TITLE XXXVII
INSURANCE

Chapter 401-B
INSURANCE HOLDING COMPANIES

Section 401-B:1

    401-B:1 Definitions. –
In this chapter:
I. An "affiliate" of, or person "affiliated" with, a specific person, is a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.
II. "Commissioner" means the insurance commissioner.
III. "Control" (including the terms "controlling," "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or non-management services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing, 10 percent or more of the voting securities of any other person. This presumption may be rebutted by a showing made in the manner provided by RSA 401-B:4, XI that control does not exist in fact. The commissioner may determine, after furnishing all persons in interest notice and opportunity to be heard and making specific findings of fact to support such determination, that control exists in fact, notwithstanding the absence of a presumption to that effect.
IV. "Department" means the department of insurance.
V. An "insurance holding company system" consists of 2 or more affiliated persons, one or more of which is an insurer.
VI. "Insurer" shall have the same meaning as set forth in RSA 401-B:3-a, IV(b)(3)(A) except that it shall not include agencies, authorities or instrumentalities of the United States, its possessions and territories, the Commonwealth of Puerto Rico, the District of Columbia, or a state or political subdivision of a state.
VII. "Enterprise risk" means any activity, circumstance, event or series of events involving one or more affiliates of an insurer that, if not remedied promptly, is likely to have a material adverse effect upon the financial conditions or liquidity of the insurer or its insurance holding company system as a whole, including, but not limited to, anything that would cause the insurer's risk-based capital to fall into company action level as set forth in RSA 404-F:3 or would cause the insurer to be in hazardous financial condition (Ins 2900).
VIII. "NAIC" means the National Association of Insurance Commissioners.
IX. "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, an unincorporated organization, any similar entity or any combination of the foregoing acting in concert, but shall not include any joint venture partnership exclusively engaged in owning, managing, leasing, or developing real or tangible personal property.
X. A "security holder" of a specified person is one who owns any security of such person, including common stock, preferred stock, debt obligations, and any other security convertible into or evidencing the right to acquire any of the foregoing.
XI. A "subsidiary" of a specified person is an affiliate controlled by such person directly, or indirectly through one or more intermediaries.
XII. "Voting security" shall include any security convertible into or evidencing a right to acquire a voting security.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:2

    401-B:2 Subsidiaries of Insurers. –
I. Authorization. Any domestic insurer, either by itself or in cooperation with one or more persons, may organize or acquire one or more subsidiaries. The subsidiaries may conduct any kind of business or businesses and their authority to do so shall not be limited by reasons of the fact that they are subsidiaries of a domestic insurer.
II. Additional Investment Authority. In addition to investments in common stock, preferred stock, debt obligations and other securities permitted under this title, a domestic insurer may also:
(a) Invest, in common stock, preferred stock, debt obligations, and other securities of one or more subsidiaries, amounts which do not exceed the lesser of 10 percent of the insurer's assets or 50 percent of the insurer's surplus as regards policyholders, provided that after such investments, the insurer's surplus as regards policyholders will be reasonable in relation to the insurer's outstanding liabilities and adequate to meet its financial needs. In calculating the amount of such investments, investments in domestic or foreign insurance subsidiaries and health maintenance organizations shall be excluded, and there shall be included:
(1) Total net moneys or other consideration expended and obligations assumed in the acquisition or formation of a subsidiary, including all organizational expenses and contributions to capital and surplus of the subsidiary whether or not represented by the purchase of capital stock or issuance of other securities; and
(2) All amounts expended in acquiring additional common stock, preferred stock, debt obligations, and other securities; and all contributions to the capital or surplus of a subsidiary subsequent to its acquisition or formation.
(b) Invest any amount in common stock, preferred stock, debt obligations, and other securities of one or more subsidiaries engaged or organized to engage exclusively in the ownership and management of assets authorized as investments for the insurer, provided that each such subsidiary agrees to limit its investments in any asset so that such investments will not cause the amount of the total investment of the insurer to exceed any of the investment limitations specified in subparagraph II(a). For the purpose of this paragraph, "the total investment of the insurer" shall include:
(1) Any direct investment by the insurer in an asset; and
(2) The insurer's proportionate share of any investment in an asset by any subsidiary of the insurer, which shall be calculated by multiplying the amount of the subsidiary's investment by the percentage of the ownership of the subsidiary.
(c) With the approval of the commissioner, invest any greater amount in common stock, preferred stock, debt obligations, or other securities of one or more subsidiaries; provided that after the investment the insurer's surplus as regards policyholders will be reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs.
III. Exemption from Investment Restrictions. Investments in common stock, preferred stock, debt obligations, or other securities of subsidiaries made pursuant to paragraph II, shall not be subject to any of the otherwise applicable restrictions or prohibitions contained in this chapter applicable to such investments of insurers.
IV. Qualification of Investment; When Determined. Whether any investment made pursuant to paragraph II meets the applicable requirements of that paragraph is to be determined before the investment is made, by calculating the applicable investment limitations as though the investment had already been made, taking into account the then outstanding principal balance on all previous investments in debt obligations, and the value of all previous investments in equity securities as of the day they were made, net of any return of capital invested, not including dividends.
V. Cessation of Control. If an insurer ceases to control a subsidiary, it shall dispose of any investment therein made pursuant to this section within 3 years from the time of the cessation of control or within such further time as the commissioner may prescribe, unless at any time after the investment shall have been made, the investment shall have met the requirements for investment under any other section of this chapter, and the insurer has notified the commissioner.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:3

