Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
304.26-050
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
304.2-110 provides that the Commissioner of
Insurance may make reasonable rules and administrative regulations necessary
for or as an aid to the effectuation of any provision of the Kentucky Insurance
Code.
KRS
304.26-050 gives the commissioner the
authority to regulate any form of proxies, consents and authorizations. This
administrative regulation sets out the requirements for proxies and their
solicitation, consents, and authorizations.
Section
1. Definitions.
(1) The
definitions set out in Schedule SIS, as promulgated by the National Association
of Insurance Commissioners, shall be applicable for purposes of this
administrative regulation.
(2) The
terms "solicit" and "solicitation" for purposes of this administrative
regulation shall include:
(a) Any request for
proxy, whether or not accompanied by or included in a form of proxy;
or
(b) Any request to execute or
not to execute, or to revoke a proxy; or
(c) The furnishing of a proxy or other
communications to security holders under circumstances reasonably calculated to
result in the procurement, withholding or revocation of a proxy.
(3) The terms "solicit" and
"solicitation" shall not include:
(a) Any
solicitation by a person in respect to equity security of which he is the
beneficial owner;
(b) Action by a
broker or other person in respect to equity security carried in his name or in
the name of his nominee in forwarding to the beneficial owner of such equity
security soliciting material received from the company, or impartially
instructing the beneficial owner to forward a proxy to the person, if any, to
whom the beneficial owner with respect to the authority to be conferred by the
proxy and stating that a proxy will be given if the instructions are received
by a certain date;
(c) The
furnishing of a form of proxy to a security holder upon the unsolicited request
of such security holder, or the performance by any person of ministerial acts
on behalf of a person soliciting a proxy.
Section 2. Application of Administrative
Regulation. This administrative regulation shall be applicable to each domestic
stock insurer which has any class of equity security held of record by 100 or
more persons; provided, however, that this administrative regulation shall not
apply to any insurer if ninety-five (95) percent or more of its equity
securities are owned or controlled by a parent or an affiliated insurer and the
remaining securities are held of record by less than 500 persons. A domestic
stock insurer which files with the Securities and Exchange Commission forms of
proxies, consents and authorizations complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the applicable administrative
regulations promulgated thereunder, shall be exempt from the provisions of this
administrative regulation with respect to any class of securities subject to
SEC jurisdiction.
Section 3.
Proxies, Consents and Authorizations. A domestic stock insurer, or any
director, officer or employee of an insurer subject to Section 2 of this
administrative regulation, or any other person shall not solicit, or permit the
use of his name to solicit, by mail or otherwise, any proxy, consent or
authorization in respect of any class of equity security of an insurer held of
record by 100 or more persons in contravention of this administrative
regulation and especially Sections 14 and 15 of this administrative
regulation.
Section 4. Disclosure
of Equivalent Information. Unless proxies, consents or authorizations in
respect of any class of equity security of a domestic insurer subject to
Section 2 of this administrative regulation are solicited by or on behalf of
the management of such insurer from the holders of record of such security in
accordance with this administrative regulation prior to any annual or other
meeting of such security holders, such insurer shall, in accordance with this
administrative regulation file with the commissioner and transmit to all
security holders of record information substantially equivalent to the
information which would be required to be transmitted if a solicitation were
made. The insurer shall transmit a written statement containing the information
specified in Section 6(4) of this administrative regulation to every security
holder who is entitled to vote in regard to any matter to be acted upon at the
meeting and from whom a proxy is not solicited on behalf of the management of
the insurer; provided, that in the case of a class of securities in
unregistered or bearer form such statement need be transmitted only to those
security holders whose names and addresses are known to the insurer.
Section 5.
(1) The instructions set out in Schedule SIS,
as promulgated by the National Association of Insurance Commissioners, shall be
applicable for purposes of this administrative regulation.
(2) Schedule SIS, revised in 1992, is
incorporated by reference. Copies may be obtained from or inspected at the
Department of Insurance, P.O. Box 517, 500 Mero Street, Frankfort, Kentucky
40601, Monday through Friday, 8 a.m. to 4:30 p.m.
Section 6. Information to be Furnished to
Security Holders.
