Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, New York 10004-1482
Telephone:212-837-6000
Fax:212-422-4726
hugheshubbard.com
Gary J. Simon
Chair, Securities and Capital Markets Group
Direct Dial: 212837-6770
Direct Fax: (212299-6770
gary.simon@hugheshubbard.com
April 20, 2020
By EDGAR
Securities and Exchange Commission
100 F St., N.E.
Washington DC 20549
| Attention: | Perry J. Hindin |
Special Counsel |
Office of Mergers and Acquisitions |
| Re: | Broadway Financial Corporation |
Soliciting Material filed pursuant to Exchange Act Rule14a-12 filed by Commerce Home Mortgage, et al. |
Filed April 9, 2020 |
FileNo. 1-39043 |
Ladies and Gentlemen:
On behalf of our client, Commerce Home Mortgage, LLC (“Commerce”), set forth below is our response to the comment letter dated April 10, 2020 from the staff regarding the above-captioned filed by Commerce pursuant to Rule14a-12 under the Securities Exchange Act of 1934 (the “Rule14a-12 Filing”). The numbered paragraphs below correspond to the numbers in the comment letter. For your reference, preceding each response we have reproduced in italics the comment that corresponds thereto.
1. We note that the soliciting material filed pursuant to Exchange Act Rule14a-12 indicates that Commerce “currently intends to undertake an exempt solicitation whereby it plans to contact up to ten shareholders to seek their support for its proposals and its director nominee for the 2020 annual meeting of stockholders of” Broadway. Given (1) the definition of “solicitation” in Exchange Act Rule14a-1(l)(1)(iii), (2) that the soliciting material filed pursuant to Rule14a-12 was not required to be filed, (3) that the solicitation was filed on www.sec.gov, making such communication available to the general public, including all shareholders of Broadway, and (4) the substance of the communication, please advise why Commerce believes it is eligible to rely upon Rule14a-2(b)(2). In responding to this comment, refer to Proxy Rules and Schedules 14A/14C Compliance and Disclosure Interpretation Q&A 122.03 (last updated July 31, 2018) and its discussion of how a filing itself can constitute a widespread solicitation that may preclude reliance upon Rule14a-2(b)(2). In contrast to the guidance provided therein, address the fact that in this particular case, Commerce had no obligation to file the material pursuant to Exchange Act Rule14a-12.
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We note that in light of the referenced Q&A 122.03, at the time of the referenced filing Commerce could not conclude with certainty that its Schedule 13D/A (filed concurrently with the Rule14a-12 Filing) did not require the Rule14a-12 Filing.
We further note that in the interest of full disclosure, the Rule14a-12 Filing explained that, notwithstanding the filing, Commerce only intended to contact no more than ten persons in connection with the matters referenced therein. Since Commerce had made the Rule14a-12 Filing in strict compliance with Q&A 122.03, it nonetheless sought to retain the possibility that it might ultimately rely on Rule14a-2(b)(2).
Commerce has agreed that with regard to any solicitations with respect to its proposals and director nominations referenced in the Rule14a-12 Filing, it does not assert the availability of nor intend to make any solicitations in reliance on Rule14a-2(b)(2).
2. Please advise us in your response letter what other solicitations have been made to shareholders of Broadway, whether or not made in reliance on Rule14a-2(b)(2).
To date, Commerce advises that it has made no other solicitations of shareholders of Broadway. We note, however, that separate from the matters covered by the Rule14a-12 Filing, on April 14, 2020, Commerce delivered a letter to Broadway relating to a proposed business combination and immediately filed a copy of that letter on a Schedule 13D/A as required by Schedule 13.
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Please call me at (212)837-6770 with any questions or comments regarding the foregoing. Thank you for your consideration.
| Very truly yours, |
/s/ Gary J. Simon |
| Gary J. Simon |
| cc: | Carlos Salas |
Chairman, Commerce Home Mortgage, LLC
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