Sen. William R. Haine

Filed: 4/25/2013

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 2962

2    AMENDMENT NO. ______. Amend House Bill 2962 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1through one or more intermediaries, controls, or is controlled
2by, or is under common control with, the person specified.
3    (a-5) "Acquiring party" means such person by whom or on
4whose behalf the merger or other acquisition of control
5referred to in Section 131.4 is to be affected and any person
6that controls such person or persons.
7    (a-10) "Associated person" means, with respect to an
8acquiring party, (1) any beneficial owner of shares of the
9company to be acquired, owned, directly or indirectly, of
10record or beneficially by the acquiring party, (2) any
11affiliate of the acquiring party or beneficial owner, and (3)
12any other person acting in concert, directly or indirectly,
13pursuant to any agreement, arrangement, or understanding,
14whether written or oral, with the acquiring party or beneficial
15owner, or any of their respective affiliates, in connection
16with the merger, consolidation, or other acquisition of control
17referred to in Section 131.4 of this Code.
18    (a-15) "Company" has the same meaning as "company" as
19defined in Section 2 of this Code, except that it does not
20include agencies, authorities, or instrumentalities of the
21United States, its possessions and territories, the
22Commonwealth of Puerto Rico, the District of Columbia, or a
23state or political subdivision of a state.
24    (b) "Control" (including the terms "controlling",
25"controlled by" and "under common control with") means the
26possession, direct or indirect, of the power to direct or cause

 

 

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1the direction of the management and policies of a person,
2whether through the ownership of voting securities, the holding
3of shareholders' or policyholders' proxies by contract other
4than a commercial contract for goods or non-management
5services, or otherwise, unless the power is solely the result
6of an official position with or corporate office held by the
7person. Control is presumed to exist if any person, directly or
8indirectly, owns, controls, holds with the power to vote, or
9holds shareholders' proxies representing 10% or more of the
10voting securities of any other person, or holds or controls
11sufficient policyholders' proxies to elect the majority of the
12board of directors of the domestic company. This presumption
13may be rebutted by a showing made in the manner as the Director
14may provide by rule. The Director may determine, after
15furnishing all persons in interest notice and opportunity to be
16heard and making specific findings of fact to support such
17determination, that control exists in fact, notwithstanding
18the absence of a presumption to that effect.
19    (b-5) "Enterprise risk" means any activity, circumstance,
20event, or series of events involving one or more affiliates of
21a company that, if not remedied promptly, is likely to have a
22material adverse effect upon the financial condition or
23liquidity of the company or its insurance holding company
24system as a whole, including, but not limited to, anything that
25would cause the company's risk-based capital to fall into
26company action level as set forth in Article IIA of this Code

 

 

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1or would cause the company to be in hazardous financial
2condition as set forth in Article XII 1/2 of this Code.
3    (b-10) "Exchange Act" means the Securities Exchange Act of
41934, as amended, together with the rules and regulations
5promulgated thereunder.
6    (c) "Insurance holding company system" means two or more
7affiliated persons, one or more of which is an insurance
8company as defined in paragraph (e) of Section 2 of this Code.
9    (d) (Blank). "Company" has the same meaning as "Company" as
10defined in Section 2 of this Code, except that it does not
11include agencies, authorities or instrumentalities of the
12United States, its possessions and territories, the
13Commonwealth of Puerto Rico, the District of Columbia or a
14State or political subdivision of a State.
15    (d-5) "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    (d-10) "Own", "owned," or "owning" means shares (1) with
21respect to which a person has title or to which a person's
22nominee, custodian, or other agent has title and which such
23nominee, custodian, or other agent is holding on behalf of the
24person or (2) with respect to which a person (A) has purchased
25or has entered into an unconditional contract, binding on both
26parties, to purchase the shares, but has not yet received the

 

 

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1shares, (B) owns a security convertible into or exchangeable
2for the shares and has tendered the security for conversion or
3exchange, (C) has an option to purchase or acquire, or rights
4or warrants to subscribe to, the shares and has exercised such
5option, rights, or warrants, or (D) holds a securities futures
6contract to purchase the shares and has received notice that
7the position will be physically settled and is irrevocably
8bound to receive the underlying shares. To the extent that any
9affiliates of the stockholder or beneficial owner are acting in
10concert with the stockholder or beneficial owner, the
11determination of shares owned may include the effect of
12aggregating the shares owned by the affiliate or affiliates.
13Whether shares constitute shares owned shall be decided by the
14Director in his or her reasonable determination.
15    (e) "Person" means an individual, a corporation, a limited
16liability company, a partnership, an association, a joint stock
17company, a trust, an unincorporated organization, any similar
18entity or any combination of the foregoing acting in concert,
19but does not include any securities broker performing no more
20than the usual and customary broker's function or joint venture
21partnership exclusively engaged in owning, managing, leasing
22or developing real or tangible personal property other than
23capital stock.
24    (e-5) "Policyholders' proxies" are proxies that give the
25holder the right to vote for the election of the directors and
26other corporate actions not in the day to day operations of the

 

 

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1company.
2    (f) (Blank). "Securityholder" of a specified person is one
3who owns any security of such person, including common stock,
4preferred stock, debt obligations, and any other security
5convertible into or evidencing the right to acquire any of the
6foregoing.
7    (g) "Subsidiary" of a specified person is an affiliate
8controlled by such person directly, or indirectly through one
9or more intermediaries.
10    (h) "Voting Security" is a security which gives to the
11holder thereof the right to vote for the election of directors
12and includes any security convertible into or evidencing a
13right to acquire a voting security.
14    (i) (Blank). "Acquiring Party" means such person by whom or
15on whose behalf the merger or other acquisition of control
16referred to in Section 131.4 is to be affected and any person
17that controls such person or persons.
18    (j) (Blank). "Policyholders' Proxies" are proxies which
19give the holder the right to vote for the election of the
20directors and other corporate actions not in the day-to-day
21operations of the company.
22    (k) (Blank). "Non-operating Holding Company" is a general
23business corporation functioning solely for the purpose of
24forming, owning, acquiring and managing subsidiary business
25entities and having no other business operations not related
26thereto.

 

 

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1(Source: P.A. 84-805.)
 
2    (215 ILCS 5/131.2)  (from Ch. 73, par. 743.2)
3    Sec. 131.2. Subsidiaries. A domestic company, either by
4itself or in cooperation with one or more persons, may organize
5or acquire one or more subsidiaries. The subsidiaries may
6conduct any kind of business or businesses and their authority
7to do so shall not be limited by reason of the fact that they
8are subsidiaries of a domestic company. In addition to
9investments in common stock, preferred stock, debt obligations
10and other securities of subsidiaries permitted under all other
11sections of this Code, a domestic company, other than a company
12subject to Articles XVIII or XIX, may also:
13        (a) invest, in common stock, preferred stock, debt
14    obligations, and other securities of one or more
15    subsidiaries, amounts which do not exceed the lesser of 10%
16    of the company's assets or 50% of the company's surplus as
17    regards policyholders, but after such investments the
18    company's surplus as regards policyholders must be
19    reasonable in relation to the company's outstanding
20    liabilities and adequate to its financial needs. In
21    calculating the amount of such investments, there must be
22    included (i) total net monies or other consideration
23    expended and obligations assumed in the acquisition or
24    formation of a subsidiary, including all organizational
25    expenses and contributions to capital and surplus of the

 

 

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1    subsidiary whether or not represented by the purchase of
2    capital stock or issuance of other securities, and (ii) all
3    amounts expended in acquiring additional common stock,
4    preferred stock, debt obligations, and other securities,
5    and all contributions to the capital or surplus of a
6    subsidiary subsequent to its acquisition or formation;
7        (b) invest any amount in common stock, preferred stock,
8    debt obligations and other securities of one or more direct
9    subsidiaries acting only as a non-operating holding
10    company or engaged or organized exclusively for the
11    ownership and management of assets authorized as
12    investments for the company, provided that each subsidiary
13    agrees to limit its investments in any asset so that such
14    investments will not cause the amount of the total
15    investment of the company to exceed the amount the company
16    could have invested in such asset. For the purpose of this
17    clause, "the total investment of the company" will include
18    (i) any direct investment by the company in an asset and
19    (ii) the company's proportionate share of any investment in
20    such asset by any direct subsidiary of the company, which
21    must be calculated by multiplying the amount of the
22    subsidiary's investment by the percentage of the company's
23    ownership of such subsidiary;
24        (c) invest in common stock of one or more insurance
25    corporation subsidiaries any amount by which the investing
26    company's capital and surplus exceeds the minimum capital

 

 

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

 

 

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1applicable to such investments of a domestic company subject to
2this Code.
3    (2) If a company ceases to control a subsidiary, it must
4dispose of any investment therein made under this section
5within 3 years from the time of the cessation of control or
6within such further time as the Director may prescribe, unless
7at any time after the investment is made, the investment meets
8the requirements for investment under any other section of this
9Code, and the company has notified the Director thereof.
10    (3) Whether any investment made pursuant to this Section
11meets the applicable requirements of this Section is to be
12determined before the investment is made by calculating the
13applicable investment limitations as though the investment had
14already been made, taking into account the then outstanding
15principal balance on all previous investments in debt
16obligations, and the value of all previous investments in
17equity securities as of the day they were made, net of any
18return of capital invested, not including dividends.
19(Source: P.A. 90-418, eff. 8-15-97.)
 