(1) A solicitation subject
to this administrative regulation shall not be made unless each person
solicited is concurrently furnished or has previously been furnished with a
written proxy statement containing the information specified in Section 14 of
this administrative regulation.
(2)
If the solicitation is made on behalf of the management of the insurer and
relates to an annual meeting of security holders at which directors are to be
elected, each proxy statement furnished pursuant to subsection (1) of this
section shall be accompanied or preceded by an annual report (in preliminary or
final form) to the security holders containing the financial statements for the
last fiscal year as are referred to in Schedule SIS under the heading
"Financial Reporting to Security Holders." Subject to the foregoing
requirements with respect to financial statement, the annual report to security
holders may be in any form deemed suitable by the management.
(3) Two (2) copies of each report sent to the
security holders pursuant to this section shall be mailed to the commissioner,
not later than the date on which the report is first sent or given to security
holders or the date on which preliminary copies of solicitation material are
filed with the commissioner pursuant to Section 8(1) of this administrative
regulation, whichever date is later.
(4) If no solicitation is being made by
management of the insurer with respect to any annual or other meeting, such
insurer shall mail to every security holder of record at least twenty (20) days
prior to the meeting date, an information statement as required by Section 4 of
this administrative regulation, containing the information called for by
Section 1 of this administrative regulation, other than subsections (1), (3)
and (4) of that Section, which would be applicable to any matter to be acted
upon at the meeting if proxies were to be solicited in connection with the
meeting. If the information statement relates to an annual meeting at which
directors are to be elected, it shall be accompanied by an annual report to
such security holders in the form provided in subsection (2) of this
section.
Section 7.
Requirements as to Proxy.
(1) The form of
proxy:
(a) Shall indicate in boldface type
whether or not the proxy is solicited on behalf of the management;
(b) Shall provide a specifically designated
blank space for dating the proxy; and
(c) Shall identify clearly and impartially
each matter or group of related matters intended to be acted upon, whether
proposed by the management, or security holders. No reference need be made to
proposals as to which discretionary authority is conferred pursuant to
subsection (3) of this section.
(2)
(a)
Means shall be provided in the proxy for the person solicited to specify by
ballot a choice between approval or disapproval of each matter or group of
related matters referred to therein, other than elections to office. A proxy
may confer discretionary authority with respect to matters as to which a choice
is not so specified if the form of proxy states in boldface type how it is
intended to vote the shares or authorization presented by the proxy in each
case.
(b) A form of proxy which
provides both for elections to office and for action on other specified matters
shall be prepared so as to clearly provide, by a box or otherwise, means by
which the security holder may withhold authority to vote for elections to
office. Any such form of proxy which is executed by the security holder in this
manner as not to withhold authority to vote for elections to office shall be
deemed to grant this authority, provided the form of proxy so states in
boldface type.
(3) A
proxy may confer discretionary authority with respect to other matters which
may come before the meeting, provided the persons on whose behalf the
solicitation is made are not aware, a reasonable time prior to the time the
solicitation is made that any other matters are to be presented for action at
the meeting and provided further that a specific statement to that effect is
made in the proxy statement or in the form of proxy.
(4) A proxy shall not confer authority to
vote:
(a) For the election of any person to
any office for which a bona fide nominee is not named in the proxy statement;
or
(b) At any annual meeting other
than the next annual meeting (or any adjournment thereof) to be held after the
date on which the proxy statement and form of proxy are first sent or given to
security holders. The limitation in paragraph (a) of this subsection shall not
prevent the authority conferred from applying to a person substituted for a
nominee who, prior to the election, has clearly manifested his unwillingness to
serve or whose service would be a physical impossibility.
(5) The proxy statement or form of proxy
shall provide, subject to reasonable specified conditions, that the proxy will
be voted and that where the person solicited specifies by means of ballot
provided pursuant to subsection (2) of this section a choice with respect to
any matter to be acted upon, the vote will be in accordance with the
specifications so made.
(6) The
information included in the proxy statement or information statement shall be
clearly presented and the statements made shall be divided into groups
according to subject matter, with appropriate headings. All printed proxy
statements or information statements shall be clearly and legibly
presented.
