98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2290

 

Introduced , by Rep. Frank J. Mautino

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Illinois Insurance Code in the Article concerning insurance holding company systems. Makes changes to the definitions. Provides that a domestic company, either by itself or in cooperation with one or more persons, may organize or acquire one or more subsidiaries, and that the subsidiaries may conduct any kind of business or businesses and their authority to do so shall not be limited by reason of the fact that they are subsidiaries of a domestic company. Makes changes to the provisions concerning a domestic company's permitted investments. Includes certain filing requirements in the provision concerning the acquisition of control of or merger with a domestic company. Makes changes to provisions concerning the statement that is required to be filed with the Director of Insurance. Deletes certain provisions concerning deposits made with the Director, orders entered by the Director, and reports of potential adverse economic impact made to the General Assembly by the Director. Makes changes to the provisions concerning certain violations, judicial jurisdiction, acquisitions, registration statements, reporting materials, termination of registration, disclaimers, transactions, prior notification, officers and directors, examination, confidential treatment, voting, sanctions, and judicial review. Sets forth provisions concerning exemptions, summary filing, enterprise risk filing, violations, confidentiality, and supervisory colleges. Repeals provisions concerning the delivery of certain filings and dependent coverage. Contains a severability provision. Effective on January 1, 2014, except that the provision concerning enterprise risk filing takes effect July 1, 2014.


LRB098 08974 RPM 39108 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB2290LRB098 08974 RPM 39108 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Insurance Code is amended by
5changing Sections 131.1, 131.2, 131.3, 131.4, 131.5, 131.6,
6131.8, 131.8a, 131.11, 131.12, 131.12a, 131.13, 131.14,
7131.16, 131.17, 131.18, 131.19, 131.20, 131.20a, 131.20b,
8131.21, 131.22, 131.23, 131.24, 131.26, and 131.27 and by
9adding Sections 131.9a, 131.14a, 131.14b, 131.14c, 131.14d,
10131.20c, 131.29, and 131.30 as follows:
 
11    (215 ILCS 5/131.1)  (from Ch. 73, par. 743.1)
12    Sec. 131.1. Definitions. As used in this Article, the
13following terms have the respective meanings set forth in this
14Section unless the context requires otherwise:
15    (a) An "affiliate" of, or person "affiliated" with, a
16specific person, is a person that directly, or indirectly
17through one or more intermediaries, controls, or is controlled
18by, or is under common control with, the person specified.
19    (a-5) "Acquiring party" means such person by whom or on
20whose behalf the merger or other acquisition of control
21referred to in Section 131.4 is to be affected and any person
22that controls such person or persons.
23    (a-10) "Associated person" means, with respect to an

 

 

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1acquiring party, (1) any beneficial owner of shares of the
2company to be acquired, owned, directly or indirectly, of
3record or beneficially by the acquiring party, (2) any
4affiliate of the acquiring party or beneficial owner, and (3)
5any other person acting in concert, directly or indirectly,
6pursuant to any agreement, arrangement, or understanding,
7whether written or oral, with the acquiring party or beneficial
8owner, or any of their respective affiliates, in connection
9with the merger, consolidation, or other acquisition of control
10referred to in Section 131.4 of this Code.
11    (a-15) "Company" has the same meaning as "company" as
12defined in Section 2 of this Code, except that it does not
13include agencies, authorities, or instrumentalities of the
14United States, its possessions and territories, the
15Commonwealth of Puerto Rico, the District of Columbia, or a
16state or political subdivision of a state.
17    (b) "Control" (including the terms "controlling",
18"controlled by" and "under common control with") means the
19possession, direct or indirect, of the power to direct or cause
20the direction of the management and policies of a person,
21whether through the ownership of voting securities, the holding
22of shareholders' or policyholders' proxies by contract other
23than a commercial contract for goods or non-management
24services, or otherwise, unless the power is solely the result
25of an official position with or corporate office held by the
26person. Control is presumed to exist if any person, directly or

 

 

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1indirectly, owns, controls, holds with the power to vote, or
2holds shareholders' proxies representing 10% or more of the
3voting securities of any other person, or holds or controls
4sufficient policyholders' proxies to elect the majority of the
5board of directors of the domestic company. This presumption
6may be rebutted by a showing made in the manner as the Director
7may provide by rule. The Director may determine, after
8furnishing all persons in interest notice and opportunity to be
9heard and making specific findings of fact to support such
10determination, that control exists in fact, notwithstanding
11the absence of a presumption to that effect.
12    (b-5) "Enterprise risk" means any activity, circumstance,
13event, or series of events involving one or more affiliates of
14a company that, if not remedied promptly, is likely to have a
15material adverse effect upon the financial condition or
16liquidity of the company or its insurance holding company
17system as a whole, including, but not limited to, anything that
18would cause the company's risk-based capital to fall into
19company action level as set forth in Article IIA of this Code
20or would cause the company to be in hazardous financial
21condition as set forth in Article XII 1/2 of this Code.
22    (b-10) "Exchange Act" means the Securities Exchange Act of
231934, as amended, together with the rules and regulations
24promulgated thereunder.
25    (c) "Insurance holding company system" means two or more
26affiliated persons, one or more of which is an insurance

 

 

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1company as defined in paragraph (e) of Section 2 of this Code.
2    (d) (Blank). "Company" has the same meaning as "Company" as
3defined in Section 2 of this Code, except that it does not
4include agencies, authorities or instrumentalities of the
5United States, its possessions and territories, the
6Commonwealth of Puerto Rico, the District of Columbia or a
7State or political subdivision of a State.
8    (d-5) "Non-operating holding company" is a general
9business corporation functioning solely for the purpose of
10forming, owning, acquiring, and managing subsidiary business
11entities and having no other business operations not related
12thereto.
13    (d-10) "Own", "owned," or "owning" means shares (1) with
14respect to which a person has title or to which a person's
15nominee, custodian, or other agent has title and which such
16nominee, custodian, or other agent is holding on behalf of the
17person or (2) with respect to which a person (A) has purchased
18or has entered into an unconditional contract, binding on both
19parties, to purchase the shares, but has not yet received the
20shares, (B) owns a security convertible into or exchangeable
21for the shares and has tendered the security for conversion or
22exchange, (C) has an option to purchase or acquire, or rights
23or warrants to subscribe to, the shares and has exercised such
24option, rights, or warrants, or (D) holds a securities futures
25contract to purchase the shares and has received notice that
26the position will be physically settled and is irrevocably

 

 

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1bound to receive the underlying shares. To the extent that any
2affiliates of the stockholder or beneficial owner are acting in
3concert with the stockholder or beneficial owner, the
4determination of shares owned may include the effect of
5aggregating the shares owned by the affiliate or affiliates.
6Whether shares constitute shares owned shall be decided by the
7Director in his or her reasonable determination.
8    (e) "Person" means an individual, a corporation, a limited
9liability company, a partnership, an association, a joint stock
10company, a trust, an unincorporated organization, any similar
11entity or any combination of the foregoing acting in concert,
12but does not include any securities broker performing no more
13than the usual and customary broker's function or joint venture
14partnership exclusively engaged in owning, managing, leasing
15or developing real or tangible personal property other than
16capital stock.
17    (e-5) "Policyholders' proxies" are proxies that give the
18holder the right to vote for the election of the directors and
19other corporate actions not in the day to day operations of the
20company.
21    (f) (Blank). "Securityholder" of a specified person is one
22who owns any security of such person, including common stock,
23preferred stock, debt obligations, and any other security
24convertible into or evidencing the right to acquire any of the
25foregoing.
26    (g) "Subsidiary" of a specified person is an affiliate

 

 

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1controlled by such person directly, or indirectly through one
2or more intermediaries.
3    (h) "Voting Security" is a security which gives to the
4holder thereof the right to vote for the election of directors
5and includes any security convertible into or evidencing a
6right to acquire a voting security.
7    (i) (Blank). "Acquiring Party" means such person by whom or
8on whose behalf the merger or other acquisition of control
9referred to in Section 131.4 is to be affected and any person
10that controls such person or persons.
11    (j) (Blank). "Policyholders' Proxies" are proxies which
12give the holder the right to vote for the election of the
13directors and other corporate actions not in the day-to-day
14operations of the company.
15    (k) (Blank). "Non-operating Holding Company" is a general
16business corporation functioning solely for the purpose of
17forming, owning, acquiring and managing subsidiary business
18entities and having no other business operations not related
19thereto.
20(Source: P.A. 84-805.)
 
21    (215 ILCS 5/131.2)  (from Ch. 73, par. 743.2)
22    Sec. 131.2. Subsidiaries. A domestic company, either by
23itself or in cooperation with one or more persons, may organize
24or acquire one or more subsidiaries. The subsidiaries may
25conduct any kind of business or businesses and their authority

 

 

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1to do so shall not be limited by reason of the fact that they
2are subsidiaries of a domestic company. In addition to
3investments in common stock, preferred stock, debt obligations
4and other securities of subsidiaries permitted under all other
5sections of this Code, a domestic company, other than a company
6subject to Articles XVIII or XIX, may also:
7        (a) invest, in common stock, preferred stock, debt
8    obligations, and other securities of one or more
9    subsidiaries, amounts which do not exceed the lesser of 10%
10    of the company's assets or 50% of the company's surplus as
11    regards policyholders, but after such investments the
12    company's surplus as regards policyholders must be
13    reasonable in relation to the company's outstanding
14    liabilities and adequate to its financial needs. In
15    calculating the amount of such investments, there must be
16    included (i) total net monies or other consideration
17    expended and obligations assumed in the acquisition or
18    formation of a subsidiary, including all organizational
19    expenses and contributions to capital and surplus of the
20    subsidiary whether or not represented by the purchase of
21    capital stock or issuance of other securities, and (ii) all
22    amounts expended in acquiring additional common stock,
23    preferred stock, debt obligations, and other securities,
24    and all contributions to the capital or surplus of a
25    subsidiary subsequent to its acquisition or formation;
26        (b) invest any amount in common stock, preferred stock,

 

 

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1    debt obligations and other securities of one or more direct
2    subsidiaries acting only as a non-operating holding
3    company or engaged or organized exclusively for the
4    ownership and management of assets authorized as
5    investments for the company, provided that each subsidiary
6    agrees to limit its investments in any asset so that such
7    investments will not cause the amount of the total
8    investment of the company to exceed the amount the company
9    could have invested in such asset. For the purpose of this
10    clause, "the total investment of the company" will include
11    (i) any direct investment by the company in an asset and
12    (ii) the company's proportionate share of any investment in
13    such asset by any direct subsidiary of the company, which
14    must be calculated by multiplying the amount of the
15    subsidiary's investment by the percentage of the company's
16    ownership of such subsidiary;
17        (c) invest in common stock of one or more insurance
18    corporation subsidiaries any amount by which the investing
19    company's capital and surplus exceeds the minimum capital
20    and surplus required of a new company under Section 13 to
21    qualify for a certificate of authority to write the kind or
22    kinds of insurance which the company is authorized to
23    write, if the company is a stock company, and if the
24    company is other than a stock company, the company may
25    invest the amount by which the company's surplus exceeds
26    the minimum surplus required of a new company under Section

 

 

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1    43 or 66 to qualify for a certificate of authority to write
2    the kind or kinds of insurance which the company is
3    authorized to write;
4        (d) with the approval of the Director, invest any
5    greater amount in common stock, preferred stock, debt
6    obligations, or other securities of one or more
7    subsidiaries, but after such investment the company's
8    surplus as regards policyholders must be reasonable in
9    relation to the company's outstanding liabilities and
10    adequate to its financial needs.
11(Source: P.A. 85-1186.)
 
