EXHIBIT 4.2
DESCRIPTION OF THE REGISTRANT’S COMMON STOCK REGISTERED
PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
As of December 31, 2019, CBM Bancorp, Inc. had one class of securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”): our common stock.
The following description of our common stock is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to our articles of incorporation and our bylaws, each of which is an exhibit to the Annual Report on Form10-K of which this Exhibit 4.2 is a part. We encourage you to read our articles of incorporation, our bylaws and the applicable provisions of the Maryland General Corporation Law for additional information.
Authorized Capitalization
Our authorized capital stock consists of:
| • | 24,000,000 shares of common stock, par value $4.00 per share; and |
| • | 1,000,000 shares of serial preferred stock, par value $1.00 per share. |
Our board of directors may issue shares of our common stock from time to time for such consideration as the board may deem advisable without further stockholder approval, subject to the maximum number of authorized shares provided in our articles of incorporation. Our common stock isnon-withdrawable capital, is not an insurable account and is not insured by the FDIC.
Description of Common Stock
Dividends.CBM Bancorp may pay dividends on its common stock if, after giving effect to such dividends, it would be able to pay its debts in the usual course of business and its total assets would exceed the sum of its total liabilities plus the amount needed to satisfy the preferential rights upon dissolution of stockholders whose preferential rights on dissolution are superior to those receiving the dividends. However, even if CBM Bancorp’s assets are less than the amount necessary to satisfy the requirement set forth above, CBM Bancorp may pay dividends from: its net earnings for the fiscal year in which the distribution is made; its net earnings for the preceding fiscal year; or the sum of its net earnings for the preceding eight fiscal quarters. The payment of dividends by CBM Bancorp is also subject to limitations that are imposed by applicable regulation, including restrictions on payments of dividends that would reduce CBM Bancorp’s assets below the then-adjusted balance of its liquidation account. The holders of common stock of CBM Bancorp will be entitled to receive and share equally in dividends as may be declared by our board of directors out of funds legally available therefor. If CBM Bancorp issues shares of preferred stock, the holders thereof may have a priority over the holders of the common stock with respect to dividends.
Voting Rights.The holders of common stock of CBM Bancorp have exclusive voting rights in CBM Bancorp. They elect CBM Bancorp’s board of directors and act on other matters as are required to be presented to them under Maryland law or as are otherwise presented to them by the board of directors. Generally, each holder of common stock is entitled to one vote per share and does not have any right to cumulate votes in the election of directors. Any person who beneficially owns more than 10% of the then-outstanding shares of CBM Bancorp’s common stock, however, will not be entitled or permitted to vote any shares of common stock held in excess of the 10% limit. If CBM Bancorp issues shares of preferred stock, holders of the preferred stock may also possess voting rights. Certain matters require the approval oftwo-thirds of the voting power of our outstanding common stock.
Corporate powers and control of Chesapeake Bank of Maryland, as a federal stock savings bank, are vested in its board of directors, who elect the officers of Chesapeake Bank of Maryland and who fill any vacancies on the board of directors. Voting rights of Chesapeake Bank of Maryland are vested exclusively in the owners of the shares of capital stock of Chesapeake Bank of Maryland, which will be CBM Bancorp, and are voted at the direction of CBM Bancorp’s board of directors. Consequently, the holders of the common stock of CBM Bancorp have no direct control of Chesapeake Bank of Maryland.
Liquidation.In the event of any liquidation, dissolution or winding up of Chesapeake Bank of Maryland, CBM Bancorp, as the holder of 100% of Chesapeake Bank of Maryland’s capital stock, would be entitled to receive all assets of Chesapeake Bank of Maryland available for distribution, after payment or provision for payment of all debts and liabilities of Chesapeake Bank of Maryland, including all deposit accounts and accrued interest thereon, and after distribution of the balance in the liquidation account to Eligible Account Holders. In the event of liquidation, dissolution or winding up of CBM Bancorp, the holders of its common stock would be entitled to receive, after payment or provision for payment of all its debts and liabilities (including payments with respect to its liquidation account), all of the assets of CBM Bancorp available for distribution. If preferred stock is issued, the holders thereof may have a priority over the holders of the common stock in the event of liquidation or dissolution.
