Company Name: Union Bankshares Co. (Recon.)
Public Availability Date: April 10, 2006
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
March 28, 2006
By Hand
U. S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, Northeast
Washington, District of Columbia 20549
Re: Union Bankshares Company (Central Index Key Number 0000745083) Stockholder
Proposal by Financial Analytics Investment Corporation
Dear Ladies and Gentlemen:
Having been on vacation, I have just today received a copy of the March 9, 2006
letter to the Commission from Richard A. Schaberg of Thacher Proffitt & Wood LLP
(the "Letter"). It is important to note that this Letter confirms the accuracy
of my second conclusion, as set forth on page two of my letter of March 1, 2006
to the Commission. That is:
The notice sent to Financial Analytics: (i) by omitting Exhibit 1, was
incomplete; (ii) by not being done on either January 27 or 29, 2006 was not
simultaneous as is required by Rule 14a-8(j); and (iii) was not done until after
the no later than eighty (80) calendar days submittal deadline had passed.
Additionally, the choice of Federal Express, as opposed to Express Mail which
does deliver to post office boxes, introduced a further unnecessary delay.
Federal Express made a simple telephone call to determine where the package
could be physically delivered. There is no logical reason why Mr. Schaberg or
someone on his staff could not have done the same.
The now admitted failure to comply with the Commission's applicable rules
requires the Commission to reject Union Bankshares' no-action request without
expressing an enforcement position. If the Staff of the Commission disagrees
with this position, I would very much appreciate the opportunity to confer with
the Staff prior to this matter being finalized.
A copy of this letter with its enclosure is being sent by first class United
States mail today to Union Bankshares at the two addresses shown below so the
President and the Chairman of the Board will be aware of my recommended course
of action to the Commission.
Lastly, I have enclosed an additional copy of this letter marked "Return Copy",
which I respectfully request that you date stamp and return to me in the
self-addressed, postage paid envelope that I have provided.
[INQUIRY LETTER]
March 9, 2006
VIA HAND DELIVERY
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, NE
Washington, DC 20549
Re: Exclusion of Stockholder Proposal by Financial Analytics Investment
Corporation
Dear Ladies and Gentlemen:
As counsel to Union Bankshares Company, a Maine corporation (the "Company"),
which has a class of securities registered pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), on January 27,
2006, we submitted a request to the Staff of the Securities and Exchange
Commission (the "Commission") for a no action letter, confirming that it will
not recommend any enforcement action to the Commission, if the Company excludes
from its proxy materials a proposal and supporting statement submitted to the
Company by one of its shareholders, Financial Analytics Investment Corporation
(the "Shareholder"), a corporation controlled by Mr. Michael V. Jennings.
Since the date of our submission, Mr. Jennings has sent three letters to the
Commission regarding our request for a no action letter, each raising similar
issues relating to the delivery of our submission to the Commission and delivery
of a copy thereof to the Shareholder. The purpose of this letter is to respond
to the issues raised by Mr. Jennings in his letters to the Commission.
As stated by Mr. Jennings, in his letter dated February 2, 2006, delivery of a
copy of the no action letter request was not simultaneous with delivery of the
request to the Commission. Our submission was hand delivered to the Commission
on January 27, 2006. A copy of the submission was sent the following business
day, January 30, 2006, by Federal Express, for next
Text will be available April 19, 2006
[INQUIRY LETTER]
From: Michael V. Jennings [mailto:MVJennings@msn.com]
Sent: Thursday, March 30, 2006 6:21 PM
To: CFLETTERS
Cc: rschaberg@tpw.com; pblyberg@uniontrust.com
Subject: Union Bankshares Company Rule 14a-8 Letter
Importance: High
Re: Stockholder Proposal by Financial Analytics Investment Corporation
Dear Ladies and Gentlemen:
This message is written to formally request the Staff to re-consider the
Response of the Office of Chief Counsel dated 24 March 2006. The reasons for
this request are as follows:
In his letter of January 27, 2006 to the Commission, Richard A. Schaberg of
Thacher Proffitt & Wood LLP, counsel for Union Bankshares Company, states:
"The Company is simultaneously notifying the Proponent of the Company's
opposition to the Proposal and its intent to exclude the Proposal and the
Supporting Statement from the Proxy Materials, pursuant to Rule 14a-8(j), by
sending the Proponent a copy of this letter, including the Exhibit." (page 2,
first full paragraph)
In my letter of February 2, 2006 to the Commission, copies of which were sent to
the Company, I informed the Commission that no copy of the Exhibit referred to
above had been sent to the Proponent, thus making it impossible for me to
determine if our Proposal and Supporting Statement had been accurately
represented.
