Current through Register Vol. 35, No. 18, September 24, 2024
A.
Solicitations to which this section
applies: This section applies 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.
B.
Participant or participant in a
solicitation:
(1) For purposes of this
section the terms "participant" and "participant in a solicitation" include:
(a) the issuer;
(b) any director of the issuer, 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 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 such employment;
(d) any person regularly employed as an
officer or employee of the issuer 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.
C.
Filing of information required by
schedule B:
(1) No solicitation subject
to this section shall be made by any person other than the issuer unless at
least five (5) business days prior thereto, or such shorter period as the
superintendent may authorize upon a showing of good cause therefor, there has
been filed with the superintendent, 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.
(2) Within five (5) business days after a
solicitation subject to this section is made by the issuer, or such longer
period as the superintendent may authorize upon showing of good cause therefor,
there shall be filed with the superintendent, by or on behalf of each
participant in such solicitation other than the issuer, a statement in
duplicate containing the information specified by schedule B.
(3) If any solicitation on behalf of the
issuer 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 superintendent, by or on behalf of each
participant in such prior solicitation, other than the issuer, 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 13 NMAC 3.4.18.1, 13 NMAC 3.4.18.2 and 13
NMAC 3.4.18.3 [now Subsections A, B and C of 13.3.4.18 NMAC]additional persons
become participants in a solicitation subject to this section, there shall be
filed with the superintendent, by or on behalf of each such person, a statement
in duplicate containing the information specified by schedule B, within three
(3) business days after such person becomes a participant, or such longer
period as the superintendent may authorize upon a showing of good cause
therefor.
(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 such statement shall be filed
promptly with the superintendent.
(6) Each statement and amendment thereto
filed pursuant to 13 NMAC 3.4.18.3 [now Subsection C of 13.3.4.18 NMAC] shall
be part of the public files of the superintendent.
D.
Solicitations prior to furnishing
required written proxy statement: Notwithstanding the provisions of 13
NMAC 3.4.10.1 [now Subsection A of 13.3.4.10 NMAC], 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 with respect to
such solicitation, provided that:
(1) The
statements required by 13 NMAC 3.4.18.3 [now Subsection C of 13.3.4.18 NMAC]
are filed by or on behalf of each participant in such solicitation.
(2) No form of proxy is furnished to security
holders prior to the time the written proxy statement required by 13 NMAC
3.4.10.1 [now Subsection A of 13.3.4.10 NMAC] is furnished to such persons;
provided, however, that 13 NMAC 3.4.18.4.2 [now Paragraph (2) of Subsection D
of 13.3.4.18 NMAC] shall not apply where a proxy statement then meeting the
requirements of schedule A has been furnished to security holders.
(3) At least the information specified in 13
NMAC 3.4.18.3.2 and 13 NMAC 3.4.18.3.3 [now Paragraphs (2) and (3) of
Subsection C of 13.3.4.18 NMAC] 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 schedule A with respect to a solicitation is sent or
given security holders at the earliest practicable date.
E.
Solicitations prior to furnishing
required written proxy statement - filing requirements: Two copies of
any soliciting materials proposed to be sent or given to security holders prior
to the furnishing of the written proxy statement required by 13 NMAC 3.4.10.1
[now Subsection A of 13.3.4.10 NMAC] shall be filed with the superintendent in
preliminary form at least five (5) business days prior to the date definitive
copies of such material are first sent or given to such persons, or such
shorter period as the superintendent may authorize upon a showing of good cause
therefor.
F.
Notice to
superintendent required: Notwithstanding the provisions of 13 NMAC
3.4.10.2 [now Subsection B of 13.3.4.10 NMAC], two (2) copies of any portion of
the annual report referred to in 13 NMAC 3.4.10.2 [now Subsection B of
13.3.4.10 NMAC] 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 superintendent as proxy
material subject to this rule. Such portion of the report shall be filed with
the superintendent, 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.
