First United Corp DEFA14A, filed Feb 6, 2020
First United Corp/Md/ (FUNC)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): February 6, 2020
First United Corporation
(Exact name of registrant as specified in its charter)
| Maryland | 0-14237 | 52-1380770 |
| (State or other jurisdiction of | (Commission file number) | (IRS Employer |
| incorporation or organization) | Identification No.) |
19 South Second Street, Oakland, Maryland 21550
(Address of principal executive offices) (Zip Code)
(301) 334-9471
(Registrant’s telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| x | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
| Common stock | FUNC | Nasdaq Stock Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
INFORMATION TO BE INCLUDED IN THE REPORT
Item 8.01. Other Events.
On February 6, 2020, First United Corporation (the “Company”) issued a press release in which it included a copy of a letter that John McCullough, the Company’s Lead Director, sent to J. Abbott Cooper and Driver Management Company LLC on February 6, 2020. A copy the press release is filed herewith as Exhibit 99.1.
Important Additional Information
The Company, its directors and certain of its executive officers will be deemed to be participants in the solicitation of proxies from the Company’s shareholders in connection with the Company’s 2020 Annual Meeting of Shareholders. The Company intends to file a definitive proxy statement and a proxy card with the Securities and Exchange Commission (the “SEC”) in connection with any such solicitation of proxies from the Company’s shareholders. SHAREHOLDERS OF THE COMPANY ARE STRONGLY ENCOURAGED TO READ SUCH PROXY STATEMENT, ACCOMPANYING PROXY CARD AND ALL OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE AS THEY WILL CONTAIN IMPORTANT INFORMATION. Exhibit 99.2 attached to this Current Report on Form 8-K and incorporated herein by reference contains information regarding the direct and indirect interests, by securities holdings or otherwise, of the Company’s directors and executive officers in the Company’s securities. If the holdings of the Company’s securities change from the amounts provided in Exhibit 99.2, such changes will be set forth in SEC filings on Forms 3, 4, and 5, which can be found through the Company’s website at http://investors.mybank.com/ or through the SEC's website at www.sec.gov. Information can also be found in the Company’s other SEC filings, including its Annual Report on Form 10-K for the year ended December 31, 2018. Updated information regarding the identity of potential participants, and their direct or indirect interests, by security holdings or otherwise, will be set forth in the definitive proxy statement and other materials to be filed with the SEC in connection with the 2020 annual meeting. Shareholders will be able to obtain the definitive proxy statement, any amendments or supplements to the proxy statement and other documents filed by the Corporation with the SEC at no charge at the SEC's website at www.sec.gov. Copies will also be available at no charge at the Company’s website at http://investors.mybank.com/.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The exhibits filed or furnished with this report are listed in the following Exhibit Index:
| Exhibit No. | Description |
| 99.1 | Press release dated February 6, 2020 (filed herewith) |
| 99.2 | Security holdings of directors and executive officers (filed herewith). |
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.
| FIRST UNITED CORPORATION | |||
| Dated: February 6, 2020 | By: | /s/ Tonya K. Sturm | |
| Tonya K. Sturm | |||
| Senior Vice President & CFO | |||
Exhibit 99.1
First United Re-Affirms Commitment to Constructive Engagement after Driver Cancels Meeting with Board and Management
Driver’s Last Minute Cancelation Again Demonstrates Its Unwillingness to Proactively Engage
OAKLAND, MARYLAND – February 6, 2020: First United Corporation (NASDAQ: FUNC), a bank holding company and the parent company of First United Bank & Trust (the “Company” or “First United”), today expressed its disappointment with Driver Management Company LLC’s (“Driver”) latest unprofessional antics by canceling, with minimal notice, a meeting – originally requested by Driver – with members of the Company’s Board of Directors (the “Board”) and management team.
In a letter sent to Driver on behalf of the Board and the Company, John McCullough, First United’s Lead Director, said:
February 6, 2020
Dear Mr. Cooper:
For several months, and on numerous occasions, we have offered you the opportunity to further our dialogue about your views on our business, board and management for the benefit of all shareholders and the Company. Often, you either ignored our communications or failed to respond until after we repeatedly followed up. After several months of back and forth communications, we were finally able to get you to provide dates, commit to a meeting location, and agree to the meeting attendees, which were to include me and fellow director M. Kathryn Burkey, along with Carissa Rodeheaver, Chairman of the Board, President and CEO, and Tonya Sturm, Senior Vice President and Chief Financial Officer. When you asked to speak with only members of the Board, we agreed to set aside time during our meeting for a discussion without management present.