Preemptive Rights.Holders of the common stock of CBM Bancorp will not be entitled to preemptive rights with respect to any shares that may be issued. The common stock is not subject to redemption.
Dissenters’ Rights of Appraisal.Under the articles of incorporation, CBM Bancorp stockholders are not entitled to dissenters’ rights of appraisal in the event of a merger or consolidation of CBM Bancorp with another corporation unless the board of directors determines by a resolution approved by a majority of directors then in office that dissenters’ rights shall apply to all or any classes of stock.
Exclusive Forum Provision.Our articles of incorporation provide that, unless we consent in writing to the selection of an alternative forum, any state or federal court located within the State of Maryland, in all cases subject to the court’s having personal jurisdiction over the indispensable parties named as defendants, shall be the sole and exclusive forum for certain types of actions and proceedings that may be initiated by our stockholders with respect to our Company, our directors, our officers or our other employees.
Restrictions On Acquisition Of CBM Bancorp, Inc.
The following discussion is a general summary of the material provisions of Maryland law, CBM Bancorp’s articles of incorporation and bylaws, Chesapeake Bank of Maryland’s charter and certain other regulatory provisions that may be deemed to have an “anti-takeover” effect. The following description is necessarily general and is not intended to be a complete description of the document or regulatory provision in question.
Maryland Law and Articles of Incorporation and Bylaws of CBM Bancorp
Maryland law, as well as CBM Bancorp’s articles of incorporation and bylaws, contain a number of provisions relating to corporate governance and rights of stockholders that may discourage future takeover attempts. As a result, stockholders who might desire to participate in such transactions may not have an opportunity to do so. In addition, these provisions will also render the removal of the board of directors or management of CBM Bancorp more difficult.
Directors.The board of directors is divided into three classes. The members of each class are elected for a term of three years and only one class of directors will be elected annually. Thus, it would take at least two annual elections to replace a majority of the board of directors. The bylaws establish qualifications for board members, including restrictions on affiliations with competitors of Chesapeake Bank of Maryland. Further, the bylaws impose notice and information requirements in connection with the nomination by stockholders of candidates for election to the board of directors or the proposal by stockholders of business to be acted upon at an annual meeting of stockholders. Such notice and information requirements are applicable to all stockholder business proposals and nominations, and are in addition to any requirements under the federal securities laws.
Restrictions on Calling Special Meetings.The articles of incorporation and bylaws provide that special meetings of stockholders can be called by the president, the chairman, by a majority of the whole board of directors or upon the written request of stockholders entitled to cast at least a majority of all votes entitled to vote at the meeting.
Prohibition of Cumulative Voting.The articles of incorporation prohibit cumulative voting for the election of directors.
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Limitation of Voting Rights.The articles of incorporation provide that in no event will any person who beneficially owns more than 10% of the then-outstanding shares of common stock, be entitled or permitted to vote any of the shares of common stock held in excess of the 10% limit.
Restrictions on Removing Directors from Office.The articles of incorporation provide that directors may be removed only for cause, and only by the affirmative vote of the holders of at leasttwo-thirds of the voting power of all of CBM Bancorp’s then-outstanding common stock entitled to vote (after giving effect to the limitation on voting rights discussed above in “—Limitation of Voting Rights”).
