Current through Register Vol. 46, No. 12, March 20, 2024
(a) Applicability. This section shall apply
to any solicitation subject to this 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 directors at any annual or special
meeting of stockholders.
(b)
Participant or participant in a solicitation.
(1) For the purposes of this section the
terms participant and participant in a solicitation include:
(i) the insurer;
(ii) any director of the insurer, and any
nominee for whose election as a director proxies are solicited;
(iii) 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 purposes of this section the
terms participant and participant in a solicitation do not include:
(i) a bank, broker or dealer who, in the
ordinary course of business, lends money or executes orders for the purchase or
sale of stock and who is not otherwise a participant;
(ii) any person or organization retained or
employed by a participant to solicit stockholders or any person who merely
transmits proxy solicitating material or performs ministerial or clerical
duties;
(iii) 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;
(iv) 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
(v) 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 [see Appendix 7].
(1) No
solicitation subject to this section 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 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 stockholders in furtherance of such solicitation. Where
preliminary copies of any materials are filed, distribution to stockholders
should be deferred until the superintendent's comments have been received and
complied with.
(2) 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 superintendent may
authorize upon a 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 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 superintendent, 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.
(4) If,
subsequent to the filing of the statements required by paragraphs (1), (2) and
(3) of this subdivision, 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 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 this subdivision shall be part of the
public files of the superintendent.
(d) Solicitation prior to furnishing required
proxy statement. Notwithstanding the provisions of subdivision (a) of section
10.5,
a solicitation subject to this section may be made prior to furnishing
stockholders a written proxy statement containing the information specified in
Schedule A [see Appendix 7] with respect to such solicitation, provided that:
(1) The statements required by subdivision
(c) hereof are filed by or on behalf of each participant in such
solicitation.
(2) No form of proxy
is furnished to stockholders prior to the time the written proxy statement
required by subdivision (a) of section
10.5
is furnished to such persons: provided, however, that this paragraph (2) shall
not apply where a proxy statement then meeting the requirements of Schedule A
has been furnished to stockholders.
(3) At least the information specified in
paragraphs (2) and (3) of the statements required by subdivision (c) hereof to
be filed by each participant, or an appropriate summary thereof, are included
in each communication sent or given to stockholders 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 to stockholders at the earliest practicable
date.
(e) Solicitations
prior to furnishing required written proxy statements--filing requirements. Two
copies of any soliciting material proposed to be sent or given to stockholders
prior to the furnishing of the written proxy statements required by subdivision
(a) of section
10.5
shall be filed with the superintendent 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 such shorter period as the superintendent may
authorize upon a showing of good cause therefor.
(f) Application of this section to report.
Notwithstanding the provisions of subdivisions (b) and (c) of section
10.5,
two copies of any portion of the report referred to in subdivision (b) of
section
10.5
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 regulation. Such portion of the report shall be filed with the
superintendent, in preliminary form, at least five business days prior to the
date copies of the report are first sent or given to stockholders.
