§ 22:691.4 — Acquisition of control of or merger with domestic insurer

Louisiana § 22:691.4

• Jurisdiction: Louisiana
• Title 22: Insurance

Text

A. Filing requirements.
(1) No person other than the issuer shall make a tender offer for or a request or invitation for tenders of, or enter into any agreement to exchange securities for, seek to acquire, or acquire, in the open market or otherwise, any voting security of a domestic insurer if, after the consummation thereof, such person would, directly or indirectly, or by conversion or by exercise of any right to acquire, be in control of the insurer, and no person shall enter into an agreement to merge with or otherwise to acquire control of a domestic insurer or any person controlling a domestic insurer unless, at the time the offer, request, or invitation is made or the agreement is entered into, or prior to the acquisition of the securities if no offer or agreement is involved, such person has filed with the commissioner and has sent to the insurer, a statement containing the information required by this Section and the offer, request, invitation, agreement, or acquisition has been approved by the commissioner in the manner prescribed in this Subpart.
(2) For purposes of this Section, any controlling person of a domestic insurer seeking to divest its controlling interest in the domestic insurer in any manner shall file with the commissioner, with a copy to the insurer, confidential notice of its proposed divestiture at least thirty days prior to the cessation of control. The commissioner shall determine those instances in which the person seeking to divest or to acquire a controlling interest in an insurer will be required to file for and obtain approval of the transaction. The information shall remain confidential until the conclusion of the transaction unless the commissioner, in his discretion, determines that confidential treatment will interfere with enforcement of this Section. If the statement referred to in Paragraph (1) of this Subsection is otherwise filed, this Paragraph shall not apply.
(3) With respect to a transaction subject to this Section, the acquiring person shall also file a pre-acquisition notification with the commissioner, which shall contain the information set forth in R.S. 22:691.5(C)(1). Failure to file the notification may subject such acquiring person to the penalties specified in R.S. 22:691.5(E)(3).
(4) For purposes of this Section, a domestic insurer shall include any person controlling a domestic insurer unless the person, as determined by the commissioner, is, either directly or through its affiliates, primarily engaged in business other than the business of insurance. For the purposes of this Section, person shall not include any securities broker holding, in the usual and customary broker's function, less than twenty percent of the voting securities of an insurance company or of any person which controls an insurance company.
B. Content of statement. The statement to be filed with the commissioner shall be made under oath or affirmation and shall contain a complete disclosure of the following information:
(1) The name and address of each person by whom or on whose behalf the merger or other acquisition of control referred to in Subsection A of this Section is to be effected, hereinafter called the "acquiring party".
(a) If the person is an individual, he shall also disclose his principal occupation and all offices and positions held during the past five years and any conviction of crimes other than minor traffic violations during the past ten years.
(b) If the person is not an individual, it shall include a report that discloses the following information:
(i) The nature of its business operations during the past five years or for such lesser period as such person or any predecessors thereof have been in existence.
(ii) An informative description of the business intended to be done by the person and the person's subsidiaries.
(iii) A list of all individuals who are or who have been selected to become directors or executive officers of the person, or who perform or will perform functions appropriate to such positions. The list shall include for each individual the information required by Subparagraph (a) of this Paragraph.
(2) The source, nature, and amount of the consideration used or to be used in effecting the merger or other acquisition of control; a description of any transaction where funds were or are to be obtained for any such purpose, including any pledge of the insurer's stock, or the stock of any of its subsidiaries or controlling affiliates; and the identity of persons furnishing consideration, provided however, that where a source of consideration is a loan made in the lender's ordinary course of business, the identity of the lender shall remain confidential if the person filing the statement so requests.
(3) Fully audited financial information as to the earnings and financial condition of each acquiring party for the preceding five fiscal years of each acquiring party, or for such lesser period as the acquiring party and any predecessors shall have been in existence, and similar unaudited information as of a date not earlier than ninety days prior to the filing of the statement.
(4) Any plans or proposals which each acquiring party may have to liquidate the insurer, to sell its assets or merge or consolidate it with any person, or to make any other material change in its business or corporate structure or management.
(5) The number of shares of any security referred to in Subsection A of this Section which each acquiring party proposes to acquire; the terms of the offer, request, invitation, agreement, or acquisition referred to in Subsection A of this Section; and a statement as to the method by which the fairness of the proposal was determined.