Evidently, that was not enough for you and you canceled the meeting on one day’s notice. It was only a week ago that you indicated having Carissa and Tonya present was not a hindrance to moving forward with the meeting. It is also not lost on us that the day before the meeting was to occur, you published a letter attacking Kathryn. With this context and your repeated gamesmanship, your behavior is unprofessional and in direct contrast to your numerous public pronouncements that First United will not engage with its shareholders. We are also making this letter public given your track record of distorting the truth and depriving shareholders access to the full information they deserve as to our communications and engagements.
Furthermore, after we gave you a range of dates and times during which we proposed to either meet with you in-person or to arrange for a conference call, you chose to have a meeting with us in-person in New York City today at noon. We even agreed to your requirements and preferences for today’s cancelled meeting, specifically that the meeting take place at your legal counsel’s offices with counsel present. I am not sure you fully appreciate and understand how your unilateral decision to cancel the meeting, despite all of our concessions and attempts to accommodate your specific requests, unnecessarily wasted shareholder resources and the time of those traveling to meet with you. That is time that the participants could have spent on matters related to First United’s strategy and operations and building on the strong momentum we are seeing in our business, as evidenced by our recent financial results.
If you are serious about engaging in a constructive dialogue about the matters on which we were scheduled to engage with you today – and not grandstanding in front of the media – then let us know when you are willing and able to reengage with us.
Very truly yours,
The Board of Directors of First United Corporation
By: John McCullough,
Lead Director
ABOUT FIRST UNITED CORPORATION
First United Corporation is the parent company of First United Bank & Trust, a Maryland trust company with commercial banking powers (the “Bank”), and two statutory trusts that were used as financing vehicles. The Bank has four wholly-owned subsidiaries: OakFirst Loan Center, Inc., a West Virginia finance company; OakFirst Loan Center, LLC, a Maryland finance company; First OREO Trust, a Maryland statutory trust that holds and services real estate acquired by the Bank through foreclosure or by deed in lieu of foreclosure; and FUBT OREO I, LLC, a Maryland company that likewise holds and services real estate acquired by the Bank through foreclosure or by deed in lieu of foreclosure. The Bank also owns 99.9% of the limited partnership interests in Liberty Mews Limited Partnership; a Maryland limited partnership formed for the purpose of acquiring, developing and operating low-income housing units in Garrett County, Maryland. The Corporation’s website is www.mybank.com.
FORWARD-LOOKING STATEMENTS
This press release contains forward-looking statements as defined by the Private Securities Litigation Reform Act of 1995. Forward-looking statements do not represent historical facts, but are statements about management’s beliefs, plans and objectives about the future, as well as its assumptions and judgments concerning such beliefs, plans and objectives. These statements are evidenced by terms such as “anticipate,” “estimate,” “will,” “should,” “expect,” “believe,” “intend,” and similar expressions. Although these statements reflect management’s good faith beliefs and projections, they are not guarantees of future performance and they may not prove true. These projections involve risk and uncertainties that could cause actual results to differ materially from those addressed in the forward-looking statements. For a discussion of these risks and uncertainties, see the section of the periodic reports that First United Corporation files with the Securities and Exchange Commission entitled “Risk Factors”.
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Important Additional Information
First United, its directors and certain of its executive officers will be deemed to be participants in the solicitation of proxies from First United’s shareholders in connection with First United’s 2020 annual meeting of shareholders. First United intends to file a definitive proxy statement and a proxy card with the Securities and Exchange Commission (the “SEC”) in connection with any such solicitation of proxies from First United shareholders. SHAREHOLDERS OF FIRST UNITED ARE STRONGLY ENCOURAGED TO READ SUCH PROXY STATEMENT, ACCOMPANYING PROXY CARD AND ALL OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE AS THEY WILL CONTAIN IMPORTANT INFORMATION. Exhibit 99.2 of First United’s Current Report on Form 8-K filed with the SEC on February 6, 2020 (“Exhibit 99.2”) contains (or will contain, if filed after this press release is issued) information regarding the direct and indirect interests, by securities holdings or otherwise, of First United’s directors and executive officers in First United’s securities. If the holdings of First United’s securities change from the amounts provided in Exhibit 99.2, such changes will be set forth in SEC filings on Form 3, 4, and 5, which can be found through First United’s website at http://investors.mybank.com/ or through the SEC’s website www.sec.gov. Information can also be found in First United’s other SEC filings, including its Annual Report on Form 10-K for the year ended December 31, 2018. Updated information regarding the identity of potential participants, and their direct or indirect interests, by security holdings or otherwise, will be set forth in the definitive proxy statement and other materials to be filed with the SEC in connection with the 2020 annual meeting of shareholders. Shareholders will be able to obtain the definitive proxy statement, any amendments or supplements to the proxy statement and other documents filed by First United with the SEC at no charge at the SEC’s website www.sec.gov. Copies will also be available at no charge at First United’s website at http://investors.mybank.com/.
