Section 401-B:3 Acquisition of Control of or Merger With Domestic Insurer.
I. Filing Requirements. 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 such insurer, and no person shall enter into an agreement to merge with or otherwise to acquire control of a domestic insurer unless, at the time any such offer, request, or invitation is made or any such agreement is entered into, or prior to the acquisition of such securities if no offer or agreement is involved, such person has filed with the commissioner and has sent to such insurer, and such insurer has sent to its shareholders, a statement containing the information required by this section and such offer, request, invitation, agreement or acquisition has been approved by the commissioner in the manner hereinafter prescribed. For purposes of this section, a domestic insurer shall include any other person controlling a domestic insurer unless such other person is either directly or through its affiliates primarily engaged in business other than the business of insurance.
II. Content of Statement. The statement to be filed with the commissioner hereunder shall be made under oath or affirmation and shall contain the following information:
(a) The name and address of each person by whom or on whose behalf the merger or other acquisition of control referred to in RSA 401-B:3, I is to be effected (hereinafter called ""acquiring party''), and
(1) If such person is an individual, his principal occupation and all offices and positions held during the past 5 years, and any conviction of crimes other than minor traffic violations during the past 10 years;
(2) If such person is not an individual, a report of the nature of its business operations during the past 5 years or for such lesser period as such person and any predecessors thereof shall have been in existence; an informative description of the business intended to be done by such person and such person's subsidiaries; and a list of all individuals who are or who have been selected to become directors or executive officers of such person, or who perform or will perform functions appropriate to such positions. Such list shall include for each such individual the information required by RSA 401-B:3, II(a)(1).
(b) 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 wherein funds were or are to be obtained for any such purpose, and the identity of persons furnishing such consideration, provided, however, that where a source of such 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 such statement so requests.
(c) Fully audited financial information as to the earnings and financial condition of each acquiring party for the preceding 5 fiscal years of each such acquiring party (or for such lesser period as such acquiring party and any predecessors thereof shall have been in existence), and similar unaudited information as of a date not earlier than 90 days prior to the filing of the statement.
(d) Any plans or proposals which each acquiring party may have to liquidate such 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.
(e) The number of shares of any security referred to in RSA 401-B:3, I which each acquiring party proposes to acquire, and the terms of the offer, request, invitation, agreement, or acquisition referred to in RSA 401-B:3, I and a statement as to the method by which the fairness of the proposal was arrived at.
(f) The amount of each class of any security referred to in RSA 401-B:3, I which is beneficially owned or concerning which there is a right to acquire beneficial ownership by each acquiring party.
(g) A full description of any contracts, arrangements or understandings with respect to any security referred to in RSA 401-B:3, I 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. Such description shall identify the persons with whom such contracts, arrangements or understandings have been entered into.
(h) A description of the purchase of any security referred to in RSA 401-B:3, I during the 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 therefor.
(i) A description of any recommendations to purchase any security referred to in RSA 401-B:3, I made during the 12 calendar months preceding the filing of the statement, by any acquiring party, or by anyone based upon interviews or at the suggestion of such acquiring party.
(j) 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 RSA 401-B:3, I and (if distributed) of additional soliciting material relating thereto.
(k) The terms of any agreement, contract or understanding made with any broker-dealer as to solicitation of securities referred to in RSA 401-B:3, I for tender, and the amount of any fees, commissions or other compensation to be paid to broker-dealers with regard thereto.
(l) Such additional information as the commissioner may by rule or regulation prescribe as necessary or appropriate for the protection of policyholders and security holders of the insurer or in the public interest.
III. If the person required to file the statement referred to in RSA 401-B:3, I is a partnership, a limited partnership, syndicate or other group, the commissioner may require that the information called for by RSA 401-B:3, II(a) through (l) shall be given with respect to each partner of the partnership or limited partnership, each member of such syndicate or group, and each person who controls such partner or member. Where any partner, member or person is a corporation or a person required to file the statement referred to in RSA 401-B:3, I is a corporation, the commissioner may require that the information called for by RSA 401-B:3, II(a) through (l) shall be given with respect to such corporation, each officer and director of such corporation, and each person who is directly or indirectly the beneficial owner of more than 10 percent of the outstanding voting securities of such corporation.
