Exhibit 1.1
EXECUTION COPY
Nationwide Financial Services, Inc.
5.625% Senior Notes Due 2015
Underwriting Agreement
New York, New York
February 10, 2003
To the Representatives named in
Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Nationwide Financial Services, Inc., a corporation organized under the
laws of the State of Delaware (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the "Securities"), to be issued
under an indenture (the "Base Indenture") dated as of November 1, 2001, between
the Company and Wilmington Trust Company, as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of November 19, 2001
(the "First Supplemental Indenture"), the Second Supplemental Indenture dated as
of June 24, 2002 (the "Second Supplemental Indenture") and the Third
Supplemental Indenture to be dated as of February 13, 2003 (the "Third
Supplemental Indenture"), each between the Company and the Trustee. The Base
Indenture as supplemented by the First Supplemental Indenture, the Second
Supplemental Indenture and the Third Supplemental Indenture is herein referred
to as the "Indenture". To the extent there are no additional Underwriters listed
on Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file with the
Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As filed,
such final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; on the Effective Date and on
the Closing Date each of the Base Indenture and the Third Supplemental
Indenture did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and, on
the Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances
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under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) Except as disclosed in the Final Prospectus, since the date of the
latest audited financial statements included in the Final Prospectus there
has been no change, nor any development or event involving a prospective
change, which has had, or would reasonably be expected to have, a material
adverse effect (i) on the condition, financial or otherwise, business
affairs, properties or results of operations of, the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) which affects the issuance or validity of
the Securities, (iii) which affects the consummation of any of the
transactions contemplated by this Agreement or (iv) is otherwise material
in the context of the sale of the Securities (a "Material Adverse Effect"),
and, except as disclosed in or contemplated by the Final Prospectus, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(d) All of the issued and outstanding capital stock of each Material
Subsidiary of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and are owned (directly or through
subsidiaries) by the Company free from liens, claims, encumbrances and
defects.
(e) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware and
has the corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and as
described in the Final Prospectus; and the Company is duly qualified as a
foreign corporation to transact business in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to be so
qualified would not have a Material Adverse Effect.
(f) Each Material Subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation and has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Final Prospectus;
and each Material Subsidiary of the Company is duly qualified as a foreign
corporation to transact business in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business except
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where any such failure to be so qualified would not in aggregate have a
Material Adverse Effect.
(g) Each of the Base Indenture and the Third Supplemental Indenture
has been duly authorized by the Company and has been duly qualified under
the Trust Indenture Act with respect to the Securities registered thereby
and, assuming due authorization, execution and delivery thereof by the
Trustee, constitute valid and legally binding instruments of the Company,
enforceable in accordance with their terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, rehabilitation,
reorganization, moratorium or similar laws relating to creditors of
insurance companies or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and will conform in all
material respects to the description thereof contained in the Final
Prospectus; the Securities have been duly authorized and will be duly
executed by the Company and when authenticated in the manner provided for
in the Base Indenture and the Third Supplemental Indenture and delivered
against payment therefor as described in the Final Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, rehabilitation,
reorganization, moratorium or similar laws relating to creditors of
insurance companies or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and will conform in all
material respects to the description thereof contained in the Final
Prospectus.
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, rehabilitation, reorganization, moratorium or similar laws
relating to creditors of insurance companies or affecting the rights of
creditors generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law), except that the remedies of specific performance and injunctive and
other forms of equitable relief are subject to the discretion of the court
before which any proceeding therefor may be brought and except with respect
to the obligations of the Company regarding indemnification and
contribution as provided in Section 8 below, which may be limited by
principles of public policy.
