Current through Bulletin 2024-06, March 15, 2024
(1) This section applies to a solicitation by
a person opposing a solicitation by another person with respect to the election
or removal of directors at an annual or special meeting of security
holders.
(2)
(a) "Participant" or "participant in a
solicitation," for purposes of this section, means:
(i) the issuer;
(ii) a director of the issuer or any nominee
for whose election as a director proxies are solicited; and
(iii) a person acting alone or with one or
more other persons, committees, or groups, in organizing, directing, or
financing the solicitation.
(b) "Participant" and "participant in a
solicitation" does not mean:
(i) 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;
(ii) a person or
organization retained or employed by a participant to solicit security holders
or a person who merely transmits proxy soliciting material or performs
ministerial or clerical duties;
(iii) a person employed in the capacity of
attorney, accountant, advertising, public relations, or financial adviser,
whose activities are limited to the performance of their duties in the course
of employment;
(iv) a 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
(v) an officer or director of, or any person
regularly employed by, any other participant, if the officer, director, or
employee is not otherwise a participant.
(3)
(a)
Within five business days after a solicitation is made by the issuer, or a
longer period authorized by the commissioner, a statement, on behalf of each
participant other than the issuer, shall be filed with the commissioner, in
duplicate, containing the information specified by Schedule B.
(b) If any solicitation on behalf of the
issuer or any other person has been made, or if proxy material is ready for
distribution, before a solicitation subject to this section in opposition, 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 the
prior solicitation, other than the issuer, as soon as reasonably practicable
after the commencement of the solicitation in opposition.
(c) After filing the statements under
Subsections (1) through (3), if additional persons become participants in a
solicitation, a statement shall be filed with the commissioner, by or on behalf
of each such person, in duplicate, containing the information specified in
Schedule B, within three business days after the person becomes a participant,
or a longer period authorized by the commissioner.
(d) 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.
(4)
Notwithstanding Subsection
R590-67-7(1), a
solicitation may be made before furnishing security holders a written proxy
statement containing the information specified in Schedule A with respect to
the solicitation, provided that:
(a) the
statements required by Subsection
R590-67-14(3)
are filed by or on behalf of each participant in the solicitation;
(b) a proxy form is not furnished to security
holders before the time the written proxy statement under Subsection
R590-67-14(5)
is furnished to security holders, however, this Subsection
R590-67-14(4)(b)
may not apply where a proxy statement meeting the requirements of Schedule A is
furnished to security holders;
(c)
the information, or an appropriate summary, under Subsection
R590-67-14(3)
is filed by each participant and included in each communication furnished to
security holders in connection with the solicitation; and
(d) a written proxy statement containing the
information specified in Schedule A regarding a solicitation is furnished to
security holders at the earliest practicable date.
(5) Proposed soliciting material furnished to
security holders before the furnishing of the written proxy statement required
by Subsection R590-67-7(1)
shall be filed with the commissioner in preliminary form at least five business
days before the date definitive copies of the material are first furnished, or
a shorter period the commissioner may authorize.
(6) Notwithstanding Subsection
R590-67-7(2),
any portion of the annual report that refers to any solicitation or to any
participant in any solicitation, other than the solicitation by management,
shall be filed with the commissioner as proxy material, in preliminary form, at
least five days before the date copies of the report are first furnished to
security holders.
