- Current report filing (8-K)
15 Dezember 2008 - 12:04PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported):
December 12,
2008
Virginia Commerce Bancorp, Inc.
(Exact
name of registrant as specified in its charter)
Virginia
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0-28635
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54-1964895
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(State or other jurisdiction
of incorporation)
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(Commission file number)
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(IRS Employer
Number)
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5350 Lee Highway, Arlington, Virginia 22207
(Address
of Principal Executive Offices) (Zip Code)
Registrants
telephone number, including area code:
703.534.0700
N/A
(Former
Name or Former Address, if changed since last report)
Check
the appropriate box below if the Form 8-K is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions
(See General Instruction A.2. below):
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 1.01 Entry into a Material
Definitive Agreement
Item 3.02 Unregistered Sale of
Equity Securities
On December 12, 2008, Virginia Commerce Bancorp, Inc. (the Company)
entered into and consummated a Letter Agreement (the Purchase Agreement) with
the United States Department of the Treasury (the Treasury), pursuant to
which the Company issued 71,000 shares of the Companys Fixed Rate Cumulative
Perpetual Preferred Stock, Series A (the Series A Preferred Stock),
having a liquidation amount per share equal to $1,000, for a total purchase
price of $71,000,000. The Series A Preferred Stock pays cumulative
dividends at a rate of 5% per year for the first five years and thereafter at a
rate of 9% per year. The Company may not redeem the Series A Preferred
Stock during the first three years except with the proceeds from a qualified
equity offering (as defined in the Articles of Amendment described in Item
5.03). After three years, the Company may, at its option, redeem the Series A
Preferred Stock at the liquidation amount plus accrued and unpaid dividends.
The Series A Preferred Stock is non-voting, except in limited
circumstances described in the Articles of Amendment. Prior to the third
anniversary of issuance, unless the Company has redeemed all of the Series A
Preferred Stock or the Treasury has transferred all of the Series A
Preferred Stock to a third party, the consent of the Treasury will be required
for the Company to increase its common stock dividend or repurchase its common
stock or other equity or capital securities, other than in connection with
benefit plans consistent with past practice and certain other circumstances
specified in the Purchase Agreement. A copy of the Purchase Agreement is
attached as Exhibit 10.1 hereto and is incorporated by reference herein.
In connection with the purchase of the Series A
Preferred Stock, the Treasury was issued a warrant (the Warrant) to purchase
2,696,203 shares of the Companys common stock at an initial exercise price of
$3.95 per share. The Warrant provides for the adjustment of the exercise price
and the number of shares of the common stock issuable upon exercise pursuant to
customary anti-dilution provisions, such as upon stock splits or distributions
of securities or other assets to holders of the common stock, and upon certain
issuances of the common stock (or securities exercisable or exchangeable for,
or convertible into, common stock) at or below 90% of the market price of the
common stock on the trading day prior to the date of the agreement on pricing
such securities. The Warrant expires ten years from the date of issuance. The
number of shares of common stock issuable pursuant to the Warrant will be
reduced by one-half if, on or prior to December 31, 2009, the Company
receives aggregate gross cash proceeds of not less than $71,000,000 from qualified
equity offerings announced after October 13, 2008. The Treasury has
agreed not to exercise voting power with respect to any shares of common stock
issued upon exercise of the Warrant. A copy of the Warrant is attached as Exhibit 4.1
hereto and is incorporated by reference herein.
As a result of the issuance of the Series A Preferred Stock to the
Treasury, the Company is required to comply with certain restrictions on
executive compensation included in the Emergency Economic Stabilization Act of
2008 (the EESA). Certain of these provisions could limit the tax
deductibility of compensation the Company pays to its executive officers.
The Series A Preferred Stock and the
Warrant were issued in a private placement exempt from registration pursuant to
Section 4(2) of the Securities Act of 1933, as amended. The Company
has agreed to register the Series A Preferred Stock, the Warrant, and the
shares of common stock underlying the Warrant (the Warrant Shares) as soon as
practicable after the date of the issuance, subject to certain exceptions.
Neither the Series A Preferred Stock nor the Warrant will be subject to
any contractual restrictions on transfer, except that the Treasury may only transfer
or exercise an aggregate of one-half of the Warrant Shares prior to the earlier
of (i) the Companys receipt of aggregate gross proceeds of not less than
$71,000,000 in one or more qualified equity offerings and (ii) December 31,
2009.
Item
3.03. Material Modification to Rights of
Security Holders.
Pursuant
to the terms of the Purchase Agreement and the Articles of Amendment
designating the terms of the Series A Preferred Stock, the Companys
ability to declare or pay dividends or distributions on, or purchase, redeem or
otherwise acquire for consideration, shares of its Junior Stock (as defined
below) and Parity Stock (as defined below) is subject to restrictions,
including a restriction against paying any dividends on the common stock. The
redemption, purchase or other acquisition of trust preferred securities of the
Company or its affiliates also will be restricted. 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.
2
In
addition, the Companys ability to declare or pay dividends or distributions
on, or repurchase, redeem or otherwise acquire for consideration, shares of its
Junior Stock and Parity Stock will be subject to restrictions in the event that
the Company fails to declare and pay full dividends (or declare and set aside a
sum sufficient for payment thereof) on the Series A Preferred Stock.
Junior
Stock means the Companys 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.
Item 5.02. Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
In
connection with the Closing of the closing of the Treasury purchase, each of
the members of the Companys senior management, Peter A. Converse, Michael G.
Anzilotti, R.B. Anderson, Jr., William K. Beauchesne, Steven Reeder,
Patricia Ostrander and John Perseo (the Senior Officers) executed a waiver
(the Waiver) voluntarily waiving any claim against the Treasury or the
Company for any changes to such officers compensation or benefits that are
required to comply with the regulations issued by the Treasury. The form of the Waiver is attached as Exhibit 99.2
hereto and is incorporated by reference herein.
Item
5.03. Amendment to Articles of
Incorporation or Bylaws; Change in Fiscal Year.
On
December 9, 2008, the Company filed Articles of Amendment to the Companys
Articles of Incorporation with the Virginia State Corporation Commission for
the purpose of designating the terms, preferences, limitations and relative
rights of the Series A Preferred Stock.
A copy of the Articles of Amendment relating to the Series A
Preferred Stock is attached hereto as Exhibit 3.1 hereto and incorporated
by reference herein. In accordance with
applicable Virginia law, the amendment was adopted by action of the Board of
Directors without a vote of shareholders.
Item
9.01. Financial Statements and Exhibits
(d)
Exhibits.
Number
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Description
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3.1
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Articles
of Amendment to the Articles of Incorporation relating to the Series A
Preferred Stock
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4.1
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Warrant
to Purchase Common Stock
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10.1
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Letter
Agreement (including Securities Purchase Agreement Standard Terms) between
the Company and the United States Department of the Treasury with respect to
the Series A Preferred Stock
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99.1
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Press
Release dated December 12, 2008
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99.2
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Form of
Waiver by Senior Officers
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3
Signatures
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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VIRGINIA
COMMERCE BANCORP, INC.
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By:
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/s/
Peter A. Converse
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Peter
A. Converse, Chief Executive Officer
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Dated: December 12, 2008
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