Ins 40.16(3)(3) Unauthorized insurer. With the prior approval of the commissioner, an unauthorized insurer may follow any of the procedures which could be done by an authorized insurer under sub. (1). Ins 40.16 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. Ins 40.17Ins 40.17 Transactions subject to prior notice—notice filing. A person required to give notice of a proposed transaction under this chapter shall furnish the required information on form D. Ins 40.17 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. Ins 40.18Ins 40.18 Extraordinary dividends and other distributions. Requests for approval of extraordinary dividends or any other extraordinary distribution to shareholders shall include the following: Ins 40.18(2)(2) The date established for payment of the dividend; Ins 40.18(3)(3) A statement as to whether the dividend is to be in cash or other property and, if in property, a description of the property, its cost, and its fair market value together with an explanation of the basis for valuation; Ins 40.18(4)(4) A copy of the calculations determining that the proposed dividend is extraordinary. The calculations shall include the following information: Ins 40.18(4)(a)(a) The amounts, dates and form of payment of all dividends or distributions, including regular dividends but excluding distributions of the insurer’s own securities, paid within the period of 12 consecutive months ending on the date fixed for payment of the proposed dividend for which approval is sought and commencing on the day after the same day of the same month in the previous calendar year; Ins 40.18(4)(b)(b) Policyholder surplus as of the 31st day of December of the immediately preceding calendar year; Ins 40.18(4)(c)(c) If the insurer is a life insurer, the net income less realized capital gains for the previous calendar year; Ins 40.18(4)(d)(d) If the insurer is not a life insurer, the net income less realized capital gains for the previous calendar year and the 2 calendar years preceding that calendar year; and Ins 40.18(4)(e)(e) If the insurer is not a life insurer, the dividends paid to stockholders excluding distributions of the insurer’s own securities in the preceding 3 calendar years. Ins 40.18(5)(5) A balance sheet and statement of income for the period intervening from the last annual statement filed with the commissioner and the end of the month preceding the month in which the request for dividend approval is submitted. Ins 40.18(6)(6) A brief statement as to the effect of the proposed dividend upon the insurer’s policyholder surplus and the reasonableness of policyholder surplus in relation to the insurer’s outstanding liabilities and the adequacy of policyholder surplus relative to the insurer’s financial needs. Ins 40.18 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93. Ins 40.19Ins 40.19 Consent to jurisdiction. Any person required to file consent to jurisdiction under s. 617.11 (5), Stats., shall do so using form AA contained in the appendix to this chapter. Ins 40.19 HistoryHistory: Cr. Register, July, 1993, No. 451, eff. 8-1-93; CR14-071: am. Register August 2015 No. 716, eff. 9-1-15. Ins 40.20Ins 40.20 Enterprise Risk Report. The ultimate controlling person of an insurer required to file an enterprise risk report pursuant to s. Ins 40.03 (9), shall furnish the required information on Form F in the appendix. Ins 40.20 HistoryHistory: CR 14-071: am. Register August 2015 No. 716, eff. 9-1-15. Ins 40.21Ins 40.21 Group capital calculation. Ins 40.21(1)(1) Discretionary annual filing exemption. Where an insurance holding company system has previously filed the annual group capital calculation at least once, the lead state commissioner has the discretion to exempt the ultimate controlling person from filing the annual group capital calculation if the lead state commissioner makes a determination based upon that filing that the insurance holding company system meets all of the following criteria: Ins 40.21(1)(a)(a) The insurance holding company system has annual direct written and unaffiliated assumed premium including international direct and assumed premium, but excluding premiums reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, of less than $1,000,000,000. Ins 40.21(1)(b)(b) The insurance holding company system has no insurers within its holding company structure that are domiciled outside of the United States or one of its territories. Ins 40.21(1)(c)(c) The insurance holding company system has no banking, depository or other financial entity that is subject to an identified regulatory capital framework within its holding company structure. Ins 40.21(1)(d)(d) The insurance holding company system attests that there are no material changes in the transactions between insurers and non-insurers in the group that have occurred since the last filing of the annual group capital. Ins 40.21(1)(e)(e) The non-insurers within the insurance holding company system do not pose a material financial risk to the insurer’s ability to honor policyholder obligations. Ins 40.21(2)(2) Discretionary limited filing. Where an insurance holding company system has previously filed the annual group capital calculation at least once, the lead state commissioner has the discretion to accept a limited group capital