PLAN AND AGREEMENT OF MERGER
PLAN AND
AGREEMENT OF MERGER
This Plan
and Agreement of Merger (the "Agreement"), is entered into on August 28, 2009 by
and between NATIONWIDE LIFE INSURANCE COMPANY, an Ohio stock life insurance
company with its statutory office located One Nationwide Plaza, Columbus, 0I-1
43215 ("NLIC" or the "Surviving Corporation"), and NATIONWIDE LIFE INSURANCE
COMPANY OF AMERICA, a Pennsylvania stock life insurance company with its
statutory office located at One Nationwide Plaza, Columbus, 01-I 43215
("NLICA"). NLIC and NLICA are hereinafter sometimes collectively referred to as
the "Constituent Corporations" or individually as a "Constituent
Corporation."
Recitals of
Fact
A.NLIC is
a stock corporation duly organized and existing under the laws of the
State
of Ohio,
having been originally incorporated on March 21, 1929, and has on the date
hereof authorized capital stock consisting of 5,000,000 shares of common stock
of the par value of $1.00 per share, of which, on the date hereof, 3,814,779
shares of common stock are issued and outstanding, all of which shares are owned
legally and beneficially by Nationwide Financial Services, Inc. ("NFS"), a
Delaware corporation.
NLICA is
a stock corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania, having been originally incorporated as the
Provident Life and Trust Company of Philadelphia on March 22, 1865, and has on
the date hereof authorized capital stock consisting of 10,000,000 shares of
common stock of the par value of $1 MO per share, all of which on the date
hereof are issued and outstanding, all of which shares are owned legally and
beneficially by NFS.
B.The
Boards of Directors of the Constituent Corporations have deemed it
advisable
and in
the best interest of said corporations that NLICA be merged with and into NLIC
as provided herein and have adopted and approved this Agreement.
NOW
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, $1.00 and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound and in accordance with the applicable provisions of the laws of
the State of Ohio, do hereby agree as follows:
1. Merger. At
the Effective Time (as defined herein), NLICA shall be merged
(the
"Merger") with and into NLIC, upon the terms and conditions set forth
herein.
2. Effect
of Merger. Upon and after the Effective Time:
(a)NLIC
shall be the surviving legal entity of the Merger and shall continue
to
exist as
a domestic stock life insurance company under the laws of the State of Ohio. The
Surviving Corporation shall possess all rights, privileges, powers, franchises,
and immunities, and be subject to all the restrictions, disabilities,
liabilities and duties of each of the Constituent Corporations so merged. The
Surviving Corporation shall possess and own all of the property, real, personal,
and mixed, and all debts owing on whatever account and all other things in
action of or belonging to each of the Constituent Corporations, and such items
shall be transferred to and vested in the Surviving Corporation without further
act or deed. All debts, liabilities, and duties of the respective Constituent
Corporations shall thenceforth attach to the Surviving Corporation and may be
enforced against it to the same extent as if the debts, liabilities, and duties
had been incurred or contracted by
it,
however, all rights of creditors and all liens upon the property of either of
the Constituent Corporations shall be preserved unimpaired, limited in lien to
the property affected by the lien at the Effective Time.
(b)At the
Effective Time. NLICA shall cease to exist as separate legal
entity,
and its
property, rights and obligations shall become the property, rights and
obligations of the Surviving Corporation.
3. Name and State of Domicile
of Surviving Corporation. At and after the Effective Time, the Surviving
Corporation shall continue to be named "Nationwide Life Insurance Company" and
the state of domicile shall remain the State of Ohio. The principal offices of
the Surviving Corporation in Ohio shall continue to be Xxx Xxxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxx 00000.
4. Articles of Incorporation;
Code of Regulations. At and after the Effective Time, the current
Articles of Incorporation and Code of Regulations of NLIC shall continue as the
Articles of Incorporation and Code of Regulations of the Surviving
Corporation.
5. Directors and
Officers. At and after the Effective Time, the members of the Board of
Directors of NLIC and the officers of NLIC shall continue as the members of the
Board of Directors of the Surviving Corporation and officers of the Surviving
Corporation, respectively, until their successors are duly elected and qualified
pursuant to the Articles of Incorporation and Code of Regulations of the
Surviving Corporation.
6. Shares of Survivor.
Each share of the common stock of NLIC issued and
outstanding
at the Effective Time shall thereupon, without further action, remain
outstanding as one share of the common stock of the Surviving Corporation,
without the issuance or exchange of new shares or share certificates, and no
additional shares of the Surviving Corporation shall be issued.
7. Cancellation of the NLICA
Shares. As of the Effective Time, each of the issued
and
outstanding shares of NLICA, by virtue of the Merger becoming effective, and
without any further action, shall be cancelled and shall cease to represent any
ownership interest in NLICA or any other entity.
8,Authorized
Capital of Survivor. The amount, number and class of shares of
the
authorized
capital stock of the Surviving Corporation and the par value thereof immediately
prior to the Effective Time, shall remain the same after the Effective Time,
unless and until changed as provided by law, the Articles of Incorporation and
the Code of Regulations of the Surviving Corporation.
9. No
Consideration for Assistance of Officer and Directors. No director,
officer, agent or employee of the Constituent Corporations shall receive any
fee, commission, compensation or other valuable consideration whatsoever, solely
for in any manner aiding, promoting or assisting in the adoption or approval of
this Agreement.
10. Approvals. This
Agreement shall be submitted for approval or exemption from
approval
to (a) the sole shareholder of NLIC, (b) the sole shareholder of NLICA, (c) the
Insurance Commissioner for the State of Ohio, (d) the Insurance Commissioner for
the Commonwealth of
Pennsylvania,
(e) the Insurance Commissioner of the State of California, and (1) the insurance
regulatory authorities of such other states, if any, which may require such
submission. If and when all such required approvals and exemptions are obtained,
the officers of each of the Constituent Corporations shall be, and they hereby
are authorized and directed to, perform all such further acts, and execute and
deliver to the proper authorities for filing all documents, as may be necessary
or proper to render effective the Merger contemplated by this
Agreement.