20    (215 ILCS 5/131.4)  (from Ch. 73, par. 743.4)
21    Sec. 131.4. Acquisition of control of or merger with
22domestic company.
23    (a) No person other than the issuer may make a tender for
24or a request or invitation for tenders of, or enter into an
25agreement to exchange securities for, or seek to acquire or

 

 

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1acquire shareholders' proxies to vote or seek to acquire or
2acquire in the open market, or otherwise, any voting security
3of a domestic company or acquire policyholders' proxies of a
4domestic company or any entity that controls a domestic
5company, for consideration if, after the consummation thereof,
6that person would, directly or indirectly, (or by conversion or
7by exercise of any right to acquire) be in control of the
8company, and no person may enter into an agreement to merge or
9consolidate with or otherwise to acquire control of a domestic
10company, unless the offer, request, invitation, or agreement is
11conditioned on receiving the approval of the Director based on
12Section 131.8 of this Article and no such acquisition of
13control or a merger with a domestic company may be consummated
14unless the person has filed with the Director and has sent to
15the company a statement containing the information required by
16Section 131.5 and the Director has approved the transaction or
17granted an exemption. For purposes of this Section a domestic
18company includes any other person which controls a domestic
19company or holds or controls sufficient policyholders' proxies
20to elect the majority of the board of directors of the domestic
21company. Prior to the acquisition, the Director may conclude
22that a statement need not be filed by the acquiring party if
23the acquiring party demonstrates to the satisfaction of the
24Director that:
25        (1) such transaction will not result in the change of
26    control of the domestic company; or

 

 

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1        (2) (blank); the person which is subject to the
2    acquisition has assets in excess of $1,000,000 and
3    shareholders of record of 500 or more and its insurance
4    business either directly or through its affiliates is an
5    insignificant portion of its total business; or
6        (3) the acquisition of, or attempt to acquire control
7    of, such other person is subject to requirements in the
8    jurisdiction of its domicile which are substantially
9    similar to those contained in this Section and Sections
10    131.5 through 131.12; or
11        (4) the control of the policyholders' proxies is being
12    acquired solely by virtue of the holders official office
13    and not as the result of any agreement or for any
14    consideration.
15        The purpose of this Section is to afford to the
16    Director the opportunity to review acquisitions in order to
17    determine whether or not the acquisition would be adverse
18    to the interests of the existing and future policyholders
19    of the company.
20    (b) For purposes of this Section, any controlling person of
21a domestic company seeking to divest its controlling interest
22in the domestic company in any manner shall file with the
23Director, with a copy to the company, confidential notice of
24its proposed divestiture at least 30 days prior to the
25cessation of control. The Director shall determine those
26instances in which the party or parties seeking to divest or to

 

 

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1acquire a controlling interest in a company shall be required
2to file for and obtain approval of the transaction. The
3information shall remain confidential until the conclusion of
4the transaction unless the Director, in his or her discretion,
5determines that confidential treatment shall interfere with
6enforcement of this Section. If the statement referred to in
7subsection (a) of this Section is otherwise filed in connection
8with the proposed divesture or related acquisition, this
9subsection (b) shall not apply.
10    (c) For purposes of this Section, a domestic company shall
11include any person controlling a domestic company unless the
12person, as determined by the Director, is either directly or
13through its affiliates primarily engaged in business other than
14the business of insurance. For the purposes of this Section,
15"person" shall not include any securities broker holding, in
16the usual and customary broker's function, less than 20% of the
17voting securities of an insurance company or of any person that
18controls an insurance company.
19(Source: P.A. 86-784.)
 
20    (215 ILCS 5/131.5)  (from Ch. 73, par. 743.5)
21    Sec. 131.5. Statement; contents Statement-Contents. In
22order to seek the approval of the Director pursuant to Section
23131.8, the applicant must file a statement with the Director
24under oath or affirmation which contains as a minimum the
25following information:

 

 

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1    (1) The name and address of each acquiring party, and
2    (a) if such person is an individual, his principal
3occupation and all offices and positions held during the past 5
4years, and any conviction of crimes, other than minor traffic
5violations, during the past 10 years;
6    (b) if such person is not an individual, a report of the
7nature of its business operations during the past 5 years or
8for such lesser period as the person and any predecessors
9thereof has been in existence; an informative description of
10the business intended to be conducted by the person and the
11person's subsidiaries; and a list of all individuals who are or
12who have been selected to become directors or executive
13officers of the person, or who perform or will perform
14functions appropriate to such positions. The list must include
15for each individual the information required by subsection
16(1)(a).
17    (2) The source, nature and amount of the consideration used
18or to be used in effecting the merger, consolidation or other
19acquisition of control, a description of any transaction
20wherein funds were or are to be obtained for any such purpose,
21including any pledge of the company's own securities or the
22securities of any of its subsidiaries or affiliates, and the
23identity of persons furnishing such consideration. However,
24where a source of such consideration is a loan made in the
25lender's ordinary course of business, the identity of the
26lender must remain confidential, if the person filing the

 

 

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1statement so requests.
2    (3) Financial information as to the earnings and financial
3condition of each acquiring party for the preceding 5 fiscal
4years of each acquiring party (or for such lesser period as the
5acquiring party and any predecessors thereof have been in
6existence) audited by an independent certified public
7accountant in accordance with generally accepted auditing
8standards and similar unaudited information for the second and
9third preceding fiscal years and as of a date not earlier than
1090 days prior to the filing of the statement. If an acquiring
11party is an insurer which has been actively engaged in the
12business of insurance for 10 years, the financial information
13need not be audited, provided it is based on the annual
14statements of such acquiring person filed with the insurance
15department of the person's domiciliary state and is in
16accordance with the requirement of insurance or other
17accounting principles prescribed or permitted under the laws
18and regulations of such state.
19    (a) When an applicant is controlled by an individual,
20financial information for that individual will not be required
21if the applicant is currently subject to the registration and
22reporting requirements of Section 12(g) of the Securities
23Exchange Act of 1934 or is an insurer which has been actively
24engaged in the business of insurance for a period in excess of
2510 years;
26    (b) When an individual as an acquiring party must file

 

 

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1financial information under this paragraph such information
2need not be delivered to the company. However, such information
3shall be available if the Director holds a hearing pursuant to
4Section 131.8.
5    (4) Any plans or proposals which each acquiring party may
6have to liquidate such company, to sell its assets or merge or
7consolidate it with any person, or to make any other material
8change in its business or corporate structure or management.
9    (5) The number of shares of any security referred to in
10Section 131.4 which each acquiring party proposes to acquire,
11and the terms of the offer, request, invitation, agreement, or
12acquisition referred to in Section 131.4, and a statement as to
13the method by which the fairness of the proposal was arrived.
14    (6) The amount of each class of any security referred to in
15Section 131.4 which is beneficially owned or concerning which
16there is a right to acquire beneficial ownership by each
17acquiring party.
18    (7) A full description of any existing contracts,
19arrangements or understandings with respect to any security
20referred to in Section 131.4 in which any acquiring party is
21involved, including but not limited to transfer of any of the
22securities, joint ventures, loan or option arrangements, puts
23or calls, guarantees of loans, guarantees against loss or
24guarantees of profits, division of losses or profits, or the
25giving or withholding of proxies. The description must identify
26the persons with whom such contracts, arrangements or

 

 

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1understandings have been entered into.
2    (8) A description of the acquisition of any security or
3policyholders' proxy referred to in Section 131.4 during the 12
4calendar months preceding the filing of the statement, by any
5acquiring party, including the dates of acquisition, names of
6the acquiring parties acquirors, and consideration paid or
7agreed to be paid therefor.
8    (9) A description of any recommendations to acquire any
9security referred to in Section 131.4 made during the 12
10calendar months preceding the filing of the statement, by any
11acquiring party, or by anyone based upon interviews or at the
12suggestion of such acquiring party.
13    (10) Copies of all tender offers for, requests or
14invitations for tenders of, exchange offers for, and agreements
15to acquire or exchange any securities referred to in Section
16131.4, and (if distributed) of additional soliciting material
17relating thereto.
18    (11) The terms of any agreement, contract or understanding
19made with, or proposed to be made with, any broker-dealer as to
20solicitation of securities referred to in Section 131.4 for
21tender, and the amount of any fees, commissions or other
22compensation to be paid to broker-dealers with regard thereto.
23    (12) Beginning July 1, 2014, an agreement by the person
24required to file the statement referred to in this Section
25131.5 that the person will provide the annual report specified
26in Section 131.14b for so long as control exists.

 

 

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1    (13) Beginning July 1, 2014, an acknowledgement by the
2person required to file the statement referred to in this
3Section 131.5 that the person and all subsidiaries within its
4control in the insurance holding company system shall provide
5information to the Director upon request as necessary to
6evaluate enterprise risk to the company.
7    (14) Any additional information as the Director may by rule
8or regulation prescribe as necessary or appropriate for the
9protection of policyholders or in the public interest.
10    (15) With respect to each acquiring party, the following
11information:
12        (A) the name and address of all associated persons and
13    a detailed description of every agreement, arrangement,
14    and understanding between the acquiring party and all
15    associated persons in connection with the merger,
16    consolidation, or other acquisition of control;
17        (B) the class or series and number of shares of
18    securities of the company that are directly or indirectly
19    owned beneficially and of record by the acquiring party or
20    the associated persons or both; and
21        (C) a detailed description of each proxy, contract,
22    arrangement, understanding, or relationship pursuant to
23    which the acquiring party or the associated persons, or
24    both, have a right to vote, or cause or direct the vote of,
25    any securities of the company.
26(Source: P.A. 84-805.)
 

 

 

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1    (215 ILCS 5/131.6)  (from Ch. 73, par. 743.6)
2    Sec. 131.6. (1) If the person required to file the
3statement referred to in Section 131.5 is a partnership,
4limited partnership, syndicate or other group, the Director may
5require that the information be given with respect to each
6partner of such partnership or limited partnership, each member
7of such syndicate or group, and each person who controls such
8partner or member. If any partner, member or person is a
9corporation or the person required to file the statement
10referred to in Section 131.5 is a corporation, the Director may
11require that the information be given with respect to the
12corporation, each officer and director of the corporation, and
13each person who is directly or indirectly the beneficial owner
14of more than 10% of the outstanding voting securities of the
15corporation.
16    (2) If any material change occurs in the facts set forth in
17the statement filed with the Director and sent to the company
18under Section 131.5 131.9, an amendment setting forth the
19change, together with copies of all documents and other
20material relevant to the change, must be filed with the
21Director and sent to the company within 2 business days after
22the person learns of the change.
23(Source: P.A. 84-805.)
 
