2023 Tennessee Code › Title 56 - INSURANCE (§§ 56-1-101 — 56-61-125) › Chapter 11 - INSURANCE HOLDING COMPANIES AND RISK MANAGEMENT (§§ 56-11-101 — 56-11-210) › Part 1 - INSURANCE HOLDING COMPANY SYSTEM ACT OF 1986 (§§ 56-11-101 — 56-11-119) › Section 56-11-103 - Mergers and acquisitions of control

(a)
(1)
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, the person would, directly or indirectly, or by conversion or by exercise of any right to acquire, be in control of the insurer, and no such 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 any such offer, request, or invitation is made or any such agreement is entered into, or prior to the acquisition of the securities if no offer or agreement is involved, the 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 part.
(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 (30) days prior to the cessation of control. The commissioner shall determine those instances in which the party or parties 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 the commissioner's discretion, determines that confidential treatment will interfere with enforcement of this section. If the statement referred to above is otherwise filed, this subdivision (a)(2) shall not apply.
(3)
With respect to a transaction subject to this section, the acquiring person must also file a preacquisition notification with the commissioner, which shall contain the information set forth in §
56-11-104(c)(1)
. A failure to file the notification may be subject to penalties specified in §
56-11-104(e)(3)
.
(4)
As used in this section, "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.
(5)
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 that controls an insurance company.
(b)
Content of Statement.
The statement to be filed with the commissioner under this section shall be made under oath or affirmation and shall contain 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) is to be effected, called the "acquiring party;"
(A)
If an individual, the person's 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; and
(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 thereof shall 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 the positions. The list shall include for each such individual the information required by subdivision (b)(1)(A);
(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 wherein 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 the consideration; provided, that where a source of the 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 (5) fiscal years of each such acquiring party, or for such lesser periods as the acquiring party and any predecessors thereof shall have been in existence, and similar unaudited information as of a date not earlier than ninety (90) days prior to the filing of the statement;
(4)
Any plans or proposals that 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) that each acquiring party proposes to acquire, the terms of the offer, request, invitation, agreement, or acquisition referred to in subsection (a), and a statement as to the method for arriving at the fairness of the proposal;
(6)
The amount of each class of any security referred to in subsection (a) that 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) 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) 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 for the security;
(9)
A description of any recommendations to purchase any security referred to in subsection (a) 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;
(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), and, if distributed, of additional soliciting material relating to the activity;
(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) for tender, and the amount of any fees, commissions or other compensation to be paid to broker-dealers with regard to the agreement;
(12)
A nonrefundable fee in an amount that the commissioner shall by rule establish;
(13)
Any additional information 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. If the person required to file the statement referred to in subsection (a) is a partnership, limited partnership, syndicate or other group, the commissioner may require that the information called for by subdivisions (b)(1)-(15) 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 such partner, member or person is a corporation, or the person required to file the statement referred to in subsection (a) is a corporation, the commissioner may require that the information called for by subdivisions (b)(1)-(15) 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. 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 materials 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;
(14)
An agreement by the person required to file the statement referred to in subsection (a) that it will provide the annual report, specified in §
56-11-105
(
l
), for so long as control exists; and
(15)
An acknowledgement by the person required to file the statement referred to in subsection (a) 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.
(c)
Alternative Filing Materials.
If any offer, request, invitation, agreement or acquisition referred to in subsection (a) is proposed to be made by means of a registration statement under the Securities Act of 1933 (
15 U.S.C. § 77a
et seq.), or in circumstances requiring the disclosure of similar information under the Securities Exchange Act of 1934 (
15 U.S.C. § 78a
et seq.), or under a state law requiring similar registration or disclosure, the person required to file the statement referred to in subsection (a) may utilize the documents in furnishing the information called for by that statement.
(d)
Approval by Commissioner; Hearings.
(1)
The commissioner shall approve any merger or other acquisition of control referred to in subsection (a) unless, after a public hearing, the commissioner finds that:
(A)
After the change of control, the domestic insurer referred to in subsection (a) 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 substantially to lessen competition in insurance in this state or tend to create a monopoly in this state. In applying the competitive standard in this subdivision (d)(1)(B):
(i)
The informational requirements of §
56-11-104(c)(1)
and the standards of §
56-11-104(d)(2)
shall apply;
(ii)
The merger or other acquisition shall not be disapproved if the commissioner finds that any of the situations meeting the criteria provided by §
56-11-104(d)(3)
exist; and
(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 that it might jeopardize the financial stability of the insurer, or prejudice the interest of its policyholders;
(D)
The plans or proposals that 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; or
(F)
The acquisition is likely to be hazardous or prejudicial to the insurance buying public.
(2)
The public hearing referred to in subdivision (d)(1) shall be held within thirty (30) days after the statement required by subsection (a) is filed, and at least twenty (20) days' notice of the public 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 such other persons as may be designated by the commissioner. The commissioner shall make a determination within the sixty-day period preceding the effective date of the proposed transaction. 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 by the proposed transaction, 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 Uniform Administrative Procedures Act, compiled in title 4, chapter 5. All discovery proceedings shall be concluded not later than three (3) days prior to the commencement of the public hearing.
(3)
If the proposed acquisition of control will require the approval of more than one (1) commissioner, the public hearing referred to in subdivision (d)(2) may be held on a consolidated basis upon request of the person filing the statement referred to in subsection (a). Such person shall file the statement referred to in subsection (a) with the National Association of Insurance Commissioners (NAIC) 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). 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 this title, shall be made not later than sixty (60) days after the date of notification of the change in control submitted pursuant to §
56-11-103(a)(1)
.
(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.
(e)
Exemptions.
This section does not apply to:
(1)
Any transaction that is subject to the provisions of chapter 10 of this title dealing with the merger or consolidation of two (2) or more insurers.
(2)
Any offer, request, invitation, agreement or acquisition that the commissioner by order shall exempt therefrom as:
(A)
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
(B)
As otherwise not comprehended within the purposes of this section.
(f)
Violations.
The following are 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); or
(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 to the acquisition or merger.
(g)
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 overall actions involving the 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 the person's 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 the person's last known address.
Amended by 2014 Tenn. Acts, ch. 583, Secs.s 4, s 5, s 6, s 7, s 8, s 9 eff. 3/28/2014.
Acts 1986, ch. 572, § 3; 1988, ch. 663, § 3; T.C.A. §
56-11-203
.