Attached files
DESCRIPTION OF SECURITIES
As of
December 31, 2019, the common stock, par value $5.00 per share, was
the only class of securities of F&M Bank Corp. (the
“Company”) registered under Section 12 of the
Securities Exchange Act of 1934, as amended.
The
following section describes the general terms and provisions of the
shares of the Company’s common stock. You should read the
Company’s articles of incorporation and bylaws for additional
information about the common stock. The articles of incorporation
and bylaws are included as exhibits to the Company’s Annual
Report on Form 10-K, to which this exhibit also is
attached.
General
The
Company’s authorized capital stock consists of 6,000,000
shares of common stock, par value $5.00 per share, and 2,000,000
shares of preferred stock, par value $5.00 per share. As of
December 31, 2019, there were 3,208,498 shares of common stock
outstanding and 206,660 shares of preferred stock
outstanding.
Common Stock
Dividend
Rights. The Company may pay
dividends as declared from time to time by the board out of funds
that are legally available, subject to certain restrictions imposed
by state and federal laws.
Voting
Rights. In all elections of
directors, a shareholder has the right to cast one vote for each
share of stock held by him or her for as many persons as there are
directors to be elected. The Company does do not have cumulative
voting rights. On any other question to be determined by a vote of
shares at any meeting of shareholders, each shareholder is entitled
to one vote for each share of stock held by him or her and entitled
to vote.
Preemptive
Rights. Holders of common stock
do not have preemptive rights with respect to issues of common
stock.
Liquidation
Rights. Upon liquidation, after
payment of all creditors, the remaining assets of the Company would
be distributed to the holders of common stock on a pro-rata basis,
subject to the rights of the holders of any share of the
Company’s preferred stock that may be issued from time to
time.
Calls and
Assessments. All common stock
outstanding is fully paid and non-assessable.
Preferred Stock
The
Company’s 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 class or series. In connection with
any such issuance, the board of directors 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 December 31, 2019, there were
2,000,000 authorized shares of preferred stock, par value $5.00 per
share, and the only class or series of preferred stock created or
designated by the Company’s board of directors was 400,000
shares designated as 5.10% Series A Noncumulative Mandatorily
Convertible Preferred Stock (the “Series A Preferred
Stock”). As of December 31, 2019, 206,660 shares of Series A
Preferred Stock were outstanding.
The preferences and
other terms of any series of preferred stock will be fixed by an
amendment to the Company’s articles of incorporation
designating the terms of that series. Because the
Company’s board of directors has the power to establish the
preferences and rights of each series of preferred stock, it may
afford the holders of any series of preferred stock preferences and
rights, voting or otherwise, senior to the rights of holders of the
Company’s common stock. It is not possible to state the
actual effect of the issuance of any shares of preferred stock upon
the rights of holders of common stock until the Company’s
board of directors determines the specific rights of the holders of
preferred stock. However, the effects might include:
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Exhibit 4.1, continued
●
restricting
dividends on the Company’s common stock;
●
diluting the voting
power of the Company’s common stock;
●
impairing
liquidation rights of the Company’s common stock;
or
●
discouraging,
delaying or preventing a change in control of the Company without
further action by its shareholders.
Certain Provisions of the Company’s Articles of Incorporation
and Bylaws
General.
The following is a summary of the material provisions of the
Company’s articles of incorporation and bylaws that address
matters of corporate governance and the rights of
shareholders. In addition, Virginia has two antitakeover
statutes, the Affiliated Transactions Statute and the Control Share
Acquisitions Statute, that could make it more difficult for another
party to acquire the Company without the approval of the
Company’s board of directors. Certain of these provisions may delay or prevent
takeover attempts not first approved by the Company’s board
of directors (including takeovers which certain shareholders may
deem to be in their best interests). These provisions also could
delay or frustrate the removal of incumbent directors or the
assumption of control by certain shareholders.
Issuance of
Additional Shares. The
Company’s board of directors may issue additional authorized
shares of the Company’s capital stock to deter future
attempts to gain control of the Company, and the board has the
authority to determine the terms of any one or more series of
preferred stock, such as voting rights, conversion rates, and
liquidation preferences. As a result of the ability to fix voting
rights for a series of preferred stock, the board has the power, to
the extent consistent with its fiduciary duty, to issue a series of
preferred stock to persons friendly to management in order to
attempt to block a merger or other transaction by which a third
party seeks control, and thereby assist the incumbent board of
directors and management to retain their respective
positions.
No
Cumulative Voting. The
Company’s articles of incorporation do not provide for
cumulative voting in the election of directors.
Advance
Notice for Shareholder Proposals or Nominations at
Meetings. The Company’s
bylaws also prescribe the procedure a shareholder must follow to
nominate directors or to bring other business before
shareholders’ meetings. For a shareholder to nominate a
candidate for director or to bring other business before a meeting,
notice must be received by the Company not less than 60 days and
not more than 90 days prior to the date of the meeting; provided,
that if less than 70 days’ notice or prior public disclosure
of the meeting date is given, then the shareholder’s notice
must be received by the Company not less than 10 days following the
Company’s notice or public disclosure. Notice of a nomination
for director must describe various matters regarding the nominee
and the shareholder giving the notice. Notice of other business to
be brought before the meeting must include a description of the
proposed business, the reasons therefor and other specified
matters.
Classified
Board of Directors. The
Company’s articles of incorporation and bylaws currently
provide that the board of directors shall be divided into three
classes as nearly equal in number as possible. The members of each
class are elected for a term of three years and until their
successors are elected and qualified. As a result, approximately
one third of the members of the board of directors are elected each
year, and two annual meetings are required for the Company’s
shareholders to change a majority of the members constituting the
board of directors.
Special
Voting Provisions. The Company’s articles of incorporation
currently provide that, unless the following actions have been
approved by a majority of the Company’s directors as
described in further detail below, the affirmative vote of the
holders of more than two-thirds of the Company’s capital
stock, issued, outstanding and entitled to vote shall be required
to approve the following actions:
●
any
merger or consolidation of the Company with or into any other
corporation; or
●
any
share exchange in which a corporation, person or entity acquires
the issued or outstanding shares of capital stock of the Company
pursuant to a vote of shareholders; or
●
any
issuance of shares of the Company that results in an acquisition of
control of the Company by any person, firm or corporation or group
of one or more thereof that previously did not control the Company;
or
●
any
sale, lease, exchange, mortgage, pledge or other transfer, in one
transaction or a series of transactions, of all, or substantially
all, of the assets of the Company to any other corporation, person
or entity; or
●
the
adoption of a plan for the liquidation or dissolution of the
Company proposed by any other corporation, person or
entity.
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Exhibit 4.1, continued
If
any of the transactions identified above, or having a similar
effect as any of the foregoing transactions, is with a corporation,
person or entity that is the beneficial owner, directly or
indirectly, of more than 5% of the Company’s shares of
capital stock issued, outstanding and entitled to vote, then the
affirmative vote of the holders of 80% of the shares of the
Company’s capital stock issued, outstanding and entitled to
vote shall be required to approve any of such transactions, unless
the following actions have been approved by a majority of the
Company’s directors as described in further detail
below.
These
special voting provisions shall not apply to a transaction which is
approved in advance by a majority of directors (i) who were
directors before the corporation, person or entity acquired
beneficial ownership of 5% or more of the shares of the
Company’s capital stock and who are not affiliates of such
corporation, person or entity and (ii) who became directors at the
recommendation of directors referred to in (i) above.
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