our customer base includes small-to-medium-sized
businesses, including firms that have contracts with the U.S. government,
associations, retailers and industrial businesses, professionals and business
executives and consumers. The economic base of our service area includes
Arlington, Fairfax, Fauquier, Loudoun, Prince William, Spotsylvania and
Stafford Counties and the City of Alexandria in Northern Virginia, and the
metropolitan Washington, D.C. area generally. Northern Virginia has experienced
significant population and economic growth during the past decade. We participated in this growth through its
commercial and retail banking activities.
Our primary service area consists of the Northern Virginia suburbs of
Washington D.C., including Arlington Fairfax, Fauquier, Loudoun, Prince
William, Spotsylvania and Stafford Counties and the cities of Alexandria,
Fairfax, Falls Church, Fredericksburg, Manassas and Manassas Park.
This areas banking
business is dominated by a small number of large commercial banks with
extensive branch networks.
Most are branches of national,
state-wide or regional banks. Our
primary service area is also served by a large number of other financial institutions,
including savings banks, credit unions and non-bank financial institutions such
as securities brokerage firms, insurance companies and mutual funds. Our
primary service area is oriented toward independently owned
small-to-medium-sized businesses, light industry and firms specializing in
government contracting. An increasing number of new community banking
organizations have been opened in our market area, potentially representing an
increased competitive threat to the Bank.
On December 12,
2008, we entered into a Letter Agreement, including a related Securities
Purchase Agreement Standard Terms, with the Treasury, pursuant to which we
agreed to issue and sell, and the Treasury agreed to purchase, (i) 71,000
shares of our Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
having a liquidation preference of $1,000 per share, referred to as our Series A
Preferred Stock and (ii) a ten-year warrant to purchase up to 2,696,203
shares of our common stock, $1.00 par value per share, at an initial exercise
price of $3.95 per share. The warrant
was immediately exercisable upon its issuance and will expire on December 12,
2018.
Securities That May Be Offered
The selling
securityholders may use this prospectus to offer for resale the Series A
Preferred Stock, the warrant or the shares of common stock issuable upon the
exercise of the warrant in one or more offerings. At the time a particular
offer of securities is made, if required, a prospectus supplement will set
forth the number and type of securities being offered and the terms of the
offering, including the name of any underwriter, dealer or agent, the purchase
price paid by any underwriter, any discount, commission and other item
constituting compensation, any discount, commission or concession allowed or
reallowed or paid to any dealer, and the proposed selling price to the
public. In that case, the prospectus
supplement may describe risks associated with an investment in the securities
in
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addition to those described in the Risk Factors section of this
prospectus. Terms used in this prospectus will have the meanings described in
this prospectus unless otherwise specified.
The selling
securityholders, as well as any agents acting on their behalf, reserve the sole
right to accept or to reject in whole or in part any proposed purchase of our
securities.
Series A
Preferred Stock.
The
selling securityholders may sell all or a portion of the 71,000 shares of Series A
Preferred Stock. If required, a
prospectus supplement will describe the number of shares offered and the price
at which the selling securityholder is offering the Series A Preferred
Stock.
Warrant.
The selling
securityholders may sell all or a portion of the warrant to purchase 2,696,203
shares of our common stock. The warrant has an initial exercise price of $3.95
per share. If required, a prospectus
supplement will describe the price at which the selling securityholder is
offering the warrant or interest in the warrant and the number of shares of
common stock underlying the warrant offered.
Common
Stock.
Upon the
exercise of all or a portion of the warrant, the selling securityholders may
sell the shares of our common stock issued upon such exercise. If required, a
prospectus supplement will describe the aggregate number of shares offered and
the offering price or prices of the shares.
CAUTION ABOUT FORWARD LOOKING
STATEMENTS
We make forward looking statements in this prospectus that are subject
to risks and uncertainties. These
forward looking statements include:
·
statements of
goals, intentions, and expectations as to future trends, plans, events, or
results of operations and policies and regarding general economic conditions;
·
estimates of
risks and of future costs and benefits; and
·
statements of
the ability to achieve financial and other goals.
In some cases, forward-looking statements can be identified by use of
words such as may, will, anticipates, believes, expects, plans, estimates,
potential, continue, could, should, and similar words or phrases. These forward looking statements are subject
to significant uncertainties because they are based upon or are affected by:
·
managements
estimates and projections of interest rates and interest rate policy,
competitive factors, and other conditions which by their nature, are not
susceptible to accurate forecast future;
·
interest rates
and other economic conditions;
·
future laws and
regulations; and
·
a variety of
other matters.
In
addition to factors that we have previously disclosed in our reports filed with
the SEC and those that we discuss elsewhere in this prospectus, the following
factors, among others, could cause actual results to differ materially from the
anticipated results or other expectations expressed in the forward-looking
statements:
·
adverse
governmental or regulatory policies may be enacted;
·
the
interest rate environment may compress margins and adversely affect net
interest income;
·
adverse
effects may be caused by changes to credit quality;
·
competition
from other financial services companies in our markets could adversely affect
operations;
·
our
concentrations of loans in commercial, commercial real estate and construction
loans, and loans to borrowers in the Washington, D.C. metropolitan area, may
adversely affect our earnings and results of operations;
·
an
economic slowdown could adversely affect credit quality and loan originations;
and
·
social
and political conditions such as war, political unrest and terrorism or natural
disasters could have unpredictable negative effects on our businesses and the
economy.
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Because of these uncertainties and the assumptions on which the
forward-looking statements are based, actual future operations and results in
the future may differ materially from those indicated herein. Readers are
cautioned against placing undue reliance on any such forward-looking
statements. We do not undertake to update any forward-looking statements to
reflect occurrences or events that may not have been anticipated as of the date
of such statements. In addition, our
past results of operations do not necessarily indicate future results.
