EXHIBIT A Amended and Restated Plan and Agreement of Merger
EXHIBIT
A
Amended
and Restated Plan and Agreement of Merger
This
Amended and Restated Plan and Agreement of Merger (the "Agreement"), is entered
into on September 4, 2009 by and between NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY, an Ohio stock life insurance company with its statutory office located
Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 ("NLAIC" or the "Surviving
Corporation"), and NATIONWIDE LIFE AND ANNUITY COMPANY OF AMERICA, a Delaware
stock life insurance company with its statutory office located at Xxx Xxxxxxxxxx
Xxxxx, Xxxxxxxx, XX 00000 ("NLACA"). MAC and NLACA are hereinafter sometimes
collectively referred to as the "Constituent Corporations" or individually as a
"Constituent Corporation".
Recitals of
Fact
A. NLAIC is
a stock corporation duly organized and existing under the laws of the State of
Ohio, having been originally incorporated as Nationwide Variable Life Insurance
Company on February 9, 1981, and has on the date hereof authorized capital stock
consisting of 66,000 shares of common stock of the par value of $40.00 per
share, of which, on the date hereof, all of such shares of common stock are
issued and outstanding, all of which shares are owned legally and beneficially
by Nationwide Life Insurance Company ("NLIC"), an Ohio stock insurance
company.
B. NLACA is
a stock corporation duly organized and existing under the laws of the State of
Delaware, having been originally incorporated as the Provident Life and Annuity
Company of America on October 28, 1992, and has on the date hereof authorized
capital stock consisting of 250,000 shares of common stock of the par value of
$10.00 per share, all
of which on the date hereof are issued and outstanding, all of which
shares are owned legally and beneficially by Nationwide Life Insurance Company
of America ("NLICA"), a Pennsylvania stock insurance company.
C. The
Boards of Directors of the Constituent Corporations have deemed it advisable and
in the best interest of said corporations that NLACA be merged with and into
NLAIC as provided herein, and in accordance with the applicable provisions of
the statutes of the State of Delaware and the State of Ohio, respectively that
permit such merger, 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, by
their
respective
Boards of Directors, and intending to be legally bound and in accordance with
the applicable provisions of the laws of the State of Ohio and the State of
Delaware, do hereby agree as follows:
1. Merger. At the
Effective Time (as defined herein), NLACA shall be
merged
(the "Merger") with and into NLAIC, resulting in a single corporation in
accordance with the applicable provisions of the laws of the State of Delaware
and the State of Ohio, with NLAIC being the Surviving Corporation, upon the
terms and conditions set forth herein.
2.Effect of Merger.
Upon and after the Effective Time:
(a) The two
Constituent Corporations shall be a single corporation and NLAIC 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, NLACA shall cease to exist as separate
legal
entity, except as provided by the laws of the State of Ohio, 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 and Annuity 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 Articles of
Incorporation of NLACA shall be cancelled, and the Articles of Incorporation and
Code of Regulations of NLAIC, which shall not be amended in any respect by
reason of this Agreement or the Merger, 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 NLAIC and the officers of NLAIC 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 stack of NLAIC issued
and
outstanding at the Effective Time shall not be changed In any respect by reason
of this Agreement, and 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 NLACA
Shares, As of the Effective Time, each of the issued and outstanding
shares of NLACA, by virtue of the Merger becoming effective, and without any
further action, shall be cancelled and shall cease to represent any ownership
interest in NLACA 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 has been approved by the shareholders of
NLAIC and
NLACA respectively and the Boards of Directors of NLAIC and NLACA respectively.
This Agreement has been submitted for approval or exemption from approval to
(a) the Insurance
Commissioner for the State of Ohio, (b) the Insurance
Commissioner
for the State of Delaware, (c) the Insurance Commissioner of the State of California, and (d)
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 shareholders 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. 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 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 NLACA a Company Merger Endorsement whereby the policyholders of NLACA will be
notified of the Merger and advised that NLAIC, 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 (b) 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. Appointment of Secretary of
State to Accept Service of Process
The
Surviving Corporation agrees that it may be served with process in the State of
Delaware in any proceeding for enforcement of any obligation of any constituent
corporation of Delaware, as well as for enforcement of any obligation of the
surviving corporation arising from the merger, including any suit or other
proceeding to enforce the rights of any stockholders as determined in appraisal
proceedings pursuant to the provisions of Section 262 of the Delaware General
Corporation laws, and irrevocably appoints the Secretary of State of
Delaware as its agent to accept service of process in any such suit or
proceeding. The Secretary of State shall mail any such process to the Surviving
Corporation at:
Nationwide
Life and Annuity Insurance Company
One
Nationwide Plaza, Columbus, 01-143215
(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 4th
day of September, 2009.
ATTEST:
NATIONWIDE LIFE AND ANNUITY INSURANC C • PA
By:
/s/XXXX X. XXXXXXXX
Xxxx X.
Xxxxxxxx
President and Chief Operating
Officer
/s/XXXXXX X. XXXXXX, III
Xxxxxx X.
Xxxxxx, IlI
Vice
President and Secretary
NATIONWIDE
LIFE AND ANNUITY COMPANY OF AMERICA
By:/s/XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
President
/s/XXXXXX X. XXXXXX, III
Xxxxxx X.
Xxxxxx, III
Vice
President and Assistant Secretary
