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Exhibit 6
UNDERWRITING AGREEMENT
BETWEEN
NATIONWIDE INVESTING FOUNDATION III
AND
NATIONWIDE ADVISORY SERVICES, INC.
AGREEMENT, made as of this _____ day of _________________, 1998, by and
between Nationwide Investing Foundation III, an Ohio business trust (the
"Trust"), and Nationwide Advisory Services, Inc., an Ohio corporation (the
"Underwriter").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end management
investment company, as defined in the Investment Company Act of 1940 (the "1940
Act"), and is so registered with the Securities and Exchange Commission (the
"SEC") under the provisions of that Act; and
WHEREAS, it is mutually desired that the Underwriter undertake as agent of
the Trust, the sale and distribution of Shares of each of the investment
portfolios of the Trust which are listed on Schedule A to this Agreement (each a
"Fund");
NOW, THEREFORE, the parties do mutually agree and promise as follows:
1. Appointment as Underwriter. The Trust hereby appoints the Underwriter
their agent for the sale of the Shares covered by the registration statement for
the Trust. As used in this Agreement, the "registration statement" shall refer
to the Trust's current registration on Form N-1A and shall include the
prospectus (Part A), Statement of Additional Information (Part B) and Part C,
and together the current prospectus and Statement of Additional Information
shall be referred to as the "Prospectus." The Trust understands that Underwriter
is now and may in the future be the distributor of the shares of several
investment companies or series (together, "Companies") including Companies
having investment objectives similar to those of the Trust. The Trust agrees
that Distributor's duties to such Companies shall not be deemed in conflict with
its duties to the Trust under this paragraph.
2. Duties of Underwriter. (a) The Underwriter hereby accepts such
appointment as distributor for the sale of the Shares and agrees that it will
use its best efforts to solicit orders for the sale of the Shares and will
undertake such advertising and promotion as it believes reasonable in connection
with such solicitation. The Underwriter shall, at its own expense, finance
appropriate activities which are primarily intended to result in the sale of the
Shares, including, but not limited to, advertising, compensation of
underwriters, dealers and sales personnel, the printing and mailing of
prospectuses to other than current Shareholders, and the printing and mailing of
sales literature.
(b) In its capacity as Underwriter, Underwriter agrees to act in
conformity with the Prospectus and the Trust's Declaration of Trust and Bylaws
and with instructions received from the Trustees of the Trust and shall conform
to and comply with all applicable laws, rules and regulations, including,
without limitation, the 1940 Act, all rules and regulations promulgated by the
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SEC thereunder and all rules and regulations adopted by any securities
association registered under the Securities Exchange Act of 1934.
(c) The Underwriter may, and when requested by the Trustees or their
representatives shall, suspend its efforts to effectuate sales of Shares on
behalf of the Trust at any time when in the opinion of the Underwriter or of the
Trustees no sales should be made because of market or other economic
considerations or abnormal circumstances of any kind. The Trust and its Trustees
may withdraw the offering of the Shares (i) at any time with the consent of the
Underwriter, or (ii) without such consent when so required by the provisions of
any statute or of any order, rule or regulation of any governmental body having
jurisdiction. It is mutually understood and agreed that the Underwriter does not
undertake to sell all or any specific portion of the Shares.
(d) The Underwriter agrees on behalf of itself and its directors,
officers and employees to treat confidentially and as proprietary information of
the Trust all records and other information relative to the Trust and its prior,
present or potential Shareholders, and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except when requested by the Trust or when requested to divulge such
information by duly constituted authorities, after prior notification to and
approval in writing by the Trust. Such approval shall not be unreasonably
withheld and may not be withheld where the Underwriter may be exposed to civil
or criminal contempt proceedings for failure to comply.
3. Sale and Payment of Shares. (a) The Underwriter shall have the right to
purchase Shares of the Funds at the net asset value in effect at the time that
orders for such Shares are received by the Trust or its authorized agent and to
sell such Shares at the applicable public offering price through dealers or
other persons. The public offering price for the Shares of each Fund shall equal
to the sum of (a) the net asset value per Share next computed for a Fund by the
Trust and (b) any applicable sales charge, all as set forth in the current
Prospectus for the Fund. The net asset value of the Shares shall be determined
in accordance with the provisions of the Trust's Declaration of Trust and the
Prospectus. The Trust shall allow the Underwriter as compensation for its
services the particular sales charge applicable to the Shares sold. The
Underwriter may fix the portion of the distribution charge to be allowed to
dealers and others.