RISK FACTORS
An investment in our securities involves various risks. You should
carefully consider the risks and uncertainties and the risk factors set forth in
the documents and reports filed with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, which we
refer to as the Exchange Act, that are incorporated by reference into this
prospectus, as well as any risks described in any applicable prospectus
supplement, before you make an investment decision. These risk factors may
cause our future earnings to be lower or our financial condition to be less
favorable than we expect. In addition, other risks of which we are not aware,
or which we do not believe are material, may cause our earnings to be lower, or
hurt our future financial condition.
USE OF
PROCEEDS
We will not
receive any proceeds from the sale by the selling securityholders of the Series A
Preferred Stock, the warrant or the shares of common stock issuable upon
exercise of the warrant.
RATIO OF
EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
No shares of our Series A Preferred Stock, or any other class of
preferred stock, were outstanding during the five years ended December 31,
2007, or during the nine month periods ended September 30, 2008 and 2007,
and we did not pay preferred stock dividends during these periods.
Consequently, the ratios of earnings to fixed charges and preferred dividends for
these periods are the same as the ratios of earnings to fixed charges. Our
consolidated ratio of earnings to fixed charges for each of the five fiscal
years ended December 31, 2007 and each of the nine month periods ended September 30,
2008 and 2007 are as follows:
|
|
Nine Months Ended
September 30,
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
2007
|
|
2007
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
Ratio of earnings to fixed charges:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Including interest on deposits
|
|
1.30
|
x
|
1.53
|
x
|
1.49
|
x
|
1.66
|
x
|
2.01
|
x
|
2.32
|
x
|
2.25
|
x
|
Excluding interest on deposits
|
|
3.38
|
x
|
5.53
|
x
|
5.11
|
x
|
5.49
|
x
|
9.91
|
x
|
18.57
|
x
|
18.80
|
x
|
For purposes of calculating the ratio of earnings to fixed charges,
earnings are the sum of:
·
net income before taxes; and
·
fixed charges.
For purposes of calculating the ratio of earnings to fixed charges,
fixed charges are the sum of:
·
interest
expenses, including interest on deposits, and, in the second alternative shown
above, excluding interest on deposits; and
·
that portion of net rental expense deemed
to be the equivalent to interest on long-term debt.
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DESCRIPTION OF THE SERIES A PREFERRED
STOCK
The following
is a brief description of the terms of the Series A Preferred Stock that
may be resold by the selling securityholders. This summary does not purport to
be complete in all respects. This description is subject to and qualified in
its entirety by reference to our Articles of Incorporation, as amended,
including the Articles of Amendment relating to the Series A Preferred
Stock, copies of which have been filed with the SEC and are also available upon
request from us.
General
Under our
Articles of Incorporation, as amended, we have authority to issue up to
1,000,000 shares of preferred stock, par value $1.00. Of such shares, 71,000
shares have been designated as Series A Preferred Stock, all of which were
issued to the initial selling securityholder in a transaction exempt from the
registration requirements of the Securities Act. The issued and outstanding
shares of Series A Preferred Stock are validly issued, fully paid and
nonassessable.
Dividends Payable On Shares of Series B Preferred Stock
Holders of
shares of Series A Preferred Stock are entitled to receive if, as and when
declared by our Board of Directors or a duly authorized committee of the Board,
out of assets legally available for payment, cumulative cash dividends at a
rate per annum of 5% on a liquidation preference of $1,000 per share of Series A
Preferred Stock with respect to each dividend period from December 12,
2008 to, but excluding, February 15, 2014. From and after February 15,
2014, holders of shares of Series A Preferred Stock are entitled to
receive cumulative cash dividends at a rate per annum of 9% on a liquidation
preference of $1,000 per share of Series A Preferred Stock with respect to
each dividend period thereafter.
Dividends are
payable quarterly in arrears on each February 15, May 15, August 15
and November 15, each a dividend payment date, commencing on February 15,
2009. If any dividend payment date is not a business day, then the next
business day will be the applicable dividend payment date, and no additional
dividends will accrue as a result of the applicable postponement of the
dividend payment date. Dividends payable during any dividend period are
computed on the basis of a 360-day year consisting of twelve 30-day months.
Dividends payable with respect to the Series A Preferred Stock are payable
to holders of record of shares of Series A Preferred Stock on the date
that is 15 calendar days immediately preceding the applicable dividend payment
date or such other record date as the Board of Directors or any duly authorized
committee of the board determines, so long as such record date is not more than
60 nor less than 10 days prior to the applicable dividend payment date.
If we
determine not to pay any dividend or a full dividend with respect to the Series A
Preferred Stock, we are required to provide written notice to the holders of
shares of Series A Preferred Stock prior to the applicable dividend
payment date.
We are subject
to various regulatory policies and requirements relating to the payment of
dividends, including requirements to maintain adequate capital above regulatory
minimums. The Board of Governors of the Federal Reserve System, or the Federal
Reserve, is authorized to determine, under certain circumstances relating to
the financial condition of a bank holding company, such as us, that the payment
of dividends would be an unsafe or unsound practice and to prohibit payment
thereof. In addition, we are subject to Virginia state laws relating to the
payment of dividends.
Priority of Dividends
With respect to the payment of dividends and
the amounts to be paid upon liquidation, the Series A Preferred Stock will
rank:
·
senior to our
common stock and all other equity securities designated as ranking junior to
the Series A Preferred Stock; and
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·
at
least equally with all other equity securities designated as ranking on a
parity with the Series A Preferred Stock, or parity stock, with respect to
the payment of dividends and distribution of assets upon any liquidation,
dissolution or winding-up of the Company.