    401-B:3 Acquisition of Control of or Merger With Domestic Insurer. –
I. Filing Requirements.
(a) No person other than the issuer shall make a tender offer for or a request or invitation for tenders of, or enter into any agreement to exchange securities for, seek to acquire, or acquire, in the open market or otherwise, any voting security of a domestic insurer if, after the consummation thereof, such person would, directly or indirectly (or by conversion or by exercise of any right to acquire) be in control of the insurer, and no person shall enter into an agreement to merge with or otherwise to acquire control of a domestic insurer or any person controlling a domestic insurer unless, at the time the offer, request, or invitation is made or the agreement is entered into, or prior to the acquisition of such securities if no offer or agreement is involved, such person has filed with the commissioner and has sent to the insurer a statement containing the information required by this section and the offer, request, invitation, agreement, or acquisition has been approved by the commissioner in the manner hereinafter prescribed.
(b) For purposes of this section, any controlling person of a domestic insurer seeking to divest its controlling interest in the domestic insurer, in any manner, shall file with the commissioner, with a copy to the insurer, confidential notice of its proposed divestiture at least 30 days prior to the cessation of control. The commissioner shall determine those instances in which the party seeking to divest or to acquire a controlling interest in an insurer, shall be required to file for and obtain approval of the transaction. The information shall remain confidential until the conclusion of the transaction unless the commissioner, in his or her discretion, determines that confidential treatment will interfere with enforcement of this section. If the statement referred to in subparagraph (a) is otherwise filed, this subparagraph shall not apply.
(c) With respect to a transaction subject to this section, the acquiring person shall also file a pre-acquisition notification with the commissioner, which shall contain the information set forth in RSA 401-B:3-a, III(a). Failure to file the notification may subject the acquiring person to the penalties specified in RSA 401-B:3-a, V(c).
(d) For purposes of this section, a domestic insurer shall include any person controlling a domestic insurer unless the person as determined by the commissioner, is either directly or through its affiliates primarily engaged in business other than the business of insurance. For the purposes of this section, "person" shall not include any securities broker holding, in the usual and customary broker's function, less than 20 percent of the voting securities of an insurance company or of any person which controls an insurance company.
II. Content of Statement. The statement to be filed with the commissioner shall be made under oath or affirmation and shall contain the following:
(a) The name and address of each person by whom or on whose behalf the merger or other acquisition of control referred to in paragraph I is to be effected (hereinafter called "acquiring party"); and
(1) If such person is an individual, his or her principal occupation and all offices and positions held during the past 5 years, and any conviction of crimes other than minor traffic violations during the past 10 years;
(2) If the person is not an individual, a report of the nature of its business operations during the past 5 years or for the lesser period as the person and any predecessors shall have been in existence; an informative description of the business intended to be done by the person and the person's subsidiaries; and a list of all individuals who are or who have been selected to become directors or executive officers of the person, or who perform or will perform functions appropriate to such positions. The list shall include for each individual the information required by subparagraph (a)(1).
(b) The source, nature, and amount of the consideration used or to be used in effecting the merger or other acquisition of control, a description of any transaction where funds were or are to be obtained for any such purpose, including any pledge of the insurer's stock, or the stock of any of its subsidiaries or controlling affiliates, and the identity of persons furnishing consideration, provided, however, that where a source of consideration is a loan made in the lender's ordinary course of business, the identity of the lender shall remain confidential, if the person filing the statement so requests.
(c) Fully audited financial information as to the earnings and financial condition of each acquiring party for the preceding 5 fiscal years of each the acquiring party (or for such lesser period as the acquiring party and any predecessors thereof shall have been in existence), and similar unaudited information as of a date not earlier than 90 days prior to the filing of the statement.
(d) Any plans or proposals which each acquiring party may have to liquidate the insurer, to sell its assets or merge or consolidate it with any person, or to make any other material change in its business or corporate structure or management.
(e) The number of shares of any security referred to in paragraph I which each acquiring party proposes to acquire, and the terms of the offer, request, invitation, agreement, or acquisition referred to in paragraph I and a statement as to the method by which the fairness of the proposal was determined.
(f) The amount of each class of any security referred to in paragraph I which is beneficially owned or concerning which there is a right to acquire beneficial ownership by each acquiring party.
(g) A full description of any contracts, arrangements, or understandings with respect to any security referred to in paragraph I in which any acquiring party is involved, including but not limited to transfer of any of the securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or guarantees of profits, division of losses or profits, or the giving or withholding of proxies. The description shall identify the persons with whom the contracts, arrangements or understandings have been entered into.
(h) A description of the purchase of any security referred to in paragraph I during the 12 calendar months preceding the filing of the statement by any acquiring party, including the dates of purchase, names of the purchasers, and consideration paid or agreed to be paid.
(i) A description of any recommendations to purchase any security referred to in paragraph I made during the 12 calendar months preceding the filing of the statement by any acquiring party, or by anyone based upon interviews or at the suggestion of the acquiring party.
(j) Copies of all tender offers for, requests or invitations for tenders of, exchange offers for, and agreements to acquire or exchange any securities referred to in paragraph I and (if distributed) of additional soliciting material relating to them.
(k) The terms of any agreement, contract, or understanding made with or proposed to be made with any broker-dealer as to solicitation of securities referred to in paragraph I for tender, and the amount of any fees, commissions, or other compensation to be paid to broker-dealers with regard thereto.
(l) An agreement by the person required to file the statement referred to in paragraph I that it will provide the annual report specified in RSA 401-B:4, XII for as long as control exists.
(m) An acknowledgement by the person required to file the statement referred to in paragraph I that the person and all subsidiaries within its control in the insurance holding company system will provide information to the commissioner upon request as necessary to evaluate enterprise risk to the insurer.
(n) Such additional information as the commissioner may by rule prescribe as necessary or appropriate for the protection of policyholders of the insurer or in the public interest.
III. If the person required to file the statement referred to in paragraph I is a partnership, limited partnership, syndicate or other group, the commissioner may require that the information called for by subparagraphs II(a) through (n) shall be given with respect to each partner of the partnership or limited partnership, each member of the syndicate or group, and each person who controls the partner or member. If any partner, member, or person is a corporation or a person required to file the statement referred to in paragraph I is a corporation, the commissioner may require that the information called for by subparagraphs II(a) through (n) shall be given with respect to such corporation, each officer and director of such corporation, and each person who is directly or indirectly the beneficial owner of more than 10 percent of the outstanding voting securities of the corporation.
IV. Changes. If any material change occurs in the facts set forth in the statement filed with the commissioner and sent to such insurer pursuant to paragraph II or III, an amendment setting forth such change, together with copies of all documents and other material relevant to such change, shall be filed with the commissioner and sent to the insurer within 2 business days after the person learns of the change.
V. Alternative Filing Materials. If any offer, request, invitation, agreement, or acquisition referred to in paragraph I is proposed to be made by means of a registration statement under the Securities Act of 1933 or in circumstances requiring the disclosure of similar information under the Securities Exchange Act of 1934, or under a state law requiring similar registration or disclosure, the person required to file the statement referred to in paragraph I may utilize the documents in furnishing the information called for by that statement.
VI. Approval by Commissioner; Hearings.
(a) The commissioner shall approve any merger or other acquisition of control referred to in paragraph I unless, after a public hearing, the commissioner finds that:
(1) After the change of control the domestic insurer referred to in paragraph I would not be able to satisfy the requirements for the issuance of a license to write the line or lines of insurance for which it is presently licensed;
(2) The effect of the merger or other acquisition of control would be substantially to lessen competition in insurance in this state or tend to create a monopoly. In applying the competitive standard in this subparagraph:
(A) The informational requirements of RSA 401-B:3-a, III(a) and the standards of RSA 401-B:3-a, IV(b) shall apply;
(B) The merger or other acquisition shall not be disapproved if the commissioner finds that any of the situations meeting the criteria provided by RSA 401-B:3-a, IV(c) exist; and
(C) The commissioner may condition the approval of the merger or other acquisition on the removal of the basis of disapproval within a specified period of time.
(3) The financial condition of any acquiring party is such as might jeopardize the financial stability of the insurer, or prejudice the interest of its policyholders;
(4) The plans or proposals which the acquiring party has to liquidate the insurer, sell its assets or consolidate or merge it with any person, or to make any other material change in its business or corporate structure or management, are unfair and unreasonable to policyholders of the insurer and not in the public interest;
(5) The competence, experience, and integrity of those persons who would control the operation of the insurer are such that it would not be in the interest of policyholders of the insurer and of the public to permit the merger or other acquisition of control; or
(6) The acquisition is likely to be hazardous or prejudicial to the insurance buying public.
(b) The public hearing referred to in subparagraph VI(a) shall be held within 30 days after the statement required by paragraph I is filed and at least 20 days' notice shall be given by the commissioner to the person filing the statement. Not less than 7 days' notice of the public hearing shall be given by the person filing the statement to the insurer and to such other persons as may be designated by the commissioner. The insurer shall give such notice to its security holders. The commissioner shall make a determination within 30 days after the conclusion of the hearing. At such hearing, the person filing the statement, the insurer, any person to whom notice of hearing was sent, and any other person whose interest may be affected shall have the right to present evidence, examine and cross-examine witnesses, and offer oral and written arguments and in connection therewith shall be entitled to conduct discovery proceedings in the same manner as is presently allowed in the superior court of this state. All discovery proceedings shall be concluded not later than 3 days prior to the commencement of the public hearing.
(c) If the proposed acquisition of control will require the approval of more than one commissioner, the public hearing referred to in subparagraph (b) may be held on a consolidated basis upon request of the person filing the statement referred to in paragraph I. Such person shall file the statement referred to in paragraph I with the National Association of Insurance Commissioners (NAIC) within 5 days of making the request for a public hearing. A commissioner may opt out of a consolidated hearing, and shall provide notice to the applicant of the opt-out within 10 days of the receipt of the statement referred to in paragraph I. A hearing conducted on a consolidated basis shall be public and shall be held within the United States before the commissioners of the states in which the insurers are domiciled. Such commissioners shall hear and receive evidence. A commissioner may attend such hearing, in person or by telecommunication.
(d) In connection with a change of control of a domestic insurer, any determination by the commissioner that the person acquiring control of the insurer shall be required to maintain or restore the capital of the insurer to the level required by the laws and regulations of this state shall be made not later than 60 days after the date of notification of the change in control submitted pursuant to subparagraph I(a).
(e) The commissioner may retain at the acquiring person's expense any attorneys, actuaries, accountants, and other experts not otherwise a part of the commissioner's staff as may be reasonably necessary to assist the commissioner in reviewing the proposed acquisition of control.
VII. Exemptions. The provisions of this section shall not apply to any offer, request, invitation, agreement, or acquisition which the commissioner by order shall exempt as not having been made or entered into for the purpose and not having the effect of changing or influencing the control of a domestic insurer, or as otherwise not comprehended within the purposes of this section.
VIII. Violations. The following shall be violations of this section:
(a) The failure to file any statement, amendment, or other material required to be filed pursuant to paragraph I or II.
(b) The effectuation or any attempt to effectuate an acquisition of control of, divestiture of, or merger with, a domestic insurer unless the commissioner has given approval.
IX. Jurisdiction; Consent to Service of Process. The courts of this state are hereby vested with jurisdiction over every person not resident, domiciled, or authorized to do business in this state who files a statement with the commissioner under this section, and over all actions involving such person arising out of violations of this section, and each the person shall be deemed to have performed acts equivalent to and constituting an appointment by the person of the commissioner to be his true and lawful attorney upon whom may be served all lawful process in any action, suit or proceeding arising out of violations of this section. Copies of all lawful process shall be served on the commissioner and transmitted by registered or certified mail by the commissioner to the person at his last known address.