12    (215 ILCS 5/131.3)  (from Ch. 73, par. 743.3)
13    Sec. 131.3. (1) Investments in common stock, preferred
14stock, debt obligations or other securities of subsidiaries
15made under Section 131.2 of this Article are subject to
16Sections 126.3, 126.4, 126.5, 126.6, 126.7, and 133 of this
17Code but are not subject to any other of the otherwise
18applicable restrictions or prohibitions contained in this Code
19applicable to such investments of a domestic company subject to
20this Code.
21    (2) If a company ceases to control a subsidiary, it must
22dispose of any investment therein made under this section
23within 3 years from the time of the cessation of control or
24within such further time as the Director may prescribe, unless
25at any time after the investment is made, the investment meets

 

 

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1the requirements for investment under any other section of this
2Code, and the company has notified the Director thereof.
3    (3) Whether any investment made pursuant to this Section
4meets the applicable requirements of this Section is to be
5determined before the investment is made by calculating the
6applicable investment limitations as though the investment had
7already been made, taking into account the then outstanding
8principal balance on all previous investments in debt
9obligations, and the value of all previous investments in
10equity securities as of the day they were made, net of any
11return of capital invested, not including dividends.
12(Source: P.A. 90-418, eff. 8-15-97.)
 
13    (215 ILCS 5/131.4)  (from Ch. 73, par. 743.4)
14    Sec. 131.4. Acquisition of control of or merger with
15domestic company.
16    (a) No person other than the issuer may make a tender for
17or a request or invitation for tenders of, or enter into an
18agreement to exchange securities for, or seek to acquire or
19acquire shareholders' proxies to vote or seek to acquire or
20acquire in the open market, or otherwise, any voting security
21of a domestic company or acquire policyholders' proxies of a
22domestic company or any entity that controls a domestic
23company, for consideration if, after the consummation thereof,
24that person would, directly or indirectly, (or by conversion or
25by exercise of any right to acquire) be in control of the

 

 

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1company, and no person may enter into an agreement to merge or
2consolidate with or otherwise to acquire control of a domestic
3company, unless the offer, request, invitation, or agreement is
4conditioned on receiving the approval of the Director based on
5Section 131.8 of this Article and no such acquisition of
6control or a merger with a domestic company may be consummated
7unless the person has filed with the Director and has sent to
8the company a statement containing the information required by
9Section 131.5 and the Director has approved the transaction or
10granted an exemption. For purposes of this Section a domestic
11company includes any other person which controls a domestic
12company or holds or controls sufficient policyholders' proxies
13to elect the majority of the board of directors of the domestic
14company. Prior to the acquisition, the Director may conclude
15that a statement need not be filed by the acquiring party if
16the acquiring party demonstrates to the satisfaction of the
17Director that:
18        (1) such transaction will not result in the change of
19    control of the domestic company; or
20        (2) (blank); the person which is subject to the
21    acquisition has assets in excess of $1,000,000 and
22    shareholders of record of 500 or more and its insurance
23    business either directly or through its affiliates is an
24    insignificant portion of its total business; or
25        (3) the acquisition of, or attempt to acquire control
26    of, such other person is subject to requirements in the

 

 

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1    jurisdiction of its domicile which are substantially
2    similar to those contained in this Section and Sections
3    131.5 through 131.12; or
4        (4) the control of the policyholders' proxies is being
5    acquired solely by virtue of the holders official office
6    and not as the result of any agreement or for any
7    consideration.
8        The purpose of this Section is to afford to the
9    Director the opportunity to review acquisitions in order to
10    determine whether or not the acquisition would be adverse
11    to the interests of the existing and future policyholders
12    of the company.
13    (b) For purposes of this Section, any controlling person of
14a domestic company seeking to divest its controlling interest
15in the domestic company in any manner shall file with the
16Director, with a copy to the company, confidential notice of
17its proposed divestiture at least 30 days prior to the
18cessation of control. The Director shall determine those
19instances in which the party or parties seeking to divest or to
20acquire a controlling interest in a company shall be required
21to file for and obtain approval of the transaction. The
22information shall remain confidential until the conclusion of
23the transaction unless the Director, in his or her discretion,
24determines that confidential treatment shall interfere with
25enforcement of this Section. If the statement referred to in
26subsection (a) of this Section is otherwise filed in connection

 

 

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1with the proposed divesture or related acquisition, this
2subsection (b) shall not apply.
3    (c) For purposes of this Section, a domestic company shall
4include any person controlling a domestic company unless the
5person, as determined by the Director, is either directly or
6through its affiliates primarily engaged in business other than
7the business of insurance. For the purposes of this Section,
8"person" shall not include any securities broker holding, in
9the usual and customary broker's function, less than 20% of the
10voting securities of an insurance company or of any person that
11controls an insurance company.
12(Source: P.A. 86-784.)
 
13    (215 ILCS 5/131.5)  (from Ch. 73, par. 743.5)
14    Sec. 131.5. Statement; contents Statement-Contents. In
15order to seek the approval of the Director pursuant to Section
16131.8, the applicant must file a statement with the Director
17under oath or affirmation which contains as a minimum the
18following information:
19    (1) The name and address of each acquiring party, and
20    (a) if such person is an individual, his principal
21occupation and all offices and positions held during the past 5
22years, and any conviction of crimes, other than minor traffic
23violations, during the past 10 years;
24    (b) if such person is not an individual, a report of the
25nature of its business operations during the past 5 years or

 

 

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1for such lesser period as the person and any predecessors
2thereof has been in existence; an informative description of
3the business intended to be conducted by the person and the
4person's subsidiaries; and a list of all individuals who are or
5who have been selected to become directors or executive
6officers of the person, or who perform or will perform
7functions appropriate to such positions. The list must include
8for each individual the information required by subsection
9(1)(a).
10    (2) The source, nature and amount of the consideration used
11or to be used in effecting the merger, consolidation or other
12acquisition of control, a description of any transaction
13wherein funds were or are to be obtained for any such purpose,
14including any pledge of the company's own securities or the
15securities of any of its subsidiaries or affiliates, and the
16identity of persons furnishing such consideration. However,
17where a source of such consideration is a loan made in the
18lender's ordinary course of business, the identity of the
19lender must remain confidential, if the person filing the
20statement so requests.
21    (3) Financial information as to the earnings and financial
22condition of each acquiring party for the preceding 5 fiscal
23years of each acquiring party (or for such lesser period as the
24acquiring party and any predecessors thereof have been in
25existence) audited by an independent certified public
26accountant in accordance with generally accepted auditing

 

 

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1standards and similar unaudited information for the second and
2third preceding fiscal years and as of a date not earlier than
390 days prior to the filing of the statement. If an acquiring
4party is an insurer which has been actively engaged in the
5business of insurance for 10 years, the financial information
6need not be audited, provided it is based on the annual
7statements of such acquiring person filed with the insurance
8department of the person's domiciliary state and is in
9accordance with the requirement of insurance or other
10accounting principles prescribed or permitted under the laws
11and regulations of such state.
12    (a) When an applicant is controlled by an individual,
13financial information for that individual will not be required
14if the applicant is currently subject to the registration and
15reporting requirements of Section 12(g) of the Securities
16Exchange Act of 1934 or is an insurer which has been actively
17engaged in the business of insurance for a period in excess of
1810 years;
19    (b) When an individual as an acquiring party must file
20financial information under this paragraph such information
21need not be delivered to the company. However, such information
22shall be available if the Director holds a hearing pursuant to
23Section 131.8.
24    (4) Any plans or proposals which each acquiring party may
25have to liquidate such company, to sell its assets or merge or
26consolidate it with any person, or to make any other material

 

 

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1change in its business or corporate structure or management.
2    (5) The number of shares of any security referred to in
3Section 131.4 which each acquiring party proposes to acquire,
4and the terms of the offer, request, invitation, agreement, or
5acquisition referred to in Section 131.4, and a statement as to
6the method by which the fairness of the proposal was arrived.
7    (6) The amount of each class of any security referred to in
8Section 131.4 which is beneficially owned or concerning which
9there is a right to acquire beneficial ownership by each
10acquiring party.
11    (7) A full description of any existing contracts,
12arrangements or understandings with respect to any security
13referred to in Section 131.4 in which any acquiring party is
14involved, including but not limited to transfer of any of the
15securities, joint ventures, loan or option arrangements, puts
16or calls, guarantees of loans, guarantees against loss or
17guarantees of profits, division of losses or profits, or the
18giving or withholding of proxies. The description must identify
19the persons with whom such contracts, arrangements or
20understandings have been entered into.
21    (8) A description of the acquisition of any security or
22policyholders' proxy referred to in Section 131.4 during the 12
23calendar months preceding the filing of the statement, by any
24acquiring party, including the dates of acquisition, names of
25the acquiring parties acquirors, and consideration paid or
26agreed to be paid therefor.

 

 

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1    (9) A description of any recommendations to acquire any
2security referred to in Section 131.4 made during the 12
3calendar months preceding the filing of the statement, by any
4acquiring party, or by anyone based upon interviews or at the
5suggestion of such acquiring party.
6    (10) Copies of all tender offers for, requests or
7invitations for tenders of, exchange offers for, and agreements
8to acquire or exchange any securities referred to in Section
9131.4, and (if distributed) of additional soliciting material
10relating thereto.
11    (11) The terms of any agreement, contract or understanding
12made with, or proposed to be made with, any broker-dealer as to
13solicitation of securities referred to in Section 131.4 for
14tender, and the amount of any fees, commissions or other
15compensation to be paid to broker-dealers with regard thereto.
16    (12) Beginning July 1, 2013, an agreement by the person
17required to file the statement referred to in this Section
18131.5 that the person will provide the annual report specified
19in Section 131.14b for so long as control exists.
20    (13) Beginning July 1, 2013, an acknowledgement by the
21person required to file the statement referred to in this
22Section 131.5 that the person and all subsidiaries within its
23control in the insurance holding company system shall provide
24information to the Director upon request as necessary to
25evaluate enterprise risk to the company.
26    (14) Any additional information as the Director may by rule

 

 

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1or regulation prescribe as necessary or appropriate for the
2protection of policyholders or in the public interest.
3    (15) With respect to each acquiring party, the following
4information:
5        (A) the name and address of all associated persons and
6    a detailed description of every agreement, arrangement,
7    and understanding between the acquiring party and all
8    associated persons in connection with the merger,
9    consolidation, or other acquisition of control;
10        (B) the class or series and number of shares of
11    securities of the company that are directly or indirectly
12    owned beneficially and of record by the acquiring party or
13    the associated persons or both; and
14        (C) a detailed description of each proxy, contract,
15    arrangement, understanding, or relationship pursuant to
16    which the acquiring party or the associated persons, or
17    both, have a right to vote, or cause or direct the vote of,
18    any securities of the company.
19(Source: P.A. 84-805.)
 
20    (215 ILCS 5/131.6)  (from Ch. 73, par. 743.6)
21    Sec. 131.6. (1) If the person required to file the
22statement referred to in Section 131.5 is a partnership,
23limited partnership, syndicate or other group, the Director may
24require that the information be given with respect to each
25partner of such partnership or limited partnership, each member

 

 

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1of such syndicate or group, and each person who controls such
2partner or member. If any partner, member or person is a
3corporation or the person required to file the statement
4referred to in Section 131.5 is a corporation, the Director may
5require that the information be given with respect to the
6corporation, each officer and director of the corporation, and
7each person who is directly or indirectly the beneficial owner
8of more than 10% of the outstanding voting securities of the
9corporation.
10    (2) If any material change occurs in the facts set forth in
11the statement filed with the Director and sent to the company
12under Section 131.5 131.9, an amendment setting forth the
13change, together with copies of all documents and other
14material relevant to the change, must be filed with the
15Director and sent to the company within 2 business days after
16the person learns of the change.
17(Source: P.A. 84-805.)
 