So long as any
shares of Series A Preferred Stock remain outstanding, unless all accrued
and unpaid dividends for all prior dividend periods have been paid or are
contemporaneously declared and paid in full, no dividend whatsoever shall be
paid or declared on our common stock or other junior stock (as defined below),
other than a dividend payable solely in common stock. We and our subsidiaries
also may not purchase, redeem or otherwise acquire for consideration any shares
of our common stock or other junior stock or parity stock (as defined below),
or redeem any of our trust preferred securities, unless we have paid in full
all accrued dividends on the Series A Preferred Stock for all prior
dividend periods, other than:
·
purchases,
redemptions or other acquisitions of our common stock or other junior stock in
connection with the administration of our employee benefit plans in the
ordinary course of business pursuant to a publicly announced repurchase plan up
to the increase in diluted shares outstanding resulting from the grant, vesting
or exercise of equity-based compensation;
·
purchases or
other acquisitions by our broker-dealer subsidiaries, if any, solely for the
purpose of market-making, stabilization or customer facilitation transactions
in junior stock or parity stock in the ordinary course of its business;
·
purchases or
other acquisitions by our broker-dealer subsidiaries, if any, for resale
pursuant to an offering by us of our stock that is underwritten by the related
broker-dealer subsidiary;
·
any dividends or
distributions of rights or junior stock in connection with any shareholders
rights plan or repurchases of rights pursuant to any shareholders rights plan;
·
acquisition of
record ownership of junior stock or parity stock for the beneficial ownership
of any person other than the Company or a subsidiary of the Company, including
as trustee or custodian; and
·
the exchange or
conversion of junior stock for or into other junior stock or of parity stock
for or into other parity stock or junior stock but only to the extent that such
acquisition is required pursuant to binding contractual agreements entered into
before November 21, 2008 or any subsequent agreement for the accelerated
exercise, settlement or exchange thereof for common stock.
If we
repurchase shares of Series A Preferred Stock from a holder other than the
initial selling securityholder, we must offer to repurchase a ratable portion
of the Series A Preferred Stock then held by the initial selling securityholder.
On any
dividend payment date for which full dividends are not paid, or declared and
funds set aside therefor, on the Series A Preferred Stock and any other
parity stock, all dividends paid or declared for payment on that dividend
payment date (or, with respect to parity stock with a different dividend
payment date, on the applicable dividend date therefor falling within the
dividend period and related to the dividend payment date for the Series A
Preferred Stock), with respect to the Series A Preferred Stock and any
other parity stock shall be declared ratably among the holders of any such
shares who have the right to receive dividends, in proportion to the respective
amounts of the undeclared and unpaid dividends relating to the dividend period.
Subject to the
foregoing, such dividends (payable in cash, stock or otherwise) as may be
determined by our Board of Directors (or a duly authorized committee of the
Board) may be declared and paid on our common stock and any other stock ranking
equally with or junior to the Series A Preferred Stock from time to time
out of any funds legally available for such payment, and the Series A
Preferred Stock shall not be entitled to participate in any such dividend.
Junior
stock means our common stock and any other class or series of the Companys
stock the terms of which expressly provide that it ranks junior to the Series A
Preferred Stock as to dividend rights and/or rights on liquidation, dissolution
or winding up of the Company. Parity stock means any class or series of the
Companys stock the terms of which do not expressly provide that such class or
series will rank senior or junior to the Series A Preferred Stock as to
dividend rights and/or rights on liquidation, dissolution or winding up of the Company.
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Redemption
The Series A
Preferred Stock may not be redeemed prior to February 15, 2012 unless we
have received aggregate gross proceeds from one or more qualified equity
offerings (as described below) equal to $17,750,000, which equals 25% of the
aggregate liquidation amount of the Series A Preferred Stock on the date
of issuance. In that case, we may redeem the Series A Preferred Stock,
subject to the approval of Federal Reserve, in whole or in part, upon notice as
described below, up to a maximum amount equal to the aggregate net cash
proceeds received by us from such qualified equity offerings. A qualified
equity offering is a sale and issuance for cash by us, to persons other than
the Company or its subsidiaries, after December 5, 2008, of shares of
perpetual preferred stock, common stock or a combination thereof, that in each
case qualify as tier 1 capital of the Company at the time of issuance under the
applicable risk-based capital guidelines of the Federal Reserve. Qualified
equity offerings do not include issuances made in connection with acquisitions,
issuances of trust preferred securities and issuances of common stock and/or
perpetual preferred stock made pursuant to agreements or arrangements entered
into, or pursuant to financing plans that were publicly announced, on or prior
to October 13, 2008.
After February 15,
2009, the Series A Preferred Stock may be redeemed at any time, subject to
the approval of the Federal Reserve, in whole or in part, subject to notice as
described below.
In any
redemption, the redemption price is an amount equal to the per share
liquidation amount plus accrued and unpaid dividends to but excluding the date
of redemption.
The Series A
Preferred Stock will not be subject to any mandatory redemption, sinking fund
or similar provisions. Holders of shares of Series A Preferred Stock have
no right to require the redemption or repurchase of the Series A Preferred
Stock.
If fewer than
all of the outstanding shares of Series A Preferred Stock are to be
redeemed, the shares to be redeemed will be selected either pro rata from the
holders of record of shares of Series A Preferred Stock in proportion to
the number of shares held by those holders or in such other manner as our Board
of Directors or a committee thereof may determine to be fair and equitable.
We will mail
notice of any redemption of Series A Preferred Stock by first class mail,
postage prepaid, addressed to the holders of record of the shares of Series A
Preferred Stock to be redeemed at their respective last addresses appearing on
our books. This mailing will be at least 30 days and not more than 60 days
before the date fixed for redemption. Any notice mailed or otherwise given as
described in this paragraph will be conclusively presumed to have been duly
given, whether or not the holder receives the notice, and failure duly to give
the notice by mail or otherwise, or any defect in the notice or in the mailing
or provision of the notice, to any holder of Series A Preferred Stock
designated for redemption will not affect the redemption of any other Series A
Preferred Stock. Each notice of redemption will set forth the applicable
redemption date, the redemption price, the place where shares of Series A
Preferred Stock are to be redeemed, and the number of shares of Series A
Preferred Stock to be redeemed (and, if less than all shares of Series A
Preferred Stock held by the applicable holder, the number of shares to be
redeemed from the holder).