Source. 2013, 152:1, eff. Jan. 1, 2014. 2021, 56:3, eff. July 24, 2021.

Section 401-B:3-a

    401-B:3-a Acquisitions Involving Insurers Not Otherwise Covered. –
I. Definitions. In this section:
(a) "Acquisition" means any agreement, arrangement or activity, the consummation of which results in a person acquiring directly or indirectly the control of another person, and includes but is not limited to the acquisition of voting securities, the acquisition of assets, bulk reinsurance and mergers.
(b) An "involved insurer" includes an insurer which either acquires or is acquired, is affiliated with an acquirer or acquired, or is the result of a merger.
II. Scope.
(a) Except as exempted in subparagraph II(b), this section applies to any acquisition in which there is a change in control of an insurer authorized to do business in this state.
(b) This section shall not apply to the following:
(1) A purchase of securities solely for investment purposes as long as the securities are not used by voting or otherwise to cause or attempt to cause the substantial lessening of competition in any insurance market in this state. If a purchase of securities results in a presumption of control under RSA 401-B:1, III, it is not solely for investment purposes unless the commissioner of the insurer's state of domicile accepts a disclaimer of control or affirmatively finds that control does not exist and the disclaimer action or affirmative finding is communicated by the domiciliary commissioner to the commissioner of this state.
(2) The acquisition of a person by another person when both persons are neither directly nor through affiliates primarily engaged in the business of insurance, if pre-acquisition notification is filed with the commissioner in accordance with subparagraph III(a) 30 days prior to the proposed effective date of the acquisition. However, such pre-acquisition notification is not required for exclusion from this section if the acquisition would otherwise be excluded from this section by any other provision of RSA 401-B:3-a, II(b).
(3) The acquisition of already affiliated persons.
(4) An acquisition if, as an immediate result of the acquisition:
(A) In no market would the combined market share of the involved insurers exceed 5 percent of the total market.
(B) There would be no increase in any market share; or
(C) In no market would:
(i) The combined market share of the involved insurers exceed 12 percent of the total market; and
(ii) The market share increase by more than 2 percent of the total market.
For the purpose of this subparagraph, a market means direct written insurance premium in this state for a line of business as contained in the annual statement required to be filed by insurers licensed to do business in this state.
(5) An acquisition for which a pre-acquisition notification would be required pursuant to this section due solely to the resulting effect on the ocean marine insurance line of business.
(6) An acquisition of an insurer whose domiciliary commissioner affirmatively finds that such insurer is in failing condition; there is a lack of feasible alternative to improving such condition; the public benefits of improving the insurer's condition through the acquisition exceed the public benefits that would arise from not lessening competition; and the findings are communicated by the domiciliary commissioner to the commissioner of this state.
III. Pre-Acquisition Notification; Waiting Period. An acquisition covered by paragraph II may be subject to an order pursuant to paragraph V, unless the acquiring person files a pre-acquisition notification and the waiting period has expired. The acquired person may file a pre-acquisition notification. The commissioner shall give confidential treatment to information submitted under this paragraph in the same manner as provided in RSA 401-B:8.
(a) The pre-acquisition notification shall be in such form and contain such information as prescribed by the NAIC relating to those markets which, under subparagraph II(b)(4), cause the acquisition not to be exempted from the provisions of this section. The commissioner may require such additional material and information as deemed necessary to determine whether the proposed acquisition, if consummated, would violate the competitive standard of paragraph IV. The required information may include an opinion of an economist as to the competitive impact of the acquisition in this state accompanied by a summary of the education and experience of such person indicating his or her ability to render an informed opinion.
(b) The waiting period required shall begin on the date of receipt of the commissioner of a pre-acquisition notification and shall end on the earlier of the thirtieth day after the date of the receipt, or termination of the waiting period, by the commissioner. Prior to the end of the waiting period, the commissioner on a one-time basis may require the submission of additional needed information relevant to the proposed acquisition, in which event the waiting period shall end on the earlier of the thirtieth day after receipt of the additional information by the commissioner or termination of the waiting period by the commissioner.
IV. Competitive Standard.
(a) The commissioner may enter an order under subparagraph V(a) with respect to an acquisition if there is substantial evidence that the effect of the acquisition may be substantially to lessen competition in any line of insurance in this state or tend to create a monopoly or if the insurer fails to file adequate information in compliance with paragraph III.
(b) In determining whether a proposed acquisition would violate the competitive standard of subparagraph IV(a) the commissioner shall consider the following:
(1) Any acquisition covered under paragraph II involving 2 or more insurers competing in the same market is prima facie evidence of violation of the competitive standards:
(A) If the market is highly concentrated and the involved insurers possess the following shares of the market:
Insurer A Insurer B 
 4 percent 4 percent or more 
 10 percent 2 percent or more 
 15 percent 1 percent or more 
 

(B) Or, if the market is not highly concentrated and the involved insurers possess the following shares of the market:
Insurer A Insurer B 
 5 percent 5 percent or more 
 10 percent 4 percent or more 
 15 percent 3 percent or more 
 19 percent 1 percent or more 
 