Authorized but Unissued Shares.CBM Bancorp has authorized but unissued shares of common and preferred stock. The articles of incorporation authorize 25,000,000 shares of stock, including 1,000,000 shares of serial preferred stock. In addition, the articles of incorporation authorize the board of directors to amend the charter, without stockholder approval, to increase or decrease the aggregate number of authorized shares of stock or the number of authorized shares of any class of stock. CBM Bancorp is authorized to issue preferred stock from time to time in one or more series subject to applicable provisions of law, and the board of directors is authorized to fix the designations, and relative preferences, limitations, voting rights, if any, including without limitation, offering rights of such shares (which could be multiple or as a separate class). In the event of a proposed merger, tender offer or other attempt to gain control of CBM Bancorp that the board of directors does not approve, it may be possible for the board of directors to authorize the issuance of a series of preferred stock with rights and preferences that would impede the completion of the transaction. An effect of the possible issuance of preferred stock therefore may be to deter a future attempt to gain control of CBM Bancorp.
Amendments to Articles of Incorporation and Bylaws.Amendments to the articles of incorporation must be approved by the board of directors and by the affirmative vote of at leasttwo-thirds of the outstanding shares of common stock, or by the affirmative vote of a majority of the outstanding shares of common stock if at leasttwo-thirds of the members of the board of directors approve such amendment.
The articles of incorporation also provide that the bylaws may be amended by the affirmative vote of a majority of CBM Bancorp’s directors or by the affirmative vote of at leasttwo-thirds of the votes eligible to be cast in the election of directors.
Business Combinations.Under Maryland law, “business combinations” between a Maryland corporation and an interested stockholder or an affiliate of an interested stockholder are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. These business combinations include a merger, consolidation, statutory share exchange or, in circumstances specified in the statute, certain transfers of assets, certain stock issuances and transfers, liquidation plans and reclassifications involving interested stockholders and their affiliates or issuance or reclassification of equity securities. Maryland law defines an interested stockholder as: (i) any person who beneficially owns 10% or more of the voting power of a corporation’s voting stock after the date on which the corporation had 100 or more beneficial owners of its stock; or (ii) an affiliate or associate of the corporation at any time after the date on which the corporation had 100 or more beneficial owners of its stock who, within thetwo-year period prior to the date in question, was the beneficial owner of 10% or more of the voting power of the then-outstanding voting stock of the corporation. A person is not an interested stockholder under the statute if the board of directors approved in advance the transaction by which the person otherwise would have become an interested stockholder. However, in approving a transaction, the board of directors may provide that its approval is subject to compliance, at or after the time of approval, with any terms and conditions determined by the Board.
After the five-year prohibition, any business combination between the Maryland corporation and an interested stockholder generally must be recommended by the board of directors of the corporation and approved by the affirmative vote of at least: (i) 80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation; and(ii) two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or held by an affiliate or associate of the interested stockholder. These super-majority vote requirements do not apply if the corporation’s common stockholders receive a minimum price, as defined under Maryland law, for their shares in the form of cash or other consideration in the same form as previously paid by the interested stockholder for its shares.
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Control Share Acquisitions.The Maryland General Corporation Law provides that “control shares” of a Maryland corporation acquired in a “control share acquisition” have no voting rights except to the extent approved by a vote oftwo-thirds of the shares entitled to be voted on the matter, excluding shares of stock owned by the acquiror or by officers or directors who are employees of the corporation. “Control shares” are voting shares of stock which, if aggregated with all other such shares of stock previously acquired by the acquiror, or in respect of which the acquiror is able to exercise or direct the exercise of voting power except solely by virtue of a revocable proxy, would entitle the acquiror to exercise voting power in electing directors within one of the following ranges of voting power:
| • | one-tenth or more but less thanone-third; |
| • | one-third or more but less than a majority; or |
| • | a majority of all voting power. |
Control shares do not include shares the acquiring person is then entitled to vote as a result of having previously obtained stockholder approval. A “control share acquisition” means the acquisition of control shares, subject to certain exceptions for shares acquired through descent or distribution, in satisfaction of a pledge or in a merger, consolidation or share exchange to which the corporation is a party. The control share acquisition statute applies to any Maryland corporation with 100 or more beneficial owners of its stock other than a close corporation or an investment company.