filing in lieu of the group capital calculation if the insurance holding company system has annual direct written and unaffiliated assumed premium including international direct and assumed premium, but excluding premiums reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, of less than $1,000,000,000; and all of the following additional criteria are met: Ins 40.21(2)(a)(a) The insurance holding company system has no insurers within its holding company structure that are domiciled outside of the United States or one of its territories. Ins 40.21(2)(b)(b) The insurance holding company system does not include a banking, depository or other financial entity that is subject to an identified regulatory capital framework. Ins 40.21(2)(c)(c) The insurance holding company system attests that there are no material changes in transactions between insurers and non-insurers in the group that have occurred since the last filing of the report to the lead state commissioner and the non-insurers within the insurance holding company system do not pose a material financial risk to the insurers ability to honor policyholder obligations. Ins 40.21(3)(3) Periodic filing request. For an insurance holding company system that has previously met an exemption with respect to the group capital calculation pursuant to sub. (1) or (2), the lead state commissioner may require at any time the ultimate controlling person to file an annual group capital calculation, completed in accordance with the NAIC group capital calculation instructions, if any of the following criteria are met: Ins 40.21(3)(a)(a) Any insurer within the insurance holding company system is in a risk-based capital action level event as set forth in ch. Ins 51, or a similar standard for a non-U.S. insurer. Ins 40.21(3)(b)(b) Any insurer within the insurance holding company system meets one or more of the standards of an insurer deemed to be in hazardous financial condition as described in s. 623.11, 645.31, or 645.41, Stats. Ins 40.21(3)(c)(c) Any insurer within the insurance holding company system otherwise exhibits qualities of a troubled insurer as determined by the lead state commissioner based on unique circumstances including, but not limited to, the type and volume of business written, ownership and organizational structure, federal agency requests, and international supervisor requests. Ins 40.21(4)(4) Non-U.S. jurisdiction. A non-U.S. jurisdiction is considered to recognize and accept the group capital calculation if it satisfies the following criteria: Ins 40.21(4)(a)1.1. The non-U.S. jurisdiction recognizes the U.S. state regulatory approach to group supervision and group capital, by providing confirmation by a competent regulatory authority, in such jurisdiction, that insurers and insurance groups whose lead state is accredited by the NAIC under the NAIC accreditation program shall be subject only to worldwide prudential insurance group supervision including worldwide group governance, solvency and capital, and reporting, as applicable, by the lead state and will not be subject to group supervision, including worldwide group governance, solvency and capital, and reporting, at the level of the worldwide parent undertaking of the insurance or reinsurance group by the non-U.S. jurisdiction; or Ins 40.21(4)(a)2.2. Where no U.S. insurance groups operate in the non-U.S. jurisdiction, that non-U.S. jurisdiction indicates formally in writing to the lead state with a copy to the international association of insurance supervisors that the group capital calculation is an acceptable international capital standard. This will serve as the documentation otherwise required in subd. 1. Ins 40.21(4)(b)(b) The non-U.S. jurisdiction provides confirmation by a competent regulatory authority in such jurisdiction that information regarding insurers and their parent, subsidiary, or affiliated entities, if applicable, shall be provided to the lead state commissioner in accordance with a memorandum of understanding or similar document between the commissioner and such jurisdiction, including the International Association of Insurance Supervisors Multilateral Memorandum of Understanding or other multilateral memoranda of understanding coordinated by the NAIC. The commissioner shall determine, in consultation with the NAIC committee process, if the requirements of the information sharing agreements are in force. Ins 40.21(5)(5) Published non-U.S. jurisdictions. A list of non-U.S. jurisdictions that recognize and accept the group capital calculation will be published through the NAIC committee process. Ins 40.21(6)(6) Published jurisdictions. A list of jurisdictions that recognize and accept the group capital calculation pursuant to s. Ins 40.03 (9) (d) 4., is published through the NAIC committee process to assist the lead state commissioner in determining which insurers shall file an annual group capital calculation. The list will clarify those situations in which a jurisdiction is exempted from filing under s. Ins 40.03 (9) (d) 4. Ins 40.21(8)(8) Confirmations. For a non-U.S. jurisdiction where no U.S. insurance groups operate, the confirmation provided to meet the requirement of sub. (4) (a) 2., will serve as support for recommendation to be published as a jurisdiction that