Current through Register 1531, September 27, 2024
(1)
Applicability.
211 CMR 13.10 shall apply to any solicitation subject to
211 CMR 13.00 by any person
or group for the purpose of opposing a solicitation subject to
211 CMR 13.00 by any other
person or group with respect to the election or removal of directors at any
annual or special meeting of security holders.
(2)
Participant or Participant in
a Solicitation.
(a) For purposes
of 211 CMR 13.10 the terms "participant" and "participant in a solicitation"
include: the insurer; any director of the insurer, and any nominee for whose
election as a director proxies are solicited; any other person, acting alone or
with one or more other persons, committees or groups, in organizing, directing
or financing the solicitation.
(b)
For the purposes of 211 CMR 13.10 the terms "participant" and "participant in a
solicitation" do not include: 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; 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; any person employed in the capacity of attorney, accountant,
or advertising, public relations or financial advisor, and whose activities are
limited to the performance of his duties in the course of such employment; 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 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 Schedule B.
(a) No solicitation subject to 211 CMR 13.10
shall be made by any person other than the management of an insurer unless at
least five business days prior thereto, or such 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 such
solicitation, a statement in duplicate containing the information specified by
Schedule B and a copy of any material proposed to be distributed to security
holders in furtherance of such 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 business days after a
solicitation subject to this section is made by the management of an insurer,
or such 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 such 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 Schedule B.
(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
Schedule B shall be filed with the Commissioner, by or on behalf of each
participant in such 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 statements required by 211 CMR 13.10(3)(a), 13.10(3)(b) and
13.10(3)(c), additional persons become participants in a solicitation subject
to 211 CMR 13.10, there shall be filed with the Commissioner, by or on behalf
of each such person, a statement in duplicate containing the information
specified by Schedule B, within three business days after such 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 such statement
shall be filed promptly with the Commissioner.
(f) Each statement and amendment thereto
filed pursuant to 211 CMR 13.10(3) shall be part of the public files of the
Commissioner.
(4)
Solicitations Prior to Furnishing Required Written Proxy
Statement. Notwithstanding the provisions of
211 CMR
13.05(1), a solicitation
subject to 211 CMR 13.10(4) may be made prior to furnishing security holders a
written proxy statement containing the information specified in Schedule A with
respect to such solicitation, provided that:
(a) The statements required by subsection
three hereof are filed by or on behalf of each participant in such
solicitation.
(b) No form of proxy
is furnished to security holders prior to the time the written proxy statement
required by 211 CMR 13.10(5) is furnished to such persons: Provided however,
that 211 CMR 13.10(4)(b) shall not apply where a proxy statement then meeting
the requirements of Schedule A has been furnished to security
holders.
(c) At least the
information specified in 211 CMR 13.10(4)(b) and (c) of the statements required
by 211 CMR 13.10(3) to be filed by each participant, or an appropriate summary
thereof, are included in each communication set or given to security holders in
connection with the solicitation.
(d) A written proxy statement containing the
information specified in Schedule A 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 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
211 CMR
13.05(1) shall be filed
with the Commissioner in preliminary form at least five business days prior to
the date definitive copies of such 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 Annual Report.
Notwithstanding the provisions of
211 CMR
13.05(2) and
13.05(3)
two copies of any portion of the annual
report referred to in
211 CMR
13.05(2) which comments
upon or refers to any solicitation subject to 211 CMR 13.10(6), 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
211 CMR 13.00. Such portion
of the report shall be filed with the Commissioner, in preliminary form, at
least five business days prior to the date copies of the report are first sent
or given to security holders.