A person who has made or proposes to make a control share acquisition, upon satisfaction of certain conditions (including an undertaking to pay expenses and delivery of an “acquiring person statement”), may compel the corporation’s Board of Directors to call a special meeting of stockholders to be held within 50 days of demand to consider the voting rights of the shares. If no request for a meeting is made, the corporation may itself present the question at any stockholders’ meeting. If voting rights are not approved at the meeting or if the acquiring person does not deliver an acquiring person statement within 10 days following a control share acquisition then, subject to certain conditions and limitations, the corporation may redeem any or all of the control shares (except for those which voting rights have previously been approved) for fair value, determined without regard to the absence of voting rights for the control shares, as of the date of the last control share acquisition or of any meeting of stockholders at which the voting rights of such shares are considered and not approved. Moreover, if voting rights for control shares are approved at a stockholders’ meeting and the acquiror becomes entitled to exercise or direct the exercise of a majority or more of all voting power, other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of such appraisal rights may not be less than the highest price per share paid by the acquiror in the control share acquisition. The foregoing provisions may be modified by a Maryland corporation’s charter or bylaws.
Although our bylaws provide that the Maryland Control Share Acquisition law will be inapplicable to acquisitions of the Company’s common stock, this bylaw provision may be repealed at any time by a majority vote of the whole board of directors, in whole or in part, at any time, whether before or after a control share acquisition and may be applied to any prior or subsequent control share acquisition.
Evaluation of Offers.The articles of incorporation of CBM Bancorp provide that its board of directors, when evaluating a transaction that would or may involve a change in control of CBM Bancorp (whether by purchases of its securities, merger, consolidation, share exchange, dissolution, liquidation, sale of all or substantially all of its assets, proxy solicitation or otherwise), may, in connection with the exercise of its business judgment in determining what is in the best interests of CBM Bancorp and its stockholders and in making any recommendation to the stockholders, give due consideration to all relevant factors, including, but not limited to, certain enumerated factors, including (I) the economic effect, both immediate and long-term, upon CBM Bancorp’s stockholders, including stockholders, if any, choosing not to participate in the transaction; (2) the effects, including any social and economic effects, on the employees, suppliers, creditors, depositors and customers of, and others dealing with, CBM Bancorp and its subsidiaries and on the communities in which CBM Bancorp and its subsidiaries operate or are located; (3) whether the proposal is acceptable based on the historical and current operating results or financial condition of CBM Bancorp; (4) whether a more favorable price could be obtained for CBM Bancorp’s stock or other securities in the future; (5) the reputation and business practices of the offeror and its management and affiliates as they would affect the employees; (6) the future value of the stock or any other securities of CBM Bancorp; and (7) any anti-trust or other legal and regulatory issues that are raised by the proposal.
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Purpose and Anti-Takeover Effects of CBM Bancorp’s Articles of Incorporation and Bylaws.Our board of directors believes that the provisions described above are prudent and will reduce our vulnerability to takeover attempts and certain other transactions that have not been negotiated with and approved by our board of directors. These provisions also will assist us in the orderly deployment of the offering proceeds into productive assets during the initial period after the conversion. We believe these provisions are in the best interests of CBM Bancorp and its stockholders. Our board of directors believes that it will be in the best position to determine the true value of CBM Bancorp and to negotiate more effectively for what may be in the best interests of all our stockholders. Accordingly, our board of directors believes that it is in the best interests of CBM Bancorp and all of our stockholders to encourage potential acquirers to negotiate directly with the board of directors and that these provisions will encourage such negotiations and discourage hostile takeover attempts. It is also the view of our board of directors that these provisions should not discourage persons from proposing a merger or other transaction at a price reflective of the true value of CBM Bancorp and that is in the best interests of all our stockholders.
Takeover attempts that have not been negotiated with and approved by our board of directors present the risk of a takeover on terms that may be less favorable than might otherwise be available. A transaction that is negotiated and approved by our board of directors, on the other hand, can be carefully planned and undertaken at an opportune time in order to obtain maximum value for our stockholders, with due consideration given to matters such as the management and business of the acquiring corporation.