A highly concentrated market is one in which the share of the 4 largest insurers is 75 percent or more of the market. Percentages not shown in the tables are interpolated proportionately to the percentages that are shown. If more than 2 insurers are involved, exceeding the total of the 2 columns in the table is prima facie evidence of violation of the competitive standard in subparagraph IV(a). For the purpose of this subparagraph, the insurer with the largest share of the market shall be deemed to be insurer A.
(2) There is a significant trend toward increased concentration when the aggregate market share of any grouping of the largest insurers in the market, from the 2 largest to the 8 largest, has increased by 7 percent or more of the market over a period of time extending from any base year 5 to 10 years prior to the acquisition up to the time of the acquisition. Any acquisition or merger covered under paragraph II involving 2 or more insurers competing in the same market is prima facie evidence of violation of the competitive standard in subparagraph IV(a) if:
(A) There is a significant trend toward increased concentration in the market;
(B) One of the insurers involved is one of the insurers in a grouping of large insurers showing the requisite increase in the market share; and
(C) Another involved insurer's market is 2 percent or more.
(3) For the purposes of subparagraph IV(b):
(A) The term "insurer" includes any company or group of companies under common management, ownership, or control.
(B) The term "market" means the relevant product and geographical markets. In determining the relevant product and geographical markets, the commissioner shall give due consideration to, among other things, the definitions or guidelines, if any, promulgated by the NAIC and to information, if any, submitted by parties to the acquisition. In the absence of sufficient information to the contrary, the relevant product market is assumed to be the direct written insurance premium for a line of business, such line being that used in the annual statement required to be filed by insurers doing business in this state, and the relevant geographical market is assumed to be this state.
(C) The burden of showing prima facie evidence of violation of the competitive standard rests upon the commissioner.
(4) Even though an acquisition is not prima facie violative of the competitive standard under subparagraphs IV(b)(1) and (2), the commissioner may establish the requisite anti-competitive effect based upon other substantial evidence. Even though an acquisition is prima facie violative of the competitive standard under subparagraphs IV(b)(1) and (2), a party may establish the absence of the requisite anti-competitive effect based upon other substantial evidence. Relevant factors in making a determination under this subparagraph include, but are not limited to, the following: market shares, volatility of ranking of market leaders, number of competitors, concentration, trend of concentration in the industry, and ease of entry and exit into the market.
(c) An order may not be entered under subparagraph V(a) if:
(1) The acquisition will yield substantial economies of scale or economies in resource utilization that cannot be feasibly achieved in any other way, and the public benefits which would arise from such economies exceed the public benefits which would arise from not lessening competition; or
(2) The acquisition will substantially increase the availability of insurance, and the public benefits of the increase exceed the public benefits which would arise from not lessening competition.
V. Orders and Penalties.
(a)(1) If an acquisition violates the standards of this section, the commissioner may enter an order:
(A) Requiring an involved insurer to cease and desist from doing business in this state with respect to the line or lines of insurance involved in the violation; or
(B) Denying the application of an acquired or acquiring insurer for a license to do business in this state.
(2)(A) Such an order shall not be entered unless:
(i) There is a hearing;
(ii) Notice of such hearing to be issued prior to the end of the waiting period and not less than 15 days prior to the hearing; and
(iii) The hearing is concluded and the order is issued no later than 60 days after the date of the filing of the pre-acquisition notification with the commissioner.
(B) Every order shall be accompanied by a written decision of the commissioner setting forth findings of fact and conclusions of law.
(3) An order pursuant to subparagraph V(a) shall not apply if the acquisition is not consummated.
(b) Any person who violates a cease and desist order of the commissioner under subparagraph V(a) and while the order is in effect may, after notice and hearing and upon order of the commissioner be subject at the discretion of the commissioner to one or more of the following:
(1) A monetary penalty of not more than $10,000 for every day of violation; or
(2) Suspension or revocation of the person's license.
(c) Any insurer or other person who fails to make any filing required by this section, and who also fails to demonstrate a good faith effort to comply with any such filing requirement, shall be subject to an administrative fine of not more than $50,000.
VI. Inapplicable Provisions. RSA 401-B:10, II and III and RSA 401-B:12 shall not apply to acquisitions covered under paragraph II.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:4

    401-B:4 Registration of Insurers. –
I. Registration.
(a) Every insurer which is authorized to do business in this state and which is a member of an insurance holding company system shall register with the commissioner, except a foreign insurer subject to registration requirements and standards adopted by statute or rule in the jurisdiction of its domicile which are substantially similar to those contained in:
(1) RSA 401-B:4; and
(2) RSA 401-B:5, I(a), II and IV; and
(3) Either RSA 401-B:5, I(b) or a provision such as the following: Each registered insurer shall keep current the information required to be disclosed in its registration statement by reporting all material changes or additions within 15 days after the end of the month in which it learns of each change or addition.
(b) Any insurer which is subject to registration under this section shall register within 15 days after it becomes subject to registration and annually thereafter by August 1 of each year for the previous calendar year, unless the commissioner for good cause shown extends the time for registration, and then within the extended time. The commissioner may require any insurer authorized to do business in this state which is a member of an insurance holding company system, and which is not subject to registration under this section, to furnish a copy of the registration statement, the summary specified in paragraph III, or other information filed by such insurance company with the insurance regulatory authority of its domiciliary jurisdiction.
II. Information and Form Required. Every insurer subject to registration shall file a registration statement with the commissioner on a form and in a format prescribed by NAIC which shall contain the following current information:
(a) The capital structure, general financial condition, ownership, and management of the insurer and any person controlling the insurer;
(b) The identity and relationship of every member of the insurance holding company system;
(c) The following agreements in force and transactions currently outstanding or which have occurred during the last calendar year between the insurer and its affiliates:
(1) Loans, investments, purchases, sales, or exchanges of securities of the affiliates by the insurer or of the insurer by its affiliates;
(2) Purchases, sales, or exchanges of assets;
(3) Transactions not in the ordinary course of business;
(4) Guarantees or undertakings for the benefit of an affiliate which result in an actual contingent exposure of the insurer's assets to liability, other than insurance contracts entered into in the ordinary course of the insurer's business;
(5) All management and service contracts and all cost-sharing arrangements;
(6) Reinsurance agreements;
(7) Dividends and other distributions to shareholders; and
(8) Consolidated tax allocation agreements.
(d) Any pledge of the insurer's stock, including stock of any subsidiary or controlling affiliate for a loan made to any member of the insurance holding company system.
(e) If requested by the commissioner, the insurer shall include financial statements of or within an insurance holding company system, including all affiliates. Financial statements may include but are not limited to annual audited financial statements filed with the United States Securities and Exchange Commission (SEC) pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended. An insurer required to file financial statements pursuant to this subparagraph may satisfy the request by providing the commissioner with the most recently filed parent corporation financial statements that have been filed with the SEC.
(f) Other matters concerning transactions between registered insurers and any affiliates as may be included from time to time in any registration forms adopted or approved by the commissioner.
(g) Statements that the insurer's board of directors oversees corporate governance and internal controls and that the insurer's officers or senior management have approved, implemented, and continue to maintain and monitor corporate governance and internal control procedures.
(h) Any other information required by the commissioner by rule or regulation.
III. Summary of Changes to Registration Statement. All registration statements shall contain a summary outlining all items in the current registration statement representing changes from the prior registration statement.
IV. Materiality. No information need be disclosed on the registration statement filed pursuant to paragraph II, if the information is not material for the purposes of this section. Unless the commissioner by rule, regulation, or order provides otherwise, sales, purchases, exchanges, loans or extensions of credit, investments, or guarantees involving 1/2 of one percent or less of an insurer's admitted assets as of the 31st day of December next preceding shall not be deemed material for purposes of this section.
V. Reporting of Dividends to Shareholders. Subject to RSA 401-B:5, II, each registered insurer shall report to the commissioner all dividends and other distributions to shareholders within 15 business days following the declaration thereof.
VI. Information of Insurers. Any person within an insurance holding company system subject to registration shall be required to provide complete and accurate information to an insurer, where the information is reasonably necessary to enable the insurer to comply with the provisions of this chapter.
VII. Termination of Registration. The commissioner shall terminate the registration of any insurer which demonstrates that it no longer is a member of an insurance holding company system.
VIII. Consolidated Filing. The commissioner may require or allow 2 or more affiliated insurers subject to registration to file a consolidated registration statement.
IX. Alternative Registration. The commissioner may allow an insurer which is authorized to do business in this state and which is part of an insurance holding company system to register on behalf of any affiliated insurer which is required to register under paragraph I, and to file all information and material required to be filed under this section.
X. Exemptions. The provisions of this section shall not apply to any insurer, information or transaction if and to the extent that the commissioner by rule, regulation, or order shall exempt the same from the provisions of this section.
XI. Disclaimer. Any person may file with the commissioner a disclaimer of affiliation with any authorized insurer or a disclaimer may be filed by the insurer or any member of an insurance holding company system. The disclaimer shall fully disclose all material relationships and bases for affiliation between the person and the insurer as well as the basis for disclaiming the affiliation. A disclaimer of affiliation shall be deemed to have been granted unless the commissioner, within 30 days following receipt of a complete disclaimer, notifies the filing party the disclaimer is disallowed. In the event of disallowance, the disclaiming party may request an administrative hearing, which shall be granted. The disclaiming party shall be relieved of its duty to register under this section if approval of the disclaimer has been granted by the commissioner, or if the disclaimer is deemed to have been approved.
XII. Enterprise Risk Filing. The ultimate controlling person of every insurer subject to registration shall also file an annual enterprise risk report. The report shall, to the best of the ultimate controlling person's knowledge and belief, identify the material risks within the insurance holding company system that could pose enterprise risk to the insurer. The report shall be filed with the lead state commissioner of the insurance holding company system as determined by the procedures within the Financial Analysis Handbook adopted by the NAIC.
XIII. Violations. The failure to file a registration statement or any summary of the registration statement or enterprise risk filing required by this section within the time specified for such filing shall be a violation of this section.

