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Exhibit 4.5
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NATIONWIDE FINANCIAL SERVICES, INC.
AND
WILMINGTON TRUST COMPANY
as Trustee
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[ ] SUPPLEMENTAL INDENTURE
Dated as of [ ], 199[ ]
TO
INDENTURE
Dated as of [ ], 199[ ]
---------------------------
[ ]% Subordinated Deferrable Interest Debentures
Due 20[ ]
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TABLE OF CONTENTS
Page
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ARTICLE I General Terms and Conditions of the Series [ ]% Debentures............................2
SECTION 1.01.............................................................................................2
SECTION 1.02.............................................................................................2
SECTION 1.03.............................................................................................3
ARTICLE II Optional Redemption of the Series [ ]% Debentures.....................................4
SECTION 2.01.............................................................................................4
SECTION 2.02.............................................................................................5
SECTION 2.03.............................................................................................6
ARTICLE III Extension of Interest Payment Period...................................................6
SECTION 3.01.............................................................................................6
SECTION 3.02.............................................................................................7
SECTION 3.03.............................................................................................7
ARTICLE IV Covenants Applicable to Series [ ]% Debentures........................................7
SECTION 4.01.............................................................................................7
SECTION 4.02.............................................................................................8
SECTION 4.03.............................................................................................8
SECTION 4.04.............................................................................................9
ARTICLE V Form of Series [ ]% Debentures........................................................9
SECTION 5.01.............................................................................................9
ARTICLE VI Original Issue of Series [ ]% Debentures.............................................19
SECTION 6.01............................................................................................19
ARTICLE VII Miscellaneous Provisions..............................................................19
SECTION 7.01............................................................................................19
SECTION 7.02............................................................................................20
SECTION 7.03............................................................................................20
SECTION 7.04............................................................................................20
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[ ] SUPPLEMENTAL INDENTURE, dated as of the [ ] day of [ ]
199[ ] (the "[ ] Supplemental Indenture"), between NATIONWIDE FINANCIAL
SERVICES, INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter sometimes referred to as the "Company") and
WILMINGTON TRUST COMPANY, a Delaware banking association, as trustee
(hereinafter sometimes referred to as the "Trustee") under the Indenture dated
as of , 1998 between the Company and the Trustee (the "Indenture"); as
set forth in Section 7.01 hereto and except as otherwise set forth herein, all
terms used and not defined herein are used as defined in the Indenture),
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its subordinated debentures
(the "Debentures"), said Debentures to be issued from time to time in series as
might be determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered thereunder
as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to be
known as its [ ]% Subordinated Deferrable Interest Debentures due 20[ ] (said
series being hereinafter referred to as the "Series [ ]% Debentures"), the form
and substance of such Series [ ]% Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this [ ]
Supplemental Indenture; and
WHEREAS, Nationwide Capital Trust II, a Delaware statutory
business trust (the "Trust"), intends to offer to the public $ million
aggregate liquidation amount of its % Preferred Securities (the "Preferred
Securities"), representing preferred undivided beneficial interests in the
assets of the Trust, and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $ million aggregate liquidation amount of its % common securities
(the "Common Securities," and together with the Preferred Securities, the "Trust
Securities"), representing common undivided beneficial interests in the assets
of the Trust, in $ million aggregate principal amount of the Series [ ]%
Debentures; and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this [ ] Supplemental Indenture,
and all requirements necessary to make this [ ] Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Series [ ]%
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed and
fulfilled, and the execution and delivery hereof have been in all respects duly
authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series [ ]% Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series [ ]% Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
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ARTICLE I
General Terms and Conditions of the Series [ ]% Debentures
SECTION 1.01. There shall be and is hereby authorized a series
of Debentures designated the "[ ]% Subordinated Deferrable Interest Debentures
Due 20[ ]", limited in aggregate principal amount to $[ ] (except as provided in
this Section 1.01 and 6.01). The Series [ ]% Debentures shall mature and the
principal shall be due and payable together with all accrued and unpaid interest
thereon, including Compounded Interest (as hereinafter defined) on [ ],
20[ ].
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series [ ]% Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Series [ ]% Debentures
issued in certificated form will be payable, the transfer of such Series [ ]%
Debentures will be registrable and such Series [ ]% Debentures will be
exchangeable for Series [ ]% Debentures bearing identical terms and provisions
at the office or agency of the Company in the Borough of Manhattan, The City and
State of New York; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the registered holder at such
address as shall appear in the Debenture register and that the payment of
principal with respect to the Series [ ]% Debentures will only be made upon
surrender of the Series [ ]% Debentures to the Trustee. Notwithstanding the
foregoing, so long as the Property Trustee is the legal owner and record holder
of the Series [ ]% Debentures, the payment of the principal of and interest
(including Compounded Interest, if any) on the Series [ ]% Debentures held by
the Property Trustee will be made by the Company in immediately available funds
on the payment date therefor at such place and to the Property Trustee Account
(as defined in the Declaration of Trust) established and maintained by the
Property Trustee pursuant to the Declaration of Trust.