(6) The amount of each class of any security referred to in Subsection A of this Section which is beneficially owned or concerning which there is a right to acquire beneficial ownership by each acquiring party.
(7) A full description of any contracts, arrangements, or understandings with respect to any security referred to in Subsection A of this Section in which any acquiring party is involved, including but not limited to transfer of any of the securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or guarantees of profits, division of losses or profits, or the giving or withholding of proxies. The description shall identify the persons with whom the contracts, arrangements, or understandings have been entered into.
(8) A description of the purchase of any security referred to in Subsection A of this Section during the twelve calendar months preceding the filing of the statement by any acquiring party, including the dates of purchase, names of the purchasers, and consideration paid or agreed to be paid.
(9) A description of any recommendations to purchase any security referred to in Subsection A of this Section made during the twelve calendar months preceding the filing of the statement by any acquiring party, or by anyone based upon interviews, or at the suggestion of the acquiring party.
(10) Copies of all tender offers for requests, or invitations for tenders of, exchange offers for, and agreements to acquire or exchange any securities referred to in Subsection A of this Section, and, if distributed, of additional soliciting material relating to them.
(11) The term of any agreement, contract, or understanding made with or proposed to be made with any broker-dealer as to solicitation of securities referred to in Subsection A of this Section for tender, and the amount of any fees, commissions, or other compensation to be paid to broker-dealers with regard thereto.
(12) An agreement by the person required to file the statement referred to in Subsection A of this Section that it will provide the annual report, specified in R.S. 22:691.6(L), for so long as control exists.
(13) An acknowledgment by the person required to file the statement referred to in Subsection A of this Section that the person and all subsidiaries within its control in the insurance holding company system will provide information to the commissioner upon request as necessary to evaluate enterprise risk to the insurer.
(14) Such additional information as the commissioner may by rule or regulation prescribe as necessary or appropriate for the protection of policyholders of the insurer or in the public interest.
C.(1) If the person required to file the statement referred to in Subsection A of this Section is a partnership, limited partnership, syndicate, or other group, the commissioner may require that the information called for by Paragraphs (B)(1) through (14) of this Section shall be given with respect to each partner of the partnership or limited partnership, each member of the syndicate or group, and each person who controls the partner or member. If any partner, member, or person is a corporation or the person required to file the statement referred to in Subsection A of this Section is a corporation, the commissioner may require that the information called for by Paragraphs (B)(1) through (14) of this Section shall be given with respect to the corporation, each officer and director of the corporation, and each person who is directly or indirectly the beneficial owner of more than ten percent of the outstanding voting securities of the corporation.
(2) If any material change occurs in the facts set forth in the statement filed with the commissioner and sent to the insurer pursuant to this Section, an amendment setting forth the change, together with copies of all documents and other material relevant to the change, shall be filed with the commissioner and sent to the insurer within two business days after the person learns of the change.
D. Alternative filing materials. If any offer, request, invitation, agreement, or acquisition referred to in Subsection A of this Section is proposed to be made by means of a registration statement under the Securities Act of 1933, or in circumstances requiring the disclosure of similar information under the Securities Exchange Act of 1934, or under a state law requiring similar registration or disclosure, the person required to file the statement referred to in Subsection A of this Section may utilize the documents in furnishing the information called for by that registration statement.
E. Approval by commissioner: hearings.
(1) The commissioner shall approve any merger or other acquisition of control referred to in Subsection A of this Section unless, after a public hearing, the commissioner makes any of the following findings:
(a) After the change of control, the domestic insurer referred to in Subsection A of this Section would not be able to satisfy the requirements for the issuance of a license to write the line or lines of insurance for which it is presently licensed.
(b) The effect of the merger or other acquisition of control would be to substantially lessen competition in insurance in this state or tend to create a monopoly. In applying the competitive standard mandated by this Subparagraph, the following factors shall apply:
(i) The informational requirements of R.S. 22:691.5(C)(1) and the standards of R.S. 22:691.5(D)(2).
(ii) The merger or other acquisition shall not be disapproved if the commissioner finds that any of the situations meeting the criteria provided by R.S. 22:691.5(D)(3) exist.
(iii) The commissioner may condition the approval of the merger or other acquisition on the removal of the basis of disapproval within a specified period of time.
(c) The financial condition of any acquiring party is such as might jeopardize the financial stability of the insurer or prejudice the interest of its policyholders.