Shares of Series A
Preferred Stock that are redeemed, repurchased or otherwise acquired by us will
revert to authorized but unissued shares of our preferred stock.
Liquidation Rights
In the event
that we voluntarily or involuntarily liquidate, dissolve or wind up our
affairs, holders of Series A Preferred Stock will be entitled to receive
an amount per share, referred to as the total liquidation amount, equal to the
fixed liquidation preference of $1,000 per share, plus any accrued and unpaid
dividends, whether or not declared, to the date of payment. Holders of the Series A
Preferred Stock will be entitled to receive the total liquidation amount out of
our assets that are available for distribution to shareholders, after payment
or provision for payment of our debts and other liabilities but before any
distribution of assets is made to holders of our common stock or any other
shares ranking, as to that distribution, junior to the Series A Preferred
Stock.
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If our assets
are not sufficient to pay the total liquidation amount in full to all holders
of Series A Preferred Stock and all holders of any shares of outstanding
parity stock, the amounts paid to the holders of Series A Preferred Stock
and other shares of parity stock will be paid pro rata in accordance with the
respective total liquidation amount for those holders. If the total liquidation
amount per share of Series A Preferred Stock has been paid in full to all
holders of Series A Preferred Stock and other shares of parity stock, the
holders of our common stock or any other shares ranking, as to such
distribution, junior to the Series A Preferred Stock will be entitled to
receive all of our remaining assets according to their respective rights and
preferences.
For purposes
of the liquidation rights, neither the sale, conveyance, exchange or transfer
of all or substantially all of our property and assets, nor the consolidation
or merger by us with or into any other corporation or by another corporation
with or into us, will constitute a liquidation, dissolution or winding-up of our
affairs.
Voting Rights
Except as
indicated below or otherwise required by law, the holders of Series A
Preferred Stock will not have any voting rights.
Election of
Two Directors upon Non-Payment of Dividends.
If the
dividends on the Series A Preferred Stock have not been paid for an
aggregate of six quarterly dividend periods or more (whether or not
consecutive), the authorized number of directors then constituting our Board of
Directors will be increased by two. Holders of Series A Preferred Stock,
together with the holders of any outstanding parity stock with like voting
rights, referred to as voting parity stock, voting as a single class, will be
entitled to elect the two additional members of our Board of Directors,
referred to as the preferred stock directors, at the next annual meeting (or at
a special meeting called for the purpose of electing the preferred stock
directors prior to the next annual meeting) and at each subsequent annual
meeting until all accrued and unpaid dividends for all past dividend periods
have been paid in full. The election of any preferred stock director is subject
to the qualification that the election would not cause us to violate the
corporate governance requirement of the Nasdaq Stock Market (or any other
exchange on which our securities may be listed or quoted) that listed or traded
companies must have a majority of independent directors.
Upon the
termination of the right of the holders of Series A Preferred Stock and
voting parity stock to vote for preferred stock directors, as described above,
the preferred stock directors will immediately cease to be qualified as
directors, their term of office shall terminate immediately and the number of
authorized directors of VCBI will be reduced by the number of preferred stock directors
that the holders of Series A Preferred Stock and voting parity stock had
been entitled to elect. The holders of a majority of shares of Series A
Preferred Stock and voting parity stock, voting as a class, may remove any
preferred stock director, with or without cause, and the holders of a majority
of the shares Series A Preferred Stock and voting parity stock, voting as
a class, may fill any vacancy created by the removal of a preferred stock
director. If the office of a preferred stock director becomes vacant for any
other reason, the remaining preferred stock director may choose a successor to
fill such vacancy for the remainder of the unexpired term.
Other
Voting Rights.
So long as any shares of Series A
Preferred Stock are outstanding, in addition to any other vote or consent of
shareholders required by law or by our Articles of Incorporation, the vote or
consent of the holders of at least 66
2
/
3
% of the shares of Series A
Preferred Stock at the time outstanding, voting separately as a single class,
given in person or by proxy, either in writing without a meeting or by vote at
any meeting called for the purpose, shall be necessary for effecting or
validating:
·
any amendment or
alteration of our Articles of Incorporation to authorize or create or increase
the authorized amount of, or any issuance of, any shares of, or any securities
convertible into or exchangeable or exercisable for shares of, any class or series
of capital stock ranking senior to the Series A Preferred Stock with
respect to payment of dividends and/or distribution of assets on any
liquidation, dissolution or winding up of the Company;
·
any amendment,
alteration or repeal of any provision of Articles of Incorporation relating to
the Series A Preferred Stock so as to adversely affect the rights,
preferences, privileges or voting powers of the Series A Preferred Stock;
or
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·
any consummation
of a binding share exchange or reclassification involving the Series A
Preferred Stock or of a merger or consolidation of the Company with another
entity, unless the shares of Series A Preferred Stock remain outstanding
following any such transaction or, if the Company is not the surviving entity,
are converted into or exchanged for preference securities and such remaining
outstanding shares of Series A Preferred Stock or preference securities
have rights, references, privileges and voting powers that are not materially
less favorable than the rights, preferences, privileges or voting powers of the
Series A Preferred Stock, taken as a whole.
To the extent
of the voting rights of the Series A Preferred Stock, each holder of Series A
Preferred Stock will have one vote for each $1,000 of liquidation preference to
which such holders shares of Series A Preferred Stock are entitled.
The foregoing
voting provisions will not apply if, at or prior to the time when the vote or
consent would otherwise be required, all outstanding shares of Series A
Preferred Stock have been redeemed or called for redemption upon proper notice
and sufficient funds have been set aside by us for the benefit of the holders
of Series A Preferred Stock to effect the redemption.