(i) The Company and each of its Material Subsidiaries that is engaged
in the business of insurance (together the "Insurance Entities") (i) are
each in compliance with the requirements of the insurance laws and
regulations of its jurisdiction of incorporation and the insurance laws and
regulations of other jurisdictions which are applicable to the Company and
each Insurance Entity, and (ii) have filed all notices, reports, documents
or other information ("Notices") required to be filed thereunder, in each
of cases (i) and (ii), with such exceptions
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as would not have a Material Adverse Effect; neither the Company nor any
Insurance Entity has received actual notice from any insurance regulatory
authority to the effect that any additional authorization, approval, order,
consent, license, certificate, permit, registration, qualification or other
authorization ("Approvals") from such insurance regulatory authority is
needed to be obtained by the Company or any Insurance Entity in order to
conduct its business as now conducted, except where the failure to obtain
such additional Approvals would not have a Material Adverse Effect; the
Company and each of its Material Subsidiaries has such other Approvals and
has filed all other Notices required under other applicable laws and
regulations issued by the appropriate government or government bodies
necessary to conduct the business now operated by it and as described in
the Final Prospectus, except where the failure to have such Approvals or to
have filed such Notices would not have a Material Adverse Effect, and
neither the Company nor any of its Material Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such Approval which, singularly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(j) Neither the Company nor any of its Material Subsidiaries is in
violation of its charter, certificate or articles of incorporation, bylaws
or code of regulations (or similar organizational document), as the case
may be, nor, except where such default would not have a Material Adverse
Effect, in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its Material Subsidiaries is a party or by which it may
be bound, or to which any of the property or assets of the Company or any
of its Material Subsidiaries is subject.
(k) The execution, delivery and performance of this Agreement, the
Base Indenture and the Third Supplemental Indenture, and the consummation
of the transactions contemplated herein and therein, including without
limitation the issuance, sale and delivery of the Securities by the
Company, will not (A) result in any violation of the charter, certificate
or articles of incorporation, bylaws or code of regulations (or similar
organizational document), as the case may be, of the Company or any of its
Material Subsidiaries or any statute or any order, rule or regulation of
any court or insurance regulatory authority or other governmental agency or
body, (B) require the Approval of any such court or insurance regulatory
authority or other governmental agency or body, except such Approvals as
may be required under state securities or Blue Sky laws, or (C) except as
would not have a Material Adverse Effect, conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Material
Subsidiaries under any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its Material
Subsidiaries is a party or by which it may be bound, or to which any of the
property or assets of the Company or any of its Material Subsidiaries is
subject.
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(l) Other than as set forth in the Final Prospectus, there is no
action, suit or proceeding before or by any court, insurance regulatory
body, arbitrator or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Company, threatened, against or
affecting the Company or any of its Material Subsidiaries, wherein an
unfavorable ruling, finding or decision would have a Material Adverse
Effect.
(m) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus will not be, an "investment company" or
an entity "controlled" by an "investment company" as defined under the
Investment Company Act of 1940 (the "1940 Act") although certain separate
accounts of subsidiaries of the Company, and mutual funds managed and
distributed by the Company and its subsidiaries are required to register as
investment companies under such Act.
(n) Since January 1, 1998, the Company has filed with the Commission
all reports, registrations and statements, together with any required
amendments thereto, that it was required to file pursuant to the Act or the
Exchange Act (the "Reports"). The Reports, when they became effective or
were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(o) Except as set forth in the Final Prospectus, and with respect to
all insurance issued, to the Company's and each of the Company's Material
Subsidiary's knowledge, no other party to any reinsurance, coinsurance or
other similar agreement with any of the Company's Material Subsidiaries is
in default thereunder, except for such defaults that would not reasonably
be expected to have a Material Adverse Effect.
(p) The statutory financial statements of each of the Material
Subsidiaries that is an insurance company, from which certain ratios and
other statistical data contained in the Registration Statement have been
derived, have for each relevant period been prepared in accordance with
accounting practices and procedures of the National Association of
Insurance Commissioners ("NAIC"), as prescribed or permitted by the
Department of Insurance of the State of Ohio or the Insurance Department of
the Commonwealth of Pennsylvania, as appropriate (the "Statutory Accounting
Practices"); and such accounting practices have been applied on a
consistent basis throughout the periods involved, except as disclosed
therein.
