§ 26-44-103 — Acquisition of control of or merger with domestic insurer

Wyoming § 26-44-103

• Jurisdiction: Wyoming
• Title 26: Insurance Code
• Ch. 44: INSURANCE HOLDING COMPANY SYSTEM REGULATORY ACT

Text

(a) No person other than the issuer shall make a tender
offer for or a request or invitation for tenders of, or
agreement to exchange securities for or otherwise acquire, any
voting security or any security convertible into a voting
security of a domestic insurer or of any other person
controlling a domestic insurer if, after consummation, the
person would, directly or indirectly, be in control of the
insurer and no person shall enter into an agreement to merge
with or otherwise acquire control of a domestic insurer unless:
(i) Thirty (30) days prior to the above transactions
the person has filed with the commissioner and has sent to the
insurer a statement containing the information required by this
section;
(ii) The offer, request, invitation, agreement or
acquisition has been approved by the commissioner. For purposes
of this section a domestic insurer includes 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" does
not include any securities broker holding, in the usual and
customary broker's function, less than twenty percent (20%) of
the voting securities of an insurance company or of any person
which controls an insurance company; and
(iii) If any controlling person of a domestic insurer
is seeking to divest its controlling interest in the domestic
insurer in any manner, the controlling person has filed with the
commissioner, with a copy to the insurer, confidential notice of
its proposed divestiture at least thirty (30) days prior to the
cessation of control. The commissioner shall determine those
instances in which the party 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 (i) of this
subsection is otherwise filed by the acquiring person or as
otherwise required, this paragraph shall not apply.
(b) The preacquisition statement required by subsection
(a) of this section shall be made under oath or affirmation and
shall contain the following:
(i) 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 made and the
following:
(A) If the person is an individual, his
principal occupation and all offices and positions held during
the past five (5) years, and any conviction of crimes other than
minor traffic violations during the past ten (10) years;
(B) If the person is not an individual, a report
of the nature of its business operations during the past five
(5) years or for such lesser period as the person and any
predecessors of the person have been in existence, an
informative description of the business intended to be done by
the person and the person's subsidiaries, and 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 these positions. The list
shall include for each individual the information required by
subparagraph (A) of this paragraph.
(ii) 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 that 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 the funds where a source of the funds 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;
(iii) Fully audited financial information as to the
earnings and financial condition of each acquiring party for the
preceding five (5) fiscal years or for any lesser period the
acquiring party and any of its predecessors have been in
existence, and similar unaudited information as of a date not
earlier than ninety (90) days before the filing of the
statement;
(iv) 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;
(v) The number of shares of any security referred to
in subsection (a) of this section which each acquiring party
proposes to acquire, and 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;
(vi) The amount of each class of any security
referred to in subsection (a) which is beneficially owned or
concerning which there is a right to acquire beneficial
ownership by each acquiring party;
(vii) 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;
(viii) A description of the purchase of any security
referred to in subsection (a) of this section during the twelve
(12) 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;
(ix) A description of any recommendations to purchase
any security referred to in subsection (a) of this section made
during the twelve (12) 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;
(x) 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 of additional related soliciting
material;
(xi) 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;
(xii) 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 W.S. 26-44-104(n),
for so long as control exists;
(xiii) An acknowledgement 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; and
(xiv) Any 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) 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 subsection (b) 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 subsection (b) 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 (10%)
of the outstanding voting securities of the corporation.
(d) 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 (2) business days after the
person learns of the change.
(e) 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
documents prepared for those laws in furnishing the information
called for by this section.
(f) The commissioner shall approve any merger or other
acquisition of control referred to in subsection (a) of this
section unless after a public hearing he finds that:
(i) 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;
(ii) The effect of the merger or other acquisition of
control would substantially lessen competition in insurance in
Wyoming or tend to create a monopoly in Wyoming. 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;
(iii) The financial condition of any acquiring party
might jeopardize the financial stability of the insurer, or
prejudice the interest of its policyholders;
(iv) 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;
(v) 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; or
(vi) The acquisition is likely to be hazardous or
prejudicial to the insurance buying public.
(g) The public hearing referred to in subsection (f) of
this section shall be held within thirty (30) days after the
statement required by subsection (a) of this section is filed,
and at least twenty (20) days notice of the hearing shall be
given by the commissioner to the person filing the statement.
Not less than seven (7) days notice of the public hearing shall
be given by the person filing the statement to the insurer and
to any other persons designated by the commissioner. The
commissioner shall make a determination within thirty (30) days
after the conclusion of the 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 shall be entitled to conduct discovery proceedings in the
same manner as is presently allowed in district court. All
discovery proceedings shall be concluded not later than three
(3) days prior to the commencement of the public hearing.
(h) If the proposed acquisition of control will require
the approval of more than one (1) commissioner, the public
hearing referred to in subsection (g) of this section may be
held on a consolidated basis upon request of the person filing
the statement referred to in subsection (a) of this section.
The person shall file the statement referred to in subsection
(a) of this section with the National Association of Insurance
Commissioners within five (5) 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 (10) 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. The commissioners
shall hear and receive evidence. A commissioner may attend the
hearing in person or by telecommunication.
(j) 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 (60) days after the date of notification of the
change in control submitted pursuant to subsection (a) of this
section.
(k) 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 reasonably
necessary to assist the commissioner in reviewing the proposed
acquisition of control.
(m) The provisions of this section do not apply to:
(i) Any transaction which is subject to the
provisions of W.S. 26-24-146 through 26-24-149;
(ii) Any offer, request, invitation, agreement or
acquisition which the commissioner by order shall exempt as not
having been made or entered into for the purpose and not having
the effect of changing or influencing the control of a domestic
insurer.
(n) The following shall be violations of this section:
(i) The failure to file any statement, amendment or
other material required to be filed pursuant to subsection (a)
or (b) of this section; or
(ii) 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.
(o) The Wyoming courts have jurisdiction over every person
who files a statement with the commissioner under this section,
and overall actions arising out of violations of this section.
Any person filing a statement with the commissioner appoints the
commissioner as his agent for service of process for actions
arising under this section. The commissioner shall send copies
of all legal services by certified mail to the appropriate
person at his last known address.