Remaining
Shares of Preferred Stock
The remaining 929,000
unissued shares of preferred stock are referred to as blank check preferred
stock. This term refers to stock for which the rights and restrictions are
determined by the Board of Directors. Our Articles of Incorporation authorize
our Board of Directors to issue new shares of our common stock or preferred
stock without further shareholder action.
The issuance
of additional common stock or preferred stock may be viewed as having adverse
effects upon the holders of common stock. Holders of our common stock will have
no preemptive rights with respect to any newly issued stock. Our Board of
Directors could adversely affect the voting powers of holders of our stock by
issuing shares of preferred stock with certain voting, conversion and/or
redemption rights. In the event of a proposed merger, tender offer or other
attempt to gain control of the Company that the Board of Directors does not
believe to be in the best interest of our shareholders, the Board could issue
additional preferred stock which could make any such takeover attempt more
difficult to complete. Blank check preferred stock may also used in connection
with the issuance of a shareholder rights plan, sometimes called a poison pill.
Our Board of Directors has not approved any plan to issue preferred stock for
this purpose.
DESCRIPTION
OF THE WARRANT TO PURCHASE COMMON STOCK
The following
is a brief description of the terms of the warrant that may be resold by the
selling securityholders. This summary does not purport to be complete in all
respects. This description is subject to and qualified in its entirety by
reference to the warrant, a copy of which has been filed with the SEC and is
also available upon request from us.
Shares of
Common Stock Subject to the Warrant.
The warrant is initially exercisable for
2,696,203 shares of our common stock. If we complete one or more qualified
equity offerings, as described below, on or prior to December 31, 2009
that result in our receipt of aggregate gross proceeds of not less than
$71,000,000, which is equal to 100% of the aggregate fixed liquidation amount
of $1,000 per share of our Series A Preferred Stock, plus any accrued and
unpaid dividends, the number of shares of common stock underlying the warrant
then held by the selling securityholders will be reduced by 50%, to
approximately 1,348,102 shares. The number of shares subject to the warrant are
subject to the further adjustments described below under the heading -
Adjustments to the Warrant.
Exercise of the
Warrant.
The initial exercise price applicable to the
warrant is $3.95 for each share of common stock for which the warrant may be
exercised. The warrant may be exercised at any time on or before December 12,
2018 by surrender of the warrant and a completed notice of exercise and the
payment of the exercise price for the shares of common stock for which the
warrant is being exercised. The exercise price may be paid either by the
withholding of such number of shares of common stock issuable upon exercise of
the warrant equal to the value of the aggregate exercise price of the warrant,
determined by reference to the market price of our common stock on the trading
day on which the warrant is exercised or, if agreed to by us and the warrantholder,
by the
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payment
of cash, certified or cashiers check, or wire transfer, in an amount equal to
the aggregate exercise price. The exercise price applicable to the warrant is
subject to the further adjustments described below under the heading -
Adjustments to the Warrant.
Upon exercise of the
warrant, certificates for the shares of common stock issuable upon exercise
will be issued to the warrantholder. We will not issue fractional shares upon
any exercise of the warrant. Instead, the warrantholder will be entitled to a
cash payment equal to the market price of our common stock on the last trading
day preceding the exercise of the warrant, less the pro-rated exercise price of
the warrant, for any fractional shares that would have otherwise been issuable
upon exercise of the warrant. We will at all times reserve the aggregate number
of shares of our common stock for which the warrant may be exercised. We have listed the shares of common stock
issuable upon exercise of the warrant with the Nasdaq Stock Market.
Rights as a
Shareholder.
The warrantholder shall have no rights or
privileges of the holders of our common stock, including any voting rights,
until (and then only to the extent) the warrant has been exercised.
Transferability;
Restrictions on Exercise of Warrant.
The initial selling securityholder may not
transfer a portion of the warrant, and/or exercise the warrant, with respect to
more than one half of the shares of common stock subject to the warrant until
the earlier of the date on which we have received aggregate gross proceeds from
a qualified equity offering of at least $71,000,000 and December 31, 2009.
The warrant, and all rights under the warrant, are otherwise transferable and
exercisable.
Adjustments to the Warrant
- Adjustments in Connection with Stock Splits, Subdivisions, Reclassifications
and Combinations.
The
number of shares for which the warrant may be exercised and the exercise price
applicable to the warrant will be proportionately adjusted in the event we pay
dividends or make distributions of our common stock, subdivide, combine or
reclassify outstanding shares of our common stock.
Anti-dilution
Adjustment
. Until the
earlier of December 12, 2011 and the date the initial selling
securityholder no longer holds the warrant (and other than in certain permitted
transactions described below), if we issue any shares of common stock (or
securities convertible or exercisable into common stock) for less than 90% of
the market price of the common stock on the last trading day prior to pricing
such shares, then the number of shares of common stock into which the warrant
is exercisable and the exercise price will be adjusted. Permitted transactions
include issuances:
·
as
consideration for or to fund the acquisition of businesses and/or related
assets;
·
in
connection with employee benefit plans and compensation related arrangements in
the ordinary course and consistent with past practice approved by our Board of
Directors;
·
in
connection with public or broadly marketed offerings and sales of common stock
or convertible securities for cash conducted by us or our affiliates pursuant
to registration under the Securities Act, or Rule 144A thereunder on a
basis consistent with capital-raising transactions by comparable financial
institutions; and
·
in
connection with the exercise of preemptive rights on terms existing as of December 12,
2008.
Other
Distributions.
If we
declare any dividends or distributions greater than our most recent quarterly
dividend, or dividends payable in common stock, the exercise price of the
warrant will be adjusted to reflect such distribution.
Certain
Repurchases
. If we
effect a pro rata repurchase of common stock, both the number of shares
issuable upon exercise of the warrant and the exercise price will be adjusted.
Business
Combinations
. In the
event of a merger, consolidation or similar transaction involving the Company
and requiring shareholder approval, the warrantholders right to receive shares
of our common stock upon exercise of the warrant shall be converted into the
right to exercise the warrant for the consideration that would have been
payable to the warrantholder with respect to the shares of common stock for
which the warrant may be exercised, as if the warrant had been exercised prior
to such merger, consolidation or similar transaction.