(b) In connection with a distribution of the Securities to
holders of the Trust Securities pursuant to the Declaration of Trust;
(i) Series [ ]% Debentures in certificated form
may be presented to the Trustee by the
Property Trustee in exchange for a Global
Debenture representing the Series [ ]%
Debentures in an aggregate principal amount
equal to all Outstanding Series [ ]%
Debentures, to be registered in the name of
the Depository, or its nominee, and
delivered by the Trustee to the Depository
for crediting to the accounts of its
participants pursuant to the instructions of
the Regular Trustees (as defined in the
Declaration of Trust). The Company upon any
such presentation shall execute a Global
Debenture representing the Series [ ]%
Debentures in such aggregate principal
amount and deliver the same to the
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Trustee for authentication and delivery in
accordance with the Indenture and this [ ]
Supplemental Indenture. Payments on the
Series [ ]% Debentures issued as a Global
Debenture will be made to the Depository;
and
(ii) if any Preferred Securities are held in non
book-entry certificated form, Series [ ]%
Debentures in certificated form may be
presented to the Trustee by the Property
Trustee and any Preferred Security
Certificate (as defined in the Declaration
of Trust) which represents Preferred
Securities other than Preferred Securities
held by the initial clearing agency or its
nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent
beneficial interests in Series [ ]%
Debentures presented to the Trustee by the
Property Trustee having an aggregate
principal amount equal to the aggregate
liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred
Security Certificate is presented to the
Debenture Registrar for transfer or
reissuance at which time such Preferred
Security Certificate will be cancelled and a
Series [ ]% Debenture, registered in the
name of the holder of the Preferred Security
Certificate or the transferee of the holder
of such Preferred Security Certificate, as
the case may be, with an aggregate principal
amount equal to the aggregate liquidation
amount of the Preferred Security Certificate
canceled will be executed by the Company and
delivered to the Trustee for authentication
and delivery in accordance with the
Indenture and this [ ] Supplemental
Indenture. On issue of such Series [ ]%
Debentures, Series [ ]% Debentures with an
equivalent aggregate amount that were
presented by the Property Trustee to the
Trustee will be deemed to have been
canceled.
SECTION 1.03. Each Series [ ]% Debenture will bear interest at
the rate of [ ]% per annum from [ ], 199[ ] until the principal thereof becomes
due and payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum, compounded [quarterly][semi-annually],
payable (subject to the provisions of Article Three) [quarterly][semi- annually]
in arrears on the [ ] day of [ ]of each year (each, an "Interest Payment Date",
commencing on [ ], 199[ ]), to the person in whose name such Series [ ]%
Debenture or any predecessor Series [ ]% Debenture is registered, at the close
of business on the regular record date for such interest installment, which,
except as set forth below, shall be, in respect of any Series [ ]% Debentures of
which the Property Trustee is the registered holder of or a Global Debenture,
the close of business on the business day next preceding that Interest Payment
Date. Notwithstanding the foregoing sentence, if the Preferred Securities are no
longer in book-entry only form or if pursuant to the provisions of Section
2.11(c) of the Indenture the Series [ ]%
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Debentures are not represented by a Global Debenture, the regular record dates
for such interest installment shall be the close of business on the 15th day of
the month next preceding that Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered holders on such regular record date, and may be paid
to the person in whose name the Series [ ]% Debenture (or one or more
Predecessor Debentures) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of the Series
[ ]% Debentures not less than 10 days prior to such special record date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Series [ ]% Debentures may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly interest period for which interest is computed,
the amount of interest payable will be computed on the basis of the actual
number of days elapsed in such a 30-day month. In the event that any date on
which interest is payable on the Series [ ]% Debentures is not a business day,
then payment of interest payable on such date will be made on the next
succeeding day which is a business day (and without any interest or other
payment in respect of any such delay), except that, if such business day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding business day, in each case with the same force and effect as if made
on such date.
ARTICLE II
Optional Redemption of the Series [ ]% Debentures
SECTION 2.01. (a) Subject to the provisions of this Article
II, the Company shall have the right to redeem the Securities, in whole or in
part, at any time or from time to time, after the issuance of the Preferred
Securities, at a redemption price equal to 100% of the principal amount to be
redeemed [plus the Make-Whole Premium, if any,] plus any accrued and unpaid
interest thereon, (including Compounded Interest, if any), to the date of such
redemption (the "Optional Redemption Price"). [The Make-Whole Premium means the
excess, if any of (i) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the redemption date on
a semi-annual basis at the Treasury Rate plus 20 basis points over (ii) 100% of
the principal amount of Securities to be redeemed.] Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice to the Holder of the Securities, at the Redemption Price. The Redemption
Price shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines and specifies in
the notice of redemption; PROVIDED, that, the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New York
time, on the date such Redemption Price is to be paid.
