806 KAR 26:010.
Proxies, consents and authorizations.
RELATES TO: KRS
304.26-050
STATUTORY AUTHORITY:
KRS 304.2-110, 304.26-050
NECESSITY, FUNCTION,
AND CONFORMITY: KRS 304.2-110 provides that the Executive Director of Insurance
may make reasonable rules and administrative regulations necessary for or as an
aid to the effectuation of any provision of the Kentucky Insurance Code. KRS
304.26-050 gives the executive director the authority to regulate any form of
proxies, consents and authorizations. This administrative regulation sets out
the requirements for proxies and their solicitation, consents, and
authorizations.
Section 1.
Definitions. (1) The definitions set out in Schedule SIS, as promulgated by the
National Association of Insurance Commissioners, shall be applicable for
purposes of this administrative regulation.
(2) The terms
"solicit" and "solicitation" for purposes of this administrative
regulation shall include:
(a) Any request for
proxy, whether or not accompanied by or included in a form of proxy; or
(b) Any request to
execute or not to execute, or to revoke a proxy; or
(c) The furnishing
of a proxy or other communications to security holders under circumstances
reasonably calculated to result in the procurement, withholding or revocation
of a proxy.
(3) The terms
"solicit" and "solicitation" shall not include:
(a) Any solicitation
by a person in respect to equity security of which he is the beneficial owner;
(b) Action by a
broker or other person in respect to equity security carried in his name or in
the name of his nominee in forwarding to the beneficial owner of such equity
security soliciting material received from the company, or impartially
instructing the beneficial owner to forward a proxy to the person, if any, to
whom the beneficial owner with respect to the authority to be conferred by the
proxy and stating that a proxy will be given if the instructions are received
by a certain date;
(c) The furnishing
of a form of proxy to a security holder upon the unsolicited request of such
security holder, or the performance by any person of ministerial acts on behalf
of a person soliciting a proxy.
Section 2.
Application of Administrative Regulation. This administrative regulation shall
be applicable to each domestic stock insurer which has any class of equity
security held of record by 100 or more persons; provided, however, that this
administrative regulation shall not apply to any insurer if ninety-five (95)
percent or more of its equity securities are owned or controlled by a parent or
an affiliated insurer and the remaining securities are held of record by less
than 500 persons. A domestic stock insurer which files with the Securities and
Exchange Commission forms of proxies, consents and authorizations complying
with the requirements of the Securities Exchange Act of 1934, as amended, and
the applicable administrative regulations promulgated thereunder, shall be
exempt from the provisions of this administrative regulation with respect to
any class of securities subject to SEC jurisdiction.
Section 3. Proxies,
Consents and Authorizations. A domestic stock insurer, or any director, officer
or employee of an insurer subject to Section 2 of this administrative
regulation, or any other person shall not solicit, or permit the use of his
name to solicit, by mail or otherwise, any proxy, consent or authorization in
respect of any class of equity security of an insurer held of record by 100 or
more persons in contravention of this administrative regulation and especially
Sections 14 and 15 of this administrative regulation.
Section 4.
Disclosure of Equivalent Information. Unless proxies, consents or
authorizations in respect of any class of equity security of a domestic insurer
subject to Section 2 of this administrative regulation are solicited by or on
behalf of the management of such insurer from the holders of record of such
security in accordance with this administrative regulation prior to any annual
or other meeting of such security holders, such insurer shall, in accordance
with this administrative regulation file with the executive director and transmit
to all security holders of record information substantially equivalent to the
information which would be required to be transmitted if a solicitation were
made. The insurer shall transmit a written statement containing the information
specified in Section 6(4) of this administrative regulation to every security
holder who is entitled to vote in regard to any matter to be acted upon at the
meeting and from whom a proxy is not solicited on behalf of the management of
the insurer; provided, that in the case of a class of securities in unregistered
or bearer form such statement need be transmitted only to those security
holders whose names and addresses are known to the insurer.
Section 5. (1) The
instructions set out in Schedule SIS, as promulgated by the National
Association of Insurance Commissioners, shall be applicable for purposes of
this administrative regulation.