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DESCRIPTION OF OUR CAPITAL STOCK
Our authorized capital stock consists of
50,000,000 shares of common stock, $1.00 par value, and 1,000,000 shares of
undesignated preferred stock, $1.00 par value. As of December 31, 2008, there
were 26,575,569 shares of common stock outstanding and 71,000 shares of our
Series A Preferred Stock outstanding.
Common Stock.
Holders
of common stock are entitled to cast one vote for each share held of record, to
receive such dividends as may be declared by the Board of Directors out of
legally available funds, and, subject to the rights of any class of stock
having preference to the common stock, to share ratably in any distribution of
our assets after payment of all debts and other liabilities upon liquidation,
dissolution or winding up. Shareholders do not have cumulative voting rights or
preemptive rights or other rights to subscribe for additional shares, and the
common stock is not subject to conversion or redemption.
Pursuant
to the terms of the Letter Agreement and related Securities Purchase Agreement
Standard Terms, and the Articles of Amendment designating the terms of the Series A
Preferred Stock, our ability to declare or pay dividends or distributions on,
or purchase, redeem or otherwise acquire for consideration, shares of junior
stock and parity stock is subject to restrictions, including a restriction
against paying any dividends on the common stock. These restrictions will
terminate on the earlier of (a) the third anniversary of the date of
issuance of the Series A Preferred Stock and (b) the date on which
all of the Series A Preferred Stock has been redeemed or Treasury has
transferred all of the Series A Preferred Stock to third parties.
In
addition, our ability to declare or pay dividends or distributions on, or
repurchase, redeem or otherwise acquire for consideration, shares of junior
stock and parity stock is subject to restrictions in the event that the we fail
to declare and pay full dividends (or declare and set aside a sum sufficient
for payment thereof) on the Series A Preferred Stock.
Our common stock is listed on the Nasdaq Stock Market under the symbol VCBI. The shares of common stock issuable upon exercise
of the warrant in accordance with its terms, will be fully paid, validly issued
and nonassessable.
The Transfer Agent for the common stock is Registrar and Transfer
Company, 10 Commerce Drive, Cranford, New Jersey 07016
Preferred
Stock.
The
Board of Directors may, from time to time, by action of a majority, issue
shares of the authorized, undesignated preferred stock, in one or more classes
or series. In connection with any such
issuance, the Board may by resolution determine the designation, voting rights,
preferences as to dividends, in liquidation or otherwise, participation,
redemption, sinking fund, conversion, dividend or other special rights or
powers, and the limitations, qualifications and restrictions of such shares of
preferred stock.
As of the date hereof, the
Board of Directors has created one series of preferred stock, the Series A
Preferred Stock, which was issued to the Treasury. See Description of the Series A
Preferred Stock for a description of the terms of the Series A Preferred
Stock.
Certain Provisions of the Articles of
Incorporation and Virginia Law
Our Articles of Incorporation require the vote of 50.1% of the
outstanding shares of common stock to approve any merger or consolidation with
or into any other corporation; any exchange in which a corporation, person, or
entity acquires the issued or outstanding shares of capital stock pursuant to a
vote of shareholders, any issuance of shares that results in the acquisition of
control of the Company by any corporation, person, or entity or group of one or
more thereof that previously did not have control, any sale, lease, exchange,
mortgage, pledge, or other transfer in one transaction or a series of
transactions of all or substantially all of our assets, the adoption of a plan
for the liquidation or dissolution, any proposal in the nature of a
reclassification or reorganization that would increase the proportionate voting
rights of any other corporation, person, or entity, any transaction similar to,
or having similar effect as, any of the above listed
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transactions, or any amendment to the Articles of Incorporation. This 50.1% vote requirement is less than the
two-thirds requirement which would otherwise apply under Virginia law.
Our Articles of Incorporation also contain a provision which requires
the Board of Directors, when evaluating any offer of another party to (a) make
a tender or exchange offer for our equity securities, (b) merge or
consolidate with another corporation, (c) purchase or otherwise acquire
all or substantially all of our properties and assets, or (d) engage in
any transaction similar to, or having similar effects as, any of the foregoing
transactions to give due consideration to all relevant factors, including,
without limitation, the social and economic effects of the proposed transaction
on the depositors, employees, customers, and other constituents of the Company
and its subsidiaries and of the communities in which they operate or are
located, the business reputation of the other party, and the Board of Directors
evaluation of the then value of the Company in a freely negotiated sale and of
our future prospects as an independent entity.
This provision, which requires the Board to consider noneconomic
factors, could be deemed to have an antitakeover effect.
The Virginia Stock Corporation Act (the VSCA) contains provisions
which could be deemed to have an antitakeover effect. The discussion of the following provisions is
not exhaustive, and is not intended to imply that all material provisions of
either the Articles of Incorporation or the VSCA are enumerated herein.
Affiliated Transactions.
The VSCA contains provisions governing affiliated transactions. These include
various transactions such as mergers, share exchanges, sales, leases, or other
material dispositions of assets, issuances of securities, dissolutions, and
similar transactions with an interested shareholder. An interested
shareholder is generally the beneficial owner of more than 10% of any class of
a corporations outstanding voting shares. During the three years following the
date a shareholder becomes an interested shareholder, any affiliated
transaction with the interested shareholder must be approved by both a majority
of the disinterested directors (those directors who were directors before the
interested shareholder became an interested shareholder or who were recommended
for election by a majority of disinterested directors) and by the affirmative
vote of the holders of two-thirds of the corporations voting shares other than
shares beneficially owned by the interested shareholder. These requirements do
not apply to affiliated transactions if, among other things, a majority of the
disinterested directors approve the interested shareholders acquisition of
voting shares making such a person an interested shareholder before such
acquisition. Beginning three years after the shareholder becomes an interested
shareholder, the corporation may engage in an affiliated transaction with the
interested shareholder if:
·
the transaction
is approved by the holders of two-thirds of the corporations voting shares,
other than shares beneficially owned by the interested shareholder;
·
the affiliated
transaction has been approved by a majority of the disinterested directors; or
·
subject to
certain additional requirements, in the affiliated transaction the holders of
each class or series of voting shares will receive consideration meeting
specified fair price and other requirements designed to ensure that all
shareholders receive fair and equivalent consideration, regardless of when they
tendered their shares.