(b) The Underwriter agrees that it will deliver or cause to be
delivered to the Trust or to its authorized agent, as the Trustees may direct,
an amount equal to the net asset value of Shares for which purchase orders have
been placed with and accepted by the Underwriter and shall forward to the Trust
or its authorized agent, as the Trustees may direct, all orders for the purchase
of Shares with reasonable promptness after the receipt and acceptance thereof by
the Underwriter; provided, however, that the Underwriter shall have the sole
right to accept or reject all orders for the purchase of Shares and will return
promptly any rejected order together with the consideration which accompanied
it.
4. Issuance of Shares. The Trust reserves the right to issue, transfer or
sell Shares, which are otherwise subject to a sales charge, at net asset value
(a) in connection with the merger or consolidation of the Trust or the Fund(s)
with any other investment company or the acquisition by the Trust or the Fund(s)
of all or substantially all of the assets or of the outstanding Shares of any
other investment company; (b) in connection with a pro rata distribution
directly to the holders of
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Shares in the nature of a stock dividend or split; (c) upon the exercise of
subscription rights granted to the holders of Shares on a pro rata basis; (d) in
connection with the issuance of Shares pursuant to any exchange and reinvestment
privileges described in the Prospectus of a Fund; (e) in a sale to the Trustees,
employees, officers and directors of or salespersons employed by the Underwriter
and to officers, directors and employees of any investment adviser of the Trust;
and (f) otherwise in accordance with the Prospectus of a Fund.
5. The Trust agrees as follows:
(1) to use its best efforts to maintain its registration as a
diversified open-end management investment company under the
1940 Act, and to comply with all of the provisions of that Act
and of the rules and regulations thereunder;
(2) to register its Shares under the Securities Act of 1933, and
to use its best efforts to maintain such registration;
(3) to prepare and file such amendments to the registration
statements and Prospectus and other statements or reports as
may be necessary to comply with the Securities Act of 1933,
the 1940 Act, and the rules and regulations of the SEC;
(4) to furnish the Underwriter with a sufficient number of
Prospectuses to meet the Underwriter's requirements for use in
connection with sales of Shares, and that the Underwriter will
not be required to use any prospectuses of the Trust which
shall not be in form and content satisfactory to counsel for
the Underwriter; and
(5) at the request of the Underwriter, to take such steps as may
be necessary and feasible to qualify Shares for sale in each
state, territory or dependency of the United States of
America, in the District of Columbia and in foreign countries,
in accordance with the laws thereof, and to renew or extend
any such qualification; provided, however, that the Trust
shall not be required to qualify Shares or to maintain the
qualification of Shares in any state, territory, dependency,
district or country where they shall deem such qualification
disadvantageous to the Trust.
6. The Underwriter agrees as follows:
(1) that the Underwriter and its officers or directors will
purchase and keep Shares only for investment purposes;
(2) that it will not purchase Shares from the Shareholders except
as agent for the Trust;
(3) that upon the request of the Trust or its representative it
will furnish to the Trust or such representative any
information in its possession which is pertinent to the
preparation of any registration statement, prospectus or
amendment thereto, or any report required by law or
regulation; and
(4) that neither the Underwriter nor any other person authorized
by it to solicit purchases of Shares shall give any
information or make any representations, other than those
contained in the Registration Statement or Prospectus or in
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any supplemental sales literature authorized by the Trust for
use in connection with the sale of shares.
7. Fees and Expenses. The Trust may pay a distribution fee to the
Underwriter determined in accordance with any applicable Distribution Plan
adopted by the Trustees and approved by the shareholders pursuant to Rule 12b-1
under the 1940 Act.
The Underwriter shall pay expenses for (i) printing and distributing any
prospectus and preparing, printing and distributing any other literature used by
the Underwriter in connection with the offering of the Shares for sale to the
public (except such expenses as may be incurred by the Trust in connection with
the preparation, printing and distribution of any Prospectus, report or other
communication to Shareholders, to the extent that such expenses are necessarily
incurred to effect compliance by the Trust with any Federal or state law or to
enable such distribution to Shareholders), and (ii) expenses of advertising in
connection with such offering. The Trust will pay or cause to be paid (i) all
fees and expenses for the issue and delivery of Shares, and (ii) all auditing
expenses of the Trust.
8. Repurchase of Shares. The Trustees hereby appoints the Underwriter its
agent to repurchase Shares, upon the written request of the Shareholders,
accompanied by the certificate or certificates representing such Shares (if
certificates for such Shares have been issued by the Trust) properly endorsed
for transfer, at the net asset value in effect at the time when the sale is
made.