11. Conditions
to Completing the Merger. The Merger shall not be effective and
neither
this
Agreement nor Articles of Merger incorporating this Agreement shall be filed
unless and until the following conditions have been fulfilled:
(a)This
Agreement has been approved by the sole shareholder of the
Constituent
Corporations;
and
(b)The
Constituent Corporations have received all consents, approvals or
non-
disapprovals,
or exemptions prescribed by law which are necessary for the consummation of the
Merger, including, without limitation, approvals of all insurance regulatory
authorities and any necessary exemptions, approvals or non-disapprovals of the
Securities and Exchange Commission.
12. Amendment
or Abandonment of
Agreement. Notwithstanding
any of the
provisions
of this Agreement, the Boards of Directors of the Constituent Corporations, at
any time before or after the approval by shareholder of any of them, and prior
to the Effective Time, and for any reason they may deem sufficient and proper,
shall have the power and authority to amend or in the alternative, to abandon
and refrain from making effective the contemplated Merger as set forth herein;
in which case this Agreement shall thereby be cancelled and become null and
void.
13 Effective
Time of Merger. Except as otherwise set forth in this Agreement,
the
effect of
the Merger and the effective time of the merger shall be December 31, 2009 or as
soon as possible thereafter (the "Effective Time").
14. Amendments
and
Modifications. The
parties hereto may amend this Agreement
at any
time prior to the Effective Time by a properly executed writing setting forth
the amendment or modification, and thereafter providing any required notice to
all appropriate insurance regulators.
15. Notice to
Policyholders. The
Surviving Corporation will mail to each
policyholder
of NLICA a Company Merger Endorsement whereby the policyholders of NLICA will be
notified of the Merger and advised that NLIC, as the Surviving Corporation, has
all liability for each such policy. Such endorsements will be mailed within 45
days of the later to occur of (a) the Effective Time, or (h) the date the
endorsement form receives all necessary approval from the insurance regulatory
authorities of any states, if any, which may require such prior approval. The
Constituent Corporations may also engage in alternative methods of policyholder
notification where
such
alternative methods are necessary to comply with notification requirements under
the insurance laws of a particular jurisdiction.
16. Express Assumption of NLICA
Closed Block Obligations. The Surviving Corporation hereby
expressly assumes those closed block (the "Closed Block") obligations set forth
in Pennsylvania Insurance Department Order No. ID-RC-02-15, an excerpt of which
is attached hereto, which order was issued at the time of the acquisition of
NLICA.
17. Appointment of Secretary of
State to Accept Service of Process
The
parties to this Agreement hereby irrevocably appoint the Secretary of State of
the Commonwealth of Pennsylvania (the "Secretary") to accept service of process
on behalf of NLICA, and notice of matters so served upon the Secretary shall be
directed to the Surviving Corporation at the following address:
Nationwide
Life Insurance Company
Xxx
Xxxxxxxxxx Xxxxx,
Xxxxxxxx,
XX 00000
(signature
page follows immediately)
IN
WITNESS WHEREOF, each of the Boards of Directors of the Constituent
Corporations, pursuant to resolutions or actions in writing unanimously adopted
by written consent, have caused this Agreement to be executed in their corporate
names by their Presidents and attested to by their Secretaries, as of this 28th
day of August, 2009.
ATTEST:
/s/XXXXXX X. XXXXXX III
Xxxxxx X. Xxxxxx III
Vice President and Secretary
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
President and Cheif Operating Officer
ATTEST:
/s/XXXXXX X. XXXXXX III
Xxxxxx X. Xxxxxx III
Vice President and Secretary
NATIONWIDE LIFE INSURANNCE COMPANY OF AMERICA
By: /s/XXXXX
X. XXXXXX
Xxxxx X. Xxxxxx
President
Closed
Block Obligations
Pursuant
to Pennsylvania Insurance Department
Order No.
ID-RC-02-15 (excerpt)
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1(v)
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Provident
Stock [nka Nationwide Life insurance Company of America] shall file its
Closed Block investment policy annually with the Department by March 1 of
each year and pursuant to Section 9.2(c)(i) of the Plan of Conversion,
such filings shall be accompanied by a schedule of transfers between the
Closed Block and Provident Stock's general account that individually or in
a series of similar transaction are in excess of $100,000 in
value.
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1(w)
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Provident
Stock shall provide any contemplated changes to its Closed Block
investment policy to the Department for review and prior written
approval.
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1(x)
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Provident
Stock shall retain an independent actuary to review and analyze the
adequacy of the assets and reserves of the Closed Block as of December 31,
2003 and every three (3) years thereafter, and shall provide the results
of such review and analysis to the Department within ten (10) days of
receipt but no later that July I of the following year, except that this
requirement for an actuarial review and analysis may be waived by the
Department upon application for any year in which the Department has
retained the services of an independent actuary for the purpose of
conducting a financial examination of Provident
Stock.
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1(y)
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Provident
Stock shall bear the cost of all outside advisors and consultants retained
by the Department
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to
monitor the Closed Block after the effective date of the Sponsored
Demutualization.
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1(z)
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In
accordance with section 9.5 of the Plan of Conversion, Provident Stock
shall maintain and
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continue
the 2001 dividend scales for dividend paying participating policies
excluded from the Closed Block and obtain prior written approval from the
Department prior to modifying said dividend
scales.
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All defined terms shall have the
meaning set forth in Order No.
1D-RC-02-15.