18    (215 ILCS 5/131.8)  (from Ch. 73, par. 743.8)
19    Sec. 131.8. (1) After the statement required by Section
20131.5 has been filed, the Director shall approve must
21disapprove any merger, consolidation or other acquisition of
22control referred to in Section 131.4 unless the acquiring party
23demonstrates to the Director finds that:
24        (a) after the After change of control, the domestic
25    company referred to in Section 131.4 would not be able to

 

 

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1    satisfy the requirements for the issuance of a license to
2    write the line or lines of insurance for which it is
3    presently licensed;
4        (b) the effect of the merger, consolidation or other
5    acquisition of control would be not substantially to lessen
6    competition in insurance in this State or not tend to
7    create a monopoly therein. In applying the competitive
8    standard in this paragraph:
9            (i) the informational requirements of subsection
10        (3)(a) and the standards of subsection (4)(b) of
11        Section 131.12a shall apply,
12            (ii) the merger or other acquisition shall not be
13        found substantially to lessen competition in insurance
14        in this State or tend to create a monopoly therein
15        disapproved if the Director finds acquiring party
16        demonstrates that any of the situations meeting the
17        criteria provided by subsection (4)(c) of Section
18        131.12a exist, and
19            (iii) the Director may condition the approval of
20        the merger or other acquisition on the removal of the
21        basis of disapproval within a specified period of time;
22        (c) the financial condition of any acquiring party is
23    such as might to not jeopardize the financial stability of
24    the domestic company or not jeopardize the interests of its
25    policyholders;
26        (d) the plans or proposals which the acquiring party

 

 

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1    has to liquidate the domestic company, sell its assets or
2    consolidate or merge it with any person, or to make any
3    other material change in its business or corporate
4    structure or management, are unfair fair and unreasonable
5    reasonable to policyholders of such company and not in the
6    public interest; or
7        (e) the competence, experience and integrity of those
8    persons who would not control the operation of the domestic
9    company are such that it would be in the best interests of
10    policyholders of such company and of the insurance buying
11    public to permit the merger, consolidation or other
12    acquisition of control.
13    (2) The Director may hold a public hearing on any merger,
14consolidation or other acquisition of control referred to in
15Section 131.4 if the Director determines that the statement
16filed as required by Section 131.5 does not demonstrate
17compliance with the standards referred to in subsection (1), of
18this Section, or if he determines that such acquisition of
19control is likely to be hazardous or prejudicial to the will
20adversely affect policyholders or the insurance buying public.
21    (3) The public hearing referred to in subsection (2) must
22be held within 60 days after the statement required by Section
23131.5 is filed, and at least 20 days' notice thereof must be
24given by the Director to the person filing the statement and to
25the domestic company. Not less than 7 12 days' notice of such
26hearing must be given by the person filing the statement to

 

 

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1such other persons as may be designated by the Director and by
2the company to its shareholders securityholders. The Director
3must make a determination within 60 30 days after the
4conclusion of the hearing. At the hearing, the person filing
5the statement, the domestic company, any person to whom notice
6of the hearing was sent, and any other person whose interests
7may be affected thereby has the right to present evidence,
8examine and cross-examine witnesses, and offer oral and written
9arguments and in connection therewith is entitled to conduct
10discovery proceedings in the same manner as is presently
11allowed in the Circuit Courts of this State. All discovery
12proceedings must be concluded not later than 3 days prior to
13the commencement of the public hearing.
14    (4) If the proposed acquisition of control will require the
15approval of more than one state insurance commissioner, the
16public hearing referred to in subsection (2) of this Section
17may be held on a consolidated basis upon request of the person
18filing the statement referred to in Section 131.5 of this Code.
19Such person shall file the statement referred to in Section
20131.5 of this Code with the National Association of Insurance
21Commissioners (NAIC) within 5 days after making the request for
22a public hearing. A commissioner may opt out of a consolidated
23hearing and shall provide notice to the applicant of the opt
24out within 10 days after the receipt of the statement referred
25to in Section 131.5 of this Code. A hearing conducted on a
26consolidated basis shall be public and shall be held within the

 

 

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1United States before the commissioners of the states in which
2the companies are domiciled. Such commissioners shall hear and
3receive evidence. A commissioner may attend such hearing in
4person or by telecommunication.
5    (5) In connection with a change of control of a domestic
6company, any determination by the Director that the person
7acquiring control of the company shall be required to maintain
8or restore the capital of the company to the level required by
9the laws and regulations of this State shall be made not later
10than 60 days after the filing of the statement required by
11Section 131.5 of this Code.
12(Source: P.A. 84-805.)
 
13    (215 ILCS 5/131.8a)  (from Ch. 73, par. 743.8a)
14    Sec. 131.8a. The Director may retain at the applicant's
15expense any attorneys, actuaries, accountants and other
16experts not otherwise a part of the Director's staff as may be
17reasonably necessary to assist in reviewing the conduct of
18financial or character examinations in conjunction with an
19acquisition proposed under Section 131.4. The applicant shall
20deposit with the Director cash, bonds or securities, acceptable
21to the Director, in a reasonable amount not to exceed $100,000,
22for purpose of securing the payment of any expert's cost.
23(Source: P.A. 86-753.)
 
24    (215 ILCS 5/131.9a new)

 

 

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1    Sec. 131.9a. Exemptions. Sections 131.4 through 131.12 do
2not apply to:
3        (1) any transaction that is subject to Article X of
4    this Code dealing with merger, consolidation, or plans of
5    exchange; or
6        (2) any offer, request, invitation, agreement, or
7    acquisition that the Director by order exempts therefrom as
8    (A) not having been made or entered into for the purpose
9    and not having the effect of changing or influencing the
10    control of a domestic company or (B) otherwise not
11    comprehended within the purposes of Sections 131.4 through
12    131.12.
 
13    (215 ILCS 5/131.11)  (from Ch. 73, par. 743.11)
14    Sec. 131.11. The following are violations of Sections 131.4
15through 131.12:
16    (1) the failure to file any statement, amendment, or other
17material required to be filed under Sections 131.4 or 131.5; or
18    (2) the effectuation or any attempt to effectuate an
19acquisition of control of, divestiture of, or merger or
20consolidation with, a domestic company unless the Director has
21given his approval thereto.
22(Source: P.A. 77-673.)
 
23    (215 ILCS 5/131.12)  (from Ch. 73, par. 743.12)
24    Sec. 131.12. The courts of this State are hereby vested

 

 

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1with jurisdiction over every person not resident, domiciled, or
2authorized to do business in this State who files a statement
3with the Director under Section 131.4, and over all actions
4involving such person arising out of violations of Sections
5131.4, 131.5, 131.6, 131.9 or 131.11, and each such person is
6deemed to have performed acts equivalent to and constituting an
7appointment by such a person of the Director to be his true and
8lawful attorney upon whom may be served all lawful process in
9any action, suit or proceeding arising out of violations of
10Sections 131.4, 131.5, 131.6, 131.9 or 131.11. Copies of all
11such lawful process must be served on the Director and
12transmitted by registered or certified mail by the Director to
13such person at his last known address.
14(Source: P.A. 77-673.)
 
15    (215 ILCS 5/131.12a)  (from Ch. 73, par. 743.12a)
16    Sec. 131.12a. Acquisitions involving companies insurers
17not otherwise covered.
18    (1) Definitions. The following definitions shall apply for
19the purposes of this Section only:
20    (a) "Acquisition" means any agreement, arrangement or
21activity the consummation of which results in a person
22acquiring directly or indirectly the control of another person
23or control of the insurance in force of another person, and
24includes but is not limited to the acquisition of voting
25securities, the acquisition of assets, the transaction of bulk

 

 

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1reinsurance and the act of merging or consolidating.
2    (b) An "involved company insurer" includes a company an
3insurer which either acquires or is acquired, is affiliated
4with an acquirer or acquired or is the result of a merger.
 
5    (2) Scope.
6    (a) Except as exempted in paragraph (b) of this subsection
7(2), this Section applies to any acquisition in which there is
8a change in control of a company an insurer authorized to do
9business in this State.
10    (b) This Section shall not apply to the following:
11        (i) an acquisition subject to approval or disapproval
12    by the Director pursuant to Section 131.8;
13        (ii) a purchase of securities solely for investment
14    purposes so long as such securities are not used by voting
15    or otherwise to cause or attempt to cause the substantial
16    lessening of competition in any insurance market in this
17    State. If a purchase of securities results in a presumption
18    of control under subsection (b) of Section 131.1, it is not
19    solely for investment purposes unless the commissioner of
20    the company's insurer's state of domicile accepts a
21    disclaimer of control or affirmatively finds that control
22    does not exist and such disclaimer action or affirmative
23    finding is communicated by the domiciliary commissioner to
24    the Director of this State;
25        (iii) the acquisition of a person by another person

 

 

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1    when both persons are neither directly nor through
2    affiliates primarily engaged in the business of insurance,
3    if pre-acquisition notification is filed with the Director
4    in accordance with subsection (3)(a) of this Section, 30
5    days prior to the proposed effective date of the
6    acquisition. However, such pre-acquisition notification is
7    not required for exclusion from this Section if the
8    acquisition would otherwise be excluded from this Section
9    by any other subparagraph of subsection (2)(b);
10        (iv) the acquisition of already affiliated persons;
11        (v) an acquisition if, as an immediate result of the
12    acquisition,
13            (A) in no market would the combined market share of
14        the involved companies insurers exceed 5% of the total
15        market,
16            (B) there would be no increase in any market share,
17        or
18            (C) in no market would the combined market share of
19        the involved companies insurers exceed 12% of the total
20        market, and the market share increase by more than 2%
21        of the total market.
22        For the purpose of this subparagraph (b)(v), "market"
23    means direct written insurance premium in this State for a
24    line of business as contained in the annual statement
25    required to be filed by companies insurers licensed to do
26    business in this State;

 

 

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1        (vi) an acquisition for which a pre-acquisition
2    notification would be required pursuant to this Section due
3    solely to the resulting effect on the ocean marine
4    insurance line of business;
5        (vii) an acquisition of a company an insurer whose
6    domiciliary commissioner affirmatively finds that such
7    company insurer is in failing condition; there is a lack of
8    feasible alternative to improving such condition; the
9    public benefits of improving such company's insurer's
10    condition through the acquisition exceed the public
11    benefits that would arise from not lessening competition;
12    and such findings are communicated by the domiciliary
13    commissioner to the Director of this State.
 
14    (3) Pre-acquisition Notification; Waiting Period. An
15acquisition covered by subsection (2) may be subject to an
16order pursuant to subsection (5) unless the acquiring person
17files a pre-acquisition notification and the waiting period has
18expired. The acquired person may file a pre-acquisition
19notification. The Director shall give confidential treatment
20to information submitted under this subsection in the same
21manner as provided in Section 131.22 of this Article.
22    (a) The pre-acquisition notification shall be in such form
23and contain such information as prescribed by the Director,
24which shall conform substantially to the form of notification
25adopted by the National Association of Insurance Commissioners

 

 

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1relating to those markets which, under subsection (b)(v) of
2Section (2), cause the acquisition not to be exempted from the
3provisions of this Section. The Director may require such
4additional material and information as he deems necessary to
5determine whether the proposed acquisition, if consummated,
6would violate the competitive standard of subsection (4). The
7required information may include an opinion of an economist as
8to the competitive impact of the acquisition in this State
9accompanied by a summary of the education and experience of
10such person indicating his or her ability to render an informed
11opinion.
12    (b) The waiting period required shall begin on the date of
13the receipt by the Director of a pre-acquisition notification
14and shall end on the earlier of the 30th day after the date of
15such receipt, or termination of the waiting period by the
16Director. Prior to the end of the waiting period, the Director
17on a one time basis may require the submission of additional
18needed information relevant to the proposed acquisition, in
19which event the waiting period shall end on the earlier of the
2030th day after the receipt of such additional information by
21the Director or termination of the waiting period by the
22Director.
 