recognizes and accepts the group capital calculation through the NAIC committee process. Ins 40.21(9)(9) Lead state determination and justification. If the lead state commissioner makes a determination pursuant to s. Ins 40.03 (9) (d) 4. that differs from the NAIC list, the lead state commissioner shall provide thoroughly documented justification to the NAIC and other states. Ins 40.21(10)(10) Lead state recommendations. Upon determination by the lead state commissioner that a non-U.S. jurisdiction no longer meets one or more of the requirements to recognize and accept the group capital calculation, the lead state commissioner may provide a recommendation to the NAIC that the non-U.S. jurisdiction be removed from the list of jurisdictions that recognize and accept the group capital calculation. Ins 40.21 HistoryHistory: CR 21-106: cr. Register July 2022 No. 799, eff. 8-1-22; correction in (3) (intro.), (b), (8) made under s. 35.17, Stats., Register July 2022 No. 799. APPENDIX
FORM A
STATEMENT REGARDING THE ACQUISITION OF CONTROL OF OR MERGER WITH A
DOMESTIC INSURER
Filed with the Office of the Commissioner of Insurance,
State of Wisconsin
_____________________________
Name of Domestic Insurer
By
______________________________
Name of Acquiring Person (Applicant)
Filed with the insurance department of ______________________
(state of domicile of insurer being acquired)
Date: ,
Name, title, address and telephone number of individual to whom notices and correspondence concerning this statement should be addressed:
ITEM 1. INSURER AND METHOD OF ACQUISITION
State the name and address of the domestic insurer to which this application relates and briefly describe how control is to be acquired.
ITEM 2. IDENTITY AND BACKGROUND OF THE APPLICANT
(a) State the name and address of the applicant seeking to acquire control over the insurer.
(b) If the applicant is not an individual, state the nature of its business operations for the past 5 years or for such lesser period as such person and any predecessors thereof shall have been in existence. Briefly describe the business intended to be done by the applicant and the applicant’s subsidiaries.
(c) Furnish a chart or listing clearly presenting the identities of the interrelationships among the applicant and all affiliates of the applicant. Indicate in such chart or listing the percentage of voting securities of each such person which is owned or controlled by the applicant or by any other such person. If control of any person is maintained other than by the ownership or control of voting securities, indicate the basis of such control. As to each person specified in such chart or listing, indicate the type of organization (e.g., corporation, trust, partnership) and the state of domicile. If court proceedings involving a reorganization or liquidation are pending with respect to any such person, indicate which person, and set forth the title of the court, nature of proceedings and the date when commenced.
ITEM 3. IDENTITY AND BACKGROUND OF INDIVIDUALS ASSOCIATED WITH THE APPLICANT
On the biographical affidavit, include a third party background check and state the following with respect to (1) the applicant if the applicant is an individual or (2) all persons who are directors, executive officers or owners of 10% or more of the voting securities of the applicant if the applicant is not an individual.
(a) Name and business address;
(b) Present principal business activity, occupation or employment including position and office held and the name, principal business and address of any corporation or other organization in which such employment is carried on;
(c) Material occupations, positions, offices or employment during the last 5 years, giving the starting and ending dates of each and the name, principal business and address of any business corporation or other organization in which each such occupation, position, office or employment was carried on; if any such occupation, position, office or employment required licensing by or registration with any federal, state or municipal governmental agency, indicate such fact, the current status of such licensing or registration, and an explanation of any surrender, revocation, suspension or disciplinary proceedings in connection with the license or registration whether pending or concluded.
(d) Whether or not such person has ever been convicted in a criminal proceeding (excluding traffic violations not involving death or injury) during the last 10 years and, if so, give the date, nature of conviction, name and location of court, and penalty imposed or other disposition of the case.
ITEM 4. NATURE, SOURCE AND AMOUNT OF CONSIDERATION
(a) Describe the nature, source and amount of funds or other considerations used, or to be used, in effecting the merger or other acquisition of control. If any part of the same is represented or is to be represented by funds or other consideration borrowed or otherwise obtained for the purpose of acquiring, holding or trading securities, furnish a description of the transaction, the names of the parties thereto, the relationship, if any, between the borrower and the lender, the amounts borrowed or to be borrowed, and copies of all agreements, promissory notes and security arrangements relating thereto.