(7) All proxy statements
shall disclose, under an appropriate caption, the date by which proposals of
security holders intended to be presented at the next annual meeting must be
received by the insurer for inclusion in the insurer's proxy statement and form
of proxy relating to that meeting, the date to be calculated in accordance with
the provisions of Section 10(1) of this administrative regulation. If the date
of the next annual meeting is subsequently advanced by more than thirty (30)
calendar days or delayed by more than ninety (90) calendar days from the date
of the annual meeting to which the proxy statement relates, the insurer shall,
in a timely manner, inform security holders of such change, and the date by
which proposals of security holders must be received, by any means reasonably
calculated to so inform them.
Section
8. Material Required to be Filed.
(1) Two (2) preliminary copies of the
information statement or the proxy statement and form of proxy and any other
soliciting material to be furnished to security holders concurrently therewith
shall be filed with the commissioner at least thirty (30) days prior to the
date definitive copies of the material are first sent or given to security
holders, or such shorter period prior to that date as the commissioner may
authorize upon a showing of good cause therefor.
(2) Two (2) preliminary copies of any
additional soliciting material relating to the same meeting or subject matter
to be furnished to security holders subsequent to the proxy statements shall be
filed with the commissioner at least ten (10) days (exclusive of Saturdays,
Sundays, or holidays) prior to the date copies of this material are first sent
or given to security holders or a shorter period prior to the date as the
commissioner may authorize upon a showing of good cause therefor.
(3) Two (2) definitive copies of the
information statement or the proxy statement, form of proxy and all other
soliciting material, in the form in which this material is furnished to
security holders, shall be filed with, or mailed for filing to, the
commissioner not later than the date the material is first sent or given to the
stockholders.
(4) Where any
information statement or proxy statement, form of proxy or other material filed
pursuant to these rules is amended or revised, two (2) of the copies shall be
marked to clearly show such changes.
(5) Copies or replies to inquiries from
security holders requesting further information and copies of communications
which do no more than request that forms of proxy theretofore solicited be
signed and returned need not be filed pursuant to this section.
(6) Notwithstanding the provisions of
subsections (1) and (2) of this section and of Section 13(5) of this
administrative regulation, copies of soliciting material in the form of
speeches, press releases and radio or television scripts may, but need not, be
filed with the commissioner prior to use or publication. Definitive copies,
however, shall be filed with or mailed for filing to the commissioner as
required by subsection (3) of this section not later than the date the material
is used or published. The provisions of subsections (1) and (2) of this section
and Section 13(5) of this administrative regulation shall apply, however, to
any reprints or reproductions of all or any part of such material.
Section 9. Mailing Communications
for Security Holders.
(1) If the management of
the insurer has made or intends to make any solicitation subject to this
administrative regulation, the insurer shall perform any of the following acts
as may be duly requested in writing with respect to the same subject matter or
meeting by any security holder who is, or security holders who are, entitled to
vote at least one (1) percent of the votes entitled to be voted on this matter
and who shall defray the reasonable expenses to be incurred by the insurer in
the performance of the act or acts requested:
(a) The insurer shall mail or otherwise
furnish to the security holder, as promptly as practicable after the receipt of
the request:
1. A statement of the approximate
number of record owners and, to the extent known to the insurer, the
approximate number of beneficial owners of any class of securities, any of whom
have been or are to be solicited on behalf of the management, or any group of
whom the security holder shall designate; and
2. An estimate of the cost of mailing a
specified proxy statement, form of proxy or other communication to the
owners.
(b) Copies of
any proxy statement, form of proxy or other communication furnished by the
security holder shall be mailed by the insurer to the security owners specified
in paragraph (a)1 of this subsection as the security holder shall
designate;
(c) Material furnished
by the security holder shall be mailed with reasonable promptness after receipt
of the material to be mailed, envelopes or other containers therefor, and
postage or payment for postage. The insurer need not, however, mail any such
material prior to the first day on which solicitation is made on behalf of the
insurer;
(d) The insurer shall not
be responsible for the proxy statement, form of proxy or other
communication.
