SEC Comment Letter for FIRST UNITED (FUNC) — Mar 31, 2020
FIRST UNITED CORP/MD/ (FUNC) (CIK 0000763907)
Date: March 31, 2020 · CIK: 0000763907 · Accession: 0000000000-20-002771
AI Filing Summary & Sentiment
File numbers found in text: 000-14237
Letter
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 DIVISION OF CORPORATION FINANCE March 31, 2020 Carissa L. Rodeheaver Chairman of the Board, President and CEO First United Corporation 19 S Second Street Oakland, MD 21550
Re: First United Corporation PREC 14A filed by First United Corporation Filed March 30, 2020 File No. 000-14237
Dear Ms. Rodeheaver :
We have reviewed the above -captioned filing, and have the following comments. Some of our comments may ask for additional information so we may be tter understand the disclosure.
Please respond to this letter by amending the filing and/or by providing the requested information. If you do not believe our comments apply to your facts and circumstances and/or do not believe an amendment is appropriate, please tel l us why in a written response.
After reviewing any amendment to the filing and any information provided in response to these comments, we may have additional comments.
Preliminary Proxy Statement filed under cover of Schedule 14A
General
1. Please refer to the following statement: “ If Driver Management is ultimately prohibited from voting its shares of Common Stock or nominating the Driver Nominees, then any proxy that you deliver to Driver Management will be void and your vote will not be counted. ” Given that the disclosure immediately preceding this sentence indicates that “Driver Management [would] be prohibited from voting its shares of the Common Stock for five years”, please provide us with a legal analysis in support of the contentio n Driver Management also would be prohibited from voting shares for which it had been granted proxy authority to vote.
Carissa L. Rodeheaver March 31 , 2020 Page 2
What is the effect of abstentions and broker non -votes on voting? , page 7
2. Please refer to the following statement: “ If you do not provide voting instructions to your bank, broker, trustee or other nominee holding shares of our Common Stock for you, your shares will not be voted with respect to any proposal. ” Please advise us of the legal basis upon which the registrant has relied t o conclude that persons other than brokers, such as banks and other holders of record, may be ineligible to vote shares in the absence of instructions timely transmitted by beneficial owners. Alternatively, please revise to remove the implication that ban ks and other holders of record are the equivalent of brokers and thus might not vote absent instructions from beneficial owners. See Item 21(b) of Schedule 14A.
Other Matters, page 47
3. Please revise the description of the registrant’s possible use of discretionary authority to conform to the to the standard codified in Rule 14a -4(c)(1). At present, the disclosure suggests the right to use discretionary authority is absolute inasmuch as it can unconditionally be exercised to authorize voting by the proxy holders on any matters that may be properly introduced at the meeting.
Miscellaneous Information Concerning Participants, page A -4
4. Please advise us, with a view towards revised disclo sure, whether any indemnification agreements exist between the registrant and the director nominees. Please refer to Item 7 (b) of Schedule 14A and corresponding Item 401(a) of Regulation S -K. To the extent the line item disclosure requirement is deemed i napplicable, a negative response is not required to be disclosed in the pro xy statement as explained by and permitted under Rule 14a -5(a).
Form of Proxy
5. The form of proxy has not been electronically submitted together with the proxy statement. Consequently, once the fo rm of proxy is filed, a definitive proxy statement will not become eligible to be distributed to shareholders for at least ten days. Please file the form of proxy in accordance with Rule 14a -6(a), or advise us when we can expect such submission .
* * *
Carissa L. Rodeheaver March 31 , 2020 Page 3
We remind you that the registrant is responsible for the accuracy and adequacy of its disclosures, notwithstanding any review, comments, action or absence of action by the staff.
You may contact me at (202) 551 -3266 with any questions.
Sincerely,
/s/ Nicholas P. Panos
Show Raw Text
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
March 31, 2020
Carissa L. Rodeheaver
Chairman of the Board, President and CEO
First United Corporation
19 S Second Street
Oakland, MD 21550
Re: First United Corporation
PREC 14A filed by First United Corporation
Filed March 30, 2020
File No. 000-14237
Dear Ms. Rodeheaver :
We have reviewed the above -captioned filing, and have the following comments. Some
of our comments may ask for additional information so we may be tter understand the disclosure.
Please respond to this letter by amending the filing and/or by providing the requested
information. If you do not believe our comments apply to your facts and circumstances and/or
do not believe an amendment is appropriate, please tel l us why in a written response.
After reviewing any amendment to the filing and any information provided in response to
these comments, we may have additional comments.
Preliminary Proxy Statement filed under cover of Schedule 14A
General
1. Please refer to the following statement: “ If Driver Management is ultimately prohibited from
voting its shares of Common Stock or nominating the Driver Nominees, then any proxy that
you deliver to Driver Management will be void and your vote will not be counted. ” Given
that the disclosure immediately preceding this sentence indicates that “Driver Management
[would] be prohibited from voting its shares of the Common Stock for five years”, please
provide us with a legal analysis in support of the contentio n Driver Management also would
be prohibited from voting shares for which it had been granted proxy authority to vote.
Carissa L. Rodeheaver
March 31 , 2020
Page 2
What is the effect of abstentions and broker non -votes on voting? , page 7
2. Please refer to the following statement: “ If you do not provide voting instructions to your
bank, broker, trustee or other nominee holding shares of our Common Stock for you, your
shares will not be voted with respect to any proposal. ” Please advise us of the legal basis
upon which the registrant has relied t o conclude that persons other than brokers, such as
banks and other holders of record, may be ineligible to vote shares in the absence of
instructions timely transmitted by beneficial owners. Alternatively, please revise to remove
the implication that ban ks and other holders of record are the equivalent of brokers and thus
might not vote absent instructions from beneficial owners. See Item 21(b) of Schedule 14A.
Other Matters, page 47
3. Please revise the description of the registrant’s possible use of discretionary authority to
conform to the to the standard codified in Rule 14a -4(c)(1). At present, the disclosure
suggests the right to use discretionary authority is absolute inasmuch as it can
unconditionally be exercised to authorize voting by the proxy holders on any matters that
may be properly introduced at the meeting.
Miscellaneous Information Concerning Participants, page A -4
4. Please advise us, with a view towards revised disclo sure, whether any indemnification
agreements exist between the registrant and the director nominees. Please refer to Item 7 (b)
of Schedule 14A and corresponding Item 401(a) of Regulation S -K. To the extent the line
item disclosure requirement is deemed i napplicable, a negative response is not required to be
disclosed in the pro xy statement as explained by and permitted under Rule 14a -5(a).
Form of Proxy
5. The form of proxy has not been electronically submitted together with the proxy statement.
Consequently, once the fo rm of proxy is filed, a definitive proxy statement will not become
eligible to be distributed to shareholders for at least ten days. Please file the form of proxy in
accordance with Rule 14a -6(a), or advise us when we can expect such submission .
* * *
Carissa L. Rodeheaver
March 31 , 2020
Page 3
We remind you that the registrant is responsible for the accuracy and adequacy of its
disclosures, notwithstanding any review, comments, action or absence of action by the staff.
You may contact me at (202) 551 -3266 with any questions.
Sincerely,
/s/ Nicholas P. Panos
Nicholas P. Panos
Senior Special Counsel
Office of Mergers and Acquisitions
cc: Lawrence S. Elbaum, Esq.