Section 27-31B-8 Formation of Captive Insurance Companies in This State.

(a) A pure captive insurance company, an agency captive insurance company, a reinsurance captive insurance company, a special purpose financial captive insurance company, or a protected cell captive insurance company shall be formed as a stock or mutual insurer, or as a nonprofit or limited liability company with its capital divided into units and held by the stockholders, members, or other equivalent as allowed by law. (b) An association captive insurance company, an industrial insured captive insurance company, or a risk retention group may be formed in any of the following ways: (1) Organized as a stock insurer with its capital divided into share units and held by the stockholders, members, or other equivalent as allowed by law. (2) Organized as a mutual insurer without capital stock, the governing body of which is elected by the member organizations of its association. (3) Organized as a reciprocal insurer in accordance with Chapter 31. (4) Organized as a manager-managed limited liability company. (c) A captive insurance company incorporated or organized in this state shall have one or more incorporators or one or more organizers, at least one of which shall be a resident of this state. (d)(1) In the case of a captive insurance company formed as a corporation, before the articles of incorporation are transmitted to the Secretary of State, the incorporators shall petition the commissioner to issue a certificate setting forth the commissioner’s finding that the establishment and maintenance of the proposed corporation will promote the general good of the state. In arriving at this finding, the commissioner shall consider all of the following: a. The character, reputation, financial standing, and purposes of the incorporators. b. The character, reputation, financial responsibility, insurance experience, and business qualifications of the officers and directors. c. Any other aspects as the commissioner shall deem advisable. (2) The articles of incorporation, the certificate, and the organization fee shall be transmitted to the Secretary of State, who shall record both the articles of incorporation and the certificate. (e) In the case of a captive insurance company formed as a reciprocal insurer, the organizers shall petition the commissioner to issue a certificate setting forth the commissioner’s finding that the establishment and maintenance of the proposed association will promote the general good of the state. In arriving at this finding, the commissioner shall consider all of the following: (1) The character, reputation, financial standing, and purposes of the organizers. (2) The character, reputation, financial responsibility, insurance experience, and business qualifications of the attorney-in-fact. (3) The competence of any person who, pursuant to a contract with the captive insurance company, will manage the affairs of the company. (4) The competence, reputation, and experience of the company’s legal counsel relating to the regulation of insurance. (5) The company’s business plan. (6) Any other aspects as the commissioner shall deem advisable. (f) In the case of a captive insurance company licensed as a branch captive insurance company, the alien captive insurance company shall petition the commissioner to issue a certificate setting forth the commissioner’s finding that, after considering the character, reputation, financial responsibility, insurance experience, and business qualifications of the officers and directors of the alien captive insurance company, the competence of any person who, pursuant to a contract with the captive insurance company, will manage the affairs of the company, the competence, reputation, and experience of the company’s legal counsel relating to the regulation of insurance, and the company’s business plan, the licensing and maintenance of the branch operations will promote the general good of the state. The alien captive insurance company may register to do business in this state after the commissioner’s certificate is issued. (g) The capital stock of a captive insurance company incorporated as a stock insurer may be authorized with no par value. (h) In the case of a captive insurance company, at least one of the members of the board of directors, managing members, or equivalents as allowed by law, shall be a resident of this state. (i) In the case of a captive insurance company formed as a reciprocal insurer, at least one of the members of the subscribers’ advisory committee shall be a resident of this state. (j) Captive insurance companies formed as corporations under this chapter shall have the privileges of and be subject to the general corporation law as well as the applicable provisions of this chapter. In the event of conflict between the general corporation law and this chapter, the latter shall control. The provisions of this title pertaining to mergers, consolidations, and conversions shall apply in determining the procedures to be followed by captive insurance companies in carrying out any of the transactions described therein, except that the commissioner may waive or modify the requirements for public notice and hearing in accordance with rules that the commissioner may adopt addressing categories of transactions. If a notice of public hearing is required, but no one requests a hearing, then the commissioner may cancel the hearing. (k)(1) Captive insurance companies formed as reciprocal insurers under this chapter shall have the privileges and be subject to Chapter 31 in addition to the applicable provisions of this chapter. In the event of a conflict between Chapter 31 and this chapter, the latter shall control. To the extent a reciprocal insurer is made subject to other provisions of this title pursuant to Chapter 31, the provisions shall not be applicable to a reciprocal insurer formed under this chapter unless the provisions are expressly made applicable to captive insurance companies under this chapter. (2) In addition to subdivision (1), captive insurance companies organized as reciprocal insurers that are industrial insured groups as defined in Section 27-31B-2(19)b. shall have the privileges and be subject to Chapter 31A in addition to the applicable provisions of this chapter. (l) The articles of incorporation, organization, or equivalent allowed by law, or bylaws of a captive insurance company, may authorize a quorum of a board of directors to consist of no fewer than one-third of the fixed or prescribed number of directors determined under Title 10A. (m) The subscribers’ agreement or other organizing document of a captive insurance company formed as a reciprocal insurer may authorize a quorum of a subscribers’ advisory committee to consist of no fewer than one-third of its members.