(2) In
lieu of performing the acts specified above, the insurer may, at its option,
furnish promptly to the security holder a reasonably current list of the names
and addresses of the record owners and, to the extent known to the insurer, the
beneficial owners as the security holder shall designate and a schedule of the
handling and mailing costs if the schedule has been supplied to the
insurer.
Section 10.
Proposals of Security Holders.
(1) If any
holder or holders of the securities of an insurer (hereafter referred to as the
"proponent") notifies the insurer in writing not less than ninety (90) days
before the insurer's annual meeting of his intention to present a lawful
proposal for action at a forthcoming meeting of the insurer's security holders
and at the time of the notice the proponent is entitled to vote at least one
(1) percent of the votes entitled to be voted on the proposal, the insurer
shall set forth the proposal in its proxy statement and identify it in its form
of proxy and provide for the specification of approval or disapproval of such
proposal. The proxy statement shall also include the name and address of the
proponent.
(2) If the insurer
opposes any proposal received from a proponent, it shall also, at the request
of the proponent, include in its proxy statement a statement of the proponent
of not more than 200 words in support of the proposal.
(3) The insurer may omit a proposal and any
statement in support thereof from its proxy statement and form of proxy under
any of the following circumstances:
(a) The
proponent has submitted more than one (1) proposal in connection with a
particular meeting;
(b) The
proposal is more than 300 words in length;
(c) The proposal or the supporting statement
is contrary to any section of this administrative regulation, including Section
11 of this administrative regulation which prohibits false or misleading
statements in proxy soliciting materials;
(d) The proposal relates to the enforcement
of a personal claim or the redress of a personal grievance against the insurer,
its management, or any other person;
(e) The proposal deals with a matter not
significantly related to the insurer's business; a matter beyond the insurer's
power to effectuate; a matter relating to the conduct of the ordinary business
operations of the insurer; or an election to office;
(f) The proposal is counter to a proposal to
be submitted by the insurer at the meeting; the proposal has been rendered
moot; or the proposal relates to specific amounts of cash or stock
dividends;
(g) The proposal is
substantially duplicative of a proposal previously submitted to the insurer by
another proponent, which proposal will be included in the management's proxy
material for the meeting; or
(h)
The substantially same proposal has previously been submitted to security
holders in the insurer's proxy statement and form of proxy relating to any
annual or special meeting of security holders held within the preceding five
(5) calendar years, and received less than five (5) percent of the total number
of votes cast in respect thereof at the time of its most recent
submission.
(4) If the
insurer intends to omit any proposal from its proxy statement or forms of
proxy, it shall notify the proponent in writing of its intention at least ten
(10) days before the insurer's preliminary proxy material is filed pursuant to
Section 8 of this administrative regulation.
Section 11. False or Misleading Statements. A
proxy statement, form of proxy, notice of meeting, information statement, or
other communication, written or oral, subject to this administrative
regulation, shall not contain any statement which at the time and in the light
of the circumstances under which it is made, is false or misleading with
respect to any material fact, or which omits to state any material fact
necessary in order to make the statements therein not false or misleading or
necessary to correct any statement in any earlier communication with respect to
the same meeting or subject matter which has become false or
misleading.
Section 12. Prohibition
of Certain Solicitations. A person making a solicitation which is subject to
this administrative regulation shall not solicit any undated or postdated proxy
or any proxy which provides that it shall be deemed to be dated as of any date
subsequent to the date on which it is signed by the security holder.
Section 13. Special Provisions Applicable to
Election Contests.
(1) Applicability. This
section shall apply to any solicitation subject to this administrative
regulation by any person or group for the purpose of opposing a solicitation
subject to this administrative regulation by any other person or group with
respect to the election or removal of directors at any annual or special
meeting of stockholders.
(2)
Participant or participant in a solicitation. For purposes of this section the
terms "participant" and "participant in a solicitation" include:
(a) The insurer;
(b) Any person or organization retained or
employed by a participant to solicit security holders or any person who merely
transmits proxy 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 this employment;
(d) Any person regularly employed as an
officer or employee of the insurer 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 such officer, director, or
employee is not otherwise a participant.
(3) Filing of information required by Section
15 of this administrative regulation.