(2) Schedule SIS,
revised in 1992, is incorporated by reference. Copies may be obtained from or
inspected at the Office of Insurance, P.O. Box 517, 215
West Main Street, Frankfort, Kentucky 40602, Monday through Friday, 8 a.m. to
4:30 p.m.
Section 6.
Information to be Furnished to Security Holders. (1) A solicitation subject to
this administrative regulation shall not be made unless each person solicited
is concurrently furnished or has previously been furnished with a written proxy
statement containing the information specified in Section 14 of this
administrative regulation.
(2) If the
solicitation is made on behalf of the management of the insurer and relates to
an annual meeting of security holders at which directors are to be elected,
each proxy statement furnished pursuant to subsection (1) of this section shall
be accompanied or preceded by an annual report (in preliminary or final form)
to the security holders containing the financial statements for the last fiscal
year as are referred to in Schedule SIS under the heading "Financial
Reporting to Security Holders." Subject to the foregoing requirements with
respect to financial statement, the annual report to security holders may be in
any form deemed suitable by the management.
(3) Two (2) copies
of each report sent to the security holders pursuant to this section shall be
mailed to the executive director, not later than the date on which the report
is first sent or given to security holders or the date on which preliminary
copies of solicitation material are filed with the executive director pursuant
to Section 8(1) of this administrative regulation, whichever date is later.
(4) If no
solicitation is being made by management of the insurer with respect to any
annual or other meeting, such insurer shall mail to every security holder of
record at least twenty (20) days prior to the meeting date, an information
statement as required by Section 4 of this administrative regulation,
containing the information called for by Section 1 of this administrative
regulation, other than subsections (1), (3) and (4) of that Section, which
would be applicable to any matter to be acted upon at the meeting if proxies
were to be solicited in connection with the meeting. If the information
statement relates to an annual meeting at which directors are to be elected, it
shall be accompanied by an annual report to such security holders in the form
provided in subsection (2) of this section.
Section 7.
Requirements as to Proxy. (1) The form of proxy:
(a) Shall indicate
in boldface type whether or not the proxy is solicited on behalf of the
management;
(b) Shall provide a
specifically designated blank space for dating the proxy; and
(c) Shall identify
clearly and impartially each matter or group of related matters intended to be
acted upon, whether proposed by the management, or security holders. No
reference need be made to proposals as to which discretionary authority is
conferred pursuant to subsection (3) of this section.
(2)(a) Means shall
be provided in the proxy for the person solicited to specify by ballot a choice
between approval or disapproval of each matter or group of related matters
referred to therein, other than elections to office. A proxy may confer
discretionary authority with respect to matters as to which a choice is not so
specified if the form of proxy states in boldface type how it is intended to
vote the shares or authorization presented by the proxy in each case.
(b) A form of proxy
which provides both for elections to office and for action on other specified
matters shall be prepared so as to clearly provide, by a box or otherwise,
means by which the security holder may withhold authority to vote for elections
to office. Any such form of proxy which is executed by the security holder in
this manner as not to withhold authority to vote for elections to office shall
be deemed to grant this authority, provided the form of proxy so states in
boldface type.
(3) A proxy may
confer discretionary authority with respect to other matters which may come
before the meeting, provided the persons on whose behalf the solicitation is
made are not aware, a reasonable time prior to the time the solicitation is
made that any other matters are to be presented for action at the meeting and
provided further that a specific statement to that effect is made in the proxy
statement or in the form of proxy.
(4) A proxy shall
not confer authority to vote:
(a) For the election
of any person to any office for which a bona fide nominee is not named in the
proxy statement; or
(b) At any annual
meeting other than the next annual meeting (or any adjournment thereof) to be
held after the date on which the proxy statement and form of proxy are first
sent or given to security holders. The limitation in paragraph (a) of this
subsection shall not prevent the authority conferred from applying to a person
substituted for a nominee who, prior to the election, has clearly manifested
his unwillingness to serve or whose service would be a physical impossibility.
(5) The proxy
statement or form of proxy shall provide, subject to reasonable specified
conditions, that the proxy will be voted and that where the person solicited
specifies by means of ballot provided pursuant to subsection (2) of this
section a choice with respect to any matter to be acted upon, the vote will be
in accordance with the specifications so made.
