February 10, 2006
Via U.S. Mail
Mr. Richard Lashley
Mr. John Palmer
Principals
PL Capital Group, LLC
20 East Jefferson Avenue, Suite 22
Naperville, Illinois 60540
Re: Synergy Financial Group, Inc.
PREN 14A filed by Financial Edge Fund, LP, et al.
Filed on February 1, 2006
File No. 0-50467
Dear Messrs. Lashley and Palmer:
We have reviewed your filing and have the following comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Schedule 14A
General
1. We note that you have not included Archimedes Overseas Ltd. as
a
participant in your solicitation, notwithstanding the fact that
you
have included them as part of your group for purposes of complying
with your Section 13 reporting obligations. Please revise to
include
them or advise us as to why you have excluded them.
(1) Stock buybacks have been insufficient, page 2
2. You indicate that "the Company`s management informed [you] they
do
not agree with the amount of stock buybacks [you] are proposing."
Please revise to elaborate upon why they do not agree, if you
know,
so as to provide shareholders with a balanced discussion as to the
outcome of the discussion.
3. Please provide support for your indication that "Synergy should
have more than enough capital to fund its loan and deposit growth"
in
the third paragraph of this discussion. Provide quantifiable
support, if possible.
4. On a supplemental basis, support the predictions you make
relating
to 1) Synergy`s stockholders` equity if $20 million in buybacks
were
applied to the December 31, 2005 balance sheet, as you indicate in
the second paragraph of this discussion, and 2) your predictions
on
Synergy`s deposit and loan growth, as you indicate in the fourth
paragraph of this discussion. Where the support for your
calculations appears in other documents, such as the company`s
Form
10-Q or 10-Ks, provide copies of the relevant portions of the
documents so that we can assess the context of the information
upon
which you rely. Mark the supporting documents provided to
identify
the specific information relied upon, such as financial statement
line items and mathematical computations.
(2) Synergy`s return on assets and equity have been declining,
page 2
5. Please revise your discussion to explain what you mean when you
refer to a "second step conversion," which you indicate Synergy
completed in January, 2004.
6. Consistent with comment 4 above, please provide support for the
calculations you provide on page 3, both with respect to the chart
reflecting percentages of ROA, ROE and NIM and the chart comparing
Synergy`s performance to that of the entire thrift industry.
7. Revise this discussion to advise shareholders as to the import
of
Synergy`s declining return on assets and equity. Specifically,
how
do your nominees intend to address this trend? This comment also
applies to your discussion as it relates to excessive compensation
of
officers and directors below.
(3) Total compensation and benefits to officers and directors have
been excessive relative to the net income of the Company, page 4
8. Consistent with comment 4 above, please provide support for the
calculations you provide on page 4 with respect to the chart
reflecting total compensation and benefits to officers and
directors.
9. Please provide us with a copy of the study you refer to by
Harvard
Law School professor Lucian Bebchuk, at the bottom of page 5.
(4) Numerous aspects of the Company`s corporate governance
undermine
shareholder rights, page 6
10. In view of the fact that some of these provisions might also
be
beneficial to shareholders, in that they inhibit the ability for
third parties to acquire the company, provide balancing disclosure
regarding the ramifications of removing these provisions, as you
indicate you will pursue. Further, acknowledge, where applicable,
that it would be the exception, rather than the norm, for a
company
to implement some of these provisions, such as the ability for
shareholders to take action by written consent with less than
unanimity.
Synergy`s management rebuffed our request for board
representation,
page 7
11. Please disclose the basis for the statement that "management
has
an obligation to return capital to shareholders, regardless of
whether it is accretive to short term earnings or not," on page 7
and
characterize this as your belief.
12. We note your indication that you do not find the Board`s
concern
about meeting fees to be persuasive "because each of the directors
have [sic] received over $500,000 of value to date and the annual
meeting fees and retainers paid to a new board member would only
be
approximately $25-30,000 per annum." Please advise us as to how
you
arrived at these calculations. We note, for example, that the
Company`s Form 10-K for the period ending December 31, 2004
indicates
that the total compensation for last year was $229,200.