(a)
Solicitations subject to this section shall not be made by any person other
than the management of an insurer unless at least five (5) business days prior
thereto, or a shorter period as the commissioner may authorize upon a showing
of good cause therefor, there has been filed, with the commissioner, by or on
behalf of each participant in this solicitation, a statement in duplicate
containing the information specified by Section 15 of this administrative
regulation and a copy of any material proposed to be distributed to security
holders in furtherance of this solicitation. Where preliminary copies of any
materials are filed, distribution to security holders should be deferred until
the commissioner's comments have been received and complied with.
(b) Within five (5) days after a solicitation
subject to this section is made by the management of an insurer, or a longer
period as the commissioner may authorize upon a showing of good cause therefor,
there shall be filed with the commissioner by or on behalf of each participant
in the solicitation, other than the insurer, and by or on behalf of each
management nominee for director, a statement in duplicate containing the
information specified by Section 15 of this administrative
regulation.
(c) If any solicitation
on behalf of management or any other person has been made, or if proxy material
is ready for distribution, prior to a solicitation subject to this section in
opposition thereto, a statement in duplicate containing the information
specified in Section 14 of this administrative regulation shall be filed with
the commissioner, by or on behalf of each participant in the prior
solicitation, other than the insurer, as soon as reasonably practicable after
the commencement of the solicitation in opposition thereto.
(d) If, subsequent to the filing of the
statement required by paragraphs (a), (b) and (c) of this subsection,
additional persons become participants in a solicitation subject to this rule,
there shall be filed with the commissioner, by or on behalf of a person, a
statement in duplicate containing the information specified by Section 15 of
this administrative regulation within three (3) business days after a person
becomes a participant, or such longer period as the commissioner may authorize
upon a showing of good cause therefor.
(e) 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 shall be filed promptly with the
commissioner.
(f) Each statement
and amendment thereto filed pursuant to this subsection shall be part of the
public files of the commissioner.
(4) Solicitations prior to furnishing
required written proxy statement. Notwithstanding the provisions of Section
6(1) of this administrative regulation, a solicitation subject to this section
may be made prior to furnishing security holders a written proxy statement
containing the information specified in Section 14 of this administrative
regulation with respect to the solicitation, provided that:
(a) The statements required by subsection (3)
of this section are filed by or on behalf of each participant in the
solicitation.
(b) No form of proxy
is furnished to shareholders prior to the time the written proxy statement
required by Section 6(1) of this administrative regulation is furnished to
these persons: provided, however, that this paragraph shall not apply where a
proxy statement then meeting the requirements of Section 14 of this
administrative regulation has been furnished to security holders.
(c) At least the information specified in
this paragraph and paragraph (b) of this subsection of the statements required
by subsection (3) 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.
(d) A written proxy statement containing the
information specified in Section 14 of this administrative regulation with
respect to a solicitation is sent or given security holders at the earliest
practicable date.
(5)
Solicitations prior to furnishing required written proxy statement; filing
requirements. Two (2) 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 Section 6(1) of this administrative regulation shall be
filed with the commissioner in preliminary form at least five (5) business days
prior to the date definitive copies of the material are first sent or given to
such persons, or shorter period as the commissioner may authorize upon a
showing of good cause therefor.
(6)
Application of this section to report. Notwithstanding the provisions of
Section 6(2) and (3) of this administrative regulation, two (2) copies of any
portion of the report referred to in Section 6(2) of this administrative
regulation which comments upon or refers to any solicitation subject to this
section, or to any participant in any such solicitation, other than the
solicitation by the management, shall be filed with the commissioner as proxy
material subject to this administrative regulation. That portion of the report
shall be filed with the commissioner in preliminary form at least five (5)
business days prior to the date copies of the report are first sent or given to
security holders.
Section
14. Information Required in Proxy Statement.
(1) Revocability of proxy. Make a positive
statement similar to, "This proxy may be revoked at will, prior to the voting
for which it is given; upon notice to the Secretary of the Company."
KRS 271A.165 requires
proxies be revocable at will.
(2)
Dissenters' rights of appraisal. Outline briefly the rights of appraisal or
similar rights of dissenting security holders with respect to any matter to be
acted upon and indicate any statutory procedure required to be followed by such
security holders in order to perfect their rights. Where these rights may be
exercised only within a limited time after the date of the adoption of a
proposal, the filing of a charter amendment, or other similar act, state
whether the person solicited will be notified of the date.