23    (4) Competitive Standard.
24    (a) The Director may enter an order under subsection (5)(a)
25with respect to an acquisition if there is substantial evidence

 

 

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1that the effect of the acquisition may be substantially to
2lessen competition in any line of insurance in this State or
3tend to create a monopoly therein or if the company insurer
4fails to file adequate information in compliance with
5subsection (3).
6    (b) In determining whether a proposed acquisition would
7violate the competitive standard of paragraph (a) of this
8subsection the Director shall consider the following:
9        (i) any acquisition covered under subsection (2)
10    involving 2 or more companies insurers competing in the
11    same market is prima facie evidence of violation of the
12    competitive standards:
13            (A) if the market is highly concentrated and the
14        involved companies insurers possess the following
15        shares of the market:
16          Company Insurer A     Company Insurer B
17                  4%                    4% or more
18                 10%                    2% or more
19                 15%                    1% or more
20            (B) if the market is not highly concentrated and
21        the involved companies insurers possess the following
22        shares of the market:
23          Company Insurer A     Company Insurer B
24                  5%                    5% or more
25                 10%                    4% or more
26                 15%                    3% or more

 

 

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1                 19%                    1% or more
2        A highly concentrated market is one in which the share
3    of the 4 largest companies insurers is 75% or more of the
4    market. Percentages not shown in the tables are to be
5    interpolated proportionately to the percentages that are
6    shown. If more than 2 companies insurers are involved,
7    exceeding the total of the 2 columns in the table is prima
8    facie evidence of violation of the competitive standard in
9    paragraph (a) of this subsection. For the purpose of this
10    subparagraph, the company insurer with the largest share of
11    the market shall be deemed to be Company Insurer A.
12        (ii) There is a significant trend toward increased
13    concentration when the aggregate market share of any
14    grouping of the largest companies insurers in the market
15    from the 2 largest to the 8 largest has increased by 7% or
16    more of the market over a period of time extending from any
17    base year 5-10 years prior to the acquisition up to the
18    time of the acquisition. Any acquisition covered under
19    subsection (2) involving 2 or more companies insurers
20    competing in the same market is prima facie evidence of
21    violation of the competitive standard in paragraph (a) of
22    this subsection if:
23            (A) there is a significant trend toward increased
24        concentration in the market,
25            (B) one of the companies insurers involved is one
26        of the companies insurers in a grouping of such large

 

 

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1        companies insurers showing the requisite increase in
2        the market share, and
3            (C) another involved company's insurer's market is
4        2% or more.
5        (iii) For the purpose of subsection (4)(b):
6            (A) The term "company" "insurer" includes any
7        company or group of companies under common management,
8        ownership or control.
9            (B) The term "market" means the relevant product
10        and geographic markets. In determining the relevant
11        product and geographical markets, the Director shall
12        give due consideration to, among other things, the
13        definitions or guidelines, if any, promulgated by the
14        National Association of Insurance Commissioners and to
15        information, if any, submitted by parties to the
16        acquisition. In the absence of sufficient information
17        to the contrary, the relevant product market is assumed
18        to be the direct written insurance premium for a line
19        of business with such line being that used in the
20        annual statement required to be filed by companies
21        insurers doing business in this State and the relevant
22        geographical market is assumed to be this State.
23            (C) The burden of showing prima facie evidence of
24        violation of the competitive standard rests upon the
25        Director.
26        (iv) Even though an acquisition is not prima facie

 

 

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1    violative of the competitive standard under subparagraph
2    (b)(i) and (b)(ii) of this subsection the Director may
3    establish the requisite anticompetitive effect based upon
4    other substantial evidence. Even though an acquisition is
5    prima facie violative of the competitive standard under
6    subparagraphs (b)(i) and (b)(ii) of this subsection (4), a
7    party may establish the absence of the requisite
8    anticompetitive effect based upon other substantial
9    evidence. Relevant factors in making a determination under
10    this paragraph include, but are not limited to, the
11    following: market shares, volatility of ranking of market
12    leaders, number of competitors, concentration, trend of
13    concentration in the industry, and ease of entry and exit
14    into the market.
15    (c) An order may not be entered under subsection (5)(a) if:
16        (i) the acquisition will yield substantial economies
17    of scale or economies in resource utilization that cannot
18    be feasibly achieved in any other way, and the public
19    benefits which would arise from such economies exceed the
20    public benefits which would arise from not lessening
21    competition; or
22        (ii) the acquisition will substantially increase the
23    availability of insurance, and the public benefits of such
24    increase exceed the public benefits which would arise from
25    not lessening competition.
 

 

 

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1    (5) Orders and Penalties:
2        (a)(i) If an acquisition violates the standard of this
3    Section, the Director may enter an order
4            (A) requiring an involved company insurer to cease
5        and desist from doing business in this State with
6        respect to the line or lines of insurance involved in
7        the violation, or
8            (B) denying the application of an acquired or
9        acquiring company insurer for a license to do business
10        in this State.
11        (ii) Such an order shall not be entered unless there is
12    a hearing, notice of such hearing is issued prior to the
13    end of the waiting period and not less than 15 days prior
14    to the end of the waiting period and not less than 15 days
15    prior to the hearing, and the hearing is concluded and the
16    order is issued no later than 60 days after the end of the
17    waiting period. Every order shall be accompanied by a
18    written decision of the Director setting forth his findings
19    of fact and conclusions of law.
20        (iii) (Blank). An order entered under this paragraph
21    shall not become final earlier than 30 days after it is
22    issued, during which time the involved insurer may submit a
23    plan to remedy the anticompetitive impact of the
24    acquisition within a reasonable time. Based upon such plan
25    or other information, the Director shall specify, if any,
26    the conditions under and the time period during which the

 

 

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1    aspects of the acquisition causing a violation of the
2    standards of this Section would be remedied and the order
3    vacated or modified.
4        (iv) An order pursuant to this paragraph shall not
5    apply if the acquisition is not consummated.
6    (b) Any person who violates a cease and desist order of the
7Director under paragraph (a) and while such order is in effect
8may after notice and hearing and upon order of the Director be
9subject at the discretion of the Director to any one or more of
10the following:
11        (i) a monetary penalty of not more than $10,000 for
12    every day of violation or
13        (ii) suspension or revocation of such person's license
14    or both.
15    (c) Any company insurer or other person who fails to make
16any filing required by this Section and who also fails to
17demonstrate a good faith effort to comply with any such filing
18requirement shall be subject to a civil penalty of not more
19than $50,000.
 
20    (6) Inapplicable Provisions. Subsections (2) and (3) of
21Section 131.23 and Section 131.25 do not apply to acquisitions
22covered under subsection (2).
23(Source: P.A. 92-16, eff. 6-28-01.)
 
24    (215 ILCS 5/131.13)  (from Ch. 73, par. 743.13)

 

 

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1    Sec. 131.13. Registration of companies. Every company
2which is authorized to do business in this State and which is a
3member of an insurance holding company system must register
4with the Director, except a foreign or alien company subject to
5registration requirements and standards adopted by statute or
6regulation in the jurisdiction of its domicile which are
7substantially similar to those contained in this section and
8Sections 131.14 through 131.20a 131.19. Any company which is
9subject to registration under this section must register within
1060 days after the effective date of this Article or 15 days
11after it becomes subject to registration, whichever is later,
12unless the Director for good cause shown extends the time for
13registration, and then within such extended time. The Director
14may require any authorized company which is a member of a
15holding company system which is not subject to registration
16under this section to furnish a copy of the registration
17statement or other information filed by such company with the
18insurance regulatory authority of its domiciliary
19jurisdiction.
20    If upon review of the information filed pursuant to this
21Section and the information included in the annual statement
22filed pursuant to Section 136, the Director determines there is
23a potential for adverse economic impact due to substantial
24ownership of companies authorized to do business in this State
25by persons who are not citizens or residents of the United
26States or entities which are not organized or created under the

 

 

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1laws of any state or territory of the United States, he shall
2report such determination along with any legislative
3recommendations to the General Assembly.
4(Source: P.A. 84-805.)
 
5    (215 ILCS 5/131.14)  (from Ch. 73, par. 743.14)
6    Sec. 131.14. Every company subject to registration must
7file a registration statement on a in the form and in a format
8prescribed designated by the Director, which shall contain the
9following contains current information about:
10    (1) the capital structure, general financial condition,
11ownership and management of the company and any person
12controlling the company;
13    (2) the identity and relationship of every member of the
14insurance holding company system;
15    (3) the following agreements in force, relationships
16subsisting, and transactions currently outstanding or that
17have occurred during the last calendar year between such
18company and its affiliates:
19    (a) loans, other investments, or purchases, sales or
20exchanges of or securities of the affiliates by the company or
21of the company by its affiliates;
22    (b) purchases, sales, or exchanges of assets;
23    (c) transactions not in the ordinary course of business;
24    (d) guarantees or undertakings for the benefit of an
25affiliate which result in an actual contingent exposure of the

 

 

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1company's assets to liability, other than insurance contracts
2entered into in the ordinary course of the company's business;
3    (e) all management agreements, and service contracts, and
4all cost-sharing arrangements, other than cost allocation
5arrangements based upon generally accepted accounting
6principles; and
7    (f) reinsurance agreements;
8    (f-5) dividends and other distributions to shareholders;
9    (g) any pledge of the company's own securities, securities
10of any subsidiary or controlling affiliate, to secure a loan
11made to any member of the insurance holding company system; and
12    (h) consolidated tax allocation agreements; .
13    (4) (blank); other matters concerning transactions between
14registered companies and any affiliates as may be included from
15time to time in any registration forms adopted or approved by
16the Director.
17    (5) financial statements of or within an insurance holding
18company system, including all affiliates, if requested by the
19Director; financial statements may include, but are not limited
20to, annual audited financial statements filed with the U.S.
21Securities and Exchange Commission (SEC) pursuant to the
22Securities Act of 1933, as amended, or the Securities Exchange
23Act of 1934, as amended; a company required to file financial
24statements pursuant to this paragraph (5) may satisfy the
25request by providing the Director with the most recently filed
26parent corporation financial statements that have been filed

 

 

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1with the SEC;
2    (6) statements that the company's or its parent company's
3board of directors or a committee thereof oversees corporate
4governance and internal controls and that the company's
5officers or senior management have approved and implemented and
6continue to maintain and monitor corporate governance and
7internal controls; and
8    (7) other matters concerning transactions between
9registered companies and any affiliates as may be included from
10time to time in any registration forms adopted or approved by
11the Director.
12(Source: P.A. 84-805.)
 
13    (215 ILCS 5/131.14a new)
14    Sec. 131.14a. Summary filing. Every company subject to
15registration must file a summary outlining all items in the
16current registration statement representing changes from the
17prior registration statement.
 
18    (215 ILCS 5/131.14b new)
19    Sec. 131.14b. Enterprise risk filing. The ultimate
20controlling person of every company subject to registration
21shall also file an annual enterprise risk report. The report
22shall, to the best of the ultimate controlling person's
23knowledge and belief, identify the material risks within the
24insurance holding company system that could pose enterprise

 

 

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1risk to the company. The report shall be filed with the lead
2state commissioner of the insurance holding company system as
3determined by the procedures within the Financial Analysis
4Handbook adopted by the National Association of Insurance
5Commissioners.
 
6    (215 ILCS 5/131.14c new)
7    Sec. 131.14c. Violations. The failure to file a
8registration statement or any summary of the registration
9statement or enterprise risk filing required by this Article
10within the time specified for filing shall be a violation of
11this Article.
 