Although a tender offer or other takeover attempt may be made at a price substantially above the current market price, such offers are sometimes made for less than all of the outstanding shares of a target company. As a result, stockholders may be presented with the alternative of partially liquidating their investment at a time that may be disadvantageous, or retaining their investment in an enterprise that is under different management and whose objectives may not be similar to those of the remaining stockholders.
Despite our belief as to the benefits to stockholders of these provisions of CBM Bancorp’s articles of incorporation and bylaws, these provisions also may have the effect of discouraging a future takeover attempt that would not be approved by our board of directors, but pursuant to which stockholders may receive a substantial premium for their shares over then current market prices. As a result, stockholders who might desire to participate in such a transaction may not have any opportunity to do so. Such provisions will also make it more difficult to remove our board of directors and management. Our board of directors, however, has concluded that the potential benefits outweigh the possible disadvantages.
Charter of Chesapeake Bank of Maryland
Chesapeake Bank of Maryland’s charter provides that for a period of five years from the closing of the conversion and offering, no person other than CBM Bancorp may offer directly or indirectly to acquire the beneficial ownership of more than 10% of any class of equity security of Chesapeake Bank of Maryland. This provision does not apply to anytax-qualified employee benefit plan of Chesapeake Bank of Maryland or CBM Bancorp or to underwriters in connection with a public offering. In addition, during this five-year period, all shares owned over the 10% limit may not be voted on any matter submitted to stockholders for a vote.
Federal Conversion Regulations
Federal Reserve Board regulations prohibit any person from making an offer, announcing an intent to make an offer or participating in any other arrangement to purchase stock or acquire stock or subscription rights in a converting institution or its holding company from another person prior to completion of its conversion. Further, without the prior written approval of the Federal Reserve Board, no person may make an offer or announcement of an offer to purchase shares or actually acquire shares of a converted institution or its holding company for a period of three years from the date of the completion of the conversion if, upon the completion of such offer, announcement or acquisition, the person would become the beneficial owner of more than 10% of the outstanding stock of the institution or its holding company. The Federal Reserve Board has defined “person” to include any individual, group acting in concert, corporation, partnership, association, joint stock company, trust, unincorporated organization or similar company, a syndicate or any other group formed for the purpose of acquiring, holding or disposing of securities of an insured institution. However, offers made exclusively to a bank or its holding company, or to an underwriter or member of a selling group acting on the converting institution’s or its holding company’s behalf for resale to the general public, are excepted. The regulation also provides civil penalties for willful violation or assistance in any such violation of the regulation by any person connected with the management of the converting institution or its holding company or who controls more than 10% of the outstanding shares or voting rights of a converted institution or its holding company.
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Change in Control Law and Regulations
Under the Change in Bank Control Act, no person may acquire control of a federal savings association or its parent holding company unless the Office of the Comptroller of the Currency or the Federal Reserve Board, respectively, has been given 60 days’ prior written notice and has not issued a notice disapproving the proposed acquisition. In addition, under the Bank Holding Company Act and the Federal Reserve Board’s regulations, no company may acquire control of a savings association without the prior approval of the Federal Reserve Board. In their review of notices and applications under these statutes, the Office of the Comptroller of the Currency and the Federal Reserve Board take into consideration certain factors, including the financial and managerial resources of the acquirer and the competitive effects of the acquisition.
Control, as defined under federal law, means ownership, control of or holding irrevocable proxies representing more than 25% of any class of voting stock, control in any manner of the election of a majority of the company’s directors, or a determination by the Federal Reserve Board that the acquirer has the power to direct, or directly or indirectly exercise a controlling influence over, the management or policies of the institution. Acquisition of more than 10% of any class of a savings’ and loan holding company’s voting stock constitutes a rebuttable determination of control under the regulations under certain circumstances including where, as will be the case with CBM Bancorp, the issuer has registered securities under Section 12 of the Securities Exchange Act of 1934. Federal Reserve Board regulations provide that parties seeking to rebut control will be provided an opportunity to do so in writing.
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