(3) Persons making solicitations not subject
to Section 13 of this administrative regulation:
(a) If the solicitation is made by the
management of the insurer, so state. Give the name of any director of the
insurer who has informed the management in writing that he intends to oppose
any action intended to be taken by the management and indicate the action which
he intends to oppose.
(b) If the
solicitation is made otherwise than by the management of the insurer, state the
names and addresses of the persons by whom the cost of solicitation has been or
will be borne, directly or indirectly.
(4) Interest of certain persons in matters to
be acted upon. Describe briefly any substantial interest, direct or indirect,
by security holdings or otherwise, of any director, nominee for election for
director, officer and, if the solicitation is made otherwise than on behalf of
management, each person on whose behalf the solicitation is made, in any matter
to be acted upon other than elections to office.
(5) Voting securities.
(a) State, as to each class of voting
securities of the insurer entitled to be voted at the meeting, the number of
shares outstanding and the number of votes to which each class is
entitled.
(b) Give the date as of
which the record list of security holders entitled to vote at the meeting will
be determined. If the right to vote is not limited to security holders of
record on that date, indicate the conditions under which other security holders
may be entitled to vote.
(c) If
action is to be taken with respect to the election of directors, under
KRS 271A.180 the persons
solicited shall have cumulative voting rights. Make a statement that they have
such rights and state briefly the technique of cumulative voting.
(6) Nominees and directors. If
action is to be taken with respect to the election of directors furnish the
following information, in tabular form to the extent practicable, with respect
to each person nominated for election as a director and each other person whose
term of office as a director will continue after the meeting:
(a) Name each such person, state when his
term of office or the term of office for which he is a nominee will expire, and
all other positions and offices with the insurer presently held by him, and
indicate which persons are nominees for election as directors at the
meeting.
(b) State his present
principal occupation or employment and give the name and principal business of
any corporation or other organization in which the employment is carried on.
Furnish similar information as to all of his principal occupations or
employments during the last five (5) years, unless he is now a director and was
elected to his present term of office by a vote of security holders at a
meeting for which proxies were solicited under this administrative
regulation.
(c) If he is or has
previously been a director of the insurer, state the period or periods during
which he has served as such.
(d)
State, as of the most recent practicable date, the approximate amount of each
class of equity security of the insurer or any of its parents, subsidiaries or
affiliates other than directors' qualifying shares, beneficially owned directly
or indirectly by him. If he is not the beneficial owner of any such equity
securities make a statement to that effect.
(7) Remuneration and other transactions with
management and others:
(a) This subsection
shall apply only to each director whose aggregate remuneration exceeds $40,000
and to each of the three (3) highest paid officers whose aggregate annual
remuneration exceeds $40,000.
(b)
Furnish the information reported or required in Item 1 of Schedule SIS under
the heading "Information Regarding Management and Directors" if action is to be
taken with respect to:
1. The election of
directors;
2. Any remuneration
plan, contract or arrangement in which any director, nominee for election as a
director, or officer of the insurer will participate;
3. Any pension or retirement plan in which
any such person will participate; or
4. The granting or extension to any such
person of any options, warrants or rights to purchase any equity securities
other than warrants or rights issued to security holders, as such, on a pro
rata basis. If the solicitation is made on behalf of persons other than
management, information shall be furnished only as to Item 1-A of the aforesaid
heading of Schedule SIS.
(8) Bonus, profit sharing and other
remuneration plans. If action is to be taken with respect to any bonus, profit
sharing, or other remuneration plan of the insurer, furnish the following
information:
(a) A brief description of the
material features of the plan, each class of persons who will participate
therein, the approximate number of persons in each class, and the basis of each
participation.
(b) The amounts
which would have been distributed under the plan during the last calendar year
to:
1. Each person named in subsection (7) of
this section;
2. Directors and
officers as a group; and
3. All
other employees as a group, if the plan had been in effect.
(c) If the plan to be acted upon
may be amended (other than by a vote of security holders) in a manner which
would materially increase the cost thereof to the insurer or to materially
alter the allocation of the benefits as between the groups specified in
paragraph (b) of this subsection, the nature of the amendments should be
specified.
