(10) Special Provisions Applicable to
Election Contest.
(A) Applicability. This
section shall apply to any solicitation subject to this rule by any person or
group for the purpose of opposing a solicitation subject to this rule by any
other person or group with respect to the election or removal of directors at
any annual or special meeting of security holders.
(C) Filing
of Information Required by Schedule B.
1. No
solicitation subject to this section shall be made by any person other than the
management of an insurer unless, at least five (5) business days prior to the
solicitation or a shorter period as 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 Schedule B and a copy of any material proposed to be
distributed to security holders in furtherance of that solicitation. Where
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 five (5)
business days after a solicitation subject to this section is made by the
management of an insurer or a longer period as the director may authorize upon
a showing of good cause, there shall be filed with the director by or on behalf
of each participant in that 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.
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 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 director, 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.
4. If, subsequent to the
filing of the statements required by paragraphs (10)(C)1.-3., additional
persons become participants in a solicitation subject to this section, there
shall be filed with the director, by or on behalf of each person, a statement
in duplicate containing the information specified by Schedule B within three
(3) business days after the person becomes a participant or a longer period as
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 in the statement shall be filed promptly with the
director.
6. Each statement and
amendment filed pursuant to this subsection shall be part of the public files
of the director.
(E) 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 subsection (5)(A)
shall be filed with the director in preliminary form at least five (5) business
days prior to the date definitive copies of the material are first sent or
given to those persons or a shorter period as the director may authorize upon a
showing of good cause.
(F)
Application of This Section to Annual Report. Notwithstanding the provisions of
subsections (5)(B) and (C), two (2) copies of any portion of the annual report
referred to in subsection (5)(B) which comments upon or refers to any
solicitation subject to section (10) or to any participant in any this
solicitation, other than the solicitation by the management, shall be filed
with the director, as proxy material subject to regulation. That portion of the
report shall be filed with the director, 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.
Schedule A
Information Required
in Proxy Statement
or Information Statement
Item 1. Revocability of Proxy. State whether or not the
person giving the proxy has the power to revoke it. If the right of revocation
before the proxy is exercised, is limited or is subject to compliance with any
formal procedure, briefly describe the limitation or procedure.
Item 2. Dissenter's 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 the security holders in order to perfect their
rights. Where the 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 that
date.
Item 3. Persons Making Solicitations Not Subject to Section
10.
(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 s/he intends to oppose
any action intended to be taken by the management and indicate the action which
s/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 and on whose behalf it is made and
the names and addresses of the persons by whom the cost of solicitation has
been or will be borne, directly or indirectly.
(c) If the solicitation is to be made by
specially engaged employees or paid solicitors, state the material features of
any contract or arrangement for this solicitation and identify the parties and
the cost or anticipated cost of the solicitation.
Item 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 as
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.
Item 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 and if the
persons solicited have cumulative voting rights, make a statement that they
have the rights and state briefly the conditions precedent to the exercise of
the rights.
Item 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/her
term of office or the term of office for which s/he is nominee will expire and
all other positions and offices with the insurer presently held by him/her and
indicate which persons are nominees for election as directors at the
meeting.
(b) State his/her present
principal occupation or employment and give the name and principal business of
any corporation or other organization in which this employment is carried on.
Furnish similar information as to all of his/her principal occupations or
employments during the last five (5) years, unless s/he is now a director and
was elected to his/her present term of office by a vote of security holders at
a meeting for which proxies were solicited under this rule.
(c) If s/he is or has previously been a
director of the insurer, state the period or periods during which s/he has
served as such.
(d) State, as of
the most recent practicable date, the approximate amount of each class of
equity securities of the insurer or any of its parents, subsidiaries or
affiliates other thandirectors' qualifying shares, beneficially owned directly
or indirectly by him/her. If s/he is not the beneficial owner of any such
securities, make a statement to that effect.
Item 7. Remuneration and Other Transactions With Management
and Others. 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-a) the election of directors, b) any
remuneration plan, contract or arrangement in which any director, nominee for
election as a director or officer of the insurer will participate, c) any
pension or retirement plan in which any such person will participate or d) the
granting or extension to any such person of any options, warrants or rights to
purchase any 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 the management, information shall be furnished only as to
Item 1.A of the previously mentioned heading of Schedule SIS.
