Current through Register Vol. 41, No. 3, September 23, 2024
A. Applicability. This section shall apply to
any solicitation subject to this chapter by any person or group for the purpose
of opposing a solicitation subject to this chapter 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:
(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 securities and who is not otherwise a participant;
(ii) 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,
(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.
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 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.
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 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.
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 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.
4. If, subsequent to the
filing of the statements required by subdivisions 1, 2, and 3 of this
subsection, additional persons become participants in a solicitation subject to
this rule, 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.
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 Commissioner.
6.
Each statement and amendment thereto filed pursuant to this subsection shall be
part of the public files of the Commissioner.
D. Solicitations prior to furnishing required
written proxy statements. Notwithstanding the provisions of subsection A of
14VAC5-240-50, 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 subsection C
hereof 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 subsection one of
14VAC5-240-50 is furnished to such
persons; provided, however, that this subdivision 2 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 subdivisions 2 and 3 of the statements required by
subsection C hereof 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
material proposed to be sent or given to security holders prior to the
furnishing of the written proxy statement required by subsection A of
14VAC5-240-50; 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 such shorter period as the Commissioner may authorize upon a
showing of good cause therefor.
F.
Application of this section to annual reports. Notwithstanding the provisions
of subsections B and C of
14VAC5-240-50, two copies of any
portion of the Annual Report referred to in subsection B of
14VAC5-240-50 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 Commissioner as proxy material subject to this chapter. 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.
Statutory Authority
§ 38.2-202 of the Code of Virginia.