(9) Pension
and retirement plan. If action is to be taken with respect to any pension or
retirement plan of the insurer, furnish the following information:
(a) A brief description of the material
features of the plan, each class of persons who will participate therein, the
approximate number of persons in each such class, and the basis of the
participation.
(b) State:
1. The approximate total amount necessary to
fund the plan with respect to past services, the period over which the amount
is to be paid, and the estimated annual payments necessary to pay the total
amount over that period;
2. The
estimated annual payment to be made with respect to current services;
and
3. The amount of such annual
payments to be made for the benefit of:
a.
Each person named in subsection (7) of this section;
b. Directors and officers as a group;
and
c. Employees as a
group.
(c) If
the plan to be acted upon may be amended (other than by a vote of security
holders) in a manner which would materially increase the cost thereof to the
insurer or to materially alter the allocation of the benefits as between the
groups specified in paragraph (b)3 of this subsection, the nature of the
amendments should be specified.
(10) Options, warrants, or rights. If action
is to be taken with respect to the granting or extension of any options,
warrants or rights (all referred to herein as "warrants") to purchase equity
securities of the insurer or any subsidiary or affiliate, other than warrants
issued to all security holders on a pro rata basis, furnish the following
information:
(a) The title and amount of
equity security called for or to be called for, the prices, expiration dates
and other material conditions upon which the warrants may be exercised, the
consideration received or to be received by the insurer, subsidiary or
affiliate for the granting or extension of the warrants and the market value of
the equity security called for or to be called for by the warrants, as of the
latest practicable date.
(b) If
known, state separately the amount of equity security called for or to be
called for by warrants received or to be received by the following persons,
naming each such person:
1. Each person named
in subsection (7) of this section; and
2. Each other person who will be entitled to
acquire five (5) percent or more of the equity security called for or to be
called for by such warrants.
(c) If known, state also the total amount of
equity security called for or to be called for by such warrants, received or to
be received by all directors and officers of the company as a group and all
employees, without naming them.
(11) Authorization or issuance of equity
securities.
(a) If action is to be taken with
respect to the authorization or issuance of any equity security of the insurer,
furnish the title, amount and description of the equity security to be
authorized or issued.
(b) If the
equity securities are other than additional shares of common stock of a class
outstanding, furnish a brief summary of the following, if applicable: dividend,
voting, liquidation, preemptive, and conversion rights, redemption and sinking
fund provisions, interest rate and date of maturity.
(c) If the equity securities to be authorized
or issued are other than additional shares of common stock of a class
outstanding, the commissioner may require financial statements comparable to
those contained in the annual report.
(12) Mergers, consolidations, acquisitions
and similar matters.
(a) If action is to be
taken with respect to a merger, consolidation, acquisition, or similar matter,
furnish in brief outline the following information:
1. The rights of appraisal or similar rights
of dissenters with respect to any matters to be acted upon. Indicate any
procedure required to be followed by dissenting security holders in order to
perfect these rights.
2. The
material features of the plan or agreement.
3. The business done by the company to be
acquired or whose assets are being acquired.
4. If available, the high and low sales
prices for each quarterly period within two (2) years.
5. The percentage of outstanding shares which
must approve the transaction before it is consummated.
(b) For each company involved in a merger,
consolidation or acquisition, the following financial statements should be
furnished:
1. A comparative balance sheet as
of the close of the last two (2) fiscal years.
2. A comparative statement of operating
income and expenses for each of the last two (2) fiscal years and, as a
continuation of each statement, a statement of earnings per share after related
taxes and cash dividends paid per share.
3. A pro forma combined balance sheet, and
income and expenses statement for the last fiscal year giving effect to the
necessary adjustments with respect to the resulting company.
(13) Restatement of
accounts. If action is to be taken with respect to the restatement of any
assets, capital, or surplus of the insurer, furnish the following information:
(a) State the nature of the restatement and
the date as of which it is to be effective.
(b) Outline briefly the reasons for the
restatement and for the selection of the particular effective date.
(c) State the name and amount of each account
affected by the restatement and the effect of the restatement
thereon.