(d) The plans or proposals which the acquiring party has to liquidate the insurer, sell its assets, or consolidate or merge it with any person, or to make any other material change in its business or corporate structure or management, are unfair and unreasonable to policyholders of the insurer and not in the public interest.
(e) The competence, experience, and integrity of those persons who would control the operation of the insurer are such that it would not be in the interest of policyholders of the insurer and of the public to permit the merger or other acquisition of control.
(f) The acquisition is likely to be hazardous or prejudicial to the insurance-buying public.
(2) The public hearing referred to in Paragraph (1) of this Subsection shall be held within thirty days after the statement required by Subsection A of this Section is filed, and at least twenty days notice shall be given by the commissioner to the person filing the statement and to the insurer. The commissioner shall publish a notice of the hearing in a daily newspaper in each of the congressional districts of the state for at least three consecutive days. The last date of publication shall be not less than ten days prior to the date of the hearing. Such notice shall include the name of the insurer and the name of person or persons who have filed the statement pursuant to Subsection A of this Section. The commissioner shall make a determination within the thirty-day period after the conclusion of such hearing. At the hearing, the person filing the statement, the insurer, any person to whom notice of hearing was sent, and any other person whose interest may be affected shall have the right to present evidence, examine, and cross examine witnesses, and offer oral and written arguments, and in connection with such hearing, shall be entitled to conduct discovery proceedings in the same manner as is presently allowed in the district courts of this state. All discovery proceedings shall be concluded not later than three days prior to the commencement of the public hearing.
(3) If the proposed acquisition of control will require the approval of more than one commissioner, the public hearing referred to in Paragraph (2) of this Subsection may be held on a consolidated basis upon request of the person filing the statement referred to in Subsection A of this Section. Such person shall file the statement referred to in Subsection A of this Section with the National Association of Insurance Commissioners (NAIC) within five days of making the request for a public hearing. A commissioner may opt out of a consolidated hearing, and shall provide notice to the applicant of the opt-out within ten days of the receipt of the statement referred to in Subsection A of this Section. A hearing conducted on a consolidated basis shall be public and shall be held within the United States before the commissioners of the states in which the insurers are domiciled. Such commissioners shall hear and receive evidence. A commissioner may attend such hearing in person or by telecommunication.
(4) In connection with a change of control of a domestic insurer, any determination by the commissioner that the person acquiring control of the insurer shall be required to maintain or restore the capital of the insurer to the level required by the laws and regulations of this state shall be made not later than sixty days after the date of notification of the change in control submitted pursuant to Paragraph (A)(1) of this Section.
(5) The commissioner may retain at the acquiring person's expense, any attorneys, actuaries, accountants, and other experts not otherwise a part of the commissioner's staff as may be reasonably necessary to assist the commissioner in reviewing the proposed acquisition of control.
F. Exemptions.
(1) The provisions of this Section shall not apply to any offer, request, invitation, agreement, or acquisition which the commissioner, by order, shall exempt for any of the following reasons:
(a) The offer or agreement was not made or entered into for the purpose of, and did not have the effect of changing or influencing the control of a domestic insurer.
(b) The offer or agreement was not otherwise comprehended within the purposes of this Section.
(c) The change in control results from an inheritance, donation, or similar type transfer of ownership.
(2) Exemptions pursuant to Subparagraph (1)(a) or (b) this Subsection shall be requested and granted by the commissioner prior to the transaction.
(3) Notice of any change of control which results from an inheritance, donation, or similar type transfer of ownership shall be submitted to the commissioner no more than sixty days after such change in the format required by the commissioner.
G. Violations. The following shall be violations of this Section:
(1) The failure to file any statement, amendment, or other material required to be filed pursuant to Subsection A or B of this Section.
(2) The effectuation or any attempt to effectuate an acquisition of control of, divestiture of, or merger with, a domestic insurer unless the commissioner has given approval.
H. Jurisdiction; consent to service of process. The courts of this state are hereby vested with jurisdiction over every person not resident, domiciled, or authorized to do business in this state who files a statement with the commissioner under this Section, and over all actions involving such person arising out of violations of this Section, and each such person shall be deemed to have performed acts equivalent to and constituting an appointment by the person of the commissioner to be his true and lawful attorney upon whom may be served all lawful process in any action, suit, or proceeding arising out of violations of this Section. Copies of all lawful process shall be served on the commissioner and transmitted by registered or certified mail by the commissioner to the person at his last known address.

Legislative History

Acts 2012, No. 294, §1; Acts 2014, No. 791, §8.