Source. 2013, 152:1, eff. Jan. 1, 2014. 2021, 56:4, eff. July 24, 2021.

Section 401-B:5

    401-B:5 Standards and Management of an Insurer Within a Holding Company System. –
I. Transactions Within an Insurance Holding Company System.
(a) Transactions within an insurance holding company system to which an insurer subject to registration is a party shall be subject to the following standards:
(1) The terms shall be fair and reasonable.
(2) Agreements for cost sharing services and management shall include such provisions as required by rule and regulation issued by the commissioner.
(3) Charges or fees for services performed shall be reasonable.
(4) Expenses incurred and payment received shall be allocated to the insurer in conformity with customary insurance accounting practices consistently applied.
(5) 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.
(6) 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.
(b) The following transactions involving a domestic insurer and any person in its 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 RSA 401-B:5, I (b)(1)-(7), may not be entered into unless the insurer has notified the commissioner in writing of its intention to enter into the transaction at least 30 days prior thereto, or such shorter period as the commissioner may permit, and the commissioner has not disapproved it within such 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 30 days after a termination of a previously filed agreement, to the commissioner for determination of the type of filing required, if any.
(1) Sales, purchases, exchanges, loans, extensions of credit, or investments, provided the transactions are equal to or exceed:
(A) With respect to nonlife insurers, the lesser of 3 percent of the insurer's admitted assets or 25 percent of surplus as regards policyholders; as of December 31, next preceding.
(B) With respect to life insurers, 3 percent of the insurer's admitted assets as of December 31, next preceding.
(2) Loans or extensions of credit to any person who is not an affiliate, where the insurer makes such loans or extensions of credit with the agreement or understanding that the proceeds of such 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:
(A) With respect to nonlife insurers, the lesser of 3 percent of the insurer's admitted assets or 25 percent of surplus as regards policyholders as of December 31, next preceding;
(B) With respect to life insurers, 3 percent of the insurer's admitted assets, as of December 31, next preceding.
(3) Reinsurance agreements or modifications thereto, including:
(A) All reinsurance pooling agreements;
(B) Agreements in which the reinsurance premium or a change in the insurer's liabilities, or projected reinsurance premium or a change in the insurer's liabilities in any of the next 3 years, equals or exceeds 5 percent of the insurer's surplus as regards policyholders, as of the December 31, next preceding, including those agreements which may require as consideration the transfer of assets from an insurer to a non-affiliate, if an agreement or understanding exists between the insurer and non-affiliate that any portion of the assets will be transferred to one or more affiliates of the insurer.
(4) All management agreements, service contracts, tax allocation agreements, guarantees, and all cost-sharing arrangements.
(5) 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 1/2 of one percent of the insurer's admitted assets or 10 percent of surplus as regards policyholders as of December 31, next preceding. Further, all guarantees which are not quantifiable as to amount are subject to the notice requirements of this paragraph.
(6) 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 21/2 percent of the insurer's surplus to policyholders. Direct or indirect acquisitions or investments in subsidiaries acquired pursuant to RSA 401-B:2 or authorized under any other section of this chapter, or in non-subsidiary insurance affiliates that are subject to the provisions of this chapter, are exempt from this requirement;
(7) Any material transactions, specified by rule, which the commissioner determines may adversely affect the interests of the insurer's policyholders.
(c) 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 holding company system, would be otherwise contrary to law.
(d) 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 12-month period for that purpose, the commissioner may exercise his or her authority under RSA 401-B:11.
(e) The commissioner, in reviewing transactions pursuant to subparagraph I(b), shall consider whether the transactions comply with the standards of subparagraph I(a) and whether they may adversely affect the interests of policyholders.
(f) The commissioner shall be notified within 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 10 percent of the corporation's voting securities.
II. Dividends and Other Distributions.
(a) No domestic insurer shall pay any extraordinary dividend or make any other extraordinary distribution to its shareholders until:
(1) Thirty days after the commissioner has received notice of the declaration thereof and has not within that period disapproved the payment; or
(2) Until the commissioner has approved the payment within the 30-day period.
(b)(1) For the 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 12 months exceeds the lesser of:
(A) Ten percent of such insurer's surplus as regards policyholders as of the December 31, next preceding; or
(B) 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 12-month period ending December 31, next preceding, but shall not include pro rata distributions of any class of the insurer's own securities.
(2) In determining whether a dividend or distribution is extraordinary, an insurer other than a life insurer may carry forward net income from the previous 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.
(c) 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 the payment within the 30-day period referred to above.
III. Management of Domestic Insurers Subject to Registration.
(a) 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 identify consistent with this chapter.
(b) 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 subparagraph I(a).
(c) Not less than 1/3 of the directors of a domestic insurer, and not less than 1/3 of the member 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 shall be included in any quorum for the transaction of business at any meeting of the board of directors or any committee thereof.
(d) 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.
(e) The provisions of subparagraphs (c) and (d) shall not apply to a domestic insurer if the person controlling the insurer, such as an insurer, a mutual insurance holding company, or a public held corporation, has a board of directors and committees thereof that meet the requirements of subparagraphs (c) and (d) with respect to such controlling entity.
(f) An insurer may make application to the commissioner for a waiver from the requirements of this paragraph, 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 $300,000,000. An insurer may also make application to the commissioner for a waiver from the requirements of this paragraph 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.
IV. Adequacy of Surplus. For purposes of this chapter, 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:
(a) The size of the insurer as measured by its assets, capital and surplus, reserves, premium writing, insurance in force, and other appropriate criteria.
(b) The extent to which the insurer's business is diversified among several lines of insurance.
(c) The number and size of risks insured in each line of business.
(d) The extent of the geographical dispersion of the insurer's insured risks.
(e) The nature and extent of the insurer's reinsurance program.
(f) The quality, diversification, and liquidity of the insurer's investment portfolio.
(g) The recent past and projected future trend in the size of the insurer's investment portfolio.
(h) The surplus as regards policyholders maintained by other comparable insurers.
(i) The adequacy of the insurer's reserves.
(j) The quality and liquidity of investment 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.

Source. 2013, 152:1, eff. Jan. 1, 2014. 2019, 183:3, eff. Sept. 8, 2019.

Section 401-B:6

    401-B:6 Examination. –
I. Power of Commissioner. Subject to the limitation contained in this section and in addition to the powers which the commissioner has under Title XXXVII relating to the examination of insurers, the commissioner shall have the power to examine any insurer registered under RSA 401-B:4 and its affiliates to ascertain the financial condition of the insurer including the enterprise risk to the insurer by the ultimate controlling party, or by any entity or combination of entities within the insurance holding company system, or by the insurance holding company system on a consolidated basis.
II. Access to Books and Records.
(a) The commissioner may order any insurer registered under RSA 401-B:4 to produce such records, books, or other information papers in the possession of the insurer or its affiliates as are reasonably necessary to determine compliance with this chapter.
(b) To determine compliance with this chapter, the commissioner may order any insurer registered under RSA 401-B:4 to produce information not in the possession of the insurer if the insurer can obtain access to such information pursuant to contractual relationships, statutory obligations, or other method. In the event the insurer cannot obtain the information requested by the commissioner, the insurer shall provide the commissioner a detailed explanation of the reason that the insurer cannot obtain the information and the identity of the holder of information. Whenever it appears to the commissioner that the detailed explanation is without merit, the commissioner may require, after notice and hearing, the insurer to pay a penalty of $2,500 for each day's delay, or may suspend or revoke the insurer's license.
III. Use of Consultants. The commissioner may retain, without appropriation under RSA 9, without qualifying as a department expenditure under RSA 4:15, and at the registered insurer's expense such attorneys, actuaries, accountants, and other experts not otherwise a part of the commissioner's staff as shall be reasonably necessary to assist in the conduct of the examination under paragraph I. Any persons so retained shall be under the direction and control of the commissioner and shall act in a purely advisory capacity.
IV. Expenses. Each registered insurer producing for examination records, books and papers pursuant to paragraph I, shall be liable for, and shall pay the expense of examination in accordance with RSA 400-A:37.
V. Compelling Production. In the event the insurer fails to comply with an order, the commissioner shall have the power to examine the affiliates to obtain the information. The commissioner shall also have the power to issue subpoenas, to administer oaths, and to examine under oath any person for purposes of determining compliance with this section. Upon the failure or refusal of any person to obey a subpoena, the commissioner may petition a court of competent jurisdiction, and upon proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey the court order shall be punishable as contempt of court. Every person shall be obliged to attend as a witness at the place specified in the subpoena, when subpoenaed, anywhere within the state. He or she shall be entitled to the same fees and mileage, if claimed, as a witness in RSA 516:13 and RSA 516:14, which fees, mileage, and actual expense, if any, necessarily incurred in securing the attendance of witnesses, and their testimony, shall be itemized and charged against, and be paid by, the company being examined.