12    (215 ILCS 5/131.14d new)
13    Sec. 131.14d. Confidentiality.
14    (a) Documents, materials, or other information in the
15possession or control of the Director that are obtained by,
16created by, or disclosed to the Director or any other person
17pursuant to Section 131.14b are recognized as being proprietary
18and to contain trade secrets. Disclosure of such documents,
19materials, or other information is recognized as damaging to
20the competitive position of the insurer whose confidential
21information is in the possession or control of the Director.
22All such documents, materials, or other information shall be
23confidential by law and privileged, shall not be subject to the
24Freedom of Information Act, shall not be subject to subpoena,

 

 

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1and shall not be subject to discovery or admissible in evidence
2in any private civil action. However, the Director is
3authorized to use such documents, materials, or other
4information in the furtherance of any regulatory or legal
5action brought as a part of the Director's official duties. The
6Director shall not otherwise disclose or make such documents,
7materials, or other information public without the prior
8written consent of the insurer.
9    (b) An insurer whose documents, materials, or other
10information is in the possession or control of the Director or
11any other person pursuant to Section 131.14b of this Code and
12who is aggrieved by an actual or threatened disclosure of such
13documents, materials, or other information or by any violation
14of this Section, may commence proceedings, subject in the case
15of the Director to Article III of the Code of Civil Procedure,
16in any court of competent jurisdiction to prevent such
17disclosure or to enforce the provisions of this Section.
18    (c) Neither the Director nor any person who received
19documents, materials, or other information relating to the
20report required by Section 131.14b of this Code, through
21examination or otherwise, while acting under the authority of
22the Director or with whom such documents, materials, or other
23information are shared pursuant to this Section, Section
24131.14b or Section 131.20c of this Code shall be permitted or
25required to testify in any private civil action concerning any
26confidential documents, materials, or information subject to

 

 

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1subsection (a) of this Section.
2    (d) Solely to assist in the performance of the Director's
3regulatory duties, the Director may do the following:
4        (1) upon request, share documents, materials, or other
5    information relating to the report required by Section
6    131.14b of this Code, including the confidential and
7    privileged documents, materials, or information subject to
8    subsection (a) of this Section, including proprietary and
9    trade secret documents and materials with other state,
10    federal, and international financial regulatory agencies,
11    including members of any supervisory college as provided
12    for in Section 131.20c of this Code, with the NAIC and with
13    any third-party consultants designated by the Director,
14    provided that the recipient agrees in writing to maintain
15    the confidentiality and privileged status of the
16    documents, materials, or other information relating to the
17    report required by Section 131.14b of this Code and has
18    verified in writing the legal authority to maintain
19    confidentiality; and
20        (2) receive documents, materials, or other information
21    relating to the report required by Section 131.14b of this
22    Code, including otherwise confidential and privileged
23    documents, materials, or information, including
24    proprietary and trade secret information or documents,
25    from regulatory officials of other foreign or domestic
26    jurisdictions, including members of any supervisory

 

 

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1    college as defined in Section 131.20c of this Code, and
2    from the NAIC, and shall maintain as confidential or
3    privileged any documents, materials, or information
4    received with notice or the understanding that it is
5    confidential or privileged under the laws of the
6    jurisdiction that is the source of the document, material,
7    or information.
8    (e) The Director shall enter into a written agreement with
9any member of a supervisory college as provided for in Section
10131.20c of this Code, the International Association of
11Insurance Supervisors (IAIS), the NAIC, or any third-party
12consultant governing sharing and use of information provided
13pursuant to this Section. The agreement shall do the following:
14        (1) specify procedures and protocols regarding the
15    confidentiality and security of information shared with
16    the member of a supervisory college, the IAIS, the NAIC, or
17    the third-party consultant pursuant to this Section,
18    including procedures and protocols for sharing by the
19    member of a supervisory college, the IAIS, or the NAIC with
20    international, federal, or state regulators;
21        (2) specify that ownership of information shared with
22    the member of a supervisory college, the IAIS, the NAIC, or
23    the third-party consultant pursuant to this Section
24    remains with the Director and that the member of a
25    supervisory college's, the IAIS's , the NAIC's, or the
26    third-party consultant's use of the information is subject

 

 

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1    to the direction of the Director;
2        (3) restrict the member of a supervisory college, the
3    IAIS, the NAIC, or the third-party consultant from storing
4    the information shared pursuant to this Section in a
5    permanent database;
6        (4) require notice to be given within 5 business days
7    to an insurer whose confidential information, in the
8    possession of the member of a supervisory college, the
9    IAIS, the NAIC, or the third-party consultant pursuant to
10    this Section, is subject to a request or subpoena to the
11    member of a supervisory college, the IAIS, the NAIC, or the
12    third-party consultant for disclosure or production;
13        (5) require the member of a supervisory college, the
14    IAIS, the NAIC, or the third-party consultant to consent to
15    intervention by an insurer in any judicial or
16    administrative action in which the member of a supervisory
17    college, the IAIS, the NAIC, or the third-party consultant
18    may be required to disclose confidential information about
19    the insurer shared with the member of a supervisory
20    college, the IAIS, the NAIC, or the third-party consultant
21    pursuant to this Section; and
22        (6) in the case of an agreement involving a third-party
23    consultant, provide for the insurer's prior written
24    consent to the sharing of information with that third-party
25    consultant.
26    (f) The sharing of information and documents by the

 

 

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1Director pursuant to this Section shall not constitute a
2delegation of regulatory authority or rulemaking, and the
3Director is solely responsible for the administration and
4execution of the provisions of this Section. An insurer whose
5confidential information is in the possession of the member of
6a supervisory college, the IAIS, the NAIC, or third-party
7consultant pursuant to this Section and who is aggrieved by an
8actual or threatened disclosure of confidential information,
9or by any violation of this Section, may commence proceedings
10in any court of competent jurisdiction to prevent such
11disclosure or to enforce the provisions of this Section.
12    (g) No waiver of any applicable privilege or claim of
13confidentiality in the documents, proprietary and trade secret
14materials, or other information relating to the report required
15by Section 131.14b of this Section, shall occur as a result of
16disclosure of such documents, materials, or other information
17relating to the report required by Section 131.14b of this
18Section to the Director or as a result of sharing as authorized
19in this Section.
20    (h) Documents, materials, or other information in the
21possession or control of a member of a supervisory college, the
22IAIS, the NAIC, or a third-party consultant pursuant to this
23Section shall be confidential by law and privileged, shall not
24be subject to Freedom of Information Act, shall not be subject
25to subpoena, and shall not be subject to discovery or
26admissible in evidence in any private civil action.
 

 

 

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1    (215 ILCS 5/131.16)  (from Ch. 73, par. 743.16)
2    Sec. 131.16. Reporting material changes or additions;
3penalty for late registration statement.
4    (1) Each registered company must keep current the
5information required to be included in its registration
6statement by reporting all material changes or additions on
7amendment forms designated by the Director within 15 days after
8the end of the month in which it learns of each change or
9addition, or within a longer time thereafter as the Director
10may establish. Any transaction which has been submitted to the
11Director pursuant to Section 131.20a need not be reported to
12the Director under this subsection; except each registered
13company must report all dividends and other distributions to
14shareholders within 15 5 business days following the
15declaration and no less than 10 business days prior to payment
16thereof.
17    (2) On or before May 1 each year, each company subject to
18registration under this Article shall file a statement in a
19format as designated by the Director. This statement shall
20include information previously included in an amendment under
21subsection (1) of this Section, transactions and agreements
22submitted under Section 131.20a, and any other material
23transactions which are required to be reported.
24    (2.5) Any person within an insurance holding company system
25subject to registration shall be required to provide complete

 

 

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1and accurate information to a company where the information is
2reasonably necessary to enable the company to comply with the
3provisions of this Article.
4    (3) Any company failing, without just cause, to file any
5registration statement, any summary of changes to a
6registration statement, or any Enterprise Risk Filing or any
7person within an insurance holding company system who fails to
8provide complete and accurate information to a company as
9required in this Code shall be required, after notice and
10hearing, to pay a penalty of up to $1,000 for each day's delay,
11to be recovered by the Director of Insurance of the State of
12Illinois and the penalty so recovered shall be paid into the
13General Revenue Fund of the State of Illinois. The maximum
14penalty under this section is $50,000. The Director may reduce
15the penalty if the company demonstrates to the Director that
16the imposition of the penalty would constitute a financial
17hardship to the company.
18(Source: P.A. 88-364.)
 
19    (215 ILCS 5/131.17)  (from Ch. 73, par. 743.17)
20    Sec. 131.17. (1) The Director must terminate the
21registration of any company which demonstrates that it no
22longer is a member of an insurance holding company system.
23    (2) The Director may require or allow 2 or more affiliated
24companies subject to registration to file a consolidated
25registration statement. Two or more affiliated companies

 

 

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1subject to registration hereunder may file a consolidated
2registration statement or consolidated reports amending their
3consolidated registration statement or their individual
4registration statements unless the Director requires a
5separate registration statement or report from each registered
6company.
7    (3) A company which is authorized to do business in this
8State and which is part of an insurance holding company system
9may register on behalf of any affiliated company which is
10required to register under Section 131.13 and to file all
11information and material required to be filed under this
12Article unless the Director requires a separate registration by
13the affiliated company.
14(Source: P.A. 77-673.)
 
15    (215 ILCS 5/131.18)  (from Ch. 73, par. 743.18)
16    Sec. 131.18. Sections 131.13 through 131.19 do not apply to
17any company, information, or transaction if and to the extent
18that the Director by rule, regulation, or order may exempt the
19same from Sections 131.13 through 131.19.
20    Any requirement for the furnishing of financial statements
21of the insurance holding company system, or any member thereof,
22as part of or in connection with the registration statement
23filed under Section 131.14 shall not apply to any company which
24submits and maintains in effect in lieu thereof a guarantee or
25a bond acceptable to the Director in an amount equal to the

 

 

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1capital and surplus of the company as shown on its most recent
2audited financial statements, payable to the Director for the
3benefit of the creditors, policyholders and stockholders of the
4company as their interests may appear. Such guarantee, if
5issued by a national bank, and such a bond, if issued by a
6licensed insurance company which is not a member of the
7insurance holding company system, in each case having capital
8and surplus in excess of $25,000,000, shall be deemed
9acceptable.
10(Source: P.A. 77-673.)
 
11    (215 ILCS 5/131.19)  (from Ch. 73, par. 743.19)
12    Sec. 131.19. Disclaimer of affiliation. Any person may file
13with the Director a disclaimer of affiliation with any
14authorized company or a disclaimer may be filed by the a
15company or any member of an insurance holding company system.
16The disclaimer shall must fully disclose all material
17relationships and bases basis for affiliation between the
18person and the company as well as the basis for disclaiming the
19affiliation. A disclaimer of affiliation shall be deemed to
20have been granted unless the Director, within 30 days following
21receipt of a complete disclaimer, notifies the filing party
22that the disclaimer is disallowed. In the event of
23disallowance, the disclaiming party may request an
24administrative hearing, which shall be granted. The
25disclaiming party shall be relieved of its duty to register

 

 

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1under Section 131.13 of this Code if approval of the disclaimer
2has been granted by the Director or if the disclaimer is deemed
3to have been approved. After a disclaimer is filed, the company
4is relieved of any duty to register or report under Section
5131.13 which may arise out of the company's relationship with
6the person unless and until the Director disallows the
7disclaimer. The Director may disallow such a disclaimer only
8after furnishing all parties in interest with notice and
9opportunity to be heard and after making specific findings of
10fact to support the disallowance.
11(Source: P.A. 84-805.)
 
