§36-1636. Transactions within an insurance holding company -
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/ok/title-36-insurance/36-1636·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Standards.
A. 1. Transactions within an insurance holding company system to which an insurer subject to registration is a party shall be subject to the following standards:
a. the terms shall be fair and reasonable,
b. agreements for cost-sharing services and management
shall include such provisions as required by rule and
regulation issued by the Commissioner,
c. charges or fees for services performed shall be
reasonable,
d. expenses incurred and payment received shall be
allocated to the insurer in conformity with customary
insurance accounting practices consistently applied,
e. the books, accounts and records of each party to all
such transactions shall be so maintained as to clearly
and accurately disclose the nature and details of the
transactions including such accounting information as
is necessary to support the reasonableness of the
charges or fees to the respective parties,
f. the insurer's surplus as regards policyholders
following any dividends or distributions to
shareholder affiliates shall be reasonable in relation
to the insurer's outstanding liabilities and adequate
to meet its financial needs,
g. if an insurer subject to this act is deemed by the
Commissioner to be in a hazardous financial condition
as defined by Section 1905 of this title and
applicable regulations in Title 365 of the Oklahoma
Administrative Code or a condition that would be
grounds for supervision, conservation, or a
delinquency proceeding, then the Commissioner may
require the insurer to secure and maintain from any
affiliate with whom the insurer has services or
management agreements either a deposit, held by the
Commissioner, or a bond, as determined by the insurer
at the insurer's discretion, for the protection of the
insurer for the duration of the contract(s) or
agreement(s), or the existence of the condition for
which the Commissioner required the deposit or the
bond. In determining whether a deposit or a bond is
required, the Commissioner should consider whether
concerns exist with respect to the affiliated person's
ability to fulfill the contract(s) or agreement(s) if
the insurer were to be put into liquidation. Once the
insurer is deemed to be in a hazardous financial
condition or a condition that would be grounds for
supervision, conservation, or a delinquency
proceeding, and a deposit or bond is necessary, the
Commissioner has discretion to determine the amount of
the deposit or bond, not to exceed the value of the
contract(s) or agreement(s) in any one
(1)year, and
whether such deposit or bond should be required for a
single contract, multiple contracts, or a contract
only with a specific person(s),
h. all records and data of the insurer held by an
affiliate are and remain the property of the insurer,
are subject to control of the insurer, are
identifiable, and are segregated or readily capable of
segregation, at no additional cost to the insurer,
from all other persons' records and data. This
includes all records and data that are otherwise the
property of the insurer, in whatever form maintained,
including, but not limited to, claims and claim files,
policyholder lists, application files, litigation
files, premium records, rate books, underwriting
manuals, personnel records, financial records, or
similar records within the possession, custody, or
control of the affiliate. At the request of the
insurer, the affiliate shall provide that the receiver
can obtain a complete set of all records of any type
that pertain to the insurer's business; obtain access
to the operating systems on which the data is
maintained; obtain the software that runs those
systems either through assumption of licensing
agreements or otherwise; and restrict the use of the
data by the affiliate if it is not operating the
insurer's business. The affiliate shall provide a
waiver of any landlord lien or other encumbrance to
give the insurer access to all records and data in the
event of the affiliate's default under a lease or
other agreement, and
i. premiums or other funds belonging to the insurer that
are collected by or held by an affiliate are the
exclusive property of the insurer and are subject to
the control of the insurer. Any right of offset in
the event an insurer is placed into receivership shall
be subject to Article 19 of this title regarding
rehabilitation and liquidation of insurers.