Source. 2013, 152:1, eff. Jan. 1, 2014. 2019, 346:151, eff. July 1, 2019.

Section 401-B:7

    401-B:7 Supervisory Colleges. –
I. Power of Commissioner. With respect to any insurer registered under RSA 401-B:4, and in accordance with paragraph III, the commissioner shall also have the power to participate in a supervisory college for any domestic insurer that is part of an insurance holding company system with international operations in order to determine compliance by the insurer with this chapter. The powers of the commissioner with respect to supervisory colleges include, but are not limited to, the following:
(a) Initiating the establishment of a supervisory college;
(b) Clarifying the membership and participation of other supervisors in the supervisory college;
(c) Clarifying the functions of the supervisory college and the role of other regulators, including the establishment of a group-wide supervisor;
(d) Coordinating the ongoing activities of the supervisory college, including planning meetings, supervisory activities, and processes for information sharing; and
(e) Establishing a crisis management plan.
II. Expenses. Each registered insurer subject to this section shall be liable for and shall pay the reasonable expenses of the commissioner's participation in a supervisory college in accordance with paragraph III, including reasonable travel expenses. For purposes of this section, a supervisory college may be convened as either a temporary or permanent forum for communication and cooperation between the regulators charged with the supervision of the insurer or its affiliates, and the commissioner may establish a regular assessment to the insurer for the payment of these expenses.
III. Supervisory College. In order to assess the business strategy, financial position, legal and regulatory position, risk exposure, risk management and governance processes, and as part of the examination of individual insurers in accordance with RSA 401-B:6, the commissioner may participate in a supervisory college with other regulators charged with supervision of the insurer or its affiliates, including other state, federal, and international regulatory agencies. The commissioner may enter into agreements in accordance with RSA 401-B:8, III providing the basis for cooperation between the commissioner and the other regulatory agencies, and the activities of the supervisory college. Nothing in this section shall delegate to the supervisory college the authority of the commissioner to regulate or supervise the insurer or its affiliates within its jurisdiction.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:7-a

    401-B:7-a Group-wide Supervision of Internationally Active Insurance Groups. –
I. The commissioner is authorized to act as the group-wide supervisor for any internationally active insurance group in accordance with the provisions of this section. However, the commissioner may otherwise acknowledge another regulatory official as the group-wide supervisor where the internationally active insurance group:
(a) Does not have substantial insurance operations in the United States;
(b) Has substantial insurance operations in the United States, but not in this state; or
(c) Has substantial insurance operations in the United States and this state, but the commissioner has determined pursuant to the factors set forth in paragraphs III and VIII that the other regulatory official is the appropriate group-wide supervisor.
II. An insurance holding company system that does not otherwise qualify as an internationally active insurance group may request that the commissioner make a determination or acknowledgment as to a group-wide supervisor pursuant to this section.
III. In cooperation with other state, federal, and international regulatory agencies, the commissioner shall identify a single group-wide supervisor for an internationally active insurance group. The commissioner may determine that the commissioner is the appropriate group-wide supervisor for an internationally active insurance group that conducts substantial insurance operations concentrated in this state. However, the commissioner may acknowledge that a regulatory official from another jurisdiction is the appropriate group-wide supervisor for the internationally active insurance group. The commissioner shall consider the following factors when making a determination or acknowledgment under this paragraph:
(a) The place of domicile of the insurers within the internationally active insurance group that hold the largest share of the group's written premiums, assets, or liabilities;
(b) The place of domicile of the top-tiered insurer or insurers in the insurance holding company system of the internationally active insurance group;
(c) The location of the executive offices or largest operational offices of the internationally active insurance group;
(d) Whether another regulatory official is acting or is seeking to act as the group-wide supervisor under a regulatory system that the commissioner determines to be:
(1) Substantially similar to the system of regulation provided under the laws of this state, or
(2) Otherwise sufficient in terms of providing for group-wide supervision, enterprise risk analysis, and cooperation with other regulatory officials; and
(e) Whether another regulatory official acting or seeking to act as the group-wide supervisor provides the commissioner with reasonably reciprocal recognition and cooperation.
IV. However, the person identified under paragraph III as the group-wide supervisor may determine that it is appropriate to acknowledge another supervisor to serve as the group-wide supervisor. The acknowledgment of the group-wide supervisor shall be made after consideration of the factors listed in subparagraphs III(a) through (e), and shall be made in cooperation with and subject to the acknowledgment of other regulatory officials involved with supervision of members of the internationally active insurance group, and in consultation with the internationally active insurance group.
V. Notwithstanding any other provision of law, when another regulatory official is acting as the group-wide supervisor of an internationally active insurance group, the commissioner shall acknowledge that regulatory official as the group-wide supervisor. However, in the event of a material change in the internationally active insurance group that results in the internationally active insurance group's insurers domiciled in this state holding the largest share of the group's premiums, assets, or liabilities; or this state being the place of domicile of the top-tiered insurer or insurers in the insurance holding company system of the internationally active insurance group, the commissioner shall make a determination or acknowledgment as to the appropriate group-wide supervisor for such an internationally active insurance group pursuant to paragraph III.
VI. Pursuant to RSA 401-B:6, the commissioner is authorized to collect from any insurer registered pursuant to RSA 401-B:4 all information necessary to determine whether the commissioner may act as the group-wide supervisor of an internationally active insurance group or if the commissioner may acknowledge another regulatory official to act as the group-wide supervisor. Prior to issuing a determination that an internationally active insurance group is subject to group-wide supervision by the commissioner, the commissioner shall notify the insurer registered pursuant to RSA 401-B:4 and the ultimate controlling person within the internationally active insurance group. The internationally active insurance group shall have not less than 30 days to provide the commissioner with additional information pertinent to the pending determination. The commissioner shall publish on the department's Internet website the identity of internationally active insurance groups that the commissioner has determined are subject to group-wide supervision by the commissioner.
VII. If the commissioner is the group-wide supervisor for an internationally active insurance group, the commissioner is authorized to engage in any of the following group-wide supervision activities:
(a) Assess the enterprise risks within the internationally active insurance group to ensure that:
(1) The material financial condition and liquidity risks to the members of the internationally active insurance group that are engaged in the business of insurance are identified by management, and
(2) Reasonable and effective mitigation measures are in place.
(b) Request, from any member of an internationally active insurance group subject to the commissioner's supervision, information necessary and appropriate to assess enterprise risk, including, but not limited to, information about the members of the internationally active insurance group regarding:
(1) Governance, risk assessment, and management;
(2) Capital adequacy; and
(3) Material intercompany transactions.
(c) Coordinate and, through the authority of the regulatory officials of the jurisdictions where members of the internationally active insurance group are domiciled, compel development and implementation of reasonable measures designed to ensure that the internationally active insurance group is able to timely recognize and mitigate enterprise risks to members of such internationally active insurance group that are engaged in the business of insurance.
(d) Communicate with other state, federal, and international regulatory agencies for members within the internationally active insurance group and share relevant information subject to the confidentiality provisions of RSA 401-B:8, through supervisory colleges as set forth in RSA 401-B:7 or otherwise.
(e) Enter into agreements with or obtain documentation from any insurer registered under RSA 401-B:4, any member of the internationally active insurance group, and any other state, federal, and international regulatory agencies for members of the internationally active insurance group, providing the basis for or otherwise clarifying the commissioner's role as group-wide supervisor, including provisions for resolving disputes with other regulatory officials. Such agreements or documentation shall not serve as evidence in any proceeding that any insurer or person within an insurance holding company system not domiciled or incorporated in this state is doing business in this state or is otherwise subject to jurisdiction in this state.
(f) Other group-wide supervision activities, consistent with the authorities and purposes under this paragraph, as considered necessary by the commissioner.
VIII. If the commissioner acknowledges that another regulatory official from a jurisdiction that is not accredited by the NAIC is the group-wide supervisor, the commissioner is authorized to reasonably cooperate, through supervisory colleges or otherwise, with group-wide supervision undertaken by the group-wide supervisor, provided that:
(a) The commissioner's cooperation is in compliance with the laws of this state; and
(b) The regulatory official acknowledged as the group-wide supervisor also recognizes and cooperates with the commissioner's activities as a group-wide supervisor for other internationally active insurance groups where applicable. Where such recognition and cooperation is not reasonably reciprocal, the commissioner is authorized to refuse recognition and cooperation.
IX. The commissioner is authorized to enter into agreements with or obtain documentation from any insurer registered under RSA 401-B:4, any affiliate of the insurer, and other state, federal, and international regulatory agencies for members of the internationally active insurance group, that provide the basis for or otherwise clarify a regulatory official's role as group-wide supervisor.
X. The commissioner may adopt rules under RSA 541-A as necessary for the administration of this section.
XI. A registered insurer subject to this section shall be liable for and shall pay the reasonable expenses of the commissioner's participation in the administration of this section, including the engagement of attorneys, actuaries, and any other professionals and all reasonable travel expenses.