Item 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 person who will participate, the
approximate number of persons in each such class and the basis of
participation;
(b) The amounts
which would have been distributable under the plan during the last calendar
year to-
(1) Each person named in Item 7. of
this schedule;
(2) Directors and
officers as a group; and
(3) All
other employees as a group, if the plan had been in effect; and
(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 of the plan to the insurer or to materially
alter the allocation of the benefits as between the groups specified in
paragraph (b) of this item, the nature of the amendments should be specified.
Item 9. Pension and Retirement Plans. 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, the approximate number of persons in each such class and the
basis of such 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 the period, 2)
the estimated annual payments to be made with respect to current services and
3) the amount of the annual payments to be made for the benefit of-i) each
person named in Item 7. of this schedule, ii) directors and officers as a group
and iii) employees as a group; and
(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 subparagraph
(b)(3) of this item, the nature of the amendments should be specified.
Item 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 in this as warrants) to purchase 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 securities 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 securities called for or
to be called for by the warrants, as of the latest practicable date;
(b) If known, state separately the total
amount of securities called for or to be called for by warrants received or to
be received by the following persons, naming each person:
1) each person named in Item 7. of this
schedule and
2) each other person
who will be entitled to acquire five percent (5%) or more of the securities
called for or to be called for by the warrants; and
(c) If known, state also the total amount of
securities called for or to be called for by the warrants, received or to be
received by all directors and officers of the company as a group and all
employees, without naming them.
Item 11. Authorization or Issuance of Securities.
1. If action is to be taken with respect to
the authorization or issuance of any securities of the insurer, furnish the
title, amount and description of the securities to be authorized or
issued.
2. If the 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.
3. If the securities to be authorized or
issued are other than additional shares of common stock of a class outstanding,
the director may require financial statements comparable to those contained in
the annual report.
Item 12. Mergers, Consolidations, Acquisitions and Similar
Matters.
1. If action is to
be taken with respect to a merger, consolidation, acquisition or similar
matter, furnish in brief outline the following information:
(a) 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 the rights;
(b) The
material features of the plan or agreement;
(c) The business done by the company to be
acquired or whose assets are being acquired;
(d) If available, the high and low sales
prices for each quarterly period within two (2) years; and
(e) The percentage of outstanding shares
which must be voted for the transaction before it is consummated.
2. For each company involved in a
merger, consolidation or acquisition, the following financial statements should
be furnished:
(a) A comparative balance sheet
as of the close of the last two (2) fiscal years;
(b) 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; and
(c) 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.
Item 13. Restatement of Accounts. If action is to be taken
with respect to the restatement of an asset, capital or surplus account 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;
and
(c) State the name and amount
of each account affected by the restatement and the effect of the restatement
thereon.
Item 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 the
security holders.
Item 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 in previous
items 1.-14., state briefly the reasons for and general effect of the amendment
and the vote needed for its approval.
Schedule B
Information to be Included in
Statements Filed by or on Behalf of a
Participant (Other Than the Insurer)
in a Proxy Solicitation
or in an Election Contest
Item 1. Insurer. State the name and address of the
insurer.
Item 2. Identity and Background.
(a) State the following:
(1) Your name and business address;
and
(2) Your present principal
occupation or employment and the name, principal business and address of any
corporation or other organization in which such employment is carried
on.
(b) State the
following:
(1) Your residence address;
and
(2) Information as to all
material occupations, positions, offices or employments during the last ten
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 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 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 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 subitem need not be included
in the proxy statement or other proxy soliciting material.
Item 3. Interest in Securities of the Insurer.
(a) State the amount of each class of
securities of the insurer which you own beneficially, directly or
indirectly.
(b) State the amount of
each class of securities of the insurer which you own of record but not
beneficially.
(c) State with
respect to all securities of the insurer purchased or sold within the past two
years, the dates on which they were purchased or sold and the amount purchased
or sold on that date.
(d) If any
part of the purchase price or market value of any of the securities specified
in subitem (c) is represented by funds borrowed or otherwise obtained for the
purpose of acquiring or holding these securities, so state and indicate the
amount of the indebtedness as of the latest practicable date. If these funds
were borrowed or obtained otherwise than pursuant to a margin account or a 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 securities of the insurer, including, but not limited to, joint ventures,
loan or option arrangements, puts or calls, guarantees against losses 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 securities 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
securities of any parent, subsidiary or affiliate of the insurer which you own
beneficial-l y, directly or indirectly.
Item 4. General Information.
(a) Describe the time and circumstances 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, of
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 to the transactions.
Item 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)