(q) The financial statements of the Company and its consolidated
subsidiaries and of Provident Mutual Life Insurance Company ("Provident
Mutual") and its consolidated subsidiaries included in the Registration
Statement and the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, together
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with the related schedules and notes, present fairly the financial position
of the Company and its consolidated subsidiaries, and of Provident Mutual
and its consolidated subsidiaries, respectively, at the dates indicated;
and, for the periods specified, (i) the statements of operations,
shareholders' equity and cash flows present fairly the results of
operations, shareholders' equity and cash flows of the Company and its
consolidated subsidiaries, and (ii) the statements of operations, equity
and cash flows present fairly the results of operations, equity and cash
flows of Provident Mutual and its consolidated subsidiaries; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP or Statutory
Accounting Practices, where applicable, the information required to be
stated therein. The selected financial data and the summary financial
information included in the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement. The
pro forma consolidated financial statements and the related notes thereto
included in the Registration Statement and Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus (or any amendment or
supplement thereto) present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled
on the bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
(r) Each of the Material Subsidiaries that is a broker/dealer, where
applicable, is registered with the Commission and with each other
governmental authority with which it is required to register in order to
conduct its business as now conducted, and is in compliance with all
applicable United States federal, state, local or foreign statutes, laws,
ordinances, regulations, rules, codes, orders, permits, other requirements
or rules of law (collectively, the "Laws"), except where the failure to
comply would not have a Material Adverse Effect. Such Material Subsidiaries
have filed all forms, reports, statements and other documents required by
Law to be filed by them with the Commission, all other reports (periodic or
otherwise) and registration statements, including, without limitation, in
connection with sales of variable annuity or variable life contracts, and
all amendments and supplements to all such reports and registration
statements except where failure to file would not have a Material Adverse
Effect; and all such forms, reports, statements and other documents did not
at the time they were filed (at the time they became effective and so long
as they remain effective in the case of registration statements and
amendments thereto) contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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(s) Each of the separate accounts of the Material Subsidiaries that is
an insurance company that is required to be registered as an investment
company under the 1940 Act is so registered. All forms, reports, statements
and other documents required by Law to be filed with the Commission by or
on behalf of each of the separate accounts of such Material Subsidiaries,
including, without limitation, all registration statements and all
amendments and supplements to all such registration statements, in
connection with sales of variable life insurance policies and variable
annuity contracts, have been so filed by or on behalf of such separate
accounts except where failure to file would not have a Material Adverse
Effect; and all such forms, reports, statements and other documents,
including, without limitation, those to be filed after the date hereof, did
not at the time they were filed (at the time they become effective and so
long as they remain effective in the case of registration statements and
amendments thereto), or will not at the time they are filed (at the time
they become effective and so long as they remain effective in the case of
registration statements and amendments thereto), contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
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5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Final
Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
(1) notify the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement which will correct
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such statement or omission or effect such compliance and (3) supply any
supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production
of all documents, in paper or electronic form, relating to the offering of
the Securities.
(e) The Company will use its best efforts, in cooperation with the
Underwriters, to arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc. ("NASD"), in
connection with its review of the offering of the Securities; provided,
that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(f) The Company will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any debt securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I hereto.
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause
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or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(h) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Final Prospectus under the
caption "Use of Proceeds."
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have requested and caused LeBoeuf, Lamb, Xxxxxx
& XxxXxx, L.L.P., special counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Company is an existing corporation in good standing under
the laws of the state of its incorporation, with corporate power and
authority to own its properties and conduct its business as described
in the Final Prospectus;
(ii) each of the Base Indenture and the Third Supplemental
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act with
respect to the Securities registered thereby and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
conservatorship, receivership,
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moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles
(regardless of whether such principles are considered in a proceeding
