40-3304. Transactions affecting control of domestic insurer; approval of commissioner; statement filed with commissioner, contents, filing fee; substitution of securities registration statement; disap
40-3304
40-3304. Transactions affecting control of domestic insurer; approvalof commissioner; statement filed with commissioner,contents, filing fee; substitution of securities registration statement;disapproval oftransaction, hearing; retainer of professionals and experts to assist review;exempt transactions; violations; jurisdiction of courts;service of process.(a) No person other than the issuer shall make a tender offer for or arequest or invitation for tenders of, or enter into any agreement toexchange securities or, seek to acquire, or acquire, in the openmarket orotherwise, any voting security of a domestic insurer if, after theconsummation thereof, such person would, directly or indirectly (or byconversion or by exercise of any right to acquire) be in control of suchinsurer, and no person shall enter into an agreement to merge with orotherwise to acquire control of a domestic insurer or any person controllinga domestic insurer unless, at the time anysuch offer, request, or invitation is made or any such agreement is enteredinto, or prior to the acquisition of such securities if no offer oragreement is involved, such person has filed with the commissioner ofinsurance and has sent to such insurer, a statement containing theinformationrequired by this section and such offer, request, invitation, agreement oracquisition has been approved by the commissioner of insurance in the mannerhereinafter prescribed. The requirements of this section shall not apply tothe merger or consolidation of those companies subject to the requirements ofK.S.A. 40-507 and 40-1216 to 40-1225, inclusive, and amendments thereto.
For the purposes of this section a domestic insurer shall include anyperson controlling a domestic insurer unless such person asdetermined by the commissioner is eitherdirectly or through its affiliates primarily engaged in business other than thebusiness of insurance. For the purposesof this section, "person" shall not include any securities broker holding, inthe usual and customary broker's function, less than 20% of the votingsecurities of an insurance company or of any person which controls an insurancecompany.
(b) The statement to be filed with the commissioner of insurancehereunder shall be made under oath or affirmation, shall be accompanied by anonrefundable filing fee of $1,000 and shall contain thefollowing information:
(1) The name and address of each person by whom or on whose behalf themerger or other acquisition of control referred to in subsection (a) ofthis section is to be affected, hereinafter called "acquiring party", and:(A) If such person is an individual, such individual's principal occupation andalloffices and positions held during the past five years and anyconviction of crimes other than minor traffic violations during the past10 years; (B) if such person is not an individual, a report of thenature of its business operations during the past five years or forsuch lesser period as such person and any predecessors thereof shall havebeen in existence; an informative description of the business intended tobe done by such person and such person's subsidiaries; and a list of allindividuals who are or who have been selected to become directors orexecutive officers of such person, or who perform or will perform functionsappropriate to such positions. Such list shall include for each suchindividual the information required by subparagraph (A) of this subsection;
(2) the source, nature and amount of the consideration used or to beused in effecting the merger or other acquisition of control, a descriptionof any transaction wherein funds were or are to be obtained for any suchpurpose including any pledge of the insurer's stock, or the stock of any ofits subsidiaries or controlling affiliates, and the identity of personsfurnishing such consideration, except thatwhere a source of such consideration is a loan made in the lender's ordinarycourse of business, the identity of the lender shall remain confidential, ifthe person filing such statement so requests;
(3) fully audited financial information as to the earnings and financialcondition of each acquiring party for the preceding five fiscal yearsof each such acquiring party or for such lesser period as such acquiringparty and any predecessors thereof shall have been in existence, andsimilar unaudited information as of a date not earlier than 90 days prior tothe filing of the statement;
(4) any plans or proposals which each acquiring party may have toliquidate such insurer, to sell its assets or merge or consolidate it withany person or to make any other material change in its business orcorporate 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 and theterms of the offer, request, invitation, agreement or acquisition referredto in subsection (a) of this section, and a statement as to the method bywhich the fairness of the proposal was arrived at;
(6) the amount of each class of any security referred to in subsection(a) of this section which is beneficially owned or concerning which thereis a right to acquire beneficial ownership by each acquiring party;
(7) a full description of any contracts, arrangements or understandingswith respect to any security referred to in subsection (a) of this sectionin which any acquiring party is involved, including but not limited totransfer of any of the securities, joint ventures, loan or optionarrangements, puts or calls, guarantees of loans, guarantees against lossor guarantees of profits, division of losses or profits, or the giving orwithholding of proxies. Such description shall identify the persons withwhom such contracts, arrangements or understandings have been entered into;
(8) a description of the purchase of any security referred to insubsection (a) of this section during the 12 calendar months preceding thefiling of the statement, by any acquiring party, including the dates ofpurchase, names of the purchasers, and consideration paid or agreed to be paidtherefor;
(9) a description of any recommendations to purchase any securityreferred to in subsection (a) of this section made during the 12 calendarmonths preceding the filing of the statement, by any acquiring party, or byanyone based upon interviews or at the suggestion of such acquiring party;
(10) copies of all tender offers for, requests or invitations fortenders of, exchange offers for and agreements to acquire or exchange anysecurities referred to in subsection (a) of this section, and, ifdistributed, of additional soliciting material relating thereto;
(11) the terms of any agreement, contract or understanding made with orproposed to be made with anybroker-dealer as to solicitation of securities referred to in subsection(a) of this section for tender, and the amount of any fees, commissions orother compensation to be paid to broker-dealers with regard thereto;
(12) such additional information as the commissioner of insurance may byrule or regulation prescribe as necessary or appropriate for the protectionof policyholders of the insurer or in the publicinterest.