9. Indemnification. (a) The Trust agrees to indemnify, defend and hold the
Underwriter, its directors, officers and employees, and any person who controls
the Underwriter within the meaning of Section 15 of the Securities Act
("Underwriter Affiliates") free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) which the Underwriter and the Underwriter Affiliates
may incur under the Securities Act or under common law or otherwise, arising out
of or based upon any untrue statement, or alleged untrue statement, of a
material fact contained in any registration statement or any prospectus or
arising out of or based upon any omission, or alleged omission, to state a
material fact required to be stated in either any registration statement or any
prospectus or necessary to make the statements in either thereof not misleading.
Provided, however, that the Trust's agreement to indemnify the Underwriter and
the Underwriter Affiliates shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of any information or representations which
were furnished in writing to the Trust by the Underwriter, or arising out of or
based upon any omission or alleged omission to state a material fact in
connection with the giving of such information required to be stated in such
answers or necessary to make the answers not misleading; and further provided
that the Trust's agreement to indemnify Underwriter and the Underwriter
Affiliates shall not be deemed to cover any liability to the Trust or its
Shareholders to which the Underwriter would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of the Underwriters reckless disregard of its obligations
and duties under this Agreement.
(b) The Underwriter agrees to indemnify, defend and hold the Trust,
its several officers and Trustees and any person who controls the Trust within
the meaning of Section 15 of the Securities Act ("Trust Affiliates") free and
harmless from and against any and all claims, demands,
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liabilities and expenses (including the costs of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) which the Trust and the Trust Affiliates may incur under the
Securities Act or under common law or otherwise, but only to the extent that
such liability or expense incurred by the Trust or the Trust Affiliates
resulting from such claims or demands, shall arise out of or be based upon any
untrue, or alleged untrue, statement of a material fact contained in information
furnished in writing by the Underwriter to the Trust and used in the answers to
any of the items of the registration statement or in the Prospectus, or shall
arise out of or be based upon any omission, or alleged omission, to state a
material fact in connection with such information furnished in writing by the
Underwriter to the Trust required to be stated in such answers or necessary to
make such information not misleading.
10. Term, Duration and Termination. The term of this Agreement shall begin
as of the date first written above (or, if a particular Fund is not in existence
on that date, the date an amendment to Schedule A to this Agreement adding the
new Fund is executed) and, unless sooner terminated as provided herein, shall
remain in effect for a period of two (2) years from that date. Thereafter, if
not terminated, this Agreement shall continue in effect from year to year
thereafter provided such continuance shall be approved at least annually by (a)
a majority of the Trustees or by the affirmative vote or written approval of the
holders of a majority of the outstanding Shares and (b) a majority of the
Trustees who are not interested persons of the Underwriter, the term "interested
person" having the meaning defined in Section 2(a)(19) of the 1940 Act. This
Agreement is terminable without penalty, on not less than sixty days prior
written notice, by the Trust's Board of Trustees, by vote of a majority of the
outstanding voting securities of the Trust or by the Underwriter. This Agreement
will also terminate automatically in the event of its assignment (as such term
is defined in the 1940 Act).
11. Amendment. This Agreement may not be amended or changed in any manner
except by a written agreement executed by both the Trust and the Underwriter.
12. Jurisdiction. This Agreement shall be governed by and in accordance
with the substantive laws of the State of Ohio without reference to choice of
law principles thereof and in accordance with the 1940 Act. In case of any
conflict, the 1940 Act shall control.
13. Limitation of Liability of the Trustees and Shareholders. It is
understood and is expressly stipulated that this Agreement is executed on behalf
of the Trustees of Nationwide Investing Foundation III as Trustees and not
individually and that the obligations of this Agreement are not binding upon any
of the Trustees or shareholders of the Trust individually but are binding only
upon the assets and property of the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
NATIONWIDE INVESTING FOUNDATION III
By:
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Name:
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Title:
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NATIONWIDE ADVISORY SERVICES, INC.
By:
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Name:
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Title:
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Dated: As of _____________
Schedule A
to the
Underwriting Agreement
between Nationwide Investing Foundation III and
Nationwide Advisory Services, Inc.
Name of Fund
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Nationwide Fund
Nationwide Growth Fund
Nationwide Mid Cap Growth Fund
Nationwide Bond Fund
Nationwide Tax-Free Income Fund
Nationwide Long-Term U.S. Government Bond Fund
Nationwide Intermediate U.S. Government Bond Fund
Nationwide Money Market Fund
Nationwide S & P 500 Index Fund
NATIONWIDE INVESTING
FOUNDATION III
By:
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Name:
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Title:
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NATIONWIDE ADVISORY SERVICES,
INC.
By:
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Name:
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Title:
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