24    (215 ILCS 5/131.8)  (from Ch. 73, par. 743.8)

 

 

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1    Sec. 131.8. (1) After the statement required by Section
2131.5 has been filed, the Director shall approve must
3disapprove any merger, consolidation or other acquisition of
4control referred to in Section 131.4 unless the acquiring party
5demonstrates to the Director finds that:
6        (a) after the After change of control, the domestic
7    company referred to in Section 131.4 would not be able to
8    satisfy the requirements for the issuance of a license to
9    write the line or lines of insurance for which it is
10    presently licensed;
11        (b) the effect of the merger, consolidation or other
12    acquisition of control would be not substantially to lessen
13    competition in insurance in this State or not tend to
14    create a monopoly therein. In applying the competitive
15    standard in this paragraph:
16            (i) the informational requirements of subsection
17        (3)(a) and the standards of subsection (4)(b) of
18        Section 131.12a shall apply,
19            (ii) the merger or other acquisition shall not be
20        found substantially to lessen competition in insurance
21        in this State or tend to create a monopoly therein
22        disapproved if the Director finds acquiring party
23        demonstrates that any of the situations meeting the
24        criteria provided by subsection (4)(c) of Section
25        131.12a exist, and
26            (iii) the Director may condition the approval of

 

 

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1        the merger or other acquisition on the removal of the
2        basis of disapproval within a specified period of time;
3        (c) the financial condition of any acquiring party is
4    such as might to not jeopardize the financial stability of
5    the domestic company or not jeopardize the interests of its
6    policyholders;
7        (d) the plans or proposals which the acquiring party
8    has to liquidate the domestic company, sell its assets or
9    consolidate or merge it with any person, or to make any
10    other material change in its business or corporate
11    structure or management, are unfair fair and unreasonable
12    reasonable to policyholders of such company and not in the
13    public interest; or
14        (e) the competence, experience and integrity of those
15    persons who would control the operation of the domestic
16    company are such that it would be in the best interests of
17    policyholders of such company and of the insurance buying
18    public to permit the merger, consolidation or other
19    acquisition of control.
20    (2) The Director may hold a public hearing on any merger,
21consolidation or other acquisition of control referred to in
22Section 131.4 if the Director determines that the statement
23filed as required by Section 131.5 does not demonstrate
24compliance with the standards referred to in subsection (1), of
25this Section, or if he determines that such acquisition of
26control is likely to be hazardous or prejudicial to the will

 

 

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1adversely affect policyholders or the insurance buying public.
2    (3) The public hearing referred to in subsection (2) must
3be held within 60 days after the statement required by Section
4131.5 is filed, and at least 20 days' notice thereof must be
5given by the Director to the person filing the statement and to
6the domestic company. Not less than 7 12 days' notice of such
7hearing must be given by the person filing the statement to
8such other persons as may be designated by the Director and by
9the company to its shareholders securityholders. The Director
10must make a determination within 60 30 days after the
11conclusion of the hearing. At the hearing, the person filing
12the statement, the domestic company, any person to whom notice
13of the hearing was sent, and any other person whose interests
14may be affected thereby has the right to present evidence,
15examine and cross-examine witnesses, and offer oral and written
16arguments and in connection therewith is entitled to conduct
17discovery proceedings in the same manner as is presently
18allowed in the Circuit Courts of this State. All discovery
19proceedings must be concluded not later than 3 days prior to
20the commencement of the public hearing.
21    (4) If the proposed acquisition of control will require the
22approval of more than one state insurance commissioner, the
23public hearing referred to in subsection (2) of this Section
24may be held on a consolidated basis upon request of the person
25filing the statement referred to in Section 131.5 of this Code.
26Such person shall file the statement referred to in Section

 

 

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1131.5 of this Code with the National Association of Insurance
2Commissioners (NAIC) within 5 days after making the request for
3a public hearing. A commissioner may opt out of a consolidated
4hearing and shall provide notice to the applicant of the opt
5out within 10 days after the receipt of the statement referred
6to in Section 131.5 of this Code. A hearing conducted on a
7consolidated basis shall be public and shall be held within the
8United States before the commissioners of the states in which
9the companies are domiciled. Such commissioners shall hear and
10receive evidence. A commissioner may attend such hearing in
11person or by telecommunication.
12    (5) In connection with a change of control of a domestic
13company, any determination by the Director that the person
14acquiring control of the company shall be required to maintain
15or restore the capital of the company to the level required by
16the laws and regulations of this State shall be made not later
17than 60 days after the filing of the statement required by
18Section 131.5 of this Code.
19(Source: P.A. 84-805.)
 
20    (215 ILCS 5/131.8a)  (from Ch. 73, par. 743.8a)
21    Sec. 131.8a. The Director may retain at the applicant's
22expense any attorneys, actuaries, accountants and other
23experts not otherwise a part of the Director's staff as may be
24reasonably necessary to assist in reviewing the conduct of
25financial or character examinations in conjunction with an

 

 

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1acquisition proposed under Section 131.4. The applicant shall
2deposit with the Director cash, bonds or securities, acceptable
3to the Director, in a reasonable amount not to exceed $100,000,
4for purpose of securing the payment of any expert's cost.
5(Source: P.A. 86-753.)
 
6    (215 ILCS 5/131.9a new)
7    Sec. 131.9a. Exemptions. Sections 131.4 through 131.12 do
8not apply to:
9        (1) any transaction that is subject to Article X of
10    this Code dealing with merger, consolidation, or plans of
11    exchange; or
12        (2) any offer, request, invitation, agreement, or
13    acquisition that the Director by order exempts therefrom as
14    (A) not having been made or entered into for the purpose
15    and not having the effect of changing or influencing the
16    control of a domestic company or (B) otherwise not
17    comprehended within the purposes of Sections 131.4 through
18    131.12.
 
19    (215 ILCS 5/131.11)  (from Ch. 73, par. 743.11)
20    Sec. 131.11. The following are violations of Sections 131.4
21through 131.12:
22    (1) the failure to file any statement, amendment, or other
23material required to be filed under Sections 131.4 or 131.5; or
24    (2) the effectuation or any attempt to effectuate an

 

 

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1acquisition of control of, divestiture of, or merger or
2consolidation with, a domestic company unless the Director has
3given his approval thereto.
4(Source: P.A. 77-673.)
 
5    (215 ILCS 5/131.12)  (from Ch. 73, par. 743.12)
6    Sec. 131.12. The courts of this State are hereby vested
7with jurisdiction over every person not resident, domiciled, or
8authorized to do business in this State who files a statement
9with the Director under Section 131.4, and over all actions
10involving such person arising out of violations of Sections
11131.4, 131.5, 131.6, 131.9 or 131.11, and each such person is
12deemed to have performed acts equivalent to and constituting an
13appointment by such a person of the Director to be his true and
14lawful attorney upon whom may be served all lawful process in
15any action, suit or proceeding arising out of violations of
16Sections 131.4, 131.5, 131.6, 131.9 or 131.11. Copies of all
17such lawful process must be served on the Director and
18transmitted by registered or certified mail by the Director to
19such person at his last known address.
20(Source: P.A. 77-673.)
 
21    (215 ILCS 5/131.12a)  (from Ch. 73, par. 743.12a)
22    Sec. 131.12a. Acquisitions involving companies insurers
23not otherwise covered.
24    (1) Definitions. The following definitions shall apply for

 

 

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1the purposes of this Section only:
2    (a) "Acquisition" means any agreement, arrangement or
3activity the consummation of which results in a person
4acquiring directly or indirectly the control of another person
5or control of the insurance in force of another person, and
6includes but is not limited to the acquisition of voting
7securities, the acquisition of assets, the transaction of bulk
8reinsurance and the act of merging or consolidating.
9    (b) An "involved company insurer" includes a company an
10insurer which either acquires or is acquired, is affiliated
11with an acquirer or acquired or is the result of a merger.
 
12    (2) Scope.
13    (a) Except as exempted in paragraph (b) of this subsection
14(2), this Section applies to any acquisition in which there is
15a change in control of a company an insurer authorized to do
16business in this State.
17    (b) This Section shall not apply to the following:
18        (i) an acquisition subject to approval or disapproval
19    by the Director pursuant to Section 131.8;
20        (ii) a purchase of securities solely for investment
21    purposes so long as such securities are not used by voting
22    or otherwise to cause or attempt to cause the substantial
23    lessening of competition in any insurance market in this
24    State. If a purchase of securities results in a presumption
25    of control under subsection (b) of Section 131.1, it is not

 

 

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1    solely for investment purposes unless the commissioner of
2    the company's insurer's state of domicile accepts a
3    disclaimer of control or affirmatively finds that control
4    does not exist and such disclaimer action or affirmative
5    finding is communicated by the domiciliary commissioner to
6    the Director of this State;
7        (iii) the acquisition of a person by another person
8    when both persons are neither directly nor through
9    affiliates primarily engaged in the business of insurance,
10    if pre-acquisition notification is filed with the Director
11    in accordance with subsection (3)(a) of this Section, 30
12    days prior to the proposed effective date of the
13    acquisition. However, such pre-acquisition notification is
14    not required for exclusion from this Section if the
15    acquisition would otherwise be excluded from this Section
16    by any other subparagraph of subsection (2)(b);
17        (iv) the acquisition of already affiliated persons;
18        (v) an acquisition if, as an immediate result of the
19    acquisition,
20            (A) in no market would the combined market share of
21        the involved companies insurers exceed 5% of the total
22        market,
23            (B) there would be no increase in any market share,
24        or
25            (C) in no market would the combined market share of
26        the involved companies insurers exceed 12% of the total

 

 

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1        market, and the market share increase by more than 2%
2        of the total market.
3        For the purpose of this subparagraph (b)(v), "market"
4    means direct written insurance premium in this State for a
5    line of business as contained in the annual statement
6    required to be filed by companies insurers licensed to do
7    business in this State;
8        (vi) an acquisition for which a pre-acquisition
9    notification would be required pursuant to this Section due
10    solely to the resulting effect on the ocean marine
11    insurance line of business;
12        (vii) an acquisition of a company an insurer whose
13    domiciliary commissioner affirmatively finds that such
14    company insurer is in failing condition; there is a lack of
15    feasible alternative to improving such condition; the
16    public benefits of improving such company's insurer's
17    condition through the acquisition exceed the public
18    benefits that would arise from not lessening competition;
19    and such findings are communicated by the domiciliary
20    commissioner to the Director of this State.
 