Source. 2017, 130:1, eff. June 16, 2017.

Section 401-B:8

    401-B:8 Confidential Treatment. –
I. Documents, materials, or other information in the possession or control of the insurance department that are obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to RSA 401-B:6 and all information reported pursuant to RSA 401-B:3, II(l) and (m), RSA 401-B:4, RSA 401-B:5, RSA 401-B:7, and RSA 401-B:7-a shall be confidential by law and privileged, shall not be subject to RSA 91-A, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action. However, the commissioner is authorized to use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as part of the commissioner's official duties. The commissioner shall not otherwise make the documents, materials or other information public without the prior written consent of the insurer to which it pertains unless the commissioner, after giving the insurer and its affiliates who would be affected thereby notice and opportunity to be heard, determines that the interests of policyholders, shareholders, or the public will be served by the publication thereof, in which event the commissioner may publish all or any part in such manner as may be deemed appropriate.
II. Neither the commissioner or any person who received documents, materials, or other information while acting under the authority of the commissioner or with whom such documents, materials, or other information are shared pursuant to this chapter shall be permitted or required to testify in any private civil action concerning any confidential documents, materials, or information subject to RSA 401-B:8, I.
III. In order to assist in the performance of the commissioner's duties, the commissioner:
(a) May share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to paragraph I, with other state, federal and international regulatory agencies, with the NAIC and its affiliates and subsidiaries, and with state, federal, and international law enforcement authorities, including members of any supervisory college described in RSA 401-B:7, provided that the recipient agrees in writing to maintain the confidentiality and privileged status of the document, material or other information, and has verified in writing the legal authority to maintain confidentiality.
(b) Notwithstanding subparagraph (a), the commissioner shall only share confidential and privileged documents, material or information reported pursuant to RSA 401-B:4, XII, with commissioner of states having statutes or regulations substantially similar to RSA 401-B:8, I and who have agreed in writing not to disclose such information.
(c) May receive documents, materials, or information, including otherwise confidential and privileged documents, materials or information from the NAIC and its affiliates and subsidiaries and from regulatory and law enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information; and
(d) Shall enter into written agreements with the NAIC governing sharing and use of information provided pursuant to this chapter consistent with this paragraph and shall:
(1) Specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC and its affiliates and subsidiaries pursuant to this chapter, including procedures and protocols for sharing by the NAIC with other state, federal, or international regulators.
(2) Specify that ownership of information shared with the NAIC and its affiliates and subsidiaries pursuant to this chapter remains with the commissioner and the NAIC's use of the information is subject to the direction of the commissioner.
(3) Require prompt notice to be given to an insurer whose confidential information in the possession of the NAIC pursuant to this chapter is subject to a request or subpoena to the NAIC for disclosure or production; and
(4) Require the NAIC and its affiliates and subsidiaries to consent to intervention by an insurer in any judicial or administrative action in which the NAIC and its affiliates and subsidiaries may be required to disclose confidential information about the insurer and shared with the NAIC and its affiliates and subsidiaries pursuant to this chapter.
IV. The sharing of information by the commissioner pursuant to this chapter shall not constitute a delegation of regulatory authority or rulemaking, and the commissioner is solely responsible for the administration, execution and enforcement of the provisions of this chapter.
V. No waiver of any applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in RSA 401-B:8, III.
VI. Documents, materials or other information in the possession or control of the NAIC pursuant to this chapter shall be confidential by law and privileged, shall not be subject to RSA 91-A, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action.

Source. 2013, 152:1. 2017, 130:2, eff. June 16, 2017.

Section 401-B:9

    401-B:9 Rules and Orders. – The commissioner may, upon notice and opportunity for all interested persons to be heard, issue such rules and orders as shall be necessary to carry out the provisions of this chapter. To assist in the review of any transaction, or to otherwise determine compliance with this chapter, the commissioner may retain, without appropriation under RSA 9 and without qualifying as a department expenditure under RSA 4:15, attorneys, appraisers, independent actuaries, independent certified public accountants, or other professionals and specialists, the cost of which shall be borne by the company subject to such review. The company shall pay the retained professional or specialists directly for their costs. The commissioner shall conduct oversight of such independent reviewers in a manner that is consistent with standards for the use of independent reviewers established by the National Association of Insurance Commissioners in its Financial Condition Examiners Handbook and Market Regulation Handbook and shall ensure that costs are reasonable for the work performed.

Source. 2013, 152:1. 2017, 218:6, eff. July 10, 2017.

Section 401-B:10

    401-B:10 Injunctions; Prohibitions Against Voting Securities; Sequestration of Voting Securities. –
I. Injunctions. Whenever it appears to the commissioner that any insurer or any director, officer, employee, or agent thereof has committed or is about to commit a violation of this chapter or of any rule, regulation, or order issued by the commissioner hereunder, the commissioner may apply to the superior court for the county in which the principal office of the insurer is located or if such insurer has no office in this state then to the superior court for Merrimack county for an order enjoining the insurer or director, officer, employee, or agent thereof from violating or continuing to violate this chapter or any rule, regulation or order, and for such other equitable relief as the nature of the case and the interest of the insurer's policyholders, creditors, and shareholders or the public may require.
II. Voting of Securities; When Prohibited. No security which is the subject of any agreement or arrangement regarding acquisition, or which is acquired or to be acquired, in contravention of the provisions of this chapter or of any rule, regulation, or order issued by the commissioner hereunder may be voted at any shareholders' meeting, or may be counted for quorum purposes, and any action of shareholders requiring the affirmative vote of a percentage of shares may be taken as though the securities were not issued and outstanding; but no action taken at any such meeting shall be invalidated by the voting of the securities, unless the action would materially affect control of the insurer or unless the courts of this state have so ordered. If an insurer or the commissioner has reason to believe that any security of the insurer has been or is about to be acquired in contravention of the provisions of this chapter or of any rule, regulation, or order issued by the commissioner hereunder; the insurer or the commissioner may apply to the superior court for Merrimack county or to the superior court for the county in which the insurer has its principal place of business to enjoin any offer, request, invitation, agreement or acquisition made in contravention of RSA 401-B:3 or any rule, regulation, or order issued by the commissioner thereunder to enjoin the voting of any security so acquired, to void any vote of the security already cast at any meeting of shareholders, and for such other equitable relief as the nature of the case and the interest of the insurer's policyholders, creditors and shareholders or the public may require.
III. Sequestration of Voting Securities. In any case where a person has acquired or is proposing to acquire any voting securities in violation of this chapter or any rule, regulation, or order issued by the commissioner hereunder, the superior court for Merrimack county or the superior court for the county in which the insurer has its principal place of business may, on such notice as the court deems appropriate, upon the application of the insurer or the commissioner seize or sequester any voting securities of the insurer owned directly or indirectly by the person, and issue such order as may be appropriate to effectuate the provisions of this chapter. Notwithstanding any other provisions of law, for the purposes of this chapter, the situs of the ownership of the securities of domestic insurers shall be deemed to be in this state.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:11