at law or in equity);
(iii) the Securities have been duly authorized, executed and
delivered by the Company, and when paid for as described in this
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, conservatorship, receivership, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether such
principles are considered in a proceeding at law or in equity);
(iv) the execution, delivery and performance of this Agreement,
the Base Indenture and the Third Supplemental Indenture, and the
issuance and sale of the Securities by the Company, will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, the Restated Certificate of Incorporation
or Restated Bylaws of the Company;
(v) the Company meets the requirements for use of Form S-3 under
the regulations of the Act; the Registration Statement has become
effective under the Act; the required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and the notes thereto and the related statements,
supporting schedules and other financial and statistical information
included or referred to therein or omitted therefrom, the documents
filed as part thereof or previously filed with the Commission and
incorporated therein by reference to Item 12 of Form S-3, and the
statements of eligibility and qualification of the Trustee under the
Indenture, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act and the Trust Indenture Act and the respective rules
thereunder;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the statements in the Basic Prospectus and the Final
Prospectus under the captions "Description of Capital Stock",
"Description of the Debt Securities", and "Description of the Notes",
insofar as they
12
purport to constitute summaries of the terms of the documents referred
to therein, fairly summarize the terms of such documents or fairly and
accurately present the information disclosed therein in all material
respects;
(viii) the Company is not, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as defined under the 1940 Act, although certain separate
accounts of subsidiaries of the Company, and mutual funds managed and
distributed by the Company and its subsidiaries are required to
register as investment companies under the 1940 Act;
(ix) the Securities, the Base Indenture and the Third
Supplemental Indenture conform in all material respects to the
descriptions thereof contained in the Final Prospectus; and
(x) no consent, approval, authorization or order of, or filing
with, any U.S. Federal or state governmental agency or body or court
is required for the consummation by the Company of the transactions
contemplated by this Agreement in connection with the issuance or sale
of the Securities by the Company, except such as have been obtained
and made under the Act, the Exchange Act, the rules and regulations of
the Commission, the by-laws of the NASD, or the Trust Indenture Act
and such as may be required under any state securities laws.
Such counsel also shall state that no facts have come to the attention
of such counsel that have caused it to believe that on the Effective Date or at
the Execution Time the Registration Statement contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Final Prospectus as of its date and on the Closing Date included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than the
financial statements and schedules and other financial and statistical
information contained therein, as to which such counsel need express no
opinion).
In making the statement referred to in the preceding paragraph, such
counsel shall state that their opinion and the belief are based upon their
participation in the preparation of the Registration Statement and Final
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
In rendering the foregoing opinions, such counsel may rely as to
matters of fact upon certificates of the officers of the Company and its
subsidiaries, as to matters involving good standing, authorization to do
business and other matters within their
13
knowledge, upon certificates of public officials, and, as to matters involving
the application of laws of any jurisdiction other than the State of New York or
the United States, upon opinions of local counsel, which opinions shall state
that they believe both you and they are justified in relying upon such
certificates and opinions.
(c) The Representatives shall have received an opinion, dated the
Closing Date, from Xxxxxxxx X. Xxxxxx, Esq., general counsel to the
Company, to the effect that:
(i) each of (i) Nationwide Life Insurance Company, (ii)
Nationwide Life and Annuity Insurance Company and (iii) Nationwide
Life Insurance Company of America is an existing corporation in good
standing under the laws of the state of its incorporation, with
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus; and the Company and
each of the Company's Material Subsidiaries is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the
extent that the failure to so qualify or be in good standing would not
have a material adverse effect (i) on the condition, financial or
otherwise, business, properties or results of operations of the
Company and its subsidiaries taken as a whole, (ii) which affects the
issuance or validity of the Securities, (iii) which affects the
consummation of any of the transactions contemplated by this Agreement
or (iv) is otherwise material in the context of the sale of the
Securities; and all of the issued and outstanding capital stock of
each Material Subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable and is owned
(directly or through subsidiaries) by the Company free from liens,
claims, encumbrances and defects;
(ii) except for that certain Intercompany Agreement dated as of
March 10, 1997, among the Company, Nationwide Mutual Insurance Company
and Nationwide Corporation, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(iii) none of the execution, delivery and performance of this
Agreement, the Base Indenture, the Third Supplemental Indenture, the
Securities, and the consummation of the transactions contemplated
herein and therein, and compliance by the Company with its obligations
hereunder and thereunder, did or will result in a breach or violation
of any
14
of the terms or provisions of, or constitute a default under, or
