(A)
Purpose
The purpose of this rule is to set
forth the manner and form of solicitations that are subject to Chapter 3901-2
of the Administrative Code for election contests.
(B)
Authority
This rule is promulgated pursuant to
the authority vested in the superintendent under sections
3901.041 and
3901.31 of the Revised
Code.
(A)(C) This rule applies
to any solicitation subject to Chapter 3901-2 of the Administrative Code by any
person or group for the purpose of opposing a solicitation subject to Chapter
3901-2 of the Administrative Code 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)(D) Participant or
participant in a solicitation.
(1) For
purposes of this rule, the terms "participant" and "participant in a
solicitation" mean:
(a) The issuer;
(b) Any director of the issuer, and any
nominee for whose election as a director proxies are solicited; or
(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 rule, 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
that
person's 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)(E) Filing of
information required by rule
3901-2-14 of the Administrative
Code.
(1) No solicitation subject to this rule
shall
may be
made by any person other than the issuer unless at least five business days
prior thereto, or such shorter period as the superintendent of insurance may
authorize upon a showing of good cause therefor, there has been filed with the
superintendent of insurance, by or on behalf of each participant in such
solicitation other than the issuer, a statement
in
duplicate containing the information specified by rule
3901-2-14 of the Administrative
Code.
(2) Within five business days
after a solicitation subject to this rule is made by the issuer, or such longer
period as the superintendent of insurance may authorize upon a showing of good
cause therefor, there shall be filed with the superintendent of insurance, by
or on behalf of each participant in such solicitation other than the issuer, a
statement
in duplicate containing the
information specified by rule
3901-2-14 of the Administrative
Code.
(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 rule in
opposition thereto, a statement
in
duplicate containing the information specified in rule
3901-2-14 of the Administrative
Code shall be filed with the superintendent of insurance, 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 paragraphs
(A),
(B), and (C)
(C), (D), and (E) of this
rule, additional persons become participants in a solicitation subject to this
rule, there shall be filed with the superintendent of insurance, by or on
behalf of each such person, a statement
in
duplicate containing the information specified by rule
3901-2-14 of the Administrative
Code, within three business days after such person becomes a participant, or
such longer period as the superintendent of insurance 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 of insurance.
(6) Each statement and amendment thereto
filed pursuant to paragraph (C)
(E) of this rule shall be part of the public
files of the superintendent of insurance.
(D)(F) Solicitations prior
to furnishing required written proxy statement.
Notwithstanding the provisions of paragraph
(A)
(C) of
rule 3901-2-04 of the Administrative
Code, a solicitation subject to this rule may be made prior to furnishing
security holders a written proxy statement containing the information specified
in rule 3901-2-13 of the Administrative
Code with respect to such solicitation, provided that:
(1) The statements required by paragraph
(C)
(E) of
this rule 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 paragraph
(A)
(C) of rule
3901-2-04 of the Administrative
Code is furnished to such persons
;
, provided
,
however, that this paragraph
shall
does not apply where a proxy statement then
meeting the requirements of rule
3901-2-13 of the Administrative
Code has been furnished to security holders.
(3) At least the information specified in
paragraphs (C)(2) and (C)(3)
(E)(2) and (E)(3) of this rule 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 rule
3901-2-13 of the Administrative
Code with respect to a solicitation is sent or given security holders at the
earliest practicable date.
(E)(G) Solicitations prior
to furnishing required written proxy statement - filing requirements.
Two copies
A copy of any soliciting materials proposed to be
sent or given to security holders prior to the furnishing of the written proxy
statement required by paragraph (A)
(C) of rule
3901-2-04 of the Administrative
Code shall be filed with the superintendent of insurance 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 of insurance may authorize upon a showing of good cause
therefor.
(F)(H) Notwithstanding the
provisions of paragraph
(B)(3)
(D)(3) of rule
3901-2-04 of the Administrative
Code,
two copies
a
copy of any portion of the annual report referred to in paragraph
(B)
(D) of
rule
3901-2-04 of the Administrative
Code which comments upon or refers to any solicitation subject to this rule or
to any participant in any such solicitation, other than the solicitation by the
management, shall be filed with the superintendent of insurance as proxy
material subject to this rule. Such portion of the report shall be filed with
the superintendent of insurance, in preliminary form, at least five business
days prior to the date copies of the report are first sent or given to security
holders.
(I)
Severability
If any portion of this rule or the
application thereof to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of the rule or
related rules which can be given effect without the invalid portion or
application, and to this end the provisions of this rule are
severable.