21    (3) Pre-acquisition Notification; Waiting Period. An
22acquisition covered by subsection (2) may be subject to an
23order pursuant to subsection (5) unless the acquiring person
24files a pre-acquisition notification and the waiting period has
25expired. The acquired person may file a pre-acquisition

 

 

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1notification. The Director shall give confidential treatment
2to information submitted under this subsection in the same
3manner as provided in Section 131.22 of this Article.
4    (a) The pre-acquisition notification shall be in such form
5and contain such information as prescribed by the Director,
6which shall conform substantially to the form of notification
7adopted by the National Association of Insurance Commissioners
8relating to those markets which, under subsection (b)(v) of
9Section (2), cause the acquisition not to be exempted from the
10provisions of this Section. The Director may require such
11additional material and information as he deems necessary to
12determine whether the proposed acquisition, if consummated,
13would violate the competitive standard of subsection (4). The
14required information may include an opinion of an economist as
15to the competitive impact of the acquisition in this State
16accompanied by a summary of the education and experience of
17such person indicating his or her ability to render an informed
18opinion.
19    (b) The waiting period required shall begin on the date of
20the receipt by the Director of a pre-acquisition notification
21and shall end on the earlier of the 30th day after the date of
22such receipt, or termination of the waiting period by the
23Director. Prior to the end of the waiting period, the Director
24on a one time basis may require the submission of additional
25needed information relevant to the proposed acquisition, in
26which event the waiting period shall end on the earlier of the

 

 

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130th day after the receipt of such additional information by
2the Director or termination of the waiting period by the
3Director.
 
4    (4) Competitive Standard.
5    (a) The Director may enter an order under subsection (5)(a)
6with respect to an acquisition if there is substantial evidence
7that the effect of the acquisition may be substantially to
8lessen competition in any line of insurance in this State or
9tend to create a monopoly therein or if the company insurer
10fails to file adequate information in compliance with
11subsection (3).
12    (b) In determining whether a proposed acquisition would
13violate the competitive standard of paragraph (a) of this
14subsection the Director shall consider the following:
15        (i) any acquisition covered under subsection (2)
16    involving 2 or more companies insurers competing in the
17    same market is prima facie evidence of violation of the
18    competitive standards:
19            (A) if the market is highly concentrated and the
20        involved companies insurers possess the following
21        shares of the market:
22          Company Insurer A     Company Insurer B
23                  4%                    4% or more
24                 10%                    2% or more
25                 15%                    1% or more

 

 

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

 

 

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1    competing in the same market is prima facie evidence of
2    violation of the competitive standard in paragraph (a) of
3    this subsection if:
4            (A) there is a significant trend toward increased
5        concentration in the market,
6            (B) one of the companies insurers involved is one
7        of the companies insurers in a grouping of such large
8        companies insurers showing the requisite increase in
9        the market share, and
10            (C) another involved company's insurer's market is
11        2% or more.
12        (iii) For the purpose of subsection (4)(b):
13            (A) The term "company" "insurer" includes any
14        company or group of companies under common management,
15        ownership or control.
16            (B) The term "market" means the relevant product
17        and geographic markets. In determining the relevant
18        product and geographical markets, the Director shall
19        give due consideration to, among other things, the
20        definitions or guidelines, if any, promulgated by the
21        National Association of Insurance Commissioners and to
22        information, if any, submitted by parties to the
23        acquisition. In the absence of sufficient information
24        to the contrary, the relevant product market is assumed
25        to be the direct written insurance premium for a line
26        of business with such line being that used in the

 

 

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

 

 

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1    public benefits which would arise from not lessening
2    competition; or
3        (ii) the acquisition will substantially increase the
4    availability of insurance, and the public benefits of such
5    increase exceed the public benefits which would arise from
6    not lessening competition.
 
7    (5) Orders and Penalties:
8        (a)(i) If an acquisition violates the standard of this
9    Section, the Director may enter an order
10            (A) requiring an involved company insurer to cease
11        and desist from doing business in this State with
12        respect to the line or lines of insurance involved in
13        the violation, or
14            (B) denying the application of an acquired or
15        acquiring company insurer for a license to do business
16        in this State.
17        (ii) Such an order shall not be entered unless there is
18    a hearing, notice of such hearing is issued prior to the
19    end of the waiting period and not less than 15 days prior
20    to the end of the waiting period and not less than 15 days
21    prior to the hearing, and the hearing is concluded and the
22    order is issued no later than 60 days after the end of the
23    waiting period. Every order shall be accompanied by a
24    written decision of the Director setting forth his findings
25    of fact and conclusions of law.

 

 

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1        (iii) (Blank). An order entered under this paragraph
2    shall not become final earlier than 30 days after it is
3    issued, during which time the involved insurer may submit a
4    plan to remedy the anticompetitive impact of the
5    acquisition within a reasonable time. Based upon such plan
6    or other information, the Director shall specify, if any,
7    the conditions under and the time period during which the
8    aspects of the acquisition causing a violation of the
9    standards of this Section would be remedied and the order
10    vacated or modified.
11        (iv) An order pursuant to this paragraph shall not
12    apply if the acquisition is not consummated.
13    (b) Any person who violates a cease and desist order of the
14Director under paragraph (a) and while such order is in effect
15may after notice and hearing and upon order of the Director be
16subject at the discretion of the Director to any one or more of
17the following:
18        (i) a monetary penalty of not more than $10,000 for
19    every day of violation or
20        (ii) suspension or revocation of such person's license
21    or both.
22    (c) Any company insurer or other person who fails to make
23any filing required by this Section and who also fails to
24demonstrate a good faith effort to comply with any such filing
25requirement shall be subject to a civil penalty of not more
26than $50,000.
 

 

 

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1    (6) Inapplicable Provisions. Subsections (2) and (3) of
2Section 131.23 and Section 131.25 do not apply to acquisitions
3covered under subsection (2).
4(Source: P.A. 92-16, eff. 6-28-01.)
 
5    (215 ILCS 5/131.13)  (from Ch. 73, par. 743.13)
6    Sec. 131.13. Registration of companies. Every company
7which is authorized to do business in this State and which is a
8member of an insurance holding company system must register
9with the Director, except a foreign or alien company subject to
10registration requirements and standards adopted by statute or
11regulation in the jurisdiction of its domicile which are
12substantially similar to those contained in this section and
13Sections 131.14 through 131.20a 131.19. Any company which is
14subject to registration under this section must register within
1560 days after the effective date of this Article or 15 days
16after it becomes subject to registration, whichever is later,
17unless the Director for good cause shown extends the time for
18registration, and then within such extended time. The Director
19may require any authorized company which is a member of a
20holding company system which is not subject to registration
21under this section to furnish a copy of the registration
22statement or other information filed by such company with the
23insurance regulatory authority of its domiciliary
24jurisdiction.

 

 

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1    If upon review of the information filed pursuant to this
2Section and the information included in the annual statement
3filed pursuant to Section 136, the Director determines there is
4a potential for adverse economic impact due to substantial
5ownership of companies authorized to do business in this State
6by persons who are not citizens or residents of the United
7States or entities which are not organized or created under the
8laws of any state or territory of the United States, he shall
9report such determination along with any legislative
10recommendations to the General Assembly.
11(Source: P.A. 84-805.)
 
12    (215 ILCS 5/131.14)  (from Ch. 73, par. 743.14)
13    Sec. 131.14. Every company subject to registration must
14file a registration statement on a in the form and in a format
15prescribed designated by the Director, which shall contain the
16following contains current information about:
17    (1) the capital structure, general financial condition,
18ownership and management of the company and any person
19controlling the company;
20    (2) the identity and relationship of every member of the
21insurance holding company system;
22    (3) the following agreements in force, relationships
23subsisting, and transactions currently outstanding or that
24have occurred during the last calendar year between such
25company and its affiliates:

 

 

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1    (a) loans, other investments, or purchases, sales or
2exchanges of or securities of the affiliates by the company or
3of the company by its affiliates;
4    (b) purchases, sales, or exchanges of assets;
5    (c) transactions not in the ordinary course of business;
6    (d) guarantees or undertakings for the benefit of an
7affiliate which result in an actual contingent exposure of the
8company's assets to liability, other than insurance contracts
9entered into in the ordinary course of the company's business;
10    (e) all management agreements, and service contracts, and
11all cost-sharing arrangements, other than cost allocation
12arrangements based upon generally accepted accounting
13principles; and
14    (f) reinsurance agreements;
15    (f-5) dividends and other distributions to shareholders;
16    (g) any pledge of the company's own securities, securities
17of any subsidiary or controlling affiliate, to secure a loan
18made to any member of the insurance holding company system; and
19    (h) consolidated tax allocation agreements; .
20    (4) (blank); other matters concerning transactions between
21registered companies and any affiliates as may be included from
22time to time in any registration forms adopted or approved by
23the Director.
24    (5) financial statements of or within an insurance holding
25company system, including all affiliates, if requested by the
26Director; financial statements may include, but are not limited

 

 

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1to, annual audited financial statements filed with the U.S.
2Securities and Exchange Commission (SEC) pursuant to the
3Securities Act of 1933, as amended, or the Securities Exchange
4Act of 1934, as amended; a company required to file financial
5statements pursuant to this paragraph (5) may satisfy the
6request by providing the Director with the most recently filed
7parent corporation financial statements that have been filed
8with the SEC;
9    (6) statements that the company's or its parent company's
10board of directors or a committee thereof oversees corporate
11governance and internal controls and that the company's
12officers or senior management have approved and implemented and
13continue to maintain and monitor corporate governance and
14internal controls; and
15    (7) other matters concerning transactions between
16registered companies and any affiliates as may be included from
17time to time in any registration forms adopted or approved by
18the Director.
19(Source: P.A. 84-805.)
 