(6) The information
included in the proxy statement or information statement shall be clearly
presented and the statements made shall be divided into groups according to
subject matter, with appropriate headings. All printed proxy statements or
information statements shall be clearly and legibly presented.
(7) All proxy
statements shall disclose, under an appropriate caption, the date by which
proposals of security holders intended to be presented at the next annual
meeting must be received by the insurer for inclusion in the insurer's proxy
statement and form of proxy relating to that meeting, the date to be calculated
in accordance with the provisions of Section 10(1) of this administrative
regulation. If the date of the next annual meeting is subsequently advanced by
more than thirty (30) calendar days or delayed by more than ninety (90)
calendar days from the date of the annual meeting to which the proxy statement
relates, the insurer shall, in a timely manner, inform security holders of such
change, and the date by which proposals of security holders must be received,
by any means reasonably calculated to so inform them.
Section 8. Material
Required to be Filed. (1) Two (2) preliminary copies of the information
statement or the proxy statement and form of proxy and any other soliciting
material to be furnished to security holders concurrently therewith shall be
filed with the executive director at least thirty (30) days prior to the date
definitive copies of the material are first sent or given to security holders,
or such shorter period prior to that date as the executive director may
authorize upon a showing of good cause therefor.
(2) Two (2)
preliminary copies of any additional soliciting material relating to the same
meeting or subject matter to be furnished to security holders subsequent to the
proxy statements shall be filed with the executive director at least ten (10)
days (exclusive of Saturdays, Sundays, or holidays) prior to the date copies of
this material are first sent or given to security holders or a shorter period
prior to the date as the executive director may authorize upon a showing of
good cause therefor.
(3) Two (2)
definitive copies of the information statement or the proxy statement, form of
proxy and all other soliciting material, in the form in which this material is
furnished to security holders, shall be filed with, or mailed for filing to,
the executive director not later than the date the material is first sent or
given to the stockholders.
(4) Where any information
statement or proxy statement, form of proxy or other material filed pursuant to
these rules is amended or revised, two (2) of the copies shall be marked to
clearly show such changes.
(5) Copies or
replies to inquiries from security holders requesting further information and
copies of communications which do no more than request that forms of proxy
theretofore solicited be signed and returned need not be filed pursuant to this
section.
(6) Notwithstanding
the provisions of subsections (1) and (2) of this section and of Section 13(5)
of this administrative regulation, copies of soliciting material in the form of
speeches, press releases and radio or television scripts may, but need not, be
filed with the executive director prior to use or publication. Definitive
copies, however, shall be filed with or mailed for filing to the executive director
as required by subsection (3) of this section not later than the date the
material is used or published. The provisions of subsections (1) and (2) of
this section and Section 13(5) of this administrative regulation shall apply,
however, to any reprints or reproductions of all or any part of such material.
Section 9. Mailing
Communications for Security Holders. (1) If the management of the insurer has
made or intends to make any solicitation subject to this administrative
regulation, the insurer shall perform any of the following acts as may be duly
requested in writing with respect to the same subject matter or meeting by any
security holder who is, or security holders who are, entitled to vote at least
one (1) percent of the votes entitled to be voted on this matter and who shall
defray the reasonable expenses to be incurred by the insurer in the performance
of the act or acts requested:
(a) The insurer
shall mail or otherwise furnish to the security holder, as promptly as
practicable after the receipt of the request:
1. A statement of
the approximate number of record owners and, to the extent known to the
insurer, the approximate number of beneficial owners of any class of
securities, any of whom have been or are to be solicited on behalf of the
management, or any group of whom the security holder shall designate; and
2. An estimate of
the cost of mailing a specified proxy statement, form of proxy or other communication
to the owners.
(b) Copies of any
proxy statement, form of proxy or other communication furnished by the security
holder shall be mailed by the insurer to the security owners specified in
paragraph (a)1 of this subsection as the security holder shall designate;
(c) Material
furnished by the security holder shall be mailed with reasonable promptness
after receipt of the material to be mailed, envelopes or other containers
therefor, and postage or payment for postage. The insurer need not, however,
mail any such material prior to the first day on which solicitation is made on
behalf of the insurer;
(d) The insurer
shall not be responsible for the proxy statement, form of proxy or other
communication.