(b) Explain the criteria used in determining the nature and amount of such consideration.
ITEM 5. APPLICANT’S FUTURE PLANS FOR THE INSURER
Describe any plans or proposals which the applicant may have to declare an extraordinary dividend, to liquidate the insurer, to sell the insurer’s assets to or merge it with any person or persons or to make any other material change in its business operations or corporate structure or management.
ITEM 6. VOTING SECURITIES TO BE ACQUIRED
State the number of shares of the insurer’s voting securities which the applicant, its affiliates and any person listed in Item 3 plan to acquire; and the terms of the offer, request, invitation, agreement or acquisition; and a statement as to the method by which the fairness of the proposal was arrived at.
ITEM 7. OWNERSHIP OF VOTING SECURITIES
State the amount of each class of any voting security of the insurer which is beneficially owned or concerning which there is a right to acquire beneficial ownership by the applicant, its affiliates or any person listed in Item 3.
ITEM 8. CONTRACTS, ARRANGEMENTS, OR UNDERSTANDINGS WITH RESPECT TO VOTING SECURITIES OF THE INSURER
Give a full description of any contracts, arrangements or understandings with respect to any voting security of the insurer in which the applicant, its affiliates or any person listed in Item 3 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 the contracts, arrangements or understandings have been entered into.
ITEM 9. RECENT PURCHASES OF VOTING SECURITIES
Describe any purchases of any voting securities of the insurer by the applicant, its affiliates or any person listed in Item 3 during the 12 calendar months preceding the filing of this statement. Include in the description the dates of purchase, the names of the purchasers, and the consideration paid or agreed to be paid therefor. State whether any shares so purchased are hypothecated.
ITEM 10. RECENT RECOMMENDATIONS TO PURCHASE
Describe any recommendations to purchase any voting security of the insurer made by the applicant, its affiliates or any person listed in Item 3, or by anyone based upon interviews or at the suggestion of the applicant, its affiliates or any person listed in Item 3 during the 12 calendar months preceding the filing of this statement.
ITEM 11. AGREEMENTS WITH BROKER-DEALERS
Describe the terms of any agreement, contract or understanding made with any broker-dealer as to solicitation of voting securities of the insurer for tender and the amount of any fees, commissions or other compensation to be paid to broker-dealers with regard thereto.
ITEM 12. FINANCIAL STATEMENTS AND EXHIBITS
(a) Pursuant to s. 601.42, Stat., financial statements, exhibits, and three-year financial projections of the insurer(s) shall be attached to this statement as an appendix, but list under this item the financial statements and exhibits so attached. (b) The financial statements shall include the annual financial statements of the persons identified in Item 2(c) for the preceding 5 fiscal years (or for such lesser period as such applicant and its affiliates and any predecessors thereof shall have been in existence), and similar information covering the period from the end of such person’s last fiscal year, if the information is available. The statements may be prepared either on an individual basis or, unless the commissioner otherwise requires, on a consolidated basis if consolidated statements are prepared in the usual course of business.
The annual financial statements of the applicant shall be accompanied by the certificate of an independent public accountant to the effect that such statements present fairly the financial position of the applicant and the results of its operations for the person’s last fiscal year, in conformity with generally accepted accounting principles or with requirements of insurance or other accounting principles prescribed or permitted under law. If the applicant is an insurer which is actively engaged in the business of insurance, the financial statements need not be certified, provided they are based on the annual statement of the person filed with the insurance department of the person’s state of domicile and are in accordance with the requirements of insurance or other accounting principles prescribed or permitted under the law and regulations of the state.
(c) File as exhibits copies of all tender offers for, requests or invitations for, tenders of, exchange offers for, and agreements to acquire or exchange any voting securities of the insurer and (if distributed) of additional soliciting material relating thereto, any proposed employment, consultation, advisory or management contracts concerning the insurer, annual reports to the stockholders of the insurer and the applicant for the last 2 fiscal years, and any additional documents or papers required by form A or ss. Ins 40.11 and 40.13, Wis. Adm. Code.
