Current through Register Vol. 48, No. 12, March 22, 2024
a) Applicability
This Section applies to any solicitation subject to the Part by
any person or group for the purpose of opposing a solicitation subject to this
Part by any other person or group with respect to the election or removal of
director at any annual or special meeting of security holders.
b) "Participant" or "Participant
in a Solicitation".
1) For purposes of this
Section, the term "participant" and "participant in a solicitation" include:
A) the company;
B) any director of the company, and any
nominee for whose election as a director proxies are solicited;
C) any other person, acting alone or with one
or more other persons, committees or groups, in organizing, directing or
financing the solicitation.
2) For the purpose of this Section, the terms
"participant" and "participant in a solicitation" do not include:
A) a bank, broker or dealer who, in the
ordinary course of business, lends money or executes orders for the purchase or
sale of securities and who is not otherwise a participant;
B) any person or organization retained or
employed by a participant to solicit security holders or any person who merely
transmits soliciting material or performs ministerial or clerical
duties;
C) any person employed in
the capacity of attorney, accountant or advertising, public relations or
financial adviser, and whose activities are limited to the performance of his
duties in the course of his employment;
D) any person regularly employed as an
officer or employee of the company or any of its subsidiaries or affiliates who
is not otherwise a participant; or
E) any officer or director of, or any person
regularly employed by any other participant, if that officer, director, or
employee is not otherwise a participant.
c) Filing of Information Required by Schedule
B.
1) No solicitation subject to this Section
may be made by any person other than the management of a company unless at
least 5 business days prior thereto, or any shorter period that the Director
may authorize upon a showing of good cause, there has been filed with the
Director by or on behalf of each participant in the solicitation, a statement
in duplicate containing the information specified by Exhibit B and a copy of
any material proposed to be distributed to security holders in furtherance of
the solicitation. When preliminary copies of any materials are filed,
distribution to security holders should be deferred until the Director's
comments have been received and complied with.
2) Within 5 business days after a
solicitation subject to this Section is made by the management of a company, or
any longer period that the Director may authorize upon a showing of good cause,
there must be filed with the Director by or on behalf of each management
nominee for director, a statement in duplicate containing the information
specified by Exhibit B.
3) If any
solicitation on behalf of management or any other person has been made, or if
proxy material is ready for distribution prior to an opposition solicitation
subject to this Section, a statement in duplicate containing the information
specified in Exhibit B must be filed with the Director by or on behalf of each
participant other than the company in the prior solicitation, as soon as
reasonably practical after the commencement of the opposition
solicitation.
4) If, subsequent to
the filing of the statements required by paragraphs (1), (2), and (3) of this
Subsection, additional persons become participants in a solicitation subject to
this Section, there must be filed with the Director, by or on behalf of each of
those persons, a statement in duplicate containing the information specified in
Exhibit B, within 3 business days after the person becomes a participant, or
any longer period that the Director may authorize upon a showing of good
cause.
5) If any material change
occurs in the facts reported in any statement filed by or on behalf of any
participant, an appropriate amendment to the statement must be filed promptly
with the Director.
6) Each
statement and amendment filed under this Section is part of the public files of
the Director.
d)
Solicitations Prior to Furnishing Required Written Proxy Statement.
Notwithstanding subsection (a) of Section
203.50,
a solicitation subject to this Section may be made prior to furnishing security
holders a written proxy statement containing the information specified in
Schedule A concerning the solicitation if:
1) The statements required by subsection (c)
of this Section are filed by or on behalf of each participant in the
solicitation.
2) No form of proxy
is furnished to security holders prior to the time the written proxy statement
required by subsection (a) of Section
203.50
is furnished to the security holders. But, this paragraph (2) does not apply
when a proxy statement then meeting the requirements of Exhibit A has been
furnished to security holders.
3)
At least the information specified in paragraphs (2) and (3) of the statements
required by subsection (c) of this Section to be filed by each participant, or
an appropriate summary thereof, are included in each communication sent or
given to security holders in connection with the solicitation.
4) A written proxy statement containing the
information specified in Exhibit A concerning a solicitation is sent or given
security holders at the earliest practical date.
e) Solicitations Prior to Furnishing Required
Written Proxy Statement - Filing Requirements.
Two copies of any soliciting material proposed to be sent or
given to security holders prior to the furnishing of the written proxy
statement required by Subsection (a) of Section
203.50
must be filed with the Director in preliminary form at least 5 business days
prior to the date definitive copies of the material are first sent or given to
the security holders, or any shorter period that the Director may authorize
upon a showing of good cause.
f) Application of This Section to Annual
Report.
Notwithstanding subsections (b) and (c) of Section 203.50, two
copies of any portion of the annual report referred to in Subsection (b) of
Section 203.50, which comments upon or refers to any solicitation subject to
this Section, or to any participant in that solicitation, other than the
solicitation by the management, must be filed with the Director, as proxy
material subject to this Part. That portion of the report must be filed with
the Director, in preliminary form, at least 5 business days prior to the date
copies of the report are first sent or given to security
holders.