require the consent of any party under the charter, certificate or
articles of incorporation, bylaws or code of regulations (or similar
organizational documents), as the case may be, of any Material
Subsidiary, any contract, indenture, mortgage, note, lease, agreement
or other instrument to which the Company or any of its Material
Subsidiaries is a party or by which any of them may be bound, or any
applicable law, rule or regulation or any judgment, order or decree of
any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its Material
Subsidiaries or any of their respective properties or assets, or did
or will result in the creation or imposition of any lien on the
properties or assets of the Company or any of its Material
Subsidiaries except for such breaches, conflicts, violations or
defaults which would not have a Material Adverse Effect;
(iv) each of the reports incorporated by reference in the
Registration Statement or the Final Prospectus at the time they were
filed or last amended (other than the financial statements and the
notes thereto, the financial schedules, and any other financial and
statistical data included or incorporated by reference therein, as to
which such counsel need express no belief) complied as to form in all
material respects with the requirements of the Exchange Act; and such
counsel has no reason to believe that any of such documents, when such
documents were last amended or were so filed, as the case may be,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein not
misleading;
(v) the Company and each of its Material Subsidiaries hold all
licenses, certificates and permits from all governmental authorities
(including, without limitation, Insurance Licenses) which are
necessary to the conduct of their respective businesses, except where
the failure to hold such licenses, certificates or permits would not
have a Material Adverse Effect; the Company's Material Subsidiaries
that are insurance companies have fulfilled and performed all
obligations necessary to maintain their respective Insurance Licenses,
except where the failure to perform such obligations would not have a
Material Adverse Effect; and no event or events have occurred which
may be reasonably expected to result in any impairment, modification,
termination or revocation of such Insurance Licenses which
individually or in the aggregate would have a Material Adverse Effect;
and
(vi) to the best of such counsel's knowledge and except as
otherwise disclosed in the Final Prospectus, (i) there are no pending
actions, suits or proceedings against the Company or any of its
subsidiaries that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate, have a
Material Adverse Effect, or would materially and adversely affect
15
the consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations contemplated in this
Agreement; and (ii) no such actions, suits or proceedings have been
threatened against the Company.
In rendering the foregoing opinions, such counsel may rely as to
matters of fact upon certificates of the officers of the Company and
its Material Subsidiaries, as to matters involving good standing,
authorization to do business and other matters within their knowledge,
upon certificates of public officials, and, as to matters involving
the application of laws of any jurisdiction, upon the familiarity of
attorneys employed by the Nationwide Mutual Insurance Company, the
ultimate controlling entity of the Company, under such counsel's
supervision. In addition, any opinion or statement in such opinion
which is expressed "to my knowledge" or is otherwise qualified by
words of like import means the conscious awareness of facts or other
information by such counsel or lawyers under such counsel's
supervision who have actively participated in the preparation of such
opinion.
(d) The Representatives shall have received from Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Indenture and the Third Supplemental Indenture,
the Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that to their best knowledge after
due inquiry:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no change, or
any development
16
involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(f) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date, letters, (which may refer to letters previously delivered to one or
more of the Representatives), dated respectively as of the Execution Time
and as of the Closing Date, substantially in the form heretofore approved
by you.
(g) The Company shall have requested and caused PricewaterhouseCoopers
LLP to have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters, (which may refer to letters previously delivered
to one or more of the Representatives), dated respectively as of the
Execution Time and as of the Closing Date, substantially in the form
heretofore approved by you.
(h) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no Material Adverse Effect and there has been
no change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, business affairs,
properties or results of operations of, the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on the Class A Common Stock, par value $.01 per share,
and Class B Common Stock, par value $.01 per share, of the Company in
amounts per share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock, the effect of which is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(i) Subsequent to the Execution Time, there shall not have been (i)
any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change or
(ii) any downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or by A.M. Best Company of its
rating of any Insurance Entity, or any public
17
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company or insurance rating of any
Insurance Entity (other than an announcement with positive implications of
a possible upgrading, and no implication of a possible downgrading, of such
rating).
(j) Nationwide Mutual Insurance Company shall have delivered to the
Representatives a consent, in form heretofor approved by you, to the
issuance by the Company of the Securities and the transactions contemplated
hereby, as required by that certain Intercompany Agreement dated, as of
March 10, 1997, among the Company, Nationwide Mutual Insurance Company and
Nationwide Corporation.