Control Share Acquisitions.
Under the VSCAs control share acquisitions law, voting rights of shares of
stock of a Virginia corporation acquired by an acquiring person or other entity
at ownership levels of 20%, 33
1
/
3
%, and 50% of the outstanding
shares may, under certain circumstances, be denied. The voting rights may be
denied:
·
unless conferred
by a special shareholder vote of a majority of the outstanding shares entitled
to vote for directors, other than shares held by the acquiring person and
officers and directors of the corporation; or
·
among other
exceptions, such acquisition of shares is made pursuant to a affiliation
agreement with the corporation or the corporations articles of incorporation
or bylaws permit the acquisition of such shares before the acquiring persons
acquisition thereof.
If authorized in the corporations articles of incorporation or bylaws,
the statute also permits the corporation to redeem the acquired shares at the
average per share price paid for them if the voting rights are not approved or
if the acquiring person does not file a control share acquisition statement
with the corporation within sixty days of the last acquisition of such shares.
If voting rights are approved for control shares comprising more than 50% of
the corporations outstanding stock, objecting shareholders may have the right
to have their shares
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repurchased by the corporation
for fair value. The provisions of the Affiliated Transactions Statute and the
Control Share Acquisition Statute are only applicable to public corporations
that have more than 300 shareholders. Corporations may provide in their
articles of incorporation or bylaws to opt-out of the Control Share Acquisition
Statute, but we have not done so.
PLAN OF
DISTRIBUTION
The selling securityholders
and their successors, including their transferees, may sell the securities
directly to purchasers or through underwriters, broker-dealers or agents, who
may receive compensation in the form of discounts, concessions or commissions
from the selling securityholders or the purchasers of the securities. These
discounts, concessions or commissions as to any particular underwriter,
broker-dealer or agent may be in excess of those customary in the types of
transactions involved.
The securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale or at negotiated
prices. These sales may be affected in transactions, which may involve crosses
or block transactions:
·
on
any national securities exchange or quotation service on which the preferred
stock or the common stock may be listed or quoted at the time of sale,
including, as of the date of this prospectus, the Nasdaq Stock Market in the
case of the common stock;
·
in
the over-the-counter market;
·
in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
·
through
the writing of options, whether the options are listed on an options exchange
or otherwise.
In addition, any securities
that qualify for sale pursuant to Rule 144 under the Securities Act may be
sold under Rule 144 rather than pursuant to this prospectus.
In connection with the sale
of the securities or otherwise, the selling securityholders may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the common stock issuable upon exercise of the warrant in the course
of hedging the positions they assume. The selling securityholders may also sell
short the common stock issuable upon exercise of the warrant and deliver common
stock to close out short positions, or loan or pledge the securities to
broker-dealers that in turn may sell these securities.
The aggregate proceeds to
the selling securityholders from the sale of the securities will be the
purchase price of the securities less discounts and commissions, if any.
In effecting sales,
broker-dealers or agents engaged by the selling securityholders may arrange for
other broker-dealers to participate. Broker-dealers or agents may receive
commissions, discounts or concessions from the selling securityholders in
amounts to be negotiated immediately prior to the sale.
In offering the securities covered
by this prospectus, the selling securityholders and any broker-dealers who
execute sales for the selling securityholders may be deemed to be underwriters
within the meaning of Section 2(a)(11) of the Securities Act in connection
with such sales. Any profits realized by the selling securityholders and the
compensation of any broker-dealer may be deemed to be underwriting discounts
and commissions. Selling securityholders who are underwriters within the
meaning of Section 2(a)(11) of the Securities Act will be subject to the
prospectus delivery requirements of the Securities Act and may be subject to
certain statutory and regulatory liabilities, including liabilities imposed
pursuant to Sections 11, 12 and 17 of the Securities Act and Rule 10b-5
under the Securities Exchange Act of 1934, or the Exchange Act.
In order to comply with the
securities laws of certain states, if applicable, the securities must be sold
in such jurisdictions only through registered or licensed brokers or dealers.
In addition, in certain states the securities may not be sold unless they have
been registered or qualified for sale in the applicable state or an exemption
from the registration or qualification requirement is available and is complied
with.
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The anti-manipulation rules of
Regulation M under the Exchange Act may apply to sales of securities
pursuant to this prospectus and to the activities of the selling
securityholders. In addition, we will make copies of this prospectus available
to the selling securityholders for the purpose of satisfying the prospectus
delivery requirements of the Securities Act, which may include delivery through
the facilities of the Nasdaq Stock Market pursuant to Rule 153 under the
Securities Act.
At the time a particular
offer of securities is made, if required, a prospectus supplement will set
forth the number and type of securities being offered and the terms of the
offering, including the name of any underwriter, dealer or agent, the purchase
price paid by any underwriter, any discount, commission and other item
constituting compensation, any discount, commission or concession allowed or
reallowed or paid to any dealer, and the proposed selling price to the public.
Unless requested by the
initial selling securityholder and required under the Letter Agreement and
related Securities Purchase Agreement Standard Terms, we do not intend to
list the Series A Preferred Stock or the warrant on any exchange. No assurance can be given as to the liquidity
of the trading market, if any, for the Series A Preferred Stock or the
warrant.
