Nationwide Financial Services, Inc.
5.90% Senior Notes Due 2012
Underwriting Agreement
New York, New York
June 19, 2002
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") and as supplemented by the Second
Supplemental Indenture to be dated as of June 24, 2002 between the Company and
the Trustee (the "Second Supplemental Indenture"). The Base Indenture as
supplemented by the First Supplemental Indenture and the Second 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 the 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 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
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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 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 Second Supplemental Indenture
has been duly authorized by the Company and has been duly qualified
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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 duly
executed by the Company and, when authenticated in the manner provided for
in the 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) and 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 Offerors regarding indemnification and
contribution as provided in Section 8 below).
(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 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
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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, Articles of Incorporation, By-laws 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 and the
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, Articles of Incorporation, By-laws 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.
(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
5
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 although certain separate accounts of
Nationwide Life Insurance Company, a subsidiary of the Company, and mutual
funds managed and distributed by the Company 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 (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 included in the Registration Statement
and the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, together with the related schedules and notes, present fairly
the financial position of the Company and its consolidated subsidiaries at
the dates indicated and the statement of operations, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for the
periods specified; 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
6
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 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.
(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
7
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.
(t) Assuming the consummation on the date of this Agreement of the
proposed acquisition by the Company of Provident Mutual Life Insurance
Company ("Provident") in accordance with the terms and conditions of the
Agreement and Plan of Merger dated as of August 7, 2001 between the
Company, Provident and Eagle Acquisition Corporation, a wholly-owned
subsidiary of the Company (the "Merger Agreement") and based on the
publicly available financial statements of Provident, Provident does not
exceed any of the conditions of significance in the definition of
"significant subsidiary" within the meaning of Rule 1-02(w) of Regulation
S-X at the 20% level. The statement under the caption "Use of Proceeds" in
the Final Prospectus accurately describes the Company's intended use of the
net proceeds received by it from the sale of the Securities.
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.
8
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.
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
9
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 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 each 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.
(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., in connection
with its review of the offering; 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.
10
(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 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 Second 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
11
Company in accordance with its 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);
(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
and the 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 Amended and
Restated Certificate of Incorporation or 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
12
of the Debt Securities," and "Description of the Notes", insofar as
they 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 Investment Company Act of 1940 although
certain separate accounts of Nationwide Life Insurance Company, a
subsidiary of the Company, and mutual funds managed and distributed by
the Company are required to register as investment companies under
such Act;
(ix) the Securities, the Base Indenture and the Second
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 federal or 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
13
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 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 such
Closing Date, from Xxxxxxxx X. Xxxxxx, Esq., general counsel to the
Company, to the effect that:
(i) each of (i) Nationwide Life Insurance Company and (ii)
Nationwide Life and Annuity Insurance 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; 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 Notes, (iii) which
affects the consummation of any of the transactions contemplated by
the Underwriting Agreement or (iv) is otherwise material in the
context of the sale of the Notes; 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, and the Agreement and Plan of Merger dated
as of August 7, 2001 between the Company, Provident Mutual Life
Insurance Company and Eagle Acquisition Corporation, a wholly owned
subsidiary of the Company, 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 Second Supplemental Indenture, the
14
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 of the terms or provisions of, or constitute a default under,
or require the consent of any party under the articles or amended
articles of incorporation and code of regulations or bylaws, 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;
(vi) to the best of my knowledge, (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
15
subsidiaries, would individually or in the aggregate, have a Material
Adverse Effect, or would materially and adversely affect the
consummation of the transactions contemplated in the Underwriting
Agreement or the performance by the Company of its obligations
contemplated in the Underwriting Agreement; and (ii) no such actions,
suits or proceedings have been threatened against the Company; and
(vii) 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 with the relevant laws of other such jurisdictions. In
addition, any opinion or statement herein 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
me or lawyers under my supervision who have actively participated in
the preparation of this 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 Second 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
16
(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 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
17
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 announcement that any such organization has
under surveillance or review its rating of any debt securities rating 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) shall have occurred.
(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 Final Prospectus
or the Final Prospectus (or any amendment or supplement thereto).
19
(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 such 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" or "Plan
of Distribution", (1) the list of Underwriters and their respective
participation in the sale of the Securities, (2) the sentences related
to concessions and reallowances and (3) the first paragraph related to
stabilization, syndicate covering transactions and penalty bids 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 with a conflict of interest, (ii) the actual or potential
defendants in, or targets of,
20
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 the statements or omissions which resulted in
such losses, liabilities,
21
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
National Association of Securities Dealers, Inc. 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.
"Material Subsidiaries" shall mean, collectively, (i) Nationwide Life
Insurance Company and (ii) Nationwide Life and Annuity Insurance Company,
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.
"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
25
any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A.
"Regulation S-X" means Regulation S-X promulgated pursuant to the Act
and the Exchange Act.
"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 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/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President -- Finance
(Chief Accounting Officer)
27
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
Banc One Capital Markets, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing
Agreement.
28
SCHEDULE I
Underwriting Agreement dated June 19, 2002
Registration Statement No. 333-52813
Representative(s): Banc One Capital Markets, Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Title, Purchase Price and Description of Securities:
Title: 5.90% Senior Notes Due 2012
Principal amount: $300,000,000
Purchase price (include accrued
interest or amortization, if any): 98.678% 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:
100% of the principal amount; or
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 June 19, 2002 to the Prospectus dated May
29, 1998) plus 20 basis points.
Closing Date, Time and Location: June 24, 2002 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): June 24, 2002
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
------------ ----------------
Underwriters
------------
Banc One Capital Markets, Inc........................ $105,000,000
Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx Incorporated..... 105,000,000
ABN AMRO Incorporated................................ 30,000,000
X.X. Xxxxxxx & Sons, Inc............................. 30,000,000
Xxxxxxx Xxxxx Xxxxxx Inc............................. 30,000,000
Total ...................................... $300,000,000
============