20    (215 ILCS 5/131.14a new)
21    Sec. 131.14a. Summary filing. Every company subject to
22registration must file a summary outlining all items in the
23current registration statement representing changes from the
24prior registration statement.
 

 

 

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1    (215 ILCS 5/131.14b new)
2    Sec. 131.14b. Enterprise risk filing. The ultimate
3controlling person of every company subject to registration
4shall also file an annual enterprise risk report. The report
5shall, to the best of the ultimate controlling person's
6knowledge and belief, identify the material risks within the
7insurance holding company system that could pose enterprise
8risk to the company. The report shall be filed with the lead
9state commissioner of the insurance holding company system as
10determined by the procedures within the Financial Analysis
11Handbook adopted by the National Association of Insurance
12Commissioners.
 
13    (215 ILCS 5/131.14c new)
14    Sec. 131.14c. Violations. The failure to file a
15registration statement or any summary of the registration
16statement or enterprise risk filing required by this Article
17within the time specified for filing shall be a violation of
18this Article.
 
19    (215 ILCS 5/131.14d new)
20    Sec. 131.14d. Confidentiality.
21    (a) Documents, materials, or other information in the
22possession or control of the Director that are obtained by,
23created by, or disclosed to the Director or any other person
24pursuant to Section 131.14b are recognized as being proprietary

 

 

09800HB2962sam001- 41 -LRB098 05470 RPM 44938 a

1and to contain trade secrets. Disclosure of such documents,
2materials, or other information is recognized as damaging to
3the competitive position of the insurer whose confidential
4information is in the possession or control of the Director.
5All such documents, materials, or other information shall be
6confidential by law and privileged, shall not be subject to the
7Freedom of Information Act, shall not be subject to subpoena,
8and shall not be subject to discovery or admissible in evidence
9in any private civil action. However, the Director is
10authorized to use such documents, materials, or other
11information in the furtherance of any regulatory or legal
12action brought as a part of the Director's official duties. The
13Director shall not otherwise disclose or make such documents,
14materials, or other information public without the prior
15written consent of the insurer.
16    (b) An insurer whose documents, materials, or other
17information is in the possession or control of the Director or
18any other person pursuant to Section 131.14b of this Code and
19who is aggrieved by an actual or threatened disclosure of such
20documents, materials, or other information or by any violation
21of this Section, may commence proceedings, subject in the case
22of the Director to Article III of the Code of Civil Procedure,
23in any court of competent jurisdiction to prevent such
24disclosure or to enforce the provisions of this Section.
25    (c) Neither the Director nor any person who received
26documents, materials, or other information relating to the

 

 

09800HB2962sam001- 42 -LRB098 05470 RPM 44938 a

1report required by Section 131.14b of this Code, through
2examination or otherwise, while acting under the authority of
3the Director or with whom such documents, materials, or other
4information are shared pursuant to this Section, Section
5131.14b or Section 131.20c of this Code shall be permitted or
6required to testify in any private civil action concerning any
7confidential documents, materials, or information subject to
8subsection (a) of this Section.
9    (d) Solely to assist in the performance of the Director's
10regulatory duties, the Director may do the following:
11        (1) upon request, share documents, materials, or other
12    information relating to the report required by Section
13    131.14b of this Code, including the confidential and
14    privileged documents, materials, or information subject to
15    subsection (a) of this Section, including proprietary and
16    trade secret documents and materials with other state,
17    federal, and international financial regulatory agencies,
18    including members of any supervisory college as provided
19    for in Section 131.20c of this Code, with the NAIC and with
20    any third-party consultants designated by the Director,
21    provided that the recipient agrees in writing to maintain
22    the confidentiality and privileged status of the
23    documents, materials, or other information relating to the
24    report required by Section 131.14b of this Code and has
25    verified in writing the legal authority to maintain
26    confidentiality; and

 

 

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1        (2) receive documents, materials, or other information
2    relating to the report required by Section 131.14b of this
3    Code, including otherwise confidential and privileged
4    documents, materials, or information, including
5    proprietary and trade secret information or documents,
6    from regulatory officials of other foreign or domestic
7    jurisdictions, including members of any supervisory
8    college as defined in Section 131.20c of this Code, and
9    from the NAIC, and shall maintain as confidential or
10    privileged any documents, materials, or information
11    received with notice or the understanding that it is
12    confidential or privileged under the laws of the
13    jurisdiction that is the source of the document, material,
14    or information.
15    (e) The Director shall enter into a written agreement with
16any member of a supervisory college as provided for in Section
17131.20c of this Code, the International Association of
18Insurance Supervisors (IAIS), the NAIC, or any third-party
19consultant governing sharing and use of information provided
20pursuant to this Section. The agreement shall do the following:
21        (1) specify procedures and protocols regarding the
22    confidentiality and security of information shared with
23    the member of a supervisory college, the IAIS, the NAIC, or
24    the third-party consultant pursuant to this Section,
25    including procedures and protocols for sharing by the
26    member of a supervisory college, the IAIS, or the NAIC with

 

 

09800HB2962sam001- 44 -LRB098 05470 RPM 44938 a

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

 

 

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1    college, the IAIS, the NAIC, or the third-party consultant
2    pursuant to this Section; and
3        (6) in the case of an agreement involving a third-party
4    consultant, provide for the insurer's prior written
5    consent to the sharing of information with that third-party
6    consultant.
7    (f) The sharing of information and documents by the
8Director pursuant to this Section shall not constitute a
9delegation of regulatory authority or rulemaking, and the
10Director is solely responsible for the administration and
11execution of the provisions of this Section. An insurer whose
12confidential information is in the possession of the member of
13a supervisory college, the IAIS, the NAIC, or third-party
14consultant pursuant to this Section and who is aggrieved by an
15actual or threatened disclosure of confidential information,
16or by any violation of this Section, may commence proceedings
17in any court of competent jurisdiction to prevent such
18disclosure or to enforce the provisions of this Section.
19    (g) No waiver of any applicable privilege or claim of
20confidentiality in the documents, proprietary and trade secret
21materials, or other information relating to the report required
22by Section 131.14b of this Section, shall occur as a result of
23disclosure of such documents, materials, or other information
24relating to the report required by Section 131.14b of this
25Section to the Director or as a result of sharing as authorized
26in this Section.

 

 

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1    (h) Documents, materials, or other information in the
2possession or control of a member of a supervisory college, the
3IAIS, the NAIC, or a third-party consultant pursuant to this
4Section shall be confidential by law and privileged, shall not
5be subject to Freedom of Information Act, shall not be subject
6to subpoena, and shall not be subject to discovery or
7admissible in evidence in any private civil action.
 
8    (215 ILCS 5/131.16)  (from Ch. 73, par. 743.16)
9    Sec. 131.16. Reporting material changes or additions;
10penalty for late registration statement.
11    (1) Each registered company must keep current the
12information required to be included in its registration
13statement by reporting all material changes or additions on
14amendment forms designated by the Director within 15 days after
15the end of the month in which it learns of each change or
16addition, or within a longer time thereafter as the Director
17may establish. Any transaction which has been submitted to the
18Director pursuant to Section 131.20a need not be reported to
19the Director under this subsection; except each registered
20company must report all dividends and other distributions to
21shareholders within 15 5 business days following the
22declaration and no less than 10 business days prior to payment
23thereof.
24    (2) On or before May 1 each year, each company subject to
25registration under this Article shall file a statement in a

 

 

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1format as designated by the Director. This statement shall
2include information previously included in an amendment under
3subsection (1) of this Section, transactions and agreements
4submitted under Section 131.20a, and any other material
5transactions which are required to be reported.
6    (2.5) Any person within an insurance holding company system
7subject to registration shall be required to provide complete
8and accurate information to a company where the information is
9reasonably necessary to enable the company to comply with the
10provisions of this Article.
11    (3) Any company failing, without just cause, to file any
12registration statement, any summary of changes to a
13registration statement, or any Enterprise Risk Filing or any
14person within an insurance holding company system who fails to
15provide complete and accurate information to a company as
16required in this Code shall be required, after notice and
17hearing, to pay a penalty of up to $1,000 for each day's delay,
18to be recovered by the Director of Insurance of the State of
19Illinois and the penalty so recovered shall be paid into the
20General Revenue Fund of the State of Illinois. The maximum
21penalty under this section is $50,000. The Director may reduce
22the penalty if the company demonstrates to the Director that
23the imposition of the penalty would constitute a financial
24hardship to the company.
25(Source: P.A. 88-364.)
 

 

 

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1    (215 ILCS 5/131.17)  (from Ch. 73, par. 743.17)
2    Sec. 131.17. (1) The Director must terminate the
3registration of any company which demonstrates that it no
4longer is a member of an insurance holding company system.
5    (2) The Director may require or allow 2 or more affiliated
6companies subject to registration to file a consolidated
7registration statement. Two or more affiliated companies
8subject to registration hereunder may file a consolidated
9registration statement or consolidated reports amending their
10consolidated registration statement or their individual
11registration statements unless the Director requires a
12separate registration statement or report from each registered
13company.
14    (3) A company which is authorized to do business in this
15State and which is part of an insurance holding company system
16may register on behalf of any affiliated company which is
17required to register under Section 131.13 and to file all
18information and material required to be filed under this
19Article unless the Director requires a separate registration by
20the affiliated company.
21(Source: P.A. 77-673.)
 