12    (215 ILCS 5/131.20)  (from Ch. 73, par. 743.20)
13    Sec. 131.20. Standards for transactions with affiliates;
14adequacy of surplus.
15    (1) Transactions Material transactions with their
16affiliates by companies subject to registration are subject to
17the following standards:
18        (a) the terms are fair and reasonable;
19        (a-5) agreements for cost sharing services and
20    management shall include such provisions as may be required
21    by rules and regulations issued by the Director;
22        (b) charges or fees for services performed are
23    reasonable;
24        (c) expenses incurred and payment received must be
25    allocated to the company insurer in conformity with

 

 

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1    customary insurance accounting practices consistently
2    applied;
3        (d) the books, accounts, and records of each party must
4    be so maintained as to clearly and accurately disclose the
5    precise nature and details of the transactions, including
6    accounting information necessary to support the
7    reasonableness of the charges or fees to the respective
8    parties; and
9        (e) the company's surplus as regards policyholders
10    following any transactions with affiliates or dividends or
11    distributions to securityholders or affiliates must be
12    reasonable in relation to the company's outstanding
13    liabilities and adequate to meet its financial needs.
14    (2) For purposes of this Article, in determining whether a
15company's surplus as regards policyholders is reasonable in
16relation to the company's outstanding liabilities and adequate
17to meet its needs, the following factors, among others, may be
18considered:
19        (a) the size of the company as measured by its assets,
20    capital and surplus, reserves, premium writings, insurance
21    in force and other appropriate criteria;
22        (b) the extent to which the company's business is
23    diversified among the several lines of insurance;
24        (c) the number and size of risks insured in each line
25    of business;
26        (d) the extent of the geographical dispersion of the

 

 

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1    company's insured risks;
2        (e) the nature and extent of the company's reinsurance
3    program;
4        (f) the quality, diversification, and liquidity of the
5    company's investment portfolio;
6        (g) the recent past and projected future trend in the
7    size of the company's investment portfolio surplus as
8    regards policyholders;
9        (h) the surplus as regards policyholders maintained by
10    companies comparable to the registrant in respect of the
11    factors enumerated in this paragraph;
12        (i) the adequacy of the company's reserves;
13        (j) the quality of the company's earnings and the
14    extent to which the reported earnings include
15    extraordinary items; and
16        (k) the quality and liquidity of investments in
17    affiliates subsidiaries made under Section 131.2 or 131.3.
18    The Director may discount any such investment or treat any
19    such investment as a non-admitted asset for purposes of
20    determining the adequacy of surplus as regards
21    policyholders whenever the investment so warrants.
22(Source: P.A. 88-364.)
 
23    (215 ILCS 5/131.20a)  (from Ch. 73, par. 743.20a)
24    Sec. 131.20a. Prior notification of transactions;
25dividends and distributions.

 

 

HB2290- 53 -LRB098 08974 RPM 39108 b

1    (1) (a) The following transactions listed in items (i)
2through (vii) involving between a domestic company and any
3person in its insurance holding company system, including
4amendments or modifications (other than termination) of
5affiliate agreements previously filed pursuant to this
6Section, which are subject to any materiality standards
7contained in this Section, may not be entered into unless the
8company has notified the Director in writing of its intention
9to enter into such transaction at least 30 days prior thereto,
10or such shorter period as the Director may permit, and the
11Director has not disapproved it within such period. The notice
12for amendments or modifications (other than termination) shall
13include the reasons for the change and the financial impact on
14the domestic company. Informal notice shall be reported, within
1530 days after a termination of a previously filed agreement, to
16the Director for determination of the type of filing required,
17if any. :
18        (i) Sales, purchases, exchanges of assets, loans or
19    extensions of credit, guarantees, investments, or any
20    other transaction, except dividends, (A) that involves the
21    transfer of assets from or liabilities to a company (A)
22    equal to or exceeding the lesser of 3% of the company's
23    admitted assets or 25% of its surplus as regards
24    policyholders as of the 31st day of December next preceding
25    or (B) that is proposed when the domestic company is not
26    eligible to declare and pay a dividend or other

 

 

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1    distribution pursuant to the provisions of Section 27.
2        (ii) Loans or extensions of credit to any person that
3    is not an affiliate (A) that involve the lesser of 3% of
4    the company's admitted assets or 25% of the company's
5    surplus, each as of the 31st day of December next
6    preceding, made with the agreement or understanding that
7    the proceeds of such transactions, in whole or in
8    substantial part, are to be used to make loans or
9    extensions of credit to, to purchase assets of, or to make
10    investments in, any affiliate of the company making such
11    loans or extensions of credit or (B) that are proposed when
12    the domestic company is not eligible to declare and pay a
13    dividend or other distribution pursuant to the provisions
14    of Section 27.
15        (iii) Reinsurance agreements or modifications thereto,
16    including all reinsurance pooling agreements, reinsurance
17    agreements in which the reinsurance premium or a change in
18    the company's liabilities, or the projected reinsurance
19    premium or a change in the company's liabilities in any of
20    the next 3 years, equals or exceeds 5% of the company's
21    surplus as regards policyholders, as of the 31st day of
22    December next preceding, including those agreements that
23    may require as consideration the transfer of assets from a
24    company an insurer to a nonaffiliate, if an agreement or
25    understanding exists between the company insurer and
26    nonaffiliate that any portion of those assets will be

 

 

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1    transferred to one or more affiliates of the company
2    insurer.
3        (iv) All management agreements, service contracts,
4    other than agency contracts, tax allocation agreements,
5    all reinsurance allocation agreements related to
6    reinsurance agreements required to be filed under this
7    Section, and all cost-sharing arrangements, and any other
8    contracts providing for the rendering of services on a
9    regular systematic basis.
10        (v) Direct or indirect acquisitions or investments in a
11    person that controls the company, or in an affiliate of the
12    company, in an amount which, together with its present
13    holdings in such investments, exceeds 2.5% of the company's
14    surplus as regards policyholders. Direct or indirect
15    acquisitions or investments in subsidiaries acquired
16    pursuant to Section 131.2 of this Article (or authorized
17    under any other Section of this Code), or in non-subsidiary
18    insurance affiliates that are subject to the provisions of
19    this Article, are exempt from this requirement.
20        (vi) Any series of the previously described
21    transactions that are substantially similar to each other,
22    that take place within any 180 day period, and that in
23    total are equal to or exceed the lesser of 3% of the
24    domestic company's insurer's admitted assets or 25% of its
25    policyholders surplus, as of the 31st day of the December
26    next preceding.

 

 

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1        (vii) (vi) Any other material transaction that the
2    Director by rule determines might render the company's
3    surplus as regards policyholders unreasonable in relation
4    to the company's outstanding liabilities and inadequate to
5    its financial needs or may otherwise adversely affect the
6    interests of the company's policyholders or shareholders.
7    Nothing herein contained shall be deemed to authorize or
8permit any transactions that, in the case of a company an
9insurer not a member of the same holding company system, would
10be otherwise contrary to law.
11    (b) Any transaction or contract otherwise described in
12paragraph (a) of this subsection that is between a domestic
13company insurer and any person that is not its affiliate and
14that precedes or follows within 180 days or is concurrent with
15a similar transaction between that nonaffiliate and an
16affiliate of the domestic company and that involves amounts
17that are equal to or exceed the lesser of 3% of the domestic
18company's insurer's admitted assets or 25% of its surplus as
19regards policyholders at the end of the prior year may not be
20entered into unless the company has notified the Director in
21writing of its intention to enter into the transaction at least
2230 days prior thereto or such shorter period as the Director
23may permit, and the Director has not disapproved it within such
24period.
25    (c) A company may not enter into transactions which are
26part of a plan or series of like transactions with any person

 

 

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1within the holding company system if the purpose of those
2separate transactions is to avoid the statutory threshold
3amount and thus avoid the review that would occur otherwise. If
4the Director determines that such separate transactions were
5entered into for such purpose, he may exercise his authority
6under subsection (2) of Section 131.24.
7    (d) The Director, in reviewing transactions pursuant to
8paragraph (a), shall consider whether the transactions comply
9with the standards set forth in Section 131.20 and whether they
10may adversely affect the interests of policyholders.
11    (e) The Director shall be notified within 30 days of any
12investment of the domestic company insurer in any one
13corporation if the total investment in that corporation by the
14insurance holding company system exceeds 10% of that
15corporation's voting securities.
16    (f) Except for those transactions subject to approval under
17other Sections of this Code, any such transaction or agreements
18which are not disapproved by the Director may be effective as
19of the date set forth in the notice required under this
20Section.
21    (g) If a domestic company insurer enters into a transaction
22described in this subsection without having given the required
23notification, the Director may cause the company insurer to pay
24a civil forfeiture of not more than $250,000. Each transaction
25so entered shall be considered a separate offense.
26    (2) No domestic company subject to registration under

 

 

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1Section 131.13 may pay any extraordinary dividend or make any
2other extraordinary distribution to its shareholders
3securityholders until: (a) 30 days after the Director has
4received notice of the declaration thereof and has not within
5such period disapproved the payment, or (b) the Director
6approves such payment within the 30-day period. For purposes of
7this subsection, an extraordinary dividend or distribution is
8any dividend or distribution of cash or other property whose
9fair market value, together with that of other dividends or
10distributions, made within the period of 12 consecutive months
11ending on the date on which the proposed dividend is scheduled
12for payment or distribution exceeds the greater of: (a) 10% of
13the company's surplus as regards policyholders as of the 31st
14day of December next preceding, or (b) the net income of the
15company for the 12-month period ending the 31st day of December
16next preceding, but does not include pro rata distributions of
17any class of the company's own securities.
18    Notwithstanding any other provision of law, the company may
19declare an extraordinary dividend or distribution which is
20conditional upon the Director's approval, and such a
21declaration confers no rights upon security holders until: (a)
22the Director has approved the payment of the dividend or
23distribution, or (b) the Director has not disapproved the
24payment within the 30-day period referred to above.
25(Source: P.A. 92-140, eff. 7-24-01.)
 

 

 

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1    (215 ILCS 5/131.20b)
2    Sec. 131.20b. Controlled companies insurers; management;
3directors.
4    (1) Notwithstanding the control of a domestic company
5insurer by any person, the officers and directors of the
6company insurer shall not thereby be relieved of any obligation
7or liability to which they would otherwise be subject by law,
8and the company insurer shall be managed so as to assure its
9separate operating identity consistent with this Article VIII
101/2 of this Code.
11    (2) Nothing in this Section shall preclude a domestic
12company insurer from having or sharing a common management or a
13cooperative or joint use of personnel, property, or services
14with one or more affiliated persons under arrangements meeting
15the standards and requirements of Sections 131.20 and 131.20a.
16    (3) Not After June 30, 2002, not less than one-third of the
17directors of a domestic company, and not less than one-third of
18the members of each committee of the board of directors of any
19domestic company, insurer that is a member of an insurance
20holding company system shall be persons who are not officers or
21employees of the company insurer or of any entity controlling,
22controlled by, or under common control with the company insurer
23and who are not beneficial owners of a controlling interest in
24the voting stock of the company insurer or any such entity. At
25least one such person shall be included in any quorum for the
26transaction of business at any meeting of the board of

 

 

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1directors or any committee thereof.
2    (3.5) The board of directors of a domestic company or
3ultimate controlling company shall establish one or more
4committees comprised solely of directors who are not officers
5or employees of the company or of any entity controlling,
6controlled by, or under common control with the company and who
7are not beneficial owners of a controlling interest in the
8voting stock of the company or any such entity. The committee
9or committees shall have responsibility for nominating
10candidates for director for election by shareholders or
11policyholders, evaluating the performance of officers deemed
12to be principal officers of the company, and recommending to
13the board of directors the selection and compensation of the
14principal officers.
15    (4) Subsections Subsection (3) and (3.5) of this Section do
16does not apply to a domestic company insurer if the ultimate
17controlling company or the person entity controlling the
18company, such as a company, a mutual insurance holding company,
19or a publicly held corporation, has a board of directors and
20committees thereof that meet the requirements of subsections
21(3) and (3.5) with respect to such controlling entity or are
22subject to and meet the requirements of the corporate
23governance rules of a national securities exchange, such as the
24New York Stock Exchange, or an inter-dealer quotation system,
25such as the National Association of Securities Dealers
26Automatic Quotation the insurer, whether directly or through an

 

 

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1intermediate subsidiary, has a board of directors composed in
2accordance with that subsection.
3    (5) (Blank). Subsection (3) of this Section does not apply
4to a domestic insurer if the ultimate controlling party of the
5domestic insurer is a corporation whose equity securities or
6equivalent instruments are listed on the New York Stock
7Exchange.
8    (6) A company may make application to the Director for a
9waiver from the requirements of this Section, if the company's
10annual direct written and assumed premium, excluding premiums
11reinsured with the Federal Crop Insurance Corporation and
12Federal Flood Program, is less than $300,000,000. A company may
13also make application to the Director for a waiver from the
14requirements of this Section based upon unique circumstances.
15The Director may consider various factors, including, but not
16limited to, the type of business entity, volume of business
17written, availability of qualified board members, or the
18ownership or organizational structure of the entity.
19(Source: P.A. 92-140, eff. 7-24-01.)
 