(2) In lieu of
performing the acts specified above, the insurer may, at its option, furnish
promptly to the security holder a reasonably current list of the names and
addresses of the record owners and, to the extent known to the insurer, the
beneficial owners as the security holder shall designate and a schedule of the
handling and mailing costs if the schedule has been supplied to the insurer.
Section 10.
Proposals of Security Holders. (1) If any holder or holders of the securities
of an insurer (hereafter referred to as the "proponent") notifies the
insurer in writing not less than ninety (90) days before the insurer's annual
meeting of his intention to present a lawful proposal for action at a
forthcoming meeting of the insurer's security holders and at the time of the
notice the proponent is entitled to vote at least one (1) percent of the votes
entitled to be voted on the proposal, the insurer shall set forth the proposal
in its proxy statement and identify it in its form of proxy and provide for the
specification of approval or disapproval of such proposal. The proxy statement
shall also include the name and address of the proponent.
(2) If the insurer
opposes any proposal received from a proponent, it shall also, at the request
of the proponent, include in its proxy statement a statement of the proponent
of not more than 200 words in support of the proposal.
(3) The insurer may
omit a proposal and any statement in support thereof from its proxy statement
and form of proxy under any of the following circumstances:
(a) The proponent
has submitted more than one (1) proposal in connection with a particular
meeting;
(b) The proposal is
more than 300 words in length;
(c) The proposal or
the supporting statement is contrary to any section of this administrative
regulation, including Section 11 of this administrative regulation which
prohibits false or misleading statements in proxy soliciting materials;
(d) The proposal
relates to the enforcement of a personal claim or the redress of a personal
grievance against the insurer, its management, or any other person;
(e) The proposal
deals with a matter not significantly related to the insurer's business; a
matter beyond the insurer's power to effectuate; a matter relating to the
conduct of the ordinary business operations of the insurer; or an election to
office;
(f) The proposal is
counter to a proposal to be submitted by the insurer at the meeting; the
proposal has been rendered moot; or the proposal relates to specific amounts of
cash or stock dividends;
(g) The proposal is
substantially duplicative of a proposal previously submitted to the insurer by
another proponent, which proposal will be included in the management's proxy
material for the meeting; or
(h) The
substantially same proposal has previously been submitted to security holders
in the insurer's proxy statement and form of proxy relating to any annual or
special meeting of security holders held within the preceding five (5) calendar
years, and received less than five (5) percent of the total number of votes
cast in respect thereof at the time of its most recent submission.
(4) If the insurer
intends to omit any proposal from its proxy statement or forms of proxy, it
shall notify the proponent in writing of its intention at least ten (10) days
before the insurer's preliminary proxy material is filed pursuant to Section 8
of this administrative regulation.
Section 11. False or
Misleading Statements. A proxy statement, form of proxy, notice of meeting,
information statement, or other communication, written or oral, subject to this
administrative regulation, shall not contain any statement which at the time
and in the light of the circumstances under which it is made, is false or
misleading with respect to any material fact, or which omits to state any
material fact necessary in order to make the statements therein not false or
misleading or necessary to correct any statement in any earlier communication
with respect to the same meeting or subject matter which has become false or
misleading.
Section 12.
Prohibition of Certain Solicitations. A person making a solicitation which is
subject to this administrative regulation shall not solicit any undated or
postdated proxy or any proxy which provides that it shall be deemed to be dated
as of any date subsequent to the date on which it is signed by the security
holder.
Section 13. Special
Provisions Applicable to Election Contests. (1) Applicability. This section
shall apply to any solicitation subject to this administrative regulation by
any person or group for the purpose of opposing a solicitation subject to this
administrative regulation by any other person or group with respect to the
election or removal of directors at any annual or special meeting of
stockholders.
(2) Participant or
participant in a solicitation. For purposes of this section the terms
"participant" and "participant in a solicitation" include:
(a) The insurer;
(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 this employment;
(d) 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
(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.