22    (215 ILCS 5/131.18)  (from Ch. 73, par. 743.18)
23    Sec. 131.18. Sections 131.13 through 131.19 do not apply to
24any company, information, or transaction if and to the extent
25that the Director by rule, regulation, or order may exempt the

 

 

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1same from Sections 131.13 through 131.19.
2    Any requirement for the furnishing of financial statements
3of the insurance holding company system, or any member thereof,
4as part of or in connection with the registration statement
5filed under Section 131.14 shall not apply to any company which
6submits and maintains in effect in lieu thereof a guarantee or
7a bond acceptable to the Director in an amount equal to the
8capital and surplus of the company as shown on its most recent
9audited financial statements, payable to the Director for the
10benefit of the creditors, policyholders and stockholders of the
11company as their interests may appear. Such guarantee, if
12issued by a national bank, and such a bond, if issued by a
13licensed insurance company which is not a member of the
14insurance holding company system, in each case having capital
15and surplus in excess of $25,000,000, shall be deemed
16acceptable.
17(Source: P.A. 77-673.)
 
18    (215 ILCS 5/131.19)  (from Ch. 73, par. 743.19)
19    Sec. 131.19. Disclaimer of affiliation. Any person may file
20with the Director a disclaimer of affiliation with any
21authorized company or a disclaimer may be filed by the a
22company or any member of an insurance holding company system.
23The disclaimer shall must fully disclose all material
24relationships and bases basis for affiliation between the
25person and the company as well as the basis for disclaiming the

 

 

09800HB2962sam001- 50 -LRB098 05470 RPM 44938 a

1affiliation. A disclaimer of affiliation shall be deemed to
2have been granted unless the Director, within 30 days following
3receipt of a complete disclaimer, notifies the filing party
4that the disclaimer is disallowed. In the event of
5disallowance, the disclaiming party may request an
6administrative hearing, which shall be granted. The
7disclaiming party shall be relieved of its duty to register
8under Section 131.13 of this Code if approval of the disclaimer
9has been granted by the Director or if the disclaimer is deemed
10to have been approved. After a disclaimer is filed, the company
11is relieved of any duty to register or report under Section
12131.13 which may arise out of the company's relationship with
13the person unless and until the Director disallows the
14disclaimer. The Director may disallow such a disclaimer only
15after furnishing all parties in interest with notice and
16opportunity to be heard and after making specific findings of
17fact to support the disallowance.
18(Source: P.A. 84-805.)
 
19    (215 ILCS 5/131.20)  (from Ch. 73, par. 743.20)
20    Sec. 131.20. Standards for transactions with affiliates;
21adequacy of surplus.
22    (1) Transactions Material transactions with their
23affiliates by companies subject to registration are subject to
24the following standards:
25        (a) the terms are fair and reasonable;

 

 

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1        (a-5) agreements for cost sharing services and
2    management shall include such provisions as may be required
3    by rules and regulations issued by the Director;
4        (b) charges or fees for services performed are
5    reasonable;
6        (c) expenses incurred and payment received must be
7    allocated to the company insurer in conformity with
8    customary insurance accounting practices consistently
9    applied;
10        (d) the books, accounts, and records of each party must
11    be so maintained as to clearly and accurately disclose the
12    precise nature and details of the transactions, including
13    accounting information necessary to support the
14    reasonableness of the charges or fees to the respective
15    parties; and
16        (e) the company's surplus as regards policyholders
17    following any transactions with affiliates or dividends or
18    distributions to securityholders or affiliates must be
19    reasonable in relation to the company's outstanding
20    liabilities and adequate to meet its financial needs.
21    (2) For purposes of this Article, in determining whether a
22company's surplus as regards policyholders is reasonable in
23relation to the company's outstanding liabilities and adequate
24to meet its needs, the following factors, among others, may be
25considered:
26        (a) the size of the company as measured by its assets,

 

 

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1    capital and surplus, reserves, premium writings, insurance
2    in force and other appropriate criteria;
3        (b) the extent to which the company's business is
4    diversified among the several lines of insurance;
5        (c) the number and size of risks insured in each line
6    of business;
7        (d) the extent of the geographical dispersion of the
8    company's insured risks;
9        (e) the nature and extent of the company's reinsurance
10    program;
11        (f) the quality, diversification, and liquidity of the
12    company's investment portfolio;
13        (g) the recent past and projected future trend in the
14    size of the company's investment portfolio surplus as
15    regards policyholders;
16        (h) the surplus as regards policyholders maintained by
17    companies comparable to the registrant in respect of the
18    factors enumerated in this paragraph;
19        (i) the adequacy of the company's reserves;
20        (j) the quality of the company's earnings and the
21    extent to which the reported earnings include
22    extraordinary items; and
23        (k) the quality and liquidity of investments in
24    affiliates subsidiaries made under Section 131.2 or 131.3.
25    The Director may discount any such investment or treat any
26    such investment as a non-admitted asset for purposes of

 

 

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1    determining the adequacy of surplus as regards
2    policyholders whenever the investment so warrants.
3(Source: P.A. 88-364.)
 
4    (215 ILCS 5/131.20a)  (from Ch. 73, par. 743.20a)
5    Sec. 131.20a. Prior notification of transactions;
6dividends and distributions.
7    (1) (a) The following transactions listed in items (i)
8through (vii) involving between a domestic company and any
9person in its insurance holding company system, including
10amendments or modifications (other than termination) of
11affiliate agreements previously filed pursuant to this
12Section, which are subject to any materiality standards
13contained in this Section, may not be entered into unless the
14company has notified the Director in writing of its intention
15to enter into such transaction at least 30 days prior thereto,
16or such shorter period as the Director may permit, and the
17Director has not disapproved it within such period. The notice
18for amendments or modifications (other than termination) shall
19include the reasons for the change and the financial impact on
20the domestic company. Informal notice shall be reported, within
2130 days after a termination of a previously filed agreement, to
22the Director for determination of the type of filing required,
23if any. :
24        (i) Sales, purchases, exchanges of assets, loans or
25    extensions of credit, guarantees, investments, or any

 

 

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

 

 

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1    the next 3 years, equals or exceeds 5% of the company's
2    surplus as regards policyholders, as of the 31st day of
3    December next preceding, including those agreements that
4    may require as consideration the transfer of assets from a
5    company an insurer to a nonaffiliate, if an agreement or
6    understanding exists between the company insurer and
7    nonaffiliate that any portion of those assets will be
8    transferred to one or more affiliates of the company
9    insurer.
10        (iv) All management agreements; , service contracts,
11    other than agency contracts; tax allocation agreements;
12    all reinsurance allocation agreements related to
13    reinsurance agreements required to be filed under this
14    Section; and all cost-sharing arrangements, and any other
15    contracts providing for the rendering of services on a
16    regular systematic basis.
17        (v) Direct or indirect acquisitions or investments in a
18    person that controls the company, or in an affiliate of the
19    company, in an amount which, together with its present
20    holdings in such investments, exceeds 2.5% of the company's
21    surplus as regards policyholders. Direct or indirect
22    acquisitions or investments in subsidiaries acquired
23    pursuant to Section 131.2 of this Article (or authorized
24    under any other Section of this Code), or in non-subsidiary
25    insurance affiliates that are subject to the provisions of
26    this Article, are exempt from this requirement.

 

 

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1        (vi) Any series of the previously described
2    transactions that are substantially similar to each other,
3    that take place within any 180 day period, and that in
4    total are equal to or exceed the lesser of 3% of the
5    domestic company's insurer's admitted assets or 25% of its
6    policyholders surplus, as of the 31st day of the December
7    next preceding.
8        (vii) (vi) Any other material transaction that the
9    Director by rule determines might render the company's
10    surplus as regards policyholders unreasonable in relation
11    to the company's outstanding liabilities and inadequate to
12    its financial needs or may otherwise adversely affect the
13    interests of the company's policyholders or shareholders.
14    Nothing herein contained shall be deemed to authorize or
15permit any transactions that, in the case of a company an
16insurer not a member of the same holding company system, would
17be otherwise contrary to law.
18    (b) Any transaction or contract otherwise described in
19paragraph (a) of this subsection that is between a domestic
20company insurer and any person that is not its affiliate and
21that precedes or follows within 180 days or is concurrent with
22a similar transaction between that nonaffiliate and an
23affiliate of the domestic company and that involves amounts
24that are equal to or exceed the lesser of 3% of the domestic
25company's insurer's admitted assets or 25% of its surplus as
26regards policyholders at the end of the prior year may not be

 

 

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1entered into unless the company has notified the Director in
2writing of its intention to enter into the transaction at least
330 days prior thereto or such shorter period as the Director
4may permit, and the Director has not disapproved it within such
5period.
6    (c) A company may not enter into transactions which are
7part of a plan or series of like transactions with any person
8within the holding company system if the purpose of those
9separate transactions is to avoid the statutory threshold
10amount and thus avoid the review that would occur otherwise. If
11the Director determines that such separate transactions were
12entered into for such purpose, he may exercise his authority
13under subsection (2) of Section 131.24.
14    (d) The Director, in reviewing transactions pursuant to
15paragraph (a), shall consider whether the transactions comply
16with the standards set forth in Section 131.20 and whether they
17may adversely affect the interests of policyholders.
18    (e) The Director shall be notified within 30 days of any
19investment of the domestic company insurer in any one
20corporation if the total investment in that corporation by the
21insurance holding company system exceeds 10% of that
22corporation's voting securities.
23    (f) Except for those transactions subject to approval under
24other Sections of this Code, any such transaction or agreements
25which are not disapproved by the Director may be effective as
26of the date set forth in the notice required under this

 

 

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1Section.
2    (g) If a domestic company insurer enters into a transaction
3described in this subsection without having given the required
4notification, the Director may cause the company insurer to pay
5a civil forfeiture of not more than $250,000. Each transaction
6so entered shall be considered a separate offense.
7    (2) No domestic company subject to registration under
8Section 131.13 may pay any extraordinary dividend or make any
9other extraordinary distribution to its shareholders
10securityholders until: (a) 30 days after the Director has
11received notice of the declaration thereof and has not within
12such period disapproved the payment, or (b) the Director
13approves such payment within the 30-day period. For purposes of
14this subsection, an extraordinary dividend or distribution is
15any dividend or distribution of cash or other property whose
16fair market value, together with that of other dividends or
17distributions, made within the period of 12 consecutive months
18ending on the date on which the proposed dividend is scheduled
19for payment or distribution exceeds the greater of: (a) 10% of
20the company's surplus as regards policyholders as of the 31st
21day of December next preceding, or (b) the net income of the
22company for the 12-month period ending the 31st day of December
23next preceding, but does not include pro rata distributions of
24any class of the company's own securities.
25    Notwithstanding any other provision of law, the company may
26declare an extraordinary dividend or distribution which is

 

 

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1conditional upon the Director's approval, and such a
2declaration confers no rights upon security holders until: (a)
3the Director has approved the payment of the dividend or
4distribution, or (b) the Director has not disapproved the
5payment within the 30-day period referred to above.
6(Source: P.A. 92-140, eff. 7-24-01.)
 
