Authorizes and empowers the College Retirement Equities Fund (CREF) to merge with the Teachers Insurance and Annuity Association (TIAA) with CREF ceasing to be a corporate entity and TIAA as the surviving entity.
STATE OF NEW YORK
________________________________________________________________________
2679--B
Cal. No. 1180
2023-2024 Regular Sessions
IN SENATE
January 24, 2023
___________
Introduced by Sen. BRESLIN -- read twice and ordered printed, and when
printed to be committed to the Committee on Insurance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee, ordered
to first and second report, ordered to a third reading, amended and
ordered reprinted, retaining its place in the order of third reading
AN ACT in relation to authorizing and empowering CREF to combine with
TIAA, with TIAA continuing in existence as the surviving entity
following such combination and with CREF ceasing to be a corporate
entity; and to repeal chapter 124 of the laws of 1952, relating to
incorporating College Retirement Equities Fund for the benefit of the
teaching profession
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Chapter 124 of the laws of 1952, relating to incorporating
2 College Retirement Equities Fund for the benefit of the teaching profes-
3 sion, is REPEALED.
4 § 2. Definitions. For purposes of this act the following terms shall
5 have the following meanings:
6 (a) "Attorney General" shall mean the attorney general of the State of
7 New York;
8 (b) "CREF" shall mean the College Retirement Equities Fund, formed
9 pursuant to chapter 124 of the laws of 1952 as a companion organization
10 to TIAA for the issuance of variable annuity contracts;
11 (c) "CREF Board of Governors" shall mean the individuals designated as
12 governors of CREF, pursuant to chapter 124 of the laws of 1952, who are
13 the sole members of CREF;
14 (d) "CREF Board of Trustees" shall mean, collectively, the trustees of
15 CREF as appointed in accordance with applicable law and the organiza-
16 tional documents of CREF;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07358-04-3
S. 2679--B 2
1 (e) "Plan of Combination" shall mean, collectively, the agreement and
2 plan of combination of TIAA and CREF adopted and approved in accordance
3 with the provisions of this act to effectuate the combination;
4 (f) "Superintendent" shall mean the superintendent of the New York
5 state department of financial services;
6 (g) "TIAA" shall mean the Teachers Insurance and Annuity Association
7 of America, an insurance company formed pursuant to the laws of New
8 York;
9 (h) "TIAA Board of Governors" shall mean the corporation formed pursu-
10 ant to chapter 880 of the laws of 1937, which is the sole owner of the
11 issued and outstanding stock of TIAA;
12 (i) "TIAA Board of Trustees" shall mean, collectively, the trustees of
13 TIAA as appointed in accordance with applicable law and the organiza-
14 tional documents of TIAA; and
15 (j) "TIAA Separate Account" shall mean the separate account of TIAA
16 created in connection with the Plan of Combination.
17 § 3. (a) Subject to the provisions of this act and the terms set
18 forth in the Plan of Combination, CREF is hereby authorized and
19 empowered to combine with TIAA, with TIAA continuing in existence as the
20 surviving entity following such combination and with CREF ceasing to be
21 a corporate entity. TIAA shall continue to be an insurance company
22 established pursuant to the insurance law of the State of New York,
23 operating without profit to TIAA or its stockholders. The TIAA Separate
24 Account shall be subject to the insurance law of the State of New York,
25 and shall also operate without profit to itself, TIAA, or TIAA's stock-
26 holders. Notwithstanding the foregoing, neither the combination nor any
27 transactions contemplated by the Plan of Combination shall cause TIAA,
28 as the surviving entity, or the TIAA Separate Account, to be or become
29 subject to the not-for-profit corporation law. The TIAA Board of Gover-
30 nors shall remain subject to the not-for-profit corporation law.
31 (b) Such combination shall be deemed a merger under the laws of the
32 state of New York, including any laws applicable to insurance companies
33 or not-for-profit corporations.
34 (c) The following procedures shall apply with respect to the review
35 and approval of the Plan of Combination:
36 (1) The Plan of Combination shall contain the proposed terms of the
37 combination, including any allocation of anticipated tax benefits of the
38 combination, and, to the extent applicable to the combination, informa-
39 tion which would be included in a plan of merger pursuant to paragraph
40 (a) of section 902 of the not-for-profit corporation law.
41 (2) Prior to adopting the Plan of Combination, the TIAA Board of Trus-
42 tees and the CREF Board of Trustees shall each make an independent
43 determination that the proposed combination is fair, reasonable and in
44 their respective corporation's best interest.
45 (3) The TIAA Board of Trustees and the CREF Board of Trustees, upon
46 approving the Plan of Combination, shall submit such Plan of Combination
47 to a stockholder or member vote, as follows:
48 (i) In the case of CREF, the Plan of Combination shall be approved by
49 the vote of two-thirds of the individual governors of the CREF Board of
50 Governors, as the members of CREF, in accordance with the procedures set
51 forth in section 903 of the not-for-profit corporation law;
52 (ii) In the case of TIAA, the Plan of Combination shall be approved by
53 the TIAA Board of Governors, as the sole stockholder of TIAA, by the
54 vote of two-thirds of the individual governors of the TIAA Board of
55 Governors; and
S. 2679--B 3
1 (iii) Notice of the meeting at which the vote on the Plan of Combina-
2 tion will take place shall be provided to each individual governor of
3 the CREF Board of Governors and to the TIAA Board of Governors, as sole
4 stockholder of TIAA. A copy of the Plan of Combination shall accompany
5 such notice.