On February 22, 2006, after I had made a special trip to the Public Reference
Room at the Commission, the Staff recognized that an exception to the
Commission's normal policy should be made to correct the failure by Mr. Schaberg
to provide me with a full and complete copy of what had been filed with the
Commission and faxed me a copy of the missing Exhibit.
During the three week period between my first letter of February 2, 2006 and the
February 23, 2006 fax by the Staff of the missing Exhibit, the Company and its
counsel, with full knowledge of the Commission's normal policies, took no action
whatsoever to rectify their subsequently confessed error of omission.
In his letter of March 9, 2006 to the Commission, Mr. Schaberg states:
"As stated by Mr. Jennings, in his letter dated February 2, 2006, delivery of a
copy of the no action letter request was not simultaneous with delivery of the
request to the Commission." (page 1, bottom paragraph)
and
"A copy of the exhibit referenced in our submission to the Commission was not
included in our mailing to the Shareholder because the exhibit is merely a copy
of the Shareholder's own proposal and supporting statement, of which we assumed
the Shareholder would already have a copy." (page 2, first partial paragraph)
Rule 14a-8(j) requires a company to simultaneously provide the shareholder with
a copy of its no-action request. As quoted above in his letter of March 9, 2006,
Mr. Schaberg has admitted his failure to comply with this Rule, both in terms of
timing (not simultaneous) as well as content (the omitted exhibit). The
Commission's rules apply equally to both companies and shareholders. Had my
company not fully complied with the Commission's rules in delivering its
Proposal and Supporting Statement to the Company last December, the Commission
would never have received a no-action request.
For the above reasons, I respectfully request the Staff to: (i) withdraw the
Response of the Office of Chief Counsel dated March 24, 2006 that was signed by
Tamara M. Brightwell, Attorney-Adviser; and (ii) reject the Company's no-action
request for its counsel's admitted failure to fully comply with the provisions
of Rule 14a-8(j).
Thank you for considering this request, especially in light of all the other
work the Shareholder Proposal Task Force needs to accomplish at this very busy
time of the year.
Should any questions remain, I may be reached by telephone on 302.661.2750 or by
e-mail at MVJennings@msn.com.
Sincerely,
Financial Analytics Investment Corporation
Michael V. Jennings, President
[STAFF REPLY LETTER]
April 10, 2006
Michael V. Jennings
President
Financial Analytics Investment Corporation
P.O. Box 611
Dover, DE 19903
Re: Union Bankshares Company Incoming letters dated March 28, 2006 and March 30,
2006
Dear Mr. Jennings:
This is in response to your letters dated March 28, 2006 and March 30, 2006
concerning the shareholder proposal submitted to Union Bankshares by Financial
Analytics Investment Corporation. On March 24, 2006, we issued our response
expressing our informal view that Union Bankshares could exclude the proposal
from its proxy materials for its upcoming annual meeting. You have asked us to
reconsider our position.
After reviewing the information contained in your letters, we find no basis to
reconsider our position.
Sincerely,
/s/
Martin P. Dunn
Deputy Director
cc: Richard A. Schaberg
Thacher Proffitt & Wood LLP
1700 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006
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