2. The following transactions involving a domestic insurer and any person in its insurance holding company system, including amendments or modifications of affiliate agreements previously filed pursuant to this section, which are subject to any materiality standards contained in subparagraphs a through g of this paragraph, shall not be entered into unless the insurer has notified the Commissioner in writing of its intention to enter into the transaction at least thirty
(30)days prior thereto, or such shorter period as the Commissioner may permit, and the Commissioner has not disapproved it within that period. The notice for amendments or modifications shall include the reasons for the change and the
financial impact on the domestic insurer. Informal notice shall be reported, within thirty
(30)days after a termination of a previously filed agreement, to the Commissioner for determination of the type of filing required, if any:
a. sales, purchases, exchanges, loans, extensions of
credit, or investments, provided the transactions are
equal to or exceed:
(1)with respect to nonlife insurers, the lesser of
three percent (3%) of the insurer's admitted
assets or twenty-five percent (25%) of surplus as
regards policyholders as of the 31st day of
December next preceding, and
(2)with respect to life insurers, three percent (3%)
of the insurer's admitted assets as of the 31st
day of December next preceding,
b. loans or extensions of credit to any person who is not
an affiliate, where the insurer makes loans or
extensions of credit with the agreement or
understanding that the proceeds of the transactions,
in whole or in substantial part, are to be used to
make loans or extensions of credit to, to purchase
assets of, or to make investments in, any affiliate of
the insurer making the loans or extensions of credit
provided the transactions are equal to or exceed:
(1)with respect to nonlife insurers, the lesser of
three percent (3%) of the insurer's admitted
assets or twenty-five percent (25%) of surplus as
regards policyholders as of the 31st day of
December next preceding, and
(2)with respect to life insurers, three percent (3%)
of the insurer's admitted assets as of the 31st
day of December next preceding,
c. reinsurance agreements or modifications thereto,
including:
(1)all reinsurance pooling agreements, and
(2)agreements in which the reinsurance premium or a
change in the insurer's liabilities, or the
projected reinsurance premium or a change in the
insurer's liabilities in any of the next three
(3)years, equals or exceeds five percent (5%) of
the insurer's surplus as regards policyholders,
as of the 31st day of December next preceding,
including those agreements which may require as
consideration the transfer of assets from an
insurer to a nonaffiliate, if an agreement or
understanding exists between the insurer and
nonaffiliate that any portion of the assets will
be transferred to one or more affiliates of the
insurer,
d. all management agreements, service contracts, tax
allocation agreements, guarantees and all cost-sharing
arrangements,
e. guarantees when made by a domestic insurer; provided,
however, that a guarantee which is quantifiable as to
amount is not subject to the notice requirements of
this paragraph unless it exceeds the lesser of one-
half of one percent (.5%) of the insurer's admitted
assets or ten percent (10%) of surplus as regards
policyholders as of the 31st day of December next
preceding. Further, all guarantees which are not
quantifiable as to amount are subject to the notice
requirements of this paragraph,
f. direct or indirect acquisitions or investments in a
person that controls the insurer or in an affiliate of
the insurer in an amount which, together with its
present holdings in such investments, exceeds two and
one-half percent (2.5%) of the insurer's surplus to
policyholders. Direct or indirect acquisitions or
investments in subsidiaries acquired pursuant to
Section 1632 of this title (or authorized under any
other section of this title), or in nonsubsidiary
insurance affiliates that are subject to the
provisions of this act, are exempt from this
requirement, and
g. any material transactions, specified by regulation,
which the Commissioner determines may adversely affect
the interests of the insurer's policyholders.
Nothing in this paragraph shall be deemed to authorize or permit any transactions which, in the case of an insurer not a member of the same insurance holding company system, would be otherwise contrary to law.
3. A domestic insurer may not enter into transactions which are part of a plan or series of like transactions with persons within the insurance holding company system if the purpose of those separate transactions is to avoid the statutory threshold amount and thus avoid the review that would occur otherwise. If the Commissioner determines that separate transactions were entered into over any twelve-month period for that purpose, the Commissioner may exercise his or her authority under Section 1641 of this title.
4. The Commissioner, in reviewing transactions pursuant to paragraph 2 of this subsection, shall consider whether the transactions comply with the standards set forth in paragraph 1 of this subsection and whether they may adversely affect the interests of policyholders.
5. The Commissioner shall be notified within thirty
(30)days of any investment of the domestic insurer in any one corporation if the total investment in the corporation by the insurance holding company system exceeds ten percent (10%) of the corporation's voting securities.
6. a. Any affiliate that is party to an agreement or
contract with a domestic insurer that is subject to
subparagraph d of paragraph 2 of this subsection shall
be subject to the jurisdiction of any supervision,
seizure, conservatorship, or receivership proceedings
against the insurer and to the authority of any
supervisor, conservator, rehabilitator, or liquidator
for the insurer appointed pursuant to Article 18 or 19
of this title regarding rehabilitation and liquidation
of insurers for the purpose of interpreting,
enforcing, and overseeing the affiliate's obligations
under the agreement or contract to perform services
for the insurer that are:
(1)an integral part of the insurer's operations,
including, but not limited to, management,
administrative, accounting, data processing,
marketing, underwriting, claims handling,
investment, or any other similar functions, or
(2)essential to the insurer's ability to fulfill its
obligations under insurance policies.
b. The Commissioner may require that an agreement or
contract pursuant to subparagraph d of paragraph 2 of
this subsection for the provision of services
described in divisions
(1)and
(2)of subparagraph a
of this paragraph specify the affiliate consents to
the jurisdiction as set forth in this paragraph.