(14) Matters
not required to be submitted. If action is to be taken with respect to any
matter which is not required to be submitted to a vote of security holders,
state the nature of the matter, the reason for submitting it to a vote of
security holders and what action is intended to be taken by the management in
the event of a negative vote on the matter by security holders.
(15) Amendment of charter, bylaws, or other
documents. If action is to be taken with respect to any amendment of the
insurer's charter, bylaws or other documents as to which information is not
required above, state briefly the reasons for and general effect of the
amendment and the vote needed for its approval.
Section 15. Information to be included in
statements filed by or on behalf of a participant (other than the insurer) in a
proxy solicitation in an election contest.
(1)
Insurer. State the name and address of the insurer.
(2) Identity and background.
(a) State the following:
1. Your name and business address.
2. Your present principal occupation or
employment and the name, principal business and address of any corporation or
other organization in which this employment is carried on.
(b) State the following:
1. Your resident address.
2. Information as to all material
occupations, positions, offices and employments during the last ten (10) years,
giving starting and ending dates of each and the name, principal business and
address of any business corporation or other business organization in which
each such occupation, position, office or employment was carried on.
(c) State whether or not you are
or have been a participant in any other proxy contest involving this company or
other companies within the past ten (10) years. If so, identify the principals,
the subject matter and your relationship to the parties and the
outcome.
(d) State whether or not,
during the past ten (10) years, you have been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) and, if so,
give dates, nature of conviction, name and location of court, and penalty
imposed or other disposition of the case. A negative answer to this paragraph
need not be included in the proxy statement or other proxy soliciting
material.
(3) Interest
in equity securities of the insurer.
(a)
State the amount of each class of equity security of the insurer which you own
beneficially, directly or indirectly.
(b) State the amount of each class of equity
security of the insurer which you own of record but not beneficially.
(c) State with respect to the equity security
specified in paragraphs (a) and (b) of this subsection the amounts acquired
within the past two (2) years, the date of acquisition and the amounts acquired
on each date.
(d) If any part of
the purchase price or market value of any of the equity security specified in
paragraph (c) of this subsection is represented by funds borrowed or otherwise
obtained for the purpose of acquiring or holding such equity security, so state
and indicate the amount of the indebtedness as of the latest practicable date.
If the funds were borrowed or obtained otherwise than pursuant to a margin
account or bank loan in the regular course of business of a bank, broker, or
dealer, briefly describe the transaction, and state the names of the
parties.
(e) State whether or not
you are a party to any contracts, arrangements or understandings with any
person with respect to any equity security of the insurer, including but not
limited to joint ventures, loan or option arrangements, puts or calls,
guarantees against loss or guarantees of profits, division of losses or
profits, or the giving or withholding of proxies. If so, name the persons with
whom such contracts, arrangements, or understandings exist and give the details
thereof.
(f) State the amount of
equity security of the insurer owned beneficially, directly or indirectly, by
each of your associates and the name and address of each such
associate.
(g) State the amount of
each class of equity security of any parent, subsidiary or affiliate of the
insurer which you own beneficially, directly, or indirectly.
(4) Further matters.
(a) Describe the time and circumstance under
which you became a participant in the solicitation and state the nature and
extent of your activities or proposed activities as a participant.
(b) Describe briefly, and where practicable
state the approximate amount of any material interest, direct or indirect, to
yourself and of each of your associates in any material transactions since the
beginning of the company's last fiscal year, or in any material proposed
transactions, to which the company or any of its subsidiaries or affiliates was
or is to be a party.
(c) State
whether or not you or any of your associates have any arrangement or
understanding with any person:
1. With
respect to any future employment by the insurer or its subsidiaries or
affiliates; or
2. With respect to
any future transactions to which the insurer or any of its subsidiaries or
affiliates will or may be a party. If so, describe such arrangement or
understanding and state the names of the parties thereto.
(5) Signature. The statement shall
be dated and signed in the following manner:
I certify that the statements made in this statement are true,
complete, and correct, to the best of my knowledge and belief.
Date:
Signature of participant or authorized
representative:
STATUTORY AUTHORITY:
KRS
304.2-110,
304.26-050