(k) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters,
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
18
8. Indemnification and Contribution.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided, that (subject to Section 8(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or
any amendment thereto), including the Rule 430A Information, if
applicable, or the Basic Prospectus, any Preliminary
19
Final Prospectus or the Final Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, if
applicable, or the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or any Preliminary Final
Prospectus or the Final Prospectus (or any amendment or supplement
thereto). The Company acknowledges that the statements set forth (i) in the
last paragraph of the cover page regarding delivery of the Securities and
(ii) under the heading "Underwriting", (1) the list of Underwriters and
their respective participation in the sale of the Securities, (2) the first
paragraph under the heading "Underwriting - Commissions and Discounts" and
(3) the first paragraph under the heading "Underwriting - Price
Stabilization and Short Positions" in any Preliminary Final Prospectus and
the Final Prospectus, constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel
20
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 8 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(e) Contribution.
(i) If the indemnification provided for in this Section 8 hereof
is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with
21
the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
(ii) The relative benefits received by the Company on the one
hand and the Underwriters on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the total underwriting
discount and commission received by the Underwriters, in each case as
set forth on the cover of the Final Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such
cover.
(iii) The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
(iv) The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 8. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or
alleged omission.
(v) Notwithstanding the provisions of this Section 8, in no case
shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder.
(vi) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
22
(vii) For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this Section 8 are several in proportion to
the principal amount of Securities set forth opposite their respective
names in Schedule II hereto and not joint.
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Date (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in any Final Prospectus
(exclusive of any supplement thereto), any Material Adverse Effect, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or in the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in any
23
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States, or (iv) if a banking moratorium has been declared by either Federal or
New York authorities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated's
General Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at World Financial Center,
Xxxxx Xxxxx, 0xx Xxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to Nationwide Financial Services, Inc., Attention: President (fax no.
(000) 000-0000) and confirmed to it at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000,
Attention: President (with a copy to the General Counsel).
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
24
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any supplement to the Basic Prospectus filed pursuant to Rule
424(b) and including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Insurance License" shall mean any license, certificate of authority,
permit or other authorization from an insurance regulatory authority with
jurisdiction over an Insurance Entity which is necessary for such Insurance
Entity to conduct its business as now conducted.
"Material Subsidiaries" shall mean, collectively, (i) Nationwide Life
Insurance Company, (ii) Nationwide Life and Annuity Insurance Company and
(iii) Nationwide Life Insurance Company of America, each of which being
referred to herein as a "Material Subsidiary."
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
25
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A", and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering of the Securities covered by the registration statement
referred to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Nationwide Financial Services, Inc.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President and Chief
Operating Officer
28
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: /s/ Xxxxxxx Xxxxxx
-------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx X. Xxxxxxxxxx III
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title: Executive Director
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing
Agreement.
28
SCHEDULE I
Underwriting Agreement dated February 10, 2003
Registration Statement No. 333-102007
Representative(s): Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Title, Purchase Price and Description of Securities:
Title: 5.625% Senior Notes Due 2015
Principal amount: $200,000,000
Purchase price (include accrued
interest or amortization, if any): 98.807% of principal amount
Sinking fund provisions: None
Optional Redemption provisions: The Company may redeem some or all of
the Securities at any time or from time to time at a redemption
price equal to the greater of:
o 100% of the principal amount; or
o the sum of the present value of the remaining scheduled
payments of principal and interest on the notes, discounted
to the redemption date on a semi-annual basis at the
Treasury Rate (as defined in the Prospectus Supplement dated
February 10, 2003 to the Prospectus dated February 4, 2003)
plus 20 basis points.
Closing Date, Time and Location: February 13, 2003 at 10:00 a.m. at Xxxxx
Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s): February 13, 2003
Modification of items to be covered by the letter
from KPMG LLP delivered pursuant to
Section 6(f) at the Execution Time: None
Modification of items to be covered by the letter
from PricewaterhouseCoopers LLP delivered pursuant to
Section 6(g) at the Execution Time: None
SCHEDULE II
Principal Amount of
Securities to
Underwriters be Purchased
------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ......... $
80,000,000
Xxxxxx Xxxxxxx & Co. Incorporated ..........................
80,000,000
X.X. Xxxxxx Securities Inc. ................................
20,000,000
Wachovia Securities, Inc. ..................................
20,000,000
Total ............................................. $200,000,000
============