(3) Filing of
information required by Section 15 of this administrative regulation.
(a) Solicitations
subject to this section shall not be made by any person other than the
management of an insurer unless at least five (5) business days prior thereto,
or a shorter period as the executive director may authorize upon a showing of
good cause therefor, there has been filed, with the executive director, by or
on behalf of each participant in this solicitation, a statement in duplicate
containing the information specified by Section 15 of this administrative
regulation and a copy of any material proposed to be distributed to security
holders in furtherance of this solicitation. Where preliminary copies of any
materials are filed, distribution to security holders should be deferred until
the executive director’s comments have been received and complied with.
(b) Within five (5)
days after a solicitation subject to this section is made by the management of
an insurer, or a longer period as the executive director may authorize upon a
showing of good cause therefor, there shall be filed with the executive
director by or on behalf of each participant in the 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 Section 15 of
this administrative regulation.
(c) 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 Section 14 of this administrative regulation shall be
filed with the executive director, by or on behalf of each participant in the
prior solicitation, other than the insurer, as soon as reasonably practicable
after the commencement of the solicitation in opposition thereto.
(d) If, subsequent
to the filing of the statement required by paragraphs (a), (b) and (c) of this
subsection, additional persons become participants in a solicitation subject to
this rule, there shall be filed with the executive director, by or on behalf of
a person, a statement in duplicate containing the information specified by
Section 15 of this administrative regulation within three (3) business days
after a person becomes a participant, or such longer period as the executive
director may authorize upon a showing of good cause therefor.
(e) 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 executive director.
(f) Each statement
and amendment thereto filed pursuant to this subsection shall be part of the
public files of the executive director.
(4) Solicitations
prior to furnishing required written proxy statement. Notwithstanding the
provisions of Section 6(1) of this administrative regulation, a solicitation
subject to this section may be made prior to furnishing security holders a
written proxy statement containing the information specified in Section 14 of
this administrative regulation with respect to the solicitation, provided that:
(a) The statements
required by subsection (3) of this section are filed by or on behalf of each
participant in the solicitation.
(b) No form of proxy
is furnished to shareholders prior to the time the written proxy statement
required by Section 6(1) of this administrative regulation is furnished to
these persons: provided, however, that this paragraph shall not apply where a
proxy statement then meeting the requirements of Section 14 of this
administrative regulation has been furnished to security holders.
(c) At least the
information specified in this paragraph and paragraph (b) of this subsection of
the statements required by subsection (3) of this section 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.
(d) A written proxy
statement containing the information specified in Section 14 of this
administrative regulation with respect to a solicitation is sent or given
security holders at the earliest practicable date.
(5) Solicitations
prior to furnishing required written proxy statement; filing requirements. Two
(2) 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
Section 6(1) of this administrative regulation shall be filed with the executive
director in preliminary form at least five (5) business days prior to the date
definitive copies of the material are first sent or given to such persons, or
shorter period as the executive director may authorize upon a showing of good
cause therefor.
(6) Application of
this section to report. Notwithstanding the provisions of Section 6(2) and (3)
of this administrative regulation, two (2) copies of any portion of the report
referred to in Section 6(2) of this administrative regulation 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 executive director as proxy material
subject to this administrative regulation. That portion of the report shall be
filed with the executive director 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.
Section 14.
Information Required in Proxy Statement. (1) Revocability of proxy. Make a
positive statement similar to, "This proxy may be revoked at will, prior
to the voting for which it is given; upon notice to the Secretary of the Company."
KRS 271A.165 requires proxies be revocable at will.
(2) Dissenters'
rights of appraisal. Outline briefly the rights of appraisal or similar rights
of dissenting security holders with respect to any matter to be acted upon and
indicate any statutory procedure required to be followed by such security
holders in order to perfect their rights. Where these rights may be exercised
only within a limited time after the date of the adoption of a proposal, the
filing of a charter amendment, or other similar act, state whether the person
solicited will be notified of the date.
(3) Persons making
solicitations not subject to Section 13 of this administrative regulation:
(a) If the
solicitation is made by the management of the insurer, so state. Give the name
of any director of the insurer who has informed the management in writing that
he intends to oppose any action intended to be taken by the management and
indicate the action which he intends to oppose.