We need your vote so the board can have new independent outside
stockholder representation, page 8
13. Clarify your reference to "independent" here as the existing
members of the Board would appear to already satisfy the
independence
requirements of the listing standards of the NASD. Are you
referring
to these standards or additional standards of independence?
PL Capital Group`s previous experience, page 10
14. Please supplement this discussion to provide shareholders with
a
sense as to why the prior experience of PL Capital Group is
relevant
to this solicitation. Specifically, considering the nominees you
are
proposing to be elected do not appear to have any affiliation with
PL
Capital, it is not clear why you believe this information is
necessary. Further, the transactions you have listed would seem
to
imply that your nominees are interested in pursuing a sale or
other
strategic alternative for the company. If that is the case,
please
revise to address your nominee`s intentions.
How to Vote by Proxy, page 11
15. We note your intent to use discretionary authority with
respect
to any other matters that properly come before the 2006 Annual
Meeting. Please note that you may not use discretionary authority
conferred with these proxies to vote upon matters not known to you
at
the time of this solicitation but which come to your attention a
reasonable time before the meeting. See Rule 14a-4(c). Please
confirm your understanding.
Solicitation of proxies; Expenses, page 13
16. We note that you may employ various methods to solicit proxies
including mail, telephone, telegram or personal solicitation.
Please
be advised that all written soliciting materials, including any
scripts to be used in soliciting proxies over the telephone or in
person, must be filed under the cover of Schedule 14A. Refer to
Rules 14a-6(b) and (c). Please confirm your understanding.
Other Matters, page 16
17. You refer shareholders to information that you are required to
provide and is contained in the "Company`s proxy statement." We
presume that you are relying upon Rule 14a-5(c) to refer to this
information; if so, please note that we believe that reliance upon
Rule 14a-5(c) before Synergy distributes the information to
security
holders would be inappropriate. Therefore, please confirm your
understanding that you may not disseminate your materials until
Synergy has filed and mailed definitive proxy solicitation
materials.
Further, once Synergy`s proxy materials are available, consider
whether it might be more helpful to readers to make specific
references to the sections of their materials that you are
directing
them to read.
Proxy Card
18. We note that there appears to be language at the end of the
first
matter, election of directors, that is in draft form and should be
removed. Please revise.
19. We note that the proxy statement and card of Synergy has been
revised to reflect the solicitation of proxies for a third matter,
to
adjourn the meeting to solicit additional proxies. Please revise
your proxy statement and card to include this matter.
20. Rule 14a-4(c)(3) contemplates the use of discretionary
authority
only for matters unknown "a reasonable time before the
solicitation."
Please revise your proxy card to clarify and place this language
in
bold-face type as required by Rule 14a-4(b)(1).
Definitive Additional Soliciting Materials filed February 1, 2006
21. Please be advised that this press release lacks the required
participant information required pursuant to Item 4 of Schedule
14A.
For future reference the filing persons must provide all of the
information required by Rule 14a-12(a)(1)(i) in all soliciting
materials. Also, the press release does not advise holders to
read
the proxy statement when it is available because it contains
important information, pursuant to Rule 14a-12(a)(1)(ii). Please
ensure your compliance with these provisions in the future.
As appropriate, please amend your filing and respond to
these
comments within 10 business days or tell us when you will provide
us
with a response. You may wish to provide us with marked copies of
the amendment to expedite our review. Please furnish a cover
letter
with your amendment that keys your responses to our comments and
provides any requested supplemental information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the filing persons are in possession
of
all facts relating to a company`s disclosure, they are responsible
for the accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the filing person acknowledging that:
* the filing person is responsible for the adequacy and accuracy
of
the disclosure in the filing;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with
respect to the filing; and
* the filing person may not assert staff comments as a defense in
any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
Please contact me with any questions at 202-551-3264. You
may
also reach me via facsimile at 202-772-9203.
Sincerely,
Mara L. Ransom
Special Counsel
Office of Mergers and
Acquisitions
cc via facsimile (414) 297-4900:
Peter D. Fetzer, Esq.
Foley & Lardner LLP
PL Capital Group
February 10, 2006
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-3628
DIVISION OF
CORPORATION FINANCE