Shareholder Contact
Morrow Sodali
Mike Verrechia/Bill Dooley
(800) 662-5200
FirstUnitedCorp@MorrowSodali.com
Media Contact
Prosek Partners
Brian Schaffer
(646) 818-9229
bschaffer@prosek.com
Josh Clarkson
(646) 818-9259
jclarkson@prosek.com
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Exhibit 99.2
The following table sets forth information as of January 31, 2020 relating to the beneficial ownership of the common stock, par value $.01 per share, of First United Corporation (the “Company”) by each of its directors, director nominees and executive officers and each other person who may be deemed to be a “participant” in the solicitation of proxies by or on behalf of the Company’s Board of Directors.
|
Name of Beneficial Owner |
Shares Beneficially Owned(1) |
Percentage of Shares Beneficially Owned | ||
| John F. Barr, Director | 18,093 | * | ||
| Brian R. Boal, Director | 8,337 | * | ||
| M. Kathryn Burkey, Director | 42,775 | * | ||
| Robert L. Fisher, II, Senior Vice President & Chief Revenue Officer | 4,963 | (2) | * | |
| Robert W. Kurtz, Director | 10,521 | (3) | * | |
| John W. McCullough, Director | 35,548 | * | ||
| Elaine L. McDonald, Director | 36,421 | (4) | * | |
| Carissa L. Rodeheaver, Chairman of the Board, President & CEO | 15,319 | (5) | * | |
| Gary R. Ruddell, Director | 17,315 | (6) | * | |
| I. Robert Rudy, Director | 40,184 | (7) | * | |
| Jason B. Rush, Senior Vice President & Chief Operating Officer | 11,023 | (8) | * | |
| Keith R. Sanders, Senior Vice President & Senior Trust Officer of First United Bank & Trust |
6,462 |
|
* | |
| Marisa A. Shockley, Director | 16,123 | * | ||
| Tonya K. Sturm, Senior Vice President, CFO, Treasurer & Secretary | 1,875 | (9) | * | |
| H. Andrew Walls, Director | 57,106 | (10) | * |
Notes:
| * | Less than 1.0%. |
| (1) | Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission. In computing the number and percentage of shares of the Corporation’s common stock beneficially owned by a person, shares of the Company’s common stock subject to outstanding options, warrants, rights or conversion privileges held by that person that are currently exercisable or exercisable within 60 days of January 31, 2020 are deemed outstanding for computing the percentage ownership of the person holding such options, warrants, rights or conversion privileges but are not deemed to be outstanding for purposes of computing the percentage for any other person. As of January 31, 2020, a total of 7,110,022 shares of the Company’s common stock were issued and outstanding. The inclusion of any shares as deemed beneficially owned does not constitute an admission of beneficial ownership by the named shareholder. |
| (2) | Includes 1,793 shares of Phantom Stock. Phantom stock held in a deferred compensation plan account (“Phantom Stock”). Each share of Phantom Stock represents a deemed investment of deferred compensation funds in one share of common stock and gives the officer the right to receive one share of common stock or the cash value thereof following the officer’s separation from service with the Company. The officer may transfer the funds held in the plan account into an alternative deemed investment option at any time. |
| (3) | Includes 3,027 shares owned jointly with spouse. |
| (4) | Includes 6,001 shares held in trust of which Mrs. McDonald is a beneficiary. |
| (5) | Includes 283 shares held jointly with spouse, 19 shares held by spouse for benefit of a minor child, and 790 shares held in a 401(k) plan account. |
| (6) | Includes 520 shares owned by Ruddell, LLC of which Mr. Ruddell is owner. |
| (7) | Includes 1,033 shares owned jointly with spouse, 6,837 shares owned by spouse, and 2,000 shares of Phantom Stock in a deferred compensation plan account. |
| (8) | Includes 125 shares owned jointly with spouse. |
| (9) | Includes 526 shares owned jointly with spouse. Includes 1,000 shares of Phantom Stock. |
| (10) | Includes 14,854 shares owned by Morgantown Printing and Binding, Inc. of which Mr. Walls is owner. |