SEC Comment Letter for FIRST UNITED (FUNC) — Apr 6, 2020
FIRST UNITED CORP/MD/ (FUNC) (CIK 0000763907)
Date: April 6, 2020 · CIK: 0000763907 · Accession: 0000000000-20-002938
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 April 3 , 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 Amendment No. 1 to PREC 14A filed by First United Corporation Filed April 2 , 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 b y 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 a ny amendment to the filing and any information provided in response to these comments, we may have additional comments.
Amendment No. 1 to Preliminary Proxy Statement filed under cover of Schedule 14A
General
1. The form of proxy is not part of the proxy statement as defined in Rule 14a -1(g) and codified at Rule 14a -101. Accordingly, p lease advise us why the EDGAR header tag used to identify the abo ve-captioned submission was PREC14A instead of PRER 14A. Filers must prepare electronic filings in the mann er prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets forth the technical formatting requirements for electronic submissions. See Rule 232.301 of Regulation S -T. Please also confirm that successive filings, including the defi nitive proxy statement, will be designated on EDGAR correctly.
2. Notw ithstanding the disclosure appearing on page 47 regarding the registrant’s 2019 Annual Report, please advise us, with a view toward revised disclosure, how First United intends to comply with the conditional requirement to deliver a Form 10 -K under Rule 14a -3(b)(10).
Carissa L. Rodeheaver April 3 , 2020 Page 2
3. The Notice of Annual Meeting, as distinguished from the proxy statement, leaves open the possibility that the proxy statement will be distributed electronically to the exclusion of other methods while suggesting its availability on a dedicated website. P lease advise us whether First United will be relying upon Rule 14a -16 to distribute the proxy statement electronically as the primary means of fulfilling its obligations under Rule 14a -3(a) and Rule 14a -4(f). If so, please summarize for us how compliance with Rule 14a -16 has been eff ectuated.
4. Please advise us how First United intends to comply with the requirement to furnish the 2019 annual report before or together with the pr oxy statement as requir ed by Rule 14a -3(b)(1).
What is the effect of abstentions and broker non -votes on voting? , page 7
5. Item 21(b) of Schedule 14A requires the registrant to describe how votes will be counted, including “the treatme nt and effect of [ ] broker non -votes …” In adopting Item 21(b), no evidence exists that show s the Commission intended for the term “broker” to mean any person other than a broker as defined un der Section 3(a)(4 ) of the Exchange Act. See Exchange Act Release No. 30849 (June 24, 1992) ; See also Exchange Act Release No. 62764 (September 15, 2011)(acknowledging “broker non -votes” as instances where brokers are allowed to use their discretion to vo te absent instructions) . If an issuer holds a vote on the election of directors, Item 5.07(b) of Form 8 -K similarly requires disclosure of the number of “broker non-votes ” on each matter submitted to a shareholder vote . Rule 14a -1 further provides that “[u]nless the context otherwise requires, all terms used in this regulation have the same meanings as in the Act or elsewhere in the general rules and regulations [ ].” Accordingly, no legal basis exist s within Regulation 14A that authorizes the registrant to identify persons other than brokers, such as banks and other holders of record, as the equivalent of brokers for purposes of providing disclosure in response to Item 21(b) . Please revise the proxy st atement to make clear that banks and other holders of record are not the equivalent of brokers and thus cannot cast “broker non -votes” as referenced in Item 21(b).
* * *
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
April 3 , 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
Amendment No. 1 to PREC 14A filed by First United Corporation
Filed April 2 , 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 b y 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 a ny amendment to the filing and any information provided in response to
these comments, we may have additional comments.
Amendment No. 1 to Preliminary Proxy Statement filed under cover of Schedule 14A
General
1. The form of proxy is not part of the proxy statement as defined in Rule 14a -1(g) and codified
at Rule 14a -101. Accordingly, p lease advise us why the EDGAR header tag used to identify
the abo ve-captioned submission was PREC14A instead of PRER 14A. Filers must prepare
electronic filings in the mann er prescribed by the EDGAR Filer Manual, promulgated by the
Commission, which sets forth the technical formatting requirements for electronic
submissions. See Rule 232.301 of Regulation S -T. Please also confirm that successive
filings, including the defi nitive proxy statement, will be designated on EDGAR correctly.
2. Notw ithstanding the disclosure appearing on page 47 regarding the registrant’s 2019 Annual
Report, please advise us, with a view toward revised disclosure, how First United intends to
comply with the conditional requirement to deliver a Form 10 -K under Rule 14a -3(b)(10).
Carissa L. Rodeheaver
April 3 , 2020
Page 2
3. The Notice of Annual Meeting, as distinguished from the proxy statement, leaves open the
possibility that the proxy statement will be distributed electronically to the exclusion of other
methods while suggesting its availability on a dedicated website. P lease advise us whether
First United will be relying upon Rule 14a -16 to distribute the proxy statement electronically
as the primary means of fulfilling its obligations under Rule 14a -3(a) and Rule 14a -4(f). If
so, please summarize for us how compliance with Rule 14a -16 has been eff ectuated.
4. Please advise us how First United intends to comply with the requirement to furnish the 2019
annual report before or together with the pr oxy statement as requir ed by Rule 14a -3(b)(1).
What is the effect of abstentions and broker non -votes on voting? , page 7
5. Item 21(b) of Schedule 14A requires the registrant to describe how votes will be counted,
including “the treatme nt and effect of [ ] broker non -votes …” In adopting Item 21(b), no
evidence exists that show s the Commission intended for the term “broker” to mean any
person other than a broker as defined un der Section 3(a)(4 ) of the Exchange Act. See
Exchange Act Release No. 30849 (June 24, 1992) ; See also Exchange Act Release No.
62764 (September 15, 2011)(acknowledging “broker non -votes” as instances where brokers
are allowed to use their discretion to vo te absent instructions) . If an issuer holds a vote on
the election of directors, Item 5.07(b) of Form 8 -K similarly requires disclosure of the
number of “broker non-votes ” on each matter submitted to a shareholder vote . Rule 14a -1
further provides that “[u]nless the context otherwise requires, all terms used in this regulation
have the same meanings as in the Act or elsewhere in the general rules and regulations [ ].”
Accordingly, no legal basis exist s within Regulation 14A that authorizes the registrant to
identify persons other than brokers, such as banks and other holders of record, as the
equivalent of brokers for purposes of providing disclosure in response to Item 21(b) . Please
revise the proxy st atement to make clear that banks and other holders of record are not the
equivalent of brokers and thus cannot cast “broker non -votes” as referenced in Item 21(b).
* * *
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.