6 (4) Following the receipt of the approval of the members of CREF and
7 the sole stockholder of TIAA, TIAA and CREF shall submit to the Attorney
8 General the following documents:
9 (i) a certified copy of the adopted Plan of Combination;
10 (ii) an affidavit from a duly authorized officer of each of TIAA and
11 CREF certifying that all necessary board approvals to adopt the Plan of
12 Combination have been obtained, which shall include a statement affirm-
13 ing (A) that the Plan of Combination was approved at a meeting of the
14 Board of Trustees duly called and held by the vote required under the
15 applicable corporation's charter, by-laws or other governing instrument,
16 (B) the number of trustees present at such meeting, (C) the total number
17 of trustees on the board, (D) the requirements for quorum, and (E) the
18 final vote count for and against adoption of the Plan of Combination at
19 such meeting. A copy of the resolution approving the Plan of Combination
20 shall be attached as an exhibit to the affidavit;
21 (iii) an affidavit from a duly authorized officer of each of TIAA and
22 CREF certifying that all necessary stockholder or member approvals have
23 been obtained, including (A) in the case of CREF, a statement that the
24 Plan of Combination has been approved by the vote of not less than two-
25 thirds of the individual governors of the CREF Board of Governors, as
26 the members of CREF, together with a copy of the resolution of the
27 members approving the Plan of Combination; (B) in the case of TIAA, a
28 statement that the Plan of Combination has been approved by the TIAA
29 Board of Governors, as the sole stockholder of TIAA, by a vote of not
30 less than two-thirds of the individual governors, together with a copy
31 of the stockholder resolution approving the Plan of Combination; and (C)
32 in the case of each of TIAA and CREF, a statement whether any votes
33 against adoption of the resolution approving the Plan of Combination
34 were cast at the meeting at which each such resolution was adopted;
35 (iv) copies of the charters, by-laws and any other governing instru-
36 ments, including amendments, for each of TIAA and CREF; and
37 (v) a statement that neither TIAA nor CREF, respectively, has any
38 charitable funds or other charitable assets, whether restricted or unre-
39 stricted, that will be required to be returned, transferred or conveyed
40 to any third party by reason of the combination.
41 (d) If it shall appear, to the satisfaction of the Attorney General,
42 that (i) the terms and conditions of the combination are fair and
43 reasonable to CREF (as the non-surviving corporation) and to the annui-
44 tants, certificate-holders and participants of both TIAA and CREF, and
45 (ii) the procedural requirements set forth in subdivision (c) of this
46 section have been satisfied, the Attorney General shall approve the Plan
47 of Combination.
48 (e) Upon obtaining the respective approvals of the members of CREF and
49 the sole stockholder of TIAA, the Plan of Combination shall be submitted
50 to the Superintendent, for review and approval in accordance with the
51 procedures set forth in section 7105 of the insurance law.
52 (f) Thereafter, once all other required regulatory approvals to effec-
53 tuate the combination have been obtained, TIAA shall file a certified
54 copy of the Plan of Combination, with the approvals of the Superinten-
55 dent and the Attorney General affixed thereto, in the office of the
S. 2679--B 4
1 clerk of the county of New York. Upon the completion of such filing, the
2 combination shall become effective.
3 § 4. (a) At the effective time of and pursuant to the Plan of Combina-
4 tion, all assets and liabilities of CREF including causes of action and
5 defenses thereto, shall vest by operation of law in TIAA, and all vari-
6 able annuity contracts and certificates issued by CREF and in force at
7 the effective time of the combination, shall be and become TIAA variable
8 annuity contracts and certificates as of the effective time of the
9 combination; provided, however, that at the effective time of the combi-
10 nation: (i) without further act or deed, the assets and liabilities of
11 CREF relating to the outstanding variable annuity contracts and certif-
12 icates of CREF shall immediately be assets and liabilities of and allo-
13 cated to the TIAA Separate Account without such assets becoming general
14 account assets of TIAA; and (ii) each investment account of CREF imme-
15 diately prior to the combination shall comprise an investment sub-ac-
16 count of the TIAA Separate Account, with the assets and liabilities of
17 each such investment account vesting immediately and directly in that
18 investment sub-account.
19 (b) At the effective time, TIAA shall assume the obligations of all
20 CREF contracts and certificates, and all holders of CREF contracts and
21 certificates shall be notified of the combination.
22 (c) At all times the assets of the TIAA Separate Account, and of each
23 investment sub-account, shall be segregated from the assets of the
24 general account of TIAA and any other TIAA separate account and invest-
25 ment sub-account. That portion of the assets of the TIAA Separate
26 Account, and of each investment sub-account, not exceeding the reserves
27 and other contract liabilities with respect to the TIAA Separate Account
28 and each investment sub-account, shall not be chargeable with liabil-
29 ities arising out of any other business of TIAA. The income, gains and
30 losses, whether or not realized, from assets allocated to the TIAA Sepa-
31 rate Account, and each investment sub-account, shall be credited to or
32 charged against the TIAA Separate Account and each investment sub-ac-
33 count without regard to other income, gains or losses of TIAA.
34 (d) Any tax benefits realized as a result of the Plan of Combination
35 shall be utilized for the financial benefit of TIAA and TIAA Separate
36 Account participants and shall not be used to determine, pay or increase
37 the amount of compensation paid to officers, trustees, or employees.
38 § 5. This act shall take effect immediately; provided, however, that
39 section one of this act shall take effect at the effective time of the
40 combination of TIAA and CREF pursuant to this act; and provided further,
41 that the superintendent of the New York state department of financial
42 services shall notify the legislative bill drafting commission upon the
43 occurrence of such effective time in order that the commission may main-
44 tain an accurate and timely effective database of the official text of
45 the laws of the State of New York in furtherance of effectuating the
46 provisions of section 44 of the legislative law and section 70-b of the
47 public officers law.