7    (215 ILCS 5/131.20b)
8    Sec. 131.20b. Controlled companies insurers; management;
9directors.
10    (1) Notwithstanding the control of a domestic company
11insurer by any person, the officers and directors of the
12company insurer shall not thereby be relieved of any obligation
13or liability to which they would otherwise be subject by law,
14and the company insurer shall be managed so as to assure its
15separate operating identity consistent with this Article VIII
161/2 of this Code.
17    (2) Nothing in this Section shall preclude a domestic
18company insurer from having or sharing a common management or a
19cooperative or joint use of personnel, property, or services
20with one or more affiliated persons under arrangements meeting
21the standards and requirements of Sections 131.20 and 131.20a.
22    (3) Not After June 30, 2002, not less than one-third of the
23directors of a domestic company, and not less than one-third of
24the members of each committee of the board of directors of any
25domestic company, insurer that is a member of an insurance

 

 

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1holding company system shall be persons who are not officers or
2employees of the company insurer or of any entity controlling,
3controlled by, or under common control with the company insurer
4and who are not beneficial owners of a controlling interest in
5the voting stock of the company insurer or any such entity. At
6least one such person shall be included in any quorum for the
7transaction of business at any meeting of the board of
8directors or any committee thereof.
9    (3.5) The board of directors of a domestic company or
10ultimate controlling company shall establish one or more
11committees comprised solely of directors who are not officers
12or employees of the company or of any entity controlling,
13controlled by, or under common control with the company and who
14are not beneficial owners of a controlling interest in the
15voting stock of the company or any such entity. The committee
16or committees shall have responsibility for nominating
17candidates for director for election by shareholders or
18policyholders, evaluating the performance of officers deemed
19to be principal officers of the company, and recommending to
20the board of directors the selection and compensation of the
21principal officers.
22    (4) Subsections Subsection (3) and (3.5) of this Section do
23does not apply to a domestic company insurer if the ultimate
24controlling company or the person entity controlling the
25company, such as a company, a mutual insurance holding company,
26or a publicly held corporation, has a board of directors and

 

 

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1committees thereof that meet the requirements of subsections
2(3) and (3.5) with respect to such controlling entity or are
3subject to and meet the requirements of the corporate
4governance rules of a national securities exchange, such as the
5New York Stock Exchange, or an inter-dealer quotation system,
6such as the National Association of Securities Dealers
7Automatic Quotation the insurer, whether directly or through an
8intermediate subsidiary, has a board of directors composed in
9accordance with that subsection.
10    (5) (Blank). Subsection (3) of this Section does not apply
11to a domestic insurer if the ultimate controlling party of the
12domestic insurer is a corporation whose equity securities or
13equivalent instruments are listed on the New York Stock
14Exchange.
15    (6) A company may make application to the Director for a
16waiver from the requirements of this Section, if the company's
17annual direct written and assumed premium, excluding premiums
18reinsured with the Federal Crop Insurance Corporation and
19Federal Flood Program, is less than $300,000,000. A company may
20also make application to the Director for a waiver from the
21requirements of this Section based upon unique circumstances.
22The Director may consider various factors, including, but not
23limited to, the type of business entity, volume of business
24written, availability of qualified board members, or the
25ownership or organizational structure of the entity.
26(Source: P.A. 92-140, eff. 7-24-01.)
 

 

 

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1    (215 ILCS 5/131.20c new)
2    Sec. 131.20c. Supervisory colleges.
3    (a) With respect to any company registered under Section
4131.13 of this Code, and in accordance with subsection (c) of
5this Section, the Director shall also have the power to
6participate in a supervisory college for any domestic company
7that is part of an insurance holding company system with
8international operations in order to determine compliance by
9the company with this Article. The powers of the Director with
10respect to supervisory colleges include, but are not limited
11to:
12        (1) initiating the establishment of a supervisory
13    college;
14        (2) clarifying the membership and participation of
15    other supervisors in the supervisory college;
16        (3) clarifying the functions of the supervisory
17    college and the role of other regulators, including the
18    establishment of a group-wide supervisor;
19        (4) coordinating the ongoing activities of the
20    supervisory college, including planning meetings,
21    supervisory activities, and processes for information
22    sharing; and
23        (5) establishing a crisis management plan.
24    (b) Each registered company subject to this Section shall
25be liable for and shall pay the reasonable expenses of the

 

 

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1Director's participation in a supervisory college in
2accordance with subsection (c) of this Section, including
3reasonable travel expenses. For purposes of this Section, a
4supervisory college may be convened as either a temporary or
5permanent forum for communication and cooperation between the
6regulators charged with the supervision of the company or its
7affiliates, and the Director may establish a regular assessment
8to the company for the payment of these expenses.
9    (c) In order to assess the business strategy, financial
10position, legal and regulatory position, risk exposure, risk
11management, and governance processes, and as part of the
12examination of individual companies in accordance with Section
13131.21 of this Code, the Director may participate in a
14supervisory college with other regulators charged with
15supervision of the company or its affiliates, including other
16state, federal, and international regulatory agencies. The
17Director may enter into agreements in accordance with Section
18131.22 of this Code providing the basis for cooperation between
19the Director and the other regulatory agencies and the
20activities of the supervisory college. Nothing in this Section
21shall delegate to the supervisory college the authority of the
22Director to regulate or supervise the company or its affiliates
23within its jurisdiction.
 
24    (215 ILCS 5/131.21)  (from Ch. 73, par. 743.21)
25    Sec. 131.21. Examination.

 

 

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1    (1) Subject to the limitation contained in this section and
2in addition to the powers which the Director has under Sections
3132 through 132.7 and 401 through 403 of this Code relating to
4the examination of companies, the Director shall have the power
5to examine any company registered under Section 131.13 of this
6Code and its affiliates to ascertain the financial condition of
7the company, including the enterprise risk to the company by
8the ultimate controlling party, or by any entity or combination
9of entities within the insurance holding company system, or by
10the insurance holding company system on a consolidated basis.
11also has the power to order any company registered under
12Section 131.13 to produce such records, books, or other
13information papers in the possession of the company or its
14affiliates as are reasonably necessary to ascertain the
15financial condition of such company or to determine compliance
16with this Article. In the event the company fails to comply
17with the order, the Director has the power to examine the
18affiliates to obtain such information.
19    (1.5) The Director may order any company registered under
20Section 131.13 of this Code to produce such records, books, or
21other information papers in the possession of the company or
22its affiliates as are reasonably necessary to determine
23compliance with this Article. To determine compliance with this
24Article, the Director may order any company registered under
25Section 131.13 of this Code to produce information not in the
26possession of the company if the company can obtain access to

 

 

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1such information pursuant to contractual relationships,
2statutory obligations, or other methods. In the event the
3company cannot obtain the information requested by the
4Director, the company shall provide the Director a detailed
5explanation of the reason that the company cannot obtain the
6information and the identity of the holder of the information.
7Whenever the Director determines that the detailed explanation
8is without merit, the Director may require, after notice and
9hearing, the company to pay a penalty of up to $1,000 for each
10day's delay, or may suspend or revoke the company's license.
11    (2) The Director may retain at the registered company's
12expense any attorneys, actuaries, accountants and other
13experts not otherwise a part of the Director's staff as may be
14reasonably necessary to assist in the conduct of the
15examination under subsection (1). Any persons so retained are
16under the direction and control of the Director and may act in
17a purely advisory capacity.
18    (3) Each registered company producing for examination
19records, books and papers under subsection (1.5) (1) is liable
20for and must pay the expense of the examination in accordance
21with Section 408 of this Code.
22    (4) The Director may retain at the registered company's
23expense any attorneys, actuaries, accountants, and other
24experts not otherwise a part of the Director's staff as may be
25reasonably necessary to assist in the conduct of the
26examination under subsection (1) of this Section. Any persons

 

 

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1so retained are under the direction and control of the Director
2and may act in a purely advisory capacity.
3    (5) In the event the company fails to comply with an order,
4the Director shall have the power to examine the affiliates to
5obtain the information. The Director shall also have the power
6to issue subpoenas, to administer oaths, and to examine under
7oath any person for purposes of determining compliance with
8this Section. Upon the failure or refusal of any person to obey
9a subpoena, the Director may petition a court of competent
10jurisdiction and, upon proper showing, the court may enter an
11order compelling the witness to appear and testify or produce
12documentary evidence. Failure to obey the court order shall be
13punishable as contempt of court. Every person shall be obliged
14to attend as a witness at the place specified in the subpoena,
15when subpoenaed, anywhere within the State. He or she shall be
16entitled to the same fees and mileage, if claimed, as a witness
17in the Circuit Court, which fees, mileage, and actual expense,
18if any, necessarily incurred in securing the attendance of
19witnesses, and their testimony, shall be itemized and charged
20against, and be paid by, the company being examined.
21(Source: P.A. 89-97, eff. 7-7-95.)
 
