Unassociated Document
As filed with the Securities and Exchange Commission ion on May 25, 2007
Registration No. 333-_____
 
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
 
 
FIRST UNITED CORPORATION
(Exact Name of Registrant as Specified in Its Charter)

Maryland
52-1380770
(State or Other Jurisdiction of Incorporation or Organization
(I.R.S. Employer Identification Number)

19 South Second Street, Oakland, Maryland 21550
(Address of Principal Executive Offices)

First United Corporation Omnibus Equity Compensation Plan
(Full Title of the Plan)
 
 
William B. Grant, Esquire
Chairman and Chief Executive Officer
First United Corporation
19 South Second Street, Oakland, Maryland 21550
(888) 692-2654
(Name, Address and Telephone Number of Agent for Service)
 
 
 Copies to:
Andrew D. Bulgin, Esquire
  Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC
The Garrett Building
233 East Redwood Street
Baltimore, Maryland 21202
  (410) 576-4280
 

CALCULATION OF REGISTRATION FEE
  
   
Title of Shares to be Registered
  
Amount to be
Registered (1)
  
Proposed Maximum Offering Price Per Share (2)
  
Proposed Maximum Aggregate Offering Price (2)
  
Amount of Registration Fee
  
Common Stock, par value $.01 per share
    
185,000
  
$
21.73
  
$
4,020,050
  
$
123.42
  

(1)
Plus an indeterminable number of additional shares that may become issuable by operation of the anti-dilution provisions of the plan.
   
(2)
Estimated solely for purposes of determining the registration fee. The proposed maximum aggregate offering price per share has been  computed pursuant to Rule 457(h) based upon the average of the high and low prices of the shares as reported on The Nasdaq Stock  Market on May 18, 2007.

 
PART I
INFORMATION REQUIRED IN THE PROSPECTUS

Item 1. Plan Information.

Omitted pursuant to the instructions and provisions of Form S-8.

Item 2. Registrant Information and Employee Plan Information.

Omitted pursuant to the instructions and provisions of Form S-8.

PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS

Item 3. Incorporation of Documents by Reference.

The following documents previously filed with the Securities and Exchange Commission (the “SEC”) by First United Corporation (the “Corporation”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are, as of their respective dates, hereby incorporated by reference in this registration statement:

(i) Annual Report on Form 10-K for the year ended December 31, 2006 (which includes certain information contained in the Corporation’s definitive Proxy Statement on Schedule 14A for the 2007 Annual Meeting of Stockholders, filed with the SEC on March 23, 2007, and incorporated therein by reference);

(ii) Quarterly Report on Form 10-Q for the quarter ended March 31, 2007, filed with the SEC on May 15, 2007;

(iii) Current Reports on Form 8-K, filed with the SEC on February 21, 2007 and April 26, 2007; and

(iv) Description of the Corporation’s common stock which appears in the Corporation’s Registration Statement on Form 8-A filed on February 19, 1986, or any description of the common stock that appears in any prospectus forming a part of any subsequent registration statement of the Corporation or in any registration statement filed pursuant to Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.

In addition, all documents subsequently filed by the Corporation pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all of the Shares offered hereby have been sold or which deregisters all Shares then remaining unsold shall be deemed to be incorporated by reference in and made a part of this registration statement from the date of filing of such documents, provided, however, that nothing in this registration statement shall be deemed to incorporate information furnished but not filed on Form 8-K. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in a document subsequently filed modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
 

The Corporation will promptly provide without charge to each person to whom a prospectus is delivered a copy of any or all information that has been incorporated herein by reference (not including exhibits to the information that is incorporated by reference unless such exhibits are specifically incorporated by reference into such information) upon the written or oral request of such person. Written requests should be directed to: First United Corporation, Corporate Secretary, 19 South Second Street, P.O. Box 9, Oakland, Maryland 21550-0009. Telephone requests should be directed to the Corporate Secretary at (888) 692-2654.

Item 4. Description of Securities.

Not applicable. The common stock of the Corporation is registered under Section 12 of the Exchange Act.

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 6. Indemnification of Directors and Officers.