20    (215 ILCS 5/131.20c new)
21    Sec. 131.20c. Supervisory colleges.
22    (a) With respect to any company registered under Section
23131.13 of this Code, and in accordance with subsection (c) of
24this Section, the Director shall also have the power to
25participate in a supervisory college for any domestic company

 

 

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1that is part of an insurance holding company system with
2international operations in order to determine compliance by
3the company with this Article. The powers of the Director with
4respect to supervisory colleges include, but are not limited
5to:
6        (1) initiating the establishment of a supervisory
7    college;
8        (2) clarifying the membership and participation of
9    other supervisors in the supervisory college;
10        (3) clarifying the functions of the supervisory
11    college and the role of other regulators, including the
12    establishment of a group-wide supervisor;
13        (4) coordinating the ongoing activities of the
14    supervisory college, including planning meetings,
15    supervisory activities, and processes for information
16    sharing; and
17        (5) establishing a crisis management plan.
18    (b) Each registered company subject to this Section shall
19be liable for and shall pay the reasonable expenses of the
20Director's participation in a supervisory college in
21accordance with subsection (c) of this Section, including
22reasonable travel expenses. For purposes of this Section, a
23supervisory college may be convened as either a temporary or
24permanent forum for communication and cooperation between the
25regulators charged with the supervision of the company or its
26affiliates, and the Director may establish a regular assessment

 

 

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1to the company for the payment of these expenses.
2    (c) In order to assess the business strategy, financial
3position, legal and regulatory position, risk exposure, risk
4management, and governance processes, and as part of the
5examination of individual companies in accordance with Section
6131.21 of this Code, the Director may participate in a
7supervisory college with other regulators charged with
8supervision of the company or its affiliates, including other
9state, federal, and international regulatory agencies. The
10Director may enter into agreements in accordance with Section
11131.22 of this Code providing the basis for cooperation between
12the Director and the other regulatory agencies and the
13activities of the supervisory college. Nothing in this Section
14shall delegate to the supervisory college the authority of the
15Director to regulate or supervise the company or its affiliates
16within its jurisdiction.
 
17    (215 ILCS 5/131.21)  (from Ch. 73, par. 743.21)
18    Sec. 131.21. Examination.
19    (1) Subject to the limitation contained in this section and
20in addition to the powers which the Director has under Sections
21132 through 132.7 and 401 through 403 of this Code relating to
22the examination of companies, the Director shall have the power
23to examine any company registered under Section 131.13 of this
24Code and its affiliates to ascertain the financial condition of
25the company, including the enterprise risk to the company by

 

 

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1the ultimate controlling party, or by any entity or combination
2of entities within the insurance holding company system, or by
3the insurance holding company system on a consolidated basis.
4also has the power to order any company registered under
5Section 131.13 to produce such records, books, or other
6information papers in the possession of the company or its
7affiliates as are reasonably necessary to ascertain the
8financial condition of such company or to determine compliance
9with this Article. In the event the company fails to comply
10with the order, the Director has the power to examine the
11affiliates to obtain such information.
12    (1.5) The Director may order any company registered under
13Section 131.13 of this Code to produce such records, books, or
14other information papers in the possession of the company or
15its affiliates as are reasonably necessary to determine
16compliance with this Article. To determine compliance with this
17Article, the Director may order any company registered under
18Section 131.13 of this Code to produce information not in the
19possession of the company if the company can obtain access to
20such information pursuant to contractual relationships,
21statutory obligations, or other methods. In the event the
22company cannot obtain the information requested by the
23Director, the company shall provide the Director a detailed
24explanation of the reason that the company cannot obtain the
25information and the identity of the holder of the information.
26Whenever the Director determines that the detailed explanation

 

 

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1is without merit, the Director may require, after notice and
2hearing, the company to pay a penalty of up to $1,000 for each
3day's delay, or may suspend or revoke the company's license.
4    (2) The Director may retain at the registered company's
5expense any attorneys, actuaries, accountants and other
6experts not otherwise a part of the Director's staff as may be
7reasonably necessary to assist in the conduct of the
8examination under subsection (1). Any persons so retained are
9under the direction and control of the Director and may act in
10a purely advisory capacity.
11    (3) Each registered company producing for examination
12records, books and papers under subsection (1.5) (1) is liable
13for and must pay the expense of the examination in accordance
14with Section 408 of this Code.
15    (4) The Director may retain at the registered company's
16expense any attorneys, actuaries, accountants, and other
17experts not otherwise a part of the Director's staff as may be
18reasonably necessary to assist in the conduct of the
19examination under subsection (1) of this Section. Any persons
20so retained are under the direction and control of the Director
21and may act in a purely advisory capacity.
22    (5) In the event the company fails to comply with an order,
23the Director shall have the power to examine the affiliates to
24obtain the information. The Director shall also have the power
25to issue subpoenas, to administer oaths, and to examine under
26oath any person for purposes of determining compliance with

 

 

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1this Section. Upon the failure or refusal of any person to obey
2a subpoena, the Director may petition a court of competent
3jurisdiction and, upon proper showing, the court may enter an
4order compelling the witness to appear and testify or produce
5documentary evidence. Failure to obey the court order shall be
6punishable as contempt of court. Every person shall be obliged
7to attend as a witness at the place specified in the subpoena,
8when subpoenaed, anywhere within the State. He or she shall be
9entitled to the same fees and mileage, if claimed, as a witness
10in the Circuit Court, which fees, mileage, and actual expense,
11if any, necessarily incurred in securing the attendance of
12witnesses, and their testimony, shall be itemized and charged
13against, and be paid by, the company being examined.
14(Source: P.A. 89-97, eff. 7-7-95.)
 
15    (215 ILCS 5/131.22)  (from Ch. 73, par. 743.22)
16    Sec. 131.22. Confidential treatment.
17    (a) Documents, materials, or other information in the
18possession or control of the Department that are obtained by or
19disclosed to the Director or any other person in the course of
20an examination or investigation made pursuant to this Article
21and all information reported pursuant to this Article shall be
22confidential by law and privileged, shall not be subject to the
23Illinois Freedom of Information Act, shall not be subject to
24subpoena, and shall not be subject to discovery or admissible
25in evidence in any private civil action. However, the Director

 

 

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1is authorized to use the documents, materials, or other
2information in the furtherance of any regulatory or legal
3action brought as a part of the Director's official duties. The
4Director shall not otherwise make the documents, materials, or
5other information public without the prior written consent of
6the company to which it pertains unless the Director, after
7giving the company and its affiliates who would be affected
8thereby prior written notice and an opportunity to be heard,
9determines that the interest of policyholders, shareholders,
10or the public shall be served by the publication thereof, in
11which event the Director may publish all or any part in such
12manner as may be deemed appropriate.
13    (b) Neither the Director nor any person who received
14documents, materials, or other information while acting under
15the authority of the Director or with whom such documents,
16materials, or other information are shared pursuant to this
17Article shall be permitted or required to testify in any
18private civil action concerning any confidential documents,
19materials, or information subject to subsection (a) of this
20Section.
21    (c) In order to assist in the performance of the Director's
22duties, the Director:
23        (1) may share documents, materials, or other
24    information, including the confidential and privileged
25    documents, materials, or information subject to subsection
26    (a) of this Section, with other state, federal, and

 

 

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1    international regulatory agencies, with the NAIC and its
2    affiliates and subsidiaries, and with state, federal, and
3    international law enforcement authorities, including
4    members of any supervisory college allowed by this Article,
5    provided that the recipient agrees in writing to maintain
6    the confidentiality and privileged status of the document,
7    material, or other information, and has verified in writing
8    the legal authority to maintain confidentiality;
9        (1.5) notwithstanding paragraph (1) of this subsection
10    (c), may only share confidential and privileged documents,
11    material, or information reported pursuant to Section
12    131.14b with commissioners of states having statutes or
13    regulations substantially similar to subsection (a) of
14    this Section and who have agreed in writing not to disclose
15    such information;
16        (2) may receive documents, materials, or information,
17    including otherwise confidential and privileged documents,
18    materials, or information from the NAIC and its affiliates
19    and subsidiaries and from regulatory and law enforcement
20    officials of other foreign or domestic jurisdictions, and
21    shall maintain as confidential or privileged any document,
22    material, or information received with notice or the
23    understanding that it is confidential or privileged under
24    the laws of the jurisdiction that is the source of the
25    document, material, or information; any such documents,
26    materials, or information, while in the Director's

 

 

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1    possession, shall not be subject to the Illinois Freedom of
2    Information Act and shall not be subject to subpoena; and
3        (3) shall enter into written agreements with the NAIC
4    governing sharing and use of information provided pursuant
5    to this Article consistent with this subsection (c) that
6    shall (i) specify procedures and protocols regarding the
7    confidentiality and security of information shared with
8    the NAIC and its affiliates and subsidiaries pursuant to
9    this Article, including procedures and protocols for
10    sharing by the NAIC with other state, federal, or
11    international regulators; (ii) specify that ownership of
12    information shared with the NAIC and its affiliates and
13    subsidiaries pursuant to this Article remains with the
14    Director and the NAIC's use of the information is subject
15    to the direction of the Director; (iii) require prompt
16    notice to be given to a company whose confidential
17    information in the possession of the NAIC pursuant to this
18    Article is subject to a request or subpoena to the NAIC for
19    disclosure or production; and (iv) require the NAIC and its
20    affiliates and subsidiaries to consent to intervention by a
21    company in any judicial or administrative action in which
22    the NAIC and its affiliates and subsidiaries may be
23    required to disclose confidential information about the
24    company shared with the NAIC and its affiliates and
25    subsidiaries pursuant to this Article.
26    (d) The sharing of documents, materials, or information by

 

 

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1the Director pursuant to this Article shall not constitute a
2delegation of regulatory authority or rulemaking, and the
3Director is solely responsible for the administration,
4execution, and enforcement of the provisions of this Article.
5    (e) No waiver of any applicable privilege or claim of
6confidentiality in the documents, materials, or information
7shall occur as a result of disclosure to the Director under
8this Section or as a result of sharing as authorized in
9subsection (c) of this Section.
10    (f) Documents, materials, or other information in the
11possession or control of the NAIC pursuant to this Article
12shall be confidential by law and privileged, shall not be
13subject to the Illinois Freedom of Information Act, shall not
14be subject to subpoena, and shall not be subject to discovery
15or admissible in evidence in any private civil action. All
16information, documents, and copies thereof obtained by or
17disclosed to the Director or any other person in the course of
18an examination or investigation made under Section 131.21 and
19all information submitted under Sections 131.13 or 131.20a and
20all personal financial statement information submitted under
21Section 131.5 must be given confidential treatment and is not
22subject to subpoena and may not be made public by the Director
23or any other person, without the prior written consent of the
24company to which it pertains unless the Director, after giving
25the company and its affiliates who would be affected thereby
26notice and opportunity to be heard, determines that the

 

 

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1interests of policyholders, shareholders or the public will be
2served by the publication thereof in which event he may publish
3all or any part thereof in such manner as he may deem
4appropriate.
5    Nothing contained in this Section shall prevent or be
6construed as prohibiting the Director from disclosing such
7information to the insurance department of any other state or
8county or to law enforcement officials of this or any other
9state or agency of the federal government at any time upon the
10written agreement of the entity receiving the information to
11hold that information confidential and in a manner consistent
12with this Code.
13(Source: P.A. 88-364.)
 