    401-B:11 Sanctions. –
I. Any insurer failing, without just cause, to file any registration statement as required in this chapter shall be required, after notice and hearing, to pay a penalty of $2,500 for each day's delay, to be recovered by the commissioner. The commissioner may reduce the penalty if the insurer demonstrates to the commissioner that the imposition of the penalty would constitute a financial hardship to the insurer.
II. Every director or officer of an insurance holding company system who knowingly violates, participates in, or assents to, or who knowingly shall permit any of the officers or agents of the insurer to engage in transactions or make investments which have not been properly reported or submitted pursuant to RSA 401-B:4, I; RSA 401-B:5, I(b) and II or which violate this chapter, shall pay, in individual capacity, a civil forfeiture of not more than $2,500 per violation, after notice and hearing before the commissioner. In determining the amount of the civil forfeiture, the commissioner shall take into account the appropriateness of the forfeiture with respect to the gravity of the violation, the history of previous violations, and such other matters as justice may require.
III. Whenever it appears to the commissioner that any insurer subject to this chapter or any director, officer, employee, or agent thereof has engaged in any transaction or entered into a contract which is subject to RSA 401-B:5 and which would not have been approved had the approval been requested, the commissioner may order the insurer to cease and desist immediately any further activity under that transaction or contract. After notice and hearing the commissioner may also order the insurer to void any contracts and restore the status quo if the action is in the best interest of the policyholders, creditors, or the public.
IV. Whenever it appears to the commissioner that any insurer or any director, officer, employee, or agent thereof has committed a willful violation of this chapter, the commissioner may cause criminal proceedings to be instituted pursuant to RSA 400-A:16, V by the court for the county in which the principal office of the insurer is located of if the insurer has no office in this state, then by the Merrimack County superior court against the insurer or the responsible director, officer, employee, or agent thereof. Any insurer which willfully violates this chapter may be fined pursuant to RSA 651:2, IV. Any individual who willfully violates this chapter may be fined in his or her individual capacity pursuant to RSA 651:2, IV or be imprisoned for not more than one to 3 years or both.
V. Any officer, director, or employee of an insurance holding company system who willfully and knowingly subscribes to or makes or causes to be made any false statements or false reports or false filings with the intent to deceive the commissioner in the performance of his or her duties under this chapter, upon conviction shall be imprisoned for not more than one to 3 years or fined pursuant to RSA 651:2, IV or both. Any fines imposed shall be paid by the officer, director, or employee in his or her individual capacity.
VI. Whenever it appears to the commissioner that any person has committed a violation of RSA 401-B:3 and which prevents the full understanding of the enterprise risk to the insurer by affiliates or by the insurance holding company system, the violation may serve as an independent basis for disapproving dividends or distributions and for placing the insurer under an order of supervision in accordance with RSA 402-C.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:12

    401-B:12 Receivership. – Whenever it appears to the commissioner that any person has committed a violation of this chapter which so impairs the financial condition of a domestic insurer as to threaten insolvency or make the further transaction of business by it hazardous to its policyholders, creditors, shareholders, or the public, the commissioner may proceed as provided in RSA 402-C to take possession of the property of such domestic insurer and to conduct its business.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:13

    401-B:13 Recovery. –
I. If an order for liquidation or rehabilitation of a domestic insurer has been entered, the receiver appointed under the order shall have a right to recover on behalf of the insurer:
(a) From any parent corporation or holding company or person or affiliate who otherwise controlled the insurer, the amount of distributions (other than distributions of shares of the same class of stock) paid by the insurer on its capital stock; or
(b) Any payment in the form of a bonus, termination settlement, or extraordinary lump sum salary adjustment made by the insurer or its subsidiary to a director, officer or employee, where the distribution or payment pursuant to subparagraphs (a) or (b) is made at any time during the one year preceding the petition for liquidation, conservation or rehabilitation, as the case may be, subject to the limitations of paragraphs II-IV.
II. No distribution shall be recoverable if the parent or affiliate shows that when paid the distribution was lawful and reasonable, and that the insurer did not know and could not reasonably have known that the distribution might adversely affect the ability of the insurer to fulfill its contractual obligations.
III. Any person who was a parent corporation or holding company or a person who otherwise controlled the insurer or affiliate at the time the distributions were paid shall be liable up to the amount of distributions or payments under paragraph I which the person received. Any person who otherwise controlled the insurer at the time the distributions were declared shall be liable up to the amount of distributions that would have been received if they had been paid immediately. If 2 or more persons are liable with respect to the same distributions, they shall be jointly and severally liable.
IV. The maximum amount recoverable under this section shall be the amount needed in excess of all other available assets of the impaired or insolvent insurer to pay the contractual obligations of the impaired or insolvent insurer and to reimburse any guaranty funds.
V. To the extent that any person liable under paragraph III is insolvent or otherwise fails to pay claims due from it, its parent corporation or holding company or person who otherwise controlled it at the time the distribution was paid shall be jointly and severally liable for any resulting deficiency in the amount recovered from the parent corporation or holding company or person who otherwise controlled it.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:14

    401-B:14 Revocation, Suspension, or Nonrenewal of Insurer's License. – Whenever it appears to the commissioner that any person has committed a violation of this chapter which makes the continued operation of an insurer contrary to the interests of policyholders or the public, the commissioner may, after giving notice and opportunity to be heard, suspend, revoke or refuse to renew the insurer's license or authority to do business in this state for such period as the commissioner finds is required for the protection of policyholders or the public. Any such determination shall be accompanied by specific findings of fact and conclusions of law.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:15

    401-B:15 Appeal. –
I. Judicial Review, Mandamus. Any person aggrieved by any act, determination, rule, regulation, or order of any other action of the commissioner pursuant to this chapter may appeal in accordance with RSA 541. The court shall conduct its review without a jury and by trial de novo, except that if all parties, including the commissioner, so stipulate, the review shall be confined to the record. Portions of the record may be introduced by stipulation into evidence in a trial de novo as to those parties so stipulating.
II. The filing of an appeal pursuant to this section shall stay the application of any rule, regulation, order, or other action by the commissioner to the appealing party unless the court, after giving the party notice and an opportunity to be heard, determines that a stay would be detrimental to the interest of policyholders, shareholders, creditors or the public.
III. Any person aggrieved by any failure of the commissioner to act or make a determination required by this chapter may petition the Merrimack county superior court for a writ of mandamus or a peremptory mandamus directing the commissioner to act or make a determination.

Source. 2013, 152:1, eff. Jan. 1, 2014.

Section 401-B:16

    401-B:16 Time Limits for Agency Action. – The time limits specified in this chapter for the commissioner to act on any holding company application, petition, or request and the provisions in this chapter under which an application, petition, or request may or may not be deemed to be approved when the commissioner does not act after a specified period of time shall control, and RSA 541-A:29 and RSA 541-A:29-a shall not apply.

Source. 2018, 279:21, eff. Jan. 1, 2019.