The Maryland General Corporation Law permits a Maryland corporation to indemnify its present and former directors, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their services in those capacities, unless it is established that:

 
(1)
the act or omission of the director was material to the matter giving rise to such proceeding and

 
(A)
was committed in bad faith or

 
(B)
was the result of active and deliberate dishonesty;

 
(2)
the director actually received an improper personal benefit in money, property, or services; or

 
(3)
in the case of any criminal proceeding, the director had reasonable cause to believe that the act or omission was unlawful.
 
Maryland law permits a Maryland corporation to indemnify a present and former officer to the same extent as a director.
 
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In addition to the foregoing, a court of appropriate jurisdiction: (1) shall order indemnification of reasonable expenses incurred by a director who has been successful, on the merits or otherwise, in the defense of any proceeding identified above, or in the defense of any claim, issue or matter in the proceeding; and (2) may under certain circumstances order indemnification of a director or an officer who the court determines is fairly and reasonably entitled to indemnification in view of all of the relevant circumstances, whether or not the director or officer has met the standards of conduct set forth in the preceding paragraph or has been declared liable on the basis that a personal benefit improperly received in a proceeding charging improper personal benefit to the director or the officer, provided, however, that if the proceeding was an action by or in the right of the corporation or involved a determination that the director or officer received an improper personal benefit, no indemnification may be made if the director or officer is adjudged liable to the corporation, except to the extent of expenses approved by a court of appropriate jurisdiction.

The Maryland General Corporation Law also permits a Maryland corporation to pay or reimburse, in advance of the final disposition of a proceeding, reasonable expenses incurred by a present or former director or officer made a party to the proceeding by reason of his or her service in that capacity, provided that the corporation shall have received:

 
(1)
a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by the corporation; and

 
(2)
a written undertaking by or on behalf of the director to repay the amount paid or reimbursed by the corporation if it shall ultimately be determined that the standard of conduct was not met.

The Corporation has provided for indemnification of directors and officers in ARTICLE VIII of its By-Laws, as amended and restated (the “By-Laws”). The relevant provisions of the By-Laws read as follows:

“SECTION 1. As used in this Article VIII, any word or words that are defined in Section 2-418 of the Corporations and Associations Article of the Annotated Code of Maryland (the ‘Indemnification Section’), as amended from time to time, shall have the same meaning as provided in the Indemnification Section.

SECTION 2. Indemnification of Directors and Officers. The Corporation shall indemnify and advance expenses to a director or officer of the Corporation in connection with a proceeding to the fullest extent permitted by and in accordance with the Indemnification Section. Notwithstanding the foregoing, the Corporation shall be required to indemnify a director or officer in connection with a proceeding commenced by such director or officer against the Corporation or its directors or officers only if the proceeding was authorized by the Board of Directors.”
 
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The Maryland General Corporation Law authorizes a Maryland corporation to limit by provision in its Articles of Incorporation the liability of directors and officers to the corporation or to its stockholders for money damages except to the extent:

 
(1)
the director or officer actually receives an improper benefit or profit in money, property, or services, for the amount of the benefit or profit actually received, or

 
(2)
a judgment or other final adjudication adverse to the director or officer is entered in a proceeding based on a finding in the proceeding that the director’s or officer’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding.

The Corporation has limited the liability of its directors and officers for money damages in Article NINTH of its Charter. This provision reads as follows:

“NINTH: No Director or officer of the Corporation shall be liable to the Corporation or to its stockholders for money damages except (i) to the extent that it is proved that such Director or officer actually received an improper benefit or profit in money, property or services, for the amount of the benefit or profit in money, property or services actually received, or (ii) to the extent that a judgment or other final adjudication adverse to such Director or officer is entered in a proceeding based on a finding in the proceeding that such Director’s or officer’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. No amendment of these Articles of Incorporation or repeal of any of its provisions shall limit or eliminate the benefits provided to directors and officers under this provision with respect to any act or omission which occurred prior to such amendment.”

As permitted under Section 2-418(k) of the Maryland General Corporation Law, the Corporation has purchased and maintains insurance on behalf of its directors and officers against any liability asserted against such directors and officers in their capacities as such, whether or not the Corporation would have the power to indemnify such persons under the provisions of Maryland law governing indemnification.