If the person required to file the statement referred to in subsection(a) of this section is a partnership, limited partnership, syndicate orother group, the commissioner of insurance may require that the informationcalled for by paragraphs (1) through (12) of subsection (b) of this sectionshall be given with respect to each partner of such partnership or limitedpartnership, each member of such syndicate or group, and each person whocontrols such partner or member. If any such partner, member or person is acorporation or the person required to file the statement referred to insubsection (a) of this section is a corporation, the commissioner ofinsurance may require that the information called for by paragraphs (1)through (12) of subsection (b) of this section shall be given with respectto such corporation, each officer and director of such corporation andeach person who is directly or indirectly the beneficial owner of more than10% of the outstanding voting securities of such corporation.
If any material change occurs in the facts set forth in the statementfiled with the commissioner of insurance and sent to such insurer pursuantto this section, an amendment setting forth such change, together withcopies of all documents and other material relevant to such change, shallbe filed with the commissioner of insurance and sent to such insurer withintwo business days after the person learns of such change.
(c) If any offer, request, invitation, agreement or acquisition referredto in subsection (a) of this section is proposed to be made by means of aregistration statement under the securities act of 1933 or in circumstancesrequiring the disclosure of similar information under the securitiesexchange act of 1934, or under a state law requiring similar registrationor disclosure, the person required to file the statement referred to insubsection (a) of this section may utilize such documents in furnishing theinformation called for by that statement.
(d) (1) The commissioner of insurance shall approve any merger or otheracquisition of control referred to in subsection (a) of this sectionunless, after a public hearing thereon conducted in accordance with theprovisions of the Kansas administrative procedure act, thecommissioner finds that:
(A) After the change of control the domestic insurer referred to insubsection (a) of this section would not be able to satisfy therequirements for the issuance of a license to write the line or lines ofinsurance for which it is presently licensed;
(B) the financial condition of any acquiring party is such asmightjeopardize the financial stability of the insurer or prejudice theinterest of its policyholders;
(C) the plans or proposals which the acquiring party has toliquidatethe insurer, sell its assets or consolidate or merge it with any person, orto make any other material change in its business or corporate structure ormanagement, are unfair and unreasonable to policyholders of the insurer andnot in the public interest; or
(D) the competence, experience and integrity of those personswho wouldcontrol the operation of the insurer are such that it would not be in theinterest of policyholders of the insurer and of the public to permit themerger or other acquisition of control; or
(E) the acquisition is likely to be hazardous or prejudicial totheinsurance-buying public.
(2) The public hearing referred to in paragraph (1) of subsection (d) ofthis section shall be held as soon as practical after the statementrequired by this subsection (a) of this section is filed, and at least 20days' notice thereof shall be given by the commissioner of insurance to theperson filing the statement. Not less than seven days' notice of such publichearing shall be given by the person filing the statement to the insurer and tosuch other persons as may be designated by the commissioner of insurance. Atsuch hearing, the person filing the statement, the insurer, anypersonto whom notice of hearing was sent, and any other person whose interests may beaffected thereby shall have the right topresent evidence, examine and cross-examine witnesses, and offer oral andwritten arguments in accordance with the Kansas administrative procedureact. In the absence of intervention, such insurer or person shallhave the right to present oral or written statements in accordance withsubsection (c) of K.S.A. 77-523 and amendments thereto.
(3) The commissioner may retain at the acquiring person's expense anyattorneys, actuaries, accountants and other experts not otherwise a part of thecommissioner's staff as may be reasonably necessary to assist the commissionerin reviewing the proposed acquisition of control.
(e) The provisions of this section shall not apply to:
Any offer, request, invitation, agreement or acquisition which thecommissioner of insurance by order shall exempt therefrom as: (1)Not havingbeen made or entered into for the purpose and not having the effect ofchanging or influencing the control of a domestic insurer; or (2)asotherwise not comprehended within the purposes of this section.
(f) The following shall be violations of this section:
(1) The failure to file any statement, amendment or other materialrequired to be filed pursuant to subsection (a) or (b) of this section; or
(2) the effectuation or any attempt to effectuate an acquisition ofcontrol of, or merger with, a domestic insurer unless the commissioner ofinsurance has given the commissioner's approval thereto.
(g) The courts of this state are hereby vested with jurisdictionoverevery securityholder of a domestic insurer and every person not resident,domiciled or authorized to do business in this state who files a statement withthe commissioner of insurance under this section and over all actions involvingsuch person arising out of violations of this section. Each such person shallbe deemed to have performed acts equivalent to and constituting an appointmentby such a person of the commissioner of insurance to be such person's true andlawful attorney upon whom may be served all lawful process in any action, suitor proceeding arising out of violations of this section. Copies of all suchlawful process shall be served on the commissioner of insurance and transmittedby registered or certified mail by the commissioner of insurance to such personat such person's last known address.
History: L. 1974, ch. 183, § 4; L. 1976, ch. 217, § 2; L. 1983,ch. 159, § 1; L. 1988, ch. 356, § 119; L. 1990, ch. 173, § 2;L. 1992, ch. 288, § 2;L. 1997, ch. 166, § 3; July 1.