14    (215 ILCS 5/131.23)  (from Ch. 73, par. 743.23)
15    Sec. 131.23. Injunctions; prohibitions against voting
16securities; sequestration of voting securities. (1) Whenever
17it appears to the Director that any company or any director,
18officer, employee or agent thereof has committed or is about to
19commit a violation of this Article or of any rule, regulation,
20or order issued by the Director hereunder, the Director may
21apply to the Circuit Court for the county in which the
22principal office of the company is located or to the Circuit
23Court for Sangamon County for an order enjoining the company or
24the director, officer, employee or agent thereof from violating
25or continuing to violate this Article or any rule, regulation

 

 

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1or order, and for any other equitable relief as the nature of
2the case and the interests of the company's policyholders,
3creditors or the public may require. In any proceeding, the
4validity of the rule, regulation or order alleged to have been
5violated may be determined by the Court.
6    (2) No security or shareholder's or policyholder's proxy
7which is the subject of any agreement or arrangement regarding
8acquisition, or which is acquired or to be acquired, in
9contravention of this Article or of any rule, regulation or
10order issued by the Director hereunder may be voted at any
11shareholders' securityholders' meeting, or may be counted for
12quorum purposes, and any action of shareholders
13securityholders' requiring the affirmative vote of a
14percentage of securities shall may be taken as though such
15securities (including securities that may be voted pursuant to
16such proxies) were not issued and outstanding; but no action
17taken at any such meeting may be invalidated by the voting of
18such securities or proxies, unless the action would materially
19affect control of the company or unless any court of this State
20has so ordered. If the Director has reason to believe that any
21security or shareholder's or policyholder's proxy of the
22company has been or is about to be acquired in contravention of
23this Article or of any rule, regulation or order issued by the
24Director hereunder the company or the Director may apply to the
25Circuit Court for Sangamon County or to the Circuit Court for
26the county in which the company has its principal place of

 

 

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1business (a) to enjoin the further pursuit or use of any offer,
2request, invitation, agreement or acquisition made in
3contravention of Sections 131.4 through 131.12 or any rule,
4regulation, or order issued by the Director thereunder; (b) to
5enjoin the voting of any security or proxy so acquired; (c) to
6void any vote of such security or proxy already cast at any
7meeting of shareholders securityholders; and (d) for any other
8equitable relief as the nature of the case and the interests of
9the company's policyholders, creditors, or the public may
10require.
11    (3) In any case where a person has acquired or is proposing
12to acquire any voting securities or shareholder's or
13policyholder's proxy in violation of this Article or any rule,
14regulation or order issued by the Director hereunder, the
15Circuit Court for Sangamon County or the Circuit Court for the
16county in which the company has its principal place of business
17may, on such notice as the court deems appropriate, upon the
18application of the company or the Director seize or sequester
19any voting securities or shareholder's or policyholder's proxy
20of the company owned directly or indirectly by such person, and
21issue any orders with respect thereto as may be appropriate to
22effectuate this Article. Notwithstanding any other provisions
23of law, for the purposes of this Article, the situs of the
24ownership of the securities of domestic companies is deemed to
25be in this State.
26    (4) If the Director has reason to believe that any

 

 

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1shareholders' or policyholders' proxies have been or are about
2to be acquired in contravention of this Article or of any rule,
3regulations or order issued by the Director hereunder, the
4Director may apply to the Circuit Court for Sangamon County or
5to the Circuit Court for the county in which the company has
6its principal place of business (a) to enjoin further pursuit
7or use of any offer, request, invitation, agreement or
8acquisition made in contravention of Section 131.4 through
9131.12 and (b) for any other equitable relief as the nature of
10the case and the interests of the company's policyholders,
11creditors or the public may require.
12(Source: P.A. 84-805.)
 
13    (215 ILCS 5/131.24)  (from Ch. 73, par. 743.24)
14    Sec. 131.24. Sanctions.
15    (1) Every director or officer of an insurance holding
16company system who knowingly violates, participates in, or
17assents to, or who knowingly permits any of the officers or
18agents of the company to engage in transactions or make
19investments which have not been properly filed or approved or
20which violate this Article, shall pay, in their individual
21capacity, a civil forfeiture of not more than $100,000 per
22violation, after notice and hearing before the Director. In
23determining the amount of the civil forfeiture, the Director
24shall take into account the appropriateness of the forfeiture
25with respect to the gravity of the violation, the history of

 

 

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1previous violations, and such other matters as justice may
2require.
3    (2) Whenever it appears to the Director determines that any
4company subject to this Article or any director, officer,
5employee or agent thereof has engaged in any transaction or
6entered into a contract which is subject to Section 131.20, and
7any one of Sections 131.16, 131.20a, 141, 141.1, or 174 of this
8Code and which would not have been approved had such approval
9been requested or would have been disapproved had required
10notice been given, the Director may order the company to cease
11and desist immediately any further activity under that
12transaction or contract. After notice and hearing the Director
13may also order (a) the company to void any such contracts and
14restore the status quo if such action is in the best interest
15of the policyholders or the public, and (b) any affiliate of
16the company, which has received from the company dividends,
17distributions, assets, loans, extensions of credit,
18guarantees, or investments in violation of any such Section, to
19immediately repay, refund or restore to the company such
20dividends, distributions, assets, extensions of credit,
21guarantees or investments.
22    (3) Whenever it appears to the Director determines that any
23company or any director, officer, employee or agent thereof has
24committed a willful violation of this Article, the Director may
25cause criminal proceedings to be instituted in the Circuit
26Court for the county in which the principal office of the

 

 

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1company is located or in the Circuit Court of Sangamon or Cook
2County against such company or the responsible director,
3officer, employee or agent thereof. Any company which willfully
4violates this Article commits a business offense and may be
5fined up to $500,000. Any individual who willfully violates
6this Article commits a Class 4 felony and may be fined in his
7individual capacity not more than $500,000 or be imprisoned for
8not less than one year nor more than 3 years, or both.
9    (4) Any officer, director, or employee of an insurance
10holding company system who willfully and knowingly subscribes
11to or makes or causes to be made any false statements or false
12reports or false filings with the intent to deceive the
13Director in the performance of his duties under this Article,
14commits a Class 3 felony and upon conviction thereof, shall be
15imprisoned for not less than 2 years nor more than 5 years or
16fined $500,000 or both. Any fines imposed shall be paid by the
17officer, Director, or employee in his individual capacity.
18    (5) Whenever the Director determines that any person has
19committed a violation of Section 131.14b of this Code which
20prevents the full understanding of the enterprise risk to the
21company by affiliates or by the insurance holding company
22system, the violation may serve as an independent basis, after
23an opportunity for a hearing, for disapproving dividends or
24distributions and for placing the company under an order of
25supervision in accordance with Article XII 1/2 of this Code.
26(Source: P.A. 93-32, eff. 7-1-03.)
 

 

 

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1    (215 ILCS 5/131.26)  (from Ch. 73, par. 743.26)
2    Sec. 131.26. Revocation, suspension, or non-renewal of
3company's license. Whenever it appears to the Director
4determines that any person has committed a violation of this
5Article which makes the continued operation of a company
6contrary to the interests of policyholders or the public, the
7Director may, after notice and hearing suspend, revoke or
8refuse to renew the company's license or authority to do
9business in this State for such a period as the Director he
10finds is required for the protection of policyholders or the
11public. Any such determination must be accompanied by specific
12findings of fact and conclusions of law.
13(Source: P.A. 77-673.)
 
14    (215 ILCS 5/131.27)  (from Ch. 73, par. 743.27)
15    Sec. 131.27. Judicial review.
16    (1) Any order or decision made, issued or executed by the
17Director under this Article whereby any person or company is
18aggrieved is subject to review by the Circuit Court of Sangamon
19County or the Circuit Court of Cook County.
20    The Administrative Review Law, as now or hereafter amended,
21and the rules adopted pursuant thereto, applies to and governs
22all proceedings for review of final administrative decisions of
23the Director provided for in this Section. The term
24"administrative decision" is defined as in Section 3-101 of the

 

 

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1Code of Civil Procedure.
2    (2) The filing of an appeal pursuant to this Section shall
3stay the application of any rule, regulation, order, or other
4action of the Director to the appealing party unless the court,
5after giving the party notice and an opportunity to be heard,
6determines that a stay would be detrimental to the interest of
7policyholders, shareholders, creditors, or the public.
8    (3) Any person aggrieved by any failure of the Director to
9act or make a determination required by this Article may
10petition the circuit courts of Sangamon County or Cook County
11for a writ in the nature of a mandamus or a peremptory mandamus
12directing the Director to act or make a determination.
13(Source: P.A. 82-783.)
 
14    (215 ILCS 5/131.29 new)
15    Sec. 131.29. Rulemaking power. The Director may adopt such
16administrative rules as are necessary to implement the
17provisions of this Article.
 
18    (215 ILCS 5/131.30 new)
19    Sec. 131.30. Conflict with other laws. This Article
20supersedes all laws and parts of laws of this State
21inconsistent with this Code with respect to matters covered by
22this Code.
 
23    (215 ILCS 5/356z.9 rep.)

 

 

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1    (215 ILCS 5/356z.12 rep.)
2    Section 10. The Illinois Insurance Code is amended by
3repealing Sections 356z.9 and 356z.12.
 
4    Section 97. Severability. The provisions of this Act are
5severable under Section 1.31 of the Statute on Statutes.
 
6    Section 99. Effective date. This Act takes effect January
71, 2014, except that Section 131.14b of the Illinois Insurance
8Code takes effect July 1, 2014.

 

 

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1 INDEX
2 Statutes amended in order of appearance
3    215 ILCS 5/131.1from Ch. 73, par. 743.1
4    215 ILCS 5/131.2from Ch. 73, par. 743.2
5    215 ILCS 5/131.3from Ch. 73, par. 743.3
6    215 ILCS 5/131.4from Ch. 73, par. 743.4
7    215 ILCS 5/131.5from Ch. 73, par. 743.5
8    215 ILCS 5/131.6from Ch. 73, par. 743.6
9    215 ILCS 5/131.8from Ch. 73, par. 743.8
10    215 ILCS 5/131.8afrom Ch. 73, par. 743.8a
11    215 ILCS 5/131.9a new
12    215 ILCS 5/131.11from Ch. 73, par. 743.11
13    215 ILCS 5/131.12from Ch. 73, par. 743.12
14    215 ILCS 5/131.12afrom Ch. 73, par. 743.12a
15    215 ILCS 5/131.13from Ch. 73, par. 743.13
16    215 ILCS 5/131.14from Ch. 73, par. 743.14
17    215 ILCS 5/131.14a new
18    215 ILCS 5/131.14b new
19    215 ILCS 5/131.14c new
20    215 ILCS 5/131.14d new
21    215 ILCS 5/131.16from Ch. 73, par. 743.16
22    215 ILCS 5/131.17from Ch. 73, par. 743.17
23    215 ILCS 5/131.18from Ch. 73, par. 743.18
24    215 ILCS 5/131.19from Ch. 73, par. 743.19
25    215 ILCS 5/131.20from Ch. 73, par. 743.20

 

 

HB2290- 81 -LRB098 08974 RPM 39108 b

1    215 ILCS 5/131.20afrom Ch. 73, par. 743.20a
2    215 ILCS 5/131.20b
3    215 ILCS 5/131.20c new
4    215 ILCS 5/131.21from Ch. 73, par. 743.21
5    215 ILCS 5/131.22from Ch. 73, par. 743.22
6    215 ILCS 5/131.23from Ch. 73, par. 743.23
7    215 ILCS 5/131.24from Ch. 73, par. 743.24
8    215 ILCS 5/131.26from Ch. 73, par. 743.26
9    215 ILCS 5/131.27from Ch. 73, par. 743.27
10    215 ILCS 5/131.29 new
11    215 ILCS 5/131.30 new
12    215 ILCS 5/356z.9 rep.
13    215 ILCS 5/356z.12 rep.