(b) If the
solicitation is made otherwise than by the management of the insurer, state the
names and addresses of the persons by whom the cost of solicitation has been or
will be borne, directly or indirectly.
(4) Interest of
certain persons in matters to be acted upon. Describe briefly any substantial
interest, direct or indirect, by security holdings or otherwise, of any
director, nominee for election for director, officer and, if the solicitation
is made otherwise than on behalf of management, each person on whose behalf the
solicitation is made, in any matter to be acted upon other than elections to
office.
(5) Voting
securities.
(a) State, as to
each class of voting securities of the insurer entitled to be voted at the
meeting, the number of shares outstanding and the number of votes to which each
class is entitled.
(b) Give the date as
of which the record list of security holders entitled to vote at the meeting
will be determined. If the right to vote is not limited to security holders of
record on that date, indicate the conditions under which other security holders
may be entitled to vote.
(c) If action is to
be taken with respect to the election of directors, under KRS 271A.180 the
persons solicited shall have cumulative voting rights. Make a statement that
they have such rights and state briefly the technique of cumulative voting.
(6) Nominees and
directors. If action is to be taken with respect to the election of directors
furnish the following information, in tabular form to the extent practicable,
with respect to each person nominated for election as a director and each other
person whose term of office as a director will continue after the meeting:
(a) Name each such
person, state when his term of office or the term of office for which he is a
nominee will expire, and all other positions and offices with the insurer
presently held by him, and indicate which persons are nominees for election as
directors at the meeting.
(b) State his
present principal occupation or employment and give the name and principal
business of any corporation or other organization in which the employment is
carried on. Furnish similar information as to all of his principal occupations
or employments during the last five (5) years, unless he is now a director and
was elected to his present term of office by a vote of security holders at a
meeting for which proxies were solicited under this administrative regulation.
(c) If he is or has
previously been a director of the insurer, state the period or periods during
which he has served as such.
(d) State, as of the
most recent practicable date, the approximate amount of each class of equity
security of the insurer or any of its parents, subsidiaries or affiliates other
than directors' qualifying shares, beneficially owned directly or indirectly by
him. If he is not the beneficial owner of any such equity securities make a
statement to that effect.
(7) Remuneration and
other transactions with management and others:
(a) This subsection
shall apply only to each director whose aggregate remuneration exceeds $40,000
and to each of the three (3) highest paid officers whose aggregate annual
remuneration exceeds $40,000.
(b) Furnish the
information reported or required in Item 1 of Schedule SIS under the heading
"Information Regarding Management and Directors" if action is to be
taken with respect to:
1. The election of
directors;
2. Any remuneration
plan, contract or arrangement in which any director, nominee for election as a
director, or officer of the insurer will participate;
3. Any pension or
retirement plan in which any such person will participate; or
4. The granting or
extension to any such person of any options, warrants or rights to purchase any
equity securities other than warrants or rights issued to security holders, as
such, on a pro rata basis. If the solicitation is made on behalf of persons
other than management, information shall be furnished only as to Item 1-A of
the aforesaid heading of Schedule SIS.
(8) Bonus, profit
sharing and other remuneration plans. If action is to be taken with respect to
any bonus, profit sharing, or other remuneration plan of the insurer, furnish
the following information:
(a) A brief
description of the material features of the plan, each class of persons who
will participate therein, the approximate number of persons in each class, and
the basis of each participation.
(b) The amounts
which would have been distributed under the plan during the last calendar year
to:
1. Each person named
in subsection (7) of this section;
2. Directors and
officers as a group; and
3. All other employees
as a group, if the plan had been in effect.
(c) If the plan to
be acted upon may be amended (other than by a vote of security holders) in a
manner which would materially increase the cost thereof to the insurer or to
materially alter the allocation of the benefits as between the groups specified
in paragraph (b) of this subsection, the nature of the amendments should be
specified.
(9) Pension and
retirement plan. If action is to be taken with respect to any pension or
retirement plan of the insurer, furnish the following information:
(a) A brief
description of the material features of the plan, each class of persons who
will participate therein, the approximate number of persons in each such class,
and the basis of the participation.