Section 8(k) of the Federal Deposit Insurance Act (the “FDI Act”) provides that the Federal Deposit Insurance Corporation (the “FDIC”) may prohibit or limit, by regulation or order, payments by any insured depository institution or its holding company for the benefit of directors and officers of the insured depository institution, or others who are or were “institution-affiliated parties,” as defined under the FDI Act, to pay or reimburse such person for any liability or legal expense sustained with regard to any administrative or civil enforcement action which results in a final order against the person. The FDIC has adopted regulations prohibiting, subject to certain exceptions, insured depository institutions, their subsidiaries and affiliated holding companies from indemnifying officers, directors or employees for any civil money penalty or judgment resulting from an administrative or civil enforcement action commenced by any federal banking agency, or for that portion of the costs sustained with regard to such an action that results in a final order or settlement that is adverse to the director, officer or employee.
 
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Item 7. Exemption From Registration Claimed.

Not applicable.

Item 8. Exhibits.

The exhibits filed with this Registration Statement on Form S-8 are listed in the Exhibit Index which immediately follows the signatures; this Exhibit Index is incorporated herein by reference.

Item 9. Undertakings.

(a)    The undersigned registrant hereby undertakes:

(1)     To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i)  To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

(ii)  To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

(iii)  To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Corporation pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

 (2)    That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
 
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(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering;

(4)-(5) Not applicable.

(6) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i)  Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii)  Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(iii)  The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv)  Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

(b)    The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)-(g) Not applicable.

(h)    Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
 
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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Easton, State of Maryland, on this 23rd day of May, 2007.
     
 
FIRST UNITED CORPORATION
 
 		  
 		  
 
By:   /s/ Robert W. Kurtz   
 
Robert W. Kurtz
President and Chief Risk Officer
 
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William B. Grant and Robert W. Kurtz, and each of them (with full power to each of them to act alone), his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons as of the date indicated below.

Signature
  
Title
  
Date
         
/s/ William B. Grant
  
Director and Chief Executive Officer
  
May 23, 2007
William B. Grant
        
         
/s/ David J. Beachy
  
Director 
  
May 23, 2007
David J. Beachy
        

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/s/ M. Kathryn Burkey
  
Director
  
May 23, 2007
M. Kathryn Burkey
        
         
/s/ Faye E. Cannon
  
Director
  
May 23, 2007
Faye E. Cannon
        
         
   
Director
  
May __, 2007
Paul Cox, Jr.
        
         
/s/ Raymond F. Hinkle
  
Director
  
May 23, 2007
Raymond F. Hinkle
        
         
/s/ Robert W. Kurtz
  
Director, President and Chief
  
May 23, 2007
Robert W. Kurtz
  
Risk Officer
    
         
/s/ John W. McCullough
  
Director
  
May 23, 2007
John W. McCullough
        
         
/s/ Elaine L. McDonald
  
Director
  
May 23, 2007
Elaine L. McDonald
        
         
/s/ Donald E. Moran
  
Director
  
May 23, 2007
Donald E. Moran
        
         
/s/ Karen F. Myers
  
Director
  
May 23, 2007
Karen F. Myers
        
         
/s/ Carissa L. Rodeheaver
  
Senior Vice President and
  
May 23, 2007
Carissa L. Rodeheaver
  
Chief Financial Officer
    
         
/s/ Gary R. Ruddell
  
Director
  
May 23, 2007
Gary R. Ruddell
        
         
/s/ I. Robert Rudy
  
Director
  
May 23, 2007
I. Robert Rudy
        
 
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/s/ Richard G. Stanton
  
Director
  
May 23, 2007
Richard G. Stanton
        
         
/s/ Robert G. Stuck
  
Director
  
May 23, 2007
Robert G. Stuck
        
         
/s/ H. Andrew Walls, III
  
Director
  
May 23, 2007
H. Andrew Walls, III
        

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Exhibit Index

Exhibit
Number
  
Description of Exhibits
     
4
  
First United Corporation Omnibus Equity Compensation Plan (incorporated by reference to Appendix B of the Corporation’s definitive Proxy Statement on Schedule 14A for the 2007 Annual Meeting of Shareholders, filed with the SEC on March 23, 2007).
     
5
  
Opinion of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC as to legality of Shares to be issued (filed herewith).
     
23.1
  
Consent of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC (included in their opinion in Exhibit 5).
     
23.2
  
Consent of Beard Miller Company LLP, independent registered public accounting firm (filed herewith).
     
23.3
  
Consent of Ernst & Young LLP, independent registered public accounting firm (filed herewith).

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