We have agreed to indemnify
the selling securityholders against certain liabilities, including certain
liabilities under the Securities Act. We have also agreed, among other things,
to bear substantially all expenses (other than underwriting discounts and
selling commissions) in connection with the registration and sale of the
securities covered by this prospectus.
SELLING
SECURITYHOLDERS
On December 5, 2008, we
issued the securities covered by this prospectus to the United States
Department of the Treasury, which is the initial selling securityholder under
this prospectus, in a transaction exempt from the registration requirements of
the Securities Act. The initial selling securityholder, or its successors,
including transferees, may from time to time offer and sell, pursuant to this
prospectus or a supplement to this prospectus, any or all of the securities
they own. The securities to be offered under this prospectus for the account of
the selling securityholders are:
·
71,000
shares of our Fixed Rate Cumulative Perpetual Preferred Stock;
·
a
warrant to purchase 2,696,203 shares of our common stock, representing
beneficial ownership of approximately 9.21% of our common stock as of December 31,
2008; and
·
2,696,203
shares of our common stock issuable upon exercise of the warrant, which shares,
if issued, would represent ownership of approximately 9.21% of our common stock
as of December 31, 2008.
For purposes of this
prospectus, we have assumed that, after completion of the offering covered by
this prospectus, none of the securities covered by this prospectus will be held
by the selling securityholders.
Beneficial ownership is
determined in accordance with the rules of the SEC and includes voting or
investment power with respect to the securities. To our knowledge, the initial
selling securityholder has sole voting and investment power with respect to the
securities.
We do not know when or in
what amounts the selling securityholders may offer the securities for sale. The
selling securityholders might not sell any or all of the securities offered by
this prospectus. Because the selling securityholders may offer all or some of
the securities pursuant to this offering, and because currently no sale of any
of the securities is subject to any agreements, arrangements or understandings,
we cannot estimate the number of the securities that will be held by the
selling securityholders after completion of the offering.
Other than with respect to
the acquisition of the securities, the initial selling securityholder has not
had a material relationship with us.
Information about the
selling securityholders may change over time and changed information will be
set forth in supplements to this prospectus if and when necessary.
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LEGAL MATTERS
The
validity of the shares offered hereby and certain other legal matters will be
passed upon for the Company by the law firm of Kennedy & Baris, LLP,
Bethesda, Maryland. Attorneys at Kennedy & Baris, LLP own an aggregate
of approximately 71,764 shares of our common stock.
EXPERTS
The
consolidated financial statements of the Company and the report on the effectiveness
of the Companys internal control over financial reporting incorporated in this
prospectus by reference to our Annual Report on Form 10-K for the year
ended December 31, 2007, have been so incorporated in reliance on the
reports of Yount, Hyde and Barbour, P.C., an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
ABOUT
VIRGINIA COMMERCE BANCORP
AND
DOCUMENTS INCLUDED WITH THIS PROSPECTUS
We file annual, quarterly, and current reports, proxy
statements and other information with the Securities and Exchange Commission.
You may read and copy, at prescribed rates, any documents we have filed with
the SEC at its Public Reference Room located at 100 F Street, N.E.,
Washington, DC 20549. You may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. We also file these
documents with the SEC electronically. You can access the electronic versions
of these filings on the SECs internet website found at http://www.sec.gov. You
may also obtain free copies of the documents we have filed with the SEC (other
than exhibits to such documents unless we specifically incorporate by reference
an exhibit in this proxy statement/prospectus) by contacting Krista DiVenere,
Virginia Commerce Bancorp, Inc., 14201 Sullyfield Circle, Chantilly,
Virginia, 20151, telephone 703.633.6120, or from our internet website at
http://www.vcbonline.com.
We have filed with the SEC a registration
statement on Form S-3 relating to the securities covered by this
prospectus. This prospectus is a part of the registration statement and does
not contain all the information in the registration statement. Whenever a
reference is made in this prospectus to a contract or other document, the
reference is only a summary and you should refer to the exhibits that are a
part of the registration statement for a copy of the contract or other
document. You may review a copy of the registration statement at the SECs
Public Reference Room in Washington, D.C., as well as through the SECs
internet website.
The SEC allows us to incorporate by reference
information into this prospectus from the documents listed below that we have
previously filed with the SEC (file no. 000-28635) This means that we can
disclose important information to you by referring you to another document
without restating that information in this document. Any information
incorporated by reference into this prospectus is considered to be part of this
prospectus from the date we file that document. Any reports filed by us with
the SEC after the date of this prospectus will automatically update and, where
applicable, supersede, any information contained in this prospectus or incorporated
by reference in this prospectus.
We incorporate by reference into this prospectus
the following documents or information filed with the SEC (other than, in each
case, documents, or information deemed to have been furnished and not filed in
accordance with SEC rules):
(a)
Our
Annual Report on Form 10-K for the year ended December 31, 2007, as
amended;
(b)
Our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2008,
June 30, 2008 and September 30, 2008; and
(c)
Our
Current Reports on Form 8-K filed on January 23, 2008, February 5,
2008, April 24, 2008, July 17, 2008, September 25, 2008, October 21,
2008, November 28, 2008 and December 15, 2008.
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Also incorporated by reference are additional
documents that we may file with the SEC under Section 13(a), 13(c), 14, or
15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus and before the termination of the offering. These additional
documents will be deemed to be incorporated by reference, and to be a part of,
this prospectus from the date of their filing. These documents include proxy
statements and periodic reports, such as Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q, and, to the extent they are considered
filed, Current Reports on Form 8-K. Information incorporated by reference
from later filed documents supersedes information that is included in this
prospectus or any applicable prospectus supplement or is incorporated by
reference from earlier documents, to the extent that they are inconsistent.
You should rely only
on the information contained or incorporated by reference in this
prospectus. We have not authorized
anyone to provide you with information that is different from what is contained
in this prospectus. This prospectus is dated January 23, 2009. You should not assume that the information
contained in this prospectus is accurate as of any date other than that date.
17
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