IV. Changes. If any material change occurs in the facts set forth in the statement filed with the commissioner and sent to such insurer pursuant to RSA 401-B:3, II or III, an amendment setting forth such change, together with copies of all documents and other material relevant to such change, shall be filed with the commissioner and sent to such insurer within 2 business days after the person learns of such change. Such insurer shall send such amendment to its shareholders.
V. Alternative Filing Materials. If any offer, request, invitation, agreement or acquisition referred to in RSA 401-B:3, I 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 said statement referred to in RSA 401-B:3, I may utilize such documents in furnishing the information called for by that statement.
VI. Approval by Commissioner; Hearings.
(a) The commissioner shall approve any merger or other acquisition of control referred to in RSA 401-B:3, I unless, after a public hearing thereon, he finds that:
(1) After the change of control the domestic insurer referred to in RSA 401-B:3, I 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;
(2) The effect of the merger or other acquisition of control would be substantially to lessen competition in insurance in this state or tend to create a monopoly therein;
(3) 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 or the interests of any remaining security holders who are unaffiliated with such acquiring party;
(4) [Repealed.]
(5) 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; or
(6) 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
(7) The acquisition is likely to be hazardous or prejudicial to the insurance buying public.
(b) The public hearing referred to in RSA 401-B:3, VI(a) shall be held within 60 days after the statement required by RSA 401-B:3, I is filed and at least 20 days' notice thereof shall be given by the commissioner to the person filing the statement. Not less than 10 days' notice of such public hearing shall be given by the person filing the statement to the insurer and to such other persons as may be designated by the commissioner. The insurer shall give such notice to its security holders. The commissioner shall make a determination within 30 days after the conclusion of such hearing. At such hearing, the person filing the statement, the insurer, any person to whom notice of hearing was sent, and any other person whose interests may be affected thereby shall have the right to present evidence, examine and cross-examine witnesses, and offer oral and written arguments and in connection therewith shall be entitled to conduct discovery proceedings in the same manner as is presently allowed in the superior court of this state. All discovery proceedings shall be concluded not later than 3 days prior to the commencement of the public hearing.
VII. Mailings to Shareholders; Payment of Expenses. All statements, amendments, or other material filed pursuant to RSA 401-B:3, I, II and III, and all notices of public hearings held pursuant to RSA 401-B:3, VI, shall be mailed by the insurer to its shareholders within 5 business days after the insurer has received such statements, amendments, other material, or notices. The expenses of mailing shall be borne by the person making the filing. As security for the payment of such expenses, such person shall file with the commissioner an acceptable bond or other deposit in an amount to be determined by the commissioner.
VIII. Exemptions. The provisions of this section shall not apply to:
(a) [Repealed.]
(b) Any offer, request, invitation, agreement or acquisition which the commissioner by order shall exempt therefrom as
(1) 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, or
(2) As otherwise not comprehended within the purposes of this section.
(c) Any acquisition of any voting security of a domestic insurer by spouses, issue, heirs, or next of kin of the owner acquiring the same by gift, will, appointment, or intestate succession.
IX. Violations. The following shall be violations of this section:
(a) The failure to file any statement, amendment, or other material required to be filed pursuant to RSA 401-B:3, I, or II, or III.
(b) The effectuation or any attempt to effectuate an acquisition of control of, or merger with, a domestic insurer unless the commissioner has given his approval thereto.
X. 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 such a 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 such lawful process shall be served on the commissioner and transmitted by registered or certified mail by the commissioner to such person at his last known address.
XI. Violations of Acquiring Parties. Any acquiring party which violates any provision of this section shall be subject to an administrative fine not to exceed $2,500 for each violation.
Source. 1971, 176:1. 1991, 99:3, 11. 1992, 288:8, 23, eff. Jan. 1, 1993.