(b) State:
1. The approximate
total amount necessary to fund the plan with respect to past services, the
period over which the amount is to be paid, and the estimated annual payments
necessary to pay the total amount over that period;
2. The estimated
annual payment to be made with respect to current services; and
3. The amount of
such annual payments to be made for the benefit of:
a. Each person named
in subsection (7) of this section;
b. Directors and
officers as a group; and
c. Employees as a
group.
(c) If the plan to
be acted upon may be amended (other than by a vote of security holders) in a
manner which would materially increase the cost thereof to the insurer or to
materially alter the allocation of the benefits as between the groups specified
in paragraph (b)3 of this subsection, the nature of the amendments should be
specified.
(10) Options,
warrants, or rights. If action is to be taken with respect to the granting or
extension of any options, warrants or rights (all referred to herein as
"warrants") to purchase equity securities of the insurer or any
subsidiary or affiliate, other than warrants issued to all security holders on
a pro rata basis, furnish the following information:
(a) The title and
amount of equity security called for or to be called for, the prices,
expiration dates and other material conditions upon which the warrants may be
exercised, the consideration received or to be received by the insurer,
subsidiary or affiliate for the granting or extension of the warrants and the
market value of the equity security called for or to be called for by the
warrants, as of the latest practicable date.
(b) If known, state
separately the amount of equity security called for or to be called for by
warrants received or to be received by the following persons, naming each such
person:
1. Each person named
in subsection (7) of this section; and
2. Each other person
who will be entitled to acquire five (5) percent or more of the equity security
called for or to be called for by such warrants.
(c) If known, state
also the total amount of equity security called for or to be called for by such
warrants, received or to be received by all directors and officers of the
company as a group and all employees, without naming them.
(11) Authorization
or issuance of equity securities.
(a) If action is to
be taken with respect to the authorization or issuance of any equity security
of the insurer, furnish the title, amount and description of the equity
security to be authorized or issued.
(b) If the equity
securities are other than additional shares of common stock of a class
outstanding, furnish a brief summary of the following, if applicable: dividend,
voting, liquidation, preemptive, and conversion rights, redemption and sinking
fund provisions, interest rate and date of maturity.
(c) If the equity
securities to be authorized or issued are other than additional shares of
common stock of a class outstanding, the executive director may require
financial statements comparable to those contained in the annual report.
(12) Mergers,
consolidations, acquisitions and similar matters.
(a) If action is to
be taken with respect to a merger, consolidation, acquisition, or similar
matter, furnish in brief outline the following information:
1. The rights of
appraisal or similar rights of dissenters with respect to any matters to be
acted upon. Indicate any procedure required to be followed by dissenting
security holders in order to perfect these rights.
2. The material
features of the plan or agreement.
3. The business done
by the company to be acquired or whose assets are being acquired.
4. If available, the
high and low sales prices for each quarterly period within two (2) years.
5. The percentage of
outstanding shares which must approve the transaction before it is consummated.
(b) For each company
involved in a merger, consolidation or acquisition, the following financial
statements should be furnished:
1. A comparative
balance sheet as of the close of the last two (2) fiscal years.
2. A comparative
statement of operating income and expenses for each of the last two (2) fiscal
years and, as a continuation of each statement, a statement of earnings per
share after related taxes and cash dividends paid per share.
3. A pro forma
combined balance sheet, and income and expenses statement for the last fiscal
year giving effect to the necessary adjustments with respect to the resulting
company.
(13) Restatement of
accounts. If action is to be taken with respect to the restatement of any
assets, capital, or surplus of the insurer, furnish the following information:
(a) State the nature
of the restatement and the date as of which it is to be effective.
(b) Outline briefly
the reasons for the restatement and for the selection of the particular
effective date.
(c) State the name and
amount of each account affected by the restatement and the effect of the
restatement thereon.
(14) Matters not
required to be submitted. If action is to be taken with respect to any matter
which is not required to be submitted to a vote of security holders, state the
nature of the matter, the reason for submitting it to a vote of security
holders and what action is intended to be taken by the management in the event
of a negative vote on the matter by security holders.