B. No domestic insurer shall pay any extraordinary dividend or make any other extraordinary distribution to its shareholders until thirty
(30)days after the Commissioner has received notice of the declaration thereof and has not within that period disapproved the payment, or until the Commissioner has approved the payment within the thirty-day period. For purposes of this section, an extraordinary dividend or distribution includes any dividend or distribution of cash or other property whose fair market value together with that of other dividends or distributions made within the preceding twelve
(12)months exceeds the greater of:
1. Ten percent (10%) of the insurer's surplus as regards policyholders as of the 31st day of December next preceding; or
2. The net gain from operations of the insurer, if the insurer is a life insurer, or the net income, if the insurer is not a life insurer, not including realized capital gains, for the twelve-month period ending the 31st day of December next preceding, but shall not
include pro rata distributions of any class of the insurer's own securities.
In determining whether a dividend or distribution is extraordinary, an insurer other than a life insurer may carry forward net income from the previous two
(2)calendar years that has not already been paid out as dividends. This carry-forward shall be computed by taking the net income from the second and third preceding calendar years, not including realized capital gains, less dividends paid in the second and immediate preceding calendar years.
Notwithstanding any other provision of law, an insurer may declare an extraordinary dividend or distribution which is conditional upon the Commissioner's approval, and the declaration shall confer no rights upon shareholders until
(1)the Commissioner has approved the payment of the dividend or distribution or
(2)the Commissioner has not disapproved payment within the thirty-day period.
C. 1. Notwithstanding the control of a domestic insurer by any person, the officers and directors of the insurer shall not thereby be relieved of any obligation or liability to which they would otherwise be subject by law, and the insurer shall be managed so as to assure its separate operating identity consistent with this act.
2. Nothing in this section shall preclude a domestic insurer from having or sharing a common management or cooperative or joint use of personnel, property or services with one or more other persons under arrangements meeting the standards of paragraph 1 of subsection A of this section.
3. Not less than one-third (1/3) of the directors of a domestic insurer, and not less than one-third (1/3) of the members of each committee of the board of directors of any domestic insurer, shall be persons who are not officers or employees of the insurer or of any entity controlling, controlled by, or under common control with the insurer and who are not beneficial owners of a controlling interest in the voting stock of the insurer or entity. At least one such person must be included in any quorum for the transaction of business at any meeting of the board of directors or any committee thereof.
4. The board of directors of a domestic insurer shall establish one or more committees comprised solely of directors who are not officers or employees of the insurer or of any entity controlling, controlled by, or under common control with the insurer and who are not beneficial owners of a controlling interest in the voting stock of the insurer or any such entity. The committee or committees shall have responsibility for nominating candidates for director for election by shareholders or policyholders, evaluating the performance of officers deemed to be principal officers of the insurer and recommending to the board of directors the selection and compensation of the principal officers.
5. The provisions of paragraphs 3 and 4 of this subsection shall not apply to a domestic insurer if the person controlling the insurer, such as an insurer, a mutual insurance holding company, or a publicly held corporation, has a board of directors and committees thereof that meet the requirements of paragraphs 3 and 4 of this subsection with respect to such controlling entity.
6. An insurer may make application to the Commissioner for a waiver from the requirements of this subsection, if the insurer's annual direct written and assumed premium, excluding premiums reinsured with the Federal Crop Insurance Corporation and Federal Flood Program, is less than Three Hundred Million Dollars ($300,000,000.00). An insurer may also make application to the Commissioner for a waiver from the requirements of this subsection based upon unique circumstances. The Commissioner may consider various factors including, but not limited to, the type of business entity, volume of business written, availability of qualified board members, or the ownership or organizational structure of the entity.
D. For purposes of this act, in determining whether an insurer's surplus as regards policyholders is reasonable in relation to the insurer's outstanding liabilities and adequate to meet its financial needs, the following factors, among others, shall be considered:
1. The size of the insurer as measured by its assets, capital and surplus, reserves, premium writings, insurance in force and other appropriate criteria;
2. The extent to which the insurer's business is diversified among several lines of insurance;
3. The number and size of risks insured in each line of business;
4. The extent of the geographical dispersion of the insurer's insured risks;
5. The nature and extent of the insurer's reinsurance program;
6. The quality, diversification and liquidity of the insurer's investment portfolio;
7. The recent past and projected future trend in the size of the insurer's investment portfolio;
8. The surplus as regards policyholders maintained by other comparable insurers;
9. The adequacy of the insurer's reserves; and
10. The quality and liquidity of investments in affiliates. The Commissioner may treat any such investment as a disallowed asset for purposes of determining the adequacy of surplus as regards policyholders whenever in the judgment of the Commissioner the investment so warrants. Added by Laws 2017, c. 350, § 6, emerg. eff. May 31, 2017. Amended by Laws 2022, c. 119, § 1, eff. Nov. 1, 2022.