22    (215 ILCS 5/131.22)  (from Ch. 73, par. 743.22)
23    Sec. 131.22. Confidential treatment.
24    (a) Documents, materials, or other information in the
25possession or control of the Department that are obtained by or

 

 

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

 

 

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

 

 

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1    officials of other foreign or domestic jurisdictions, and
2    shall maintain as confidential or privileged any document,
3    material, or information received with notice or the
4    understanding that it is confidential or privileged under
5    the laws of the jurisdiction that is the source of the
6    document, material, or information; any such documents,
7    materials, or information, while in the Director's
8    possession, shall not be subject to the Illinois Freedom of
9    Information Act and shall not be subject to subpoena; and
10        (3) shall enter into written agreements with the NAIC
11    governing sharing and use of information provided pursuant
12    to this Article consistent with this subsection (c) that
13    shall (i) specify procedures and protocols regarding the
14    confidentiality and security of information shared with
15    the NAIC and its affiliates and subsidiaries pursuant to
16    this Article, including procedures and protocols for
17    sharing by the NAIC with other state, federal, or
18    international regulators; (ii) specify that ownership of
19    information shared with the NAIC and its affiliates and
20    subsidiaries pursuant to this Article remains with the
21    Director and the NAIC's use of the information is subject
22    to the direction of the Director; (iii) require prompt
23    notice to be given to a company whose confidential
24    information in the possession of the NAIC pursuant to this
25    Article is subject to a request or subpoena to the NAIC for
26    disclosure or production; and (iv) require the NAIC and its

 

 

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1    affiliates and subsidiaries to consent to intervention by a
2    company in any judicial or administrative action in which
3    the NAIC and its affiliates and subsidiaries may be
4    required to disclose confidential information about the
5    company shared with the NAIC and its affiliates and
6    subsidiaries pursuant to this Article.
7    (d) The sharing of documents, materials, or information by
8the Director pursuant to this Article shall not constitute a
9delegation of regulatory authority or rulemaking, and the
10Director is solely responsible for the administration,
11execution, and enforcement of the provisions of this Article.
12    (e) No waiver of any applicable privilege or claim of
13confidentiality in the documents, materials, or information
14shall occur as a result of disclosure to the Director under
15this Section or as a result of sharing as authorized in
16subsection (c) of this Section.
17    (f) Documents, materials, or other information in the
18possession or control of the NAIC pursuant to this Article
19shall be confidential by law and privileged, shall not be
20subject to the Illinois Freedom of Information Act, shall not
21be subject to subpoena, and shall not be subject to discovery
22or admissible in evidence in any private civil action. All
23information, documents, and copies thereof obtained by or
24disclosed to the Director or any other person in the course of
25an examination or investigation made under Section 131.21 and
26all information submitted under Sections 131.13 or 131.20a and

 

 

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1all personal financial statement information submitted under
2Section 131.5 must be given confidential treatment and is not
3subject to subpoena and may not be made public by the Director
4or any other person, without the prior written consent of the
5company to which it pertains unless the Director, after giving
6the company and its affiliates who would be affected thereby
7notice and opportunity to be heard, determines that the
8interests of policyholders, shareholders or the public will be
9served by the publication thereof in which event he may publish
10all or any part thereof in such manner as he may deem
11appropriate.
12    Nothing contained in this Section shall prevent or be
13construed as prohibiting the Director from disclosing such
14information to the insurance department of any other state or
15county or to law enforcement officials of this or any other
16state or agency of the federal government at any time upon the
17written agreement of the entity receiving the information to
18hold that information confidential and in a manner consistent
19with this Code.
20(Source: P.A. 88-364.)
 
21    (215 ILCS 5/131.23)  (from Ch. 73, par. 743.23)
22    Sec. 131.23. Injunctions; prohibitions against voting
23securities; sequestration of voting securities. (1) Whenever
24it appears to the Director that any company or any director,
25officer, employee or agent thereof has committed or is about to

 

 

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

 

 

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

 

 

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1of the company owned directly or indirectly by such person, and
2issue any orders with respect thereto as may be appropriate to
3effectuate this Article. Notwithstanding any other provisions
4of law, for the purposes of this Article, the situs of the
5ownership of the securities of domestic companies is deemed to
6be in this State.
7    (4) If the Director has reason to believe that any
8shareholders' or policyholders' proxies have been or are about
9to be acquired in contravention of this Article or of any rule,
10regulations or order issued by the Director hereunder, the
11Director may apply to the Circuit Court for Sangamon County or
12to the Circuit Court for the county in which the company has
13its principal place of business (a) to enjoin further pursuit
14or use of any offer, request, invitation, agreement or
15acquisition made in contravention of Section 131.4 through
16131.12 and (b) for any other equitable relief as the nature of
17the case and the interests of the company's policyholders,
18creditors or the public may require.
19(Source: P.A. 84-805.)
 
20    (215 ILCS 5/131.24)  (from Ch. 73, par. 743.24)
21    Sec. 131.24. Sanctions.
22    (1) Every director or officer of an insurance holding
23company system who knowingly violates, participates in, or
24assents to, or who knowingly permits any of the officers or
25agents of the company to engage in transactions or make

 

 

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1investments which have not been properly filed or approved or
2which violate this Article, shall pay, in their individual
3capacity, a civil forfeiture of not more than $100,000 per
4violation, after notice and hearing before the Director. In
5determining the amount of the civil forfeiture, the Director
6shall take into account the appropriateness of the forfeiture
7with respect to the gravity of the violation, the history of
8previous violations, and such other matters as justice may
9require.
10    (2) Whenever it appears to the Director determines that any
11company subject to this Article or any director, officer,
12employee or agent thereof has engaged in any transaction or
13entered into a contract which is subject to Section 131.20, and
14any one of Sections 131.16, 131.20a, 141, 141.1, or 174 of this
15Code and which would not have been approved had such approval
16been requested or would have been disapproved had required
17notice been given, the Director may order the company to cease
18and desist immediately any further activity under that
19transaction or contract. After notice and hearing the Director
20may also order (a) the company to void any such contracts and
21restore the status quo if such action is in the best interest
22of the policyholders or the public, and (b) any affiliate of
23the company, which has received from the company dividends,
24distributions, assets, loans, extensions of credit,
25guarantees, or investments in violation of any such Section, to
26immediately repay, refund or restore to the company such

 

 

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1dividends, distributions, assets, extensions of credit,
2guarantees or investments.
3    (3) Whenever it appears to the Director determines that any
4company or any director, officer, employee or agent thereof has
5committed a willful violation of this Article, the Director may
6cause criminal proceedings to be instituted in the Circuit
7Court for the county in which the principal office of the
8company is located or in the Circuit Court of Sangamon or Cook
9County against such company or the responsible director,
10officer, employee or agent thereof. Any company which willfully
11violates this Article commits a business offense and may be
12fined up to $500,000. Any individual who willfully violates
13this Article commits a Class 4 felony and may be fined in his
14individual capacity not more than $500,000 or be imprisoned for
15not less than one year nor more than 3 years, or both.
16    (4) Any officer, director, or employee of an insurance
17holding company system who willfully and knowingly subscribes
18to or makes or causes to be made any false statements or false
19reports or false filings with the intent to deceive the
20Director in the performance of his duties under this Article,
21commits a Class 3 felony and upon conviction thereof, shall be
22imprisoned for not less than 2 years nor more than 5 years or
23fined $500,000 or both. Any fines imposed shall be paid by the
24officer, Director, or employee in his individual capacity.
25    (5) Whenever the Director determines that any person has
26committed a violation of Section 131.14b of this Code which

 

 

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1prevents the full understanding of the enterprise risk to the
2company by affiliates or by the insurance holding company
3system, the violation may serve as an independent basis, after
4an opportunity for a hearing, for disapproving dividends or
5distributions and for placing the company under an order of
6supervision in accordance with Article XII 1/2 of this Code.
7(Source: P.A. 93-32, eff. 7-1-03.)
 
8    (215 ILCS 5/131.26)  (from Ch. 73, par. 743.26)
9    Sec. 131.26. Revocation, suspension, or non-renewal of
10company's license. Whenever it appears to the Director
11determines that any person has committed a violation of this
12Article which makes the continued operation of a company
13contrary to the interests of policyholders or the public, the
14Director may, after notice and hearing suspend, revoke or
15refuse to renew the company's license or authority to do
16business in this State for such a period as the Director he
17finds is required for the protection of policyholders or the
18public. Any such determination must be accompanied by specific
19findings of fact and conclusions of law.
20(Source: P.A. 77-673.)
 
21    (215 ILCS 5/131.27)  (from Ch. 73, par. 743.27)
22    Sec. 131.27. Judicial review.
23    (1) Any order or decision made, issued or executed by the
24Director under this Article whereby any person or company is

 

 

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1aggrieved is subject to review by the Circuit Court of Sangamon
2County or the Circuit Court of Cook County.
3    The Administrative Review Law, as now or hereafter amended,
4and the rules adopted pursuant thereto, applies to and governs
5all proceedings for review of final administrative decisions of
6the Director provided for in this Section. The term
7"administrative decision" is defined as in Section 3-101 of the
8Code of Civil Procedure.
9    (2) The filing of an appeal pursuant to this Section shall
10stay the application of any rule, regulation, order, or other
11action of the Director to the appealing party unless the court,
12after giving the party notice and an opportunity to be heard,
13determines that a stay would be detrimental to the interest of
14policyholders, shareholders, creditors, or the public.
15    (3) Any person aggrieved by any failure of the Director to
16act or make a determination required by this Article may
17petition the circuit courts of Sangamon County or Cook County
18for a writ in the nature of a mandamus or a peremptory mandamus
19directing the Director to act or make a determination.
20(Source: P.A. 82-783.)
 
21    (215 ILCS 5/131.29 new)
22    Sec. 131.29. Rulemaking power. The Director may adopt such
23administrative rules as are necessary to implement the
24provisions of this Article.
 

 

 

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1    (215 ILCS 5/131.30 new)
2    Sec. 131.30. Conflict with other laws. This Article
3supersedes all laws and parts of laws of this State
4inconsistent with this Code with respect to matters covered by
5this Code.
 
6    Section 97. Severability. The provisions of this Act are
7severable under Section 1.31 of the Statute on Statutes.
 
8    Section 99. Effective date. This Act takes effect January
91, 2014, except that Section 131.14b of the Illinois Insurance
10Code takes effect July 1, 2014.".