(15) Amendment of
charter, bylaws, or other documents. If action is to be taken with respect to
any amendment of the insurer's charter, bylaws or other documents as to which
information is not required above, state briefly the reasons for and general
effect of the amendment and the vote needed for its approval.
Section 15.
Information to be included in statements filed by or on behalf of a participant
(other than the insurer) in a proxy solicitation in an election contest.
(1) Insurer. State
the name and address of the insurer.
(2) Identity and
background.
(a) State the
following:
1. Your name and
business address.
2. Your present
principal occupation or employment and the name, principal business and address
of any corporation or other organization in which this employment is carried
on.
(b) State the
following:
1. Your resident
address.
2. Information as to
all material occupations, positions, offices and employments during the last
ten (10) years, giving starting and ending dates of each and the name,
principal business and address of any business corporation or other business
organization in which each such occupation, position, office or employment was
carried on.
(c) State whether or
not you are or have been a participant in any other proxy contest involving
this company or other companies within the past ten (10) years. If so, identify
the principals, the subject matter and your relationship to the parties and the
outcome.
(d) State whether or
not, during the past ten (10) years, you have been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) and, if so,
give dates, nature of conviction, name and location of court, and penalty
imposed or other disposition of the case. A negative answer to this paragraph
need not be included in the proxy statement or other proxy soliciting material.
(3) Interest in
equity securities of the insurer.
(a) State the amount
of each class of equity security of the insurer which you own beneficially,
directly or indirectly.
(b) State the amount
of each class of equity security of the insurer which you own of record but not
beneficially.
(c) State with
respect to the equity security specified in paragraphs (a) and (b) of this
subsection the amounts acquired within the past two (2) years, the date of
acquisition and the amounts acquired on each date.
(d) If any part of
the purchase price or market value of any of the equity security specified in
paragraph (c) of this subsection is represented by funds borrowed or otherwise
obtained for the purpose of acquiring or holding such equity security, so state
and indicate the amount of the indebtedness as of the latest practicable date.
If the funds were borrowed or obtained otherwise than pursuant to a margin
account or bank loan in the regular course of business of a bank, broker, or
dealer, briefly describe the transaction, and state the names of the parties.
(e) State whether or
not you are a party to any contracts, arrangements or understandings with any
person with respect to any equity security of the insurer, including but not
limited to joint ventures, loan or option arrangements, puts or calls,
guarantees against loss or guarantees of profits, division of losses or
profits, or the giving or withholding of proxies. If so, name the persons with
whom such contracts, arrangements, or understandings exist and give the details
thereof.
(f) State the amount
of equity security of the insurer owned beneficially, directly or indirectly,
by each of your associates and the name and address of each such associate.
(g) State the amount
of each class of equity security of any parent, subsidiary or affiliate of the
insurer which you own beneficially, directly, or indirectly.
(4) Further matters.
(a) Describe the
time and circumstance under which you became a participant in the solicitation
and state the nature and extent of your activities or proposed activities as a
participant.
(b) Describe
briefly, and where practicable state the approximate amount of any material
interest, direct or indirect, to yourself and of each of your associates in any
material transactions since the beginning of the company's last fiscal year, or
in any material proposed transactions, to which the company or any of its
subsidiaries or affiliates was or is to be a party.
(c) State whether or
not you or any of your associates have any arrangement or understanding with
any person:
1. With respect to
any future employment by the insurer or its subsidiaries or affiliates; or
2. With respect to
any future transactions to which the insurer or any of its subsidiaries or
affiliates will or may be a party. If so, describe such arrangement or
understanding and state the names of the parties thereto.
(5) Signature. The
statement shall be dated and signed in the following manner:
I certify that the
statements made in this statement are true, complete, and correct, to the best
of my knowledge and belief.
Date:
Signature of participant
or authorized representative:
(I-26.01; 1 Ky.R.
870; eff. 5-14-75; Am. 8 Ky.R. 926; eff. 4-7-82; 20 Ky.R. 2371; 2780; eff. 4-11-94;
TAm eff. 8-9-2007.)
