17:47B-5 Incorporation, organization of captive insurance company.

5. a. A pure captive insurance company may be incorporated or organized as:

(1) a stock insurer with its capital divided into shares and held by the stockholders;

(2) a nonprofit corporation with one or more members; or

(3) a manager-managed limited liability company.

b. An association captive insurance company or an industrial insured captive insurance company may be:

(1) incorporated as a stock insurer with its capital divided into shares and held by the stockholders;

(2) incorporated as a mutual corporation;

(3) organized as a reciprocal insurer in accordance with the provisions of P.L.1945, c.161 (C.17:50-1 et seq.); or

(4) organized as a manager-managed limited liability company.

c. A captive insurance company incorporated or organized in this State shall have not less than three incorporators or three organizers of whom at least one shall be a resident of this State.

d. In the case of a captive insurance company:

(1) formed as a corporation: (a) 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 a finding the commissioner shall consider:

(i) the character, reputation, financial standing and purposes of the incorporators or organizers;

(ii) the character, reputation, financial responsibility, insurance experience and business qualifications of the officers and directors; and

(iii) any other aspects of the proposed corporation as the commissioner deems advisable.

(b) the articles of incorporation, certificate and organization fee shall be transmitted to the Secretary of State, who shall record both the articles of incorporation and the certificate.

(2) 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 a finding the commissioner shall consider the items set forth in sub-subparagraphs (i), (ii) and (iii) of subparagraph (a) of paragraph (1) of this subsection as applicable to a reciprocal insurer.

(3) formed as a limited liability company, before the articles of organization are transmitted to the Secretary of State, the organizers shall petition the commissioner to issue a certificate setting forth the commissioner's finding that the establishment and maintenance of the proposed company will promote the general good of the State. In arriving at a finding, the commissioner shall consider the items set forth in subsubparagraphs (i), (ii) and (iii) of subparagraph (a) of paragraph (1) of this subsection as applicable to a limited liability company.

e. The capital stock of a captive insurance company incorporated as a stock insurer may be authorized with no par value.

f. In the case of a captive insurance company:

(1) formed as a corporation, at least one of the members of the board of directors shall be a resident of this State;

(2) formed as a reciprocal insurer, at least one of the members of the subscribers' advisory committee shall be a resident of this State;

(3) formed as a limited liability company, at least one of the managers shall be a resident of this State.

g. Other than a captive insurance company formed as a limited liability company pursuant to the "New Jersey Limited Liability Company Act," P.L.1993, c.210 (C.42:2B-1 et seq.) or as a nonprofit corporation pursuant to the "New Jersey Nonprofit Corporation Act," N.J.S.15A:1-1 et seq., a captive insurance company formed as a corporation under the provisions of this act shall have the privileges and be subject to the provisions of the "New Jersey Business Corporation Act," N.J.S.14A:1-1 et seq., as well as the applicable provisions contained in this act. In the event of a conflict between the provisions of the "New Jersey Business Corporation Act," N.J.S.14A:1-1 et seq., and the provisions of this act, this act shall control.

h. A captive insurance company formed under the provisions of this act:

(1) as a limited liability company shall have the privileges and be subject to the provisions of the "New Jersey Limited Liability Company Act," P.L.1993, c.210 (C.42:2B-1 et seq.) as well as the applicable provisions contained in this act. In the event of a conflict between the provisions of the "New Jersey Limited Liability Company Act," P.L.1993, c.210 (C.42:2B-1 et seq.) and the provisions of this act, this act shall control; or

(2) as a nonprofit corporation shall have the privileges and be subject to the provisions of the "New Jersey Nonprofit Corporation Act," N.J.S.15A:1-1 et seq., as well as the applicable provisions contained in this act. In the event of a conflict between the provisions of the "New Jersey Nonprofit Corporation Act," N.J.S.15A:1-1 et seq., and the provisions of this act, this act shall control.

i. The procedures to be followed by a captive insurance company in carrying out a merger, consolidation, conversion, mutualization or redomestication shall be prescribed by the commissioner by regulation.

j. A captive insurance company formed as a reciprocal insurer under the provisions of this act shall have the privileges and be subject to the provisions of P.L.1945, c.161 (C.17:50-1 et seq.) in addition to the applicable provisions of this act. In the event of a conflict between the provisions of P.L.1945, c.161 (C.17:50-1 et seq.) and the provisions of this act, this act shall control.

k. The articles of incorporation or bylaws of a captive insurance company formed as a corporation may authorize a quorum of its board of directors to consist of not less than one-third of the fixed or prescribed number of directors determined under applicable provisions of the "New Jersey Business Corporation Act," N.J.S.14A:1-1 et seq., or the "New Jersey Nonprofit Corporation Act," N.J.S.15A:1-1 et seq.

l. The subscribers' agreement or other organizing document of a captive insurance company formed as a reciprocal insurer may authorize a quorum of its subscribers' advisory committee to consist of not less than one-third of the number of its members.

m. With the commissioner's approval, a captive insurance company organized as a stock insurer may convert to a nonprofit corporation with one or more members by filing with the Secretary of State an irrevocable election for a conversion, provided that:

(1) the irrevocable election certifies that, at the time of the company's organization and at all times thereafter, the company conducted its business in a manner consistent with a nonprofit purpose; and

(2) at the time of the filing of its irrevocable election, the company files with both the commissioner and the Secretary of State amended and restated articles of incorporation consistent with the provisions of this act and the "New Jersey Nonprofit Corporation Act," N.J.S.15A:1-1 et seq., duly authorized by the corporation.

L.2011, c.25, s.5.