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(b) If a partial redemption of the Securities would result in
the delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Securities in whole.
(c) The Company may not redeem fewer than all of the
Outstanding Securities unless all accrued and unpaid interest (including
Additional Payments) on the Securities has been paid as of the Interest Payment
Date next preceding the Redemption Date.
SECTION 2.02. If, at any time, a Tax Event (as defined below)
shall occur or be continuing and (i) the Regular Trustees and the Company shall
have received an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a result of a Tax
Event, there is more than an insubstantial risk that the Company would be
precluded from deducting the interest on the Series [ ]% Debentures for United
States federal income tax purposes even if the Series [ ]% Debentures were
distributed to the holders of Preferred Securities and Common Securities in
liquidation of such holder's interest in Nationwide Capital Trust II as set
forth in the Declaration of Trust or (ii) the Regular Trustees shall have been
informed by such tax counsel that a No Recognition Opinion (as defined below)
cannot be delivered to Nationwide Capital Trust II, the Company shall have the
right at any time, upon not less than 30 nor more than 60 days' notice, to
redeem the Series [ ]% Debentures in whole or in part for cash at the Optional
Redemption Price within 90 days following the occurrence of such Tax Event;
provided, however, that, if at the time there is available to the Company or the
Regular Trustees on behalf of Nationwide Capital Trust II the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some ministerial
action ("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
Nationwide Capital Trust II, the Company or the holders of the Preferred
Securities, the Company or the Regular Trustees on behalf of Nationwide Capital
Trust II will pursue such measure in lieu of redemption and provided further
that the Company shall have no right to redeem the Series [ ]% Debentures while
the Regular Trustees on behalf of Nationwide Capital Trust II are pursuing any
such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after [ ], 199[ ] as a result of (a) any amendment to, or change (including
any announced prospective change; PROVIDED that a Tax Event shall not occur more
than 90 days before the effective date of any such prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority,
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which amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is taken,
in each case on or after [ ], 199[ ] there is more than an insubstantial risk
that (i) Nationwide Capital Trust II is, or will be, subject to United States
federal income tax with respect to income accrued or received on the Series [ ]%
Debentures, (ii) Nationwide Capital Trust II is, or will be, subject to more
than a de minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to Nationwide Capital Trust II on the Series
[ ]% Debentures is not, or will not be, deductible by the Company for United
States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal Revenue
Service, to the effect that the holders of the Preferred Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of a dissolution of Nationwide Capital Trust II and distribution of the
Series [ ]% Debentures as provided in the Declaration of Trust.
SECTION 2.03. If the Series [ ]% Debentures are only partially
redeemed pursuant to this Article II, the Series [ ]% Debentures will be
redeemed pro rata or by lot or by any other method utilized by the Trustee,
provided that if at the time of redemption, the Series [ ]% Debentures are
registered as a Global Debenture, the Depository shall determine by lot the
principal amount of such Series [ ]% Debentures held by each Debenture Holder to
be redeemed in accordance with its customary procedures. Notwithstanding the
foregoing, if a partial redemption of the Series [ ]% Debentures would result in
the delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Company shall not be permitted to effect such partial redemption and will only
redeem the Series [ ]% Debentures in whole.
ARTICLE III
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on the Series [ ]% Debentures, the Company shall have the
right, at any time during the term of the Series [ ]% Debentures, from time to
time to extend the interest payment period of such Series [ ]% Debentures for up
to [20 consecutive quarterly][10 consecutive semi-annual] interest periods (the
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid thereon (together with interest
thereon at the rate of [ ]% per annum to the extent permitted by applicable law,
compounded quarterly ("Compounded Interest")). At the end of the Extended
Interest Payment Period the Company shall pay all interest accrued and unpaid on
the Series [ ]% Debentures including any Compounded Interest which shall be
payable to the holders of the Series [ ]% Debentures in whose names the Series
[ ]% Debentures are registered in the Debenture register on the first
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record date after the end of the Extended Interest Payment Period. Prior to the
termination of any such Extended Interest Payment Period, the Company may
further extend such Period; provided that such Period together with all such
further extensions thereof shall not exceed [20 consecutive quarterly][10
semi-annual] interest periods. Upon the termination of any Extended Interest
Payment Period and upon the payment of all accrued and unpaid interest then due,
together with Compounded Interest, the Company may select a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except at
the end thereof.
SECTION 3.02. (a) So long as the Property Trustee is the legal
owner and holder of record of the Series [ ]% Debentures, at the time the
Company selects an Extended Interest Payment Period, the Company shall give both
the Property Trustee and the Trustee written notice of its selection of such
Extended Interest Payment Period one business day prior to the earlier of (i)
the next succeeding date on which distributions on the Preferred Securities are
payable or (ii) the date Nationwide Capital Trust II is required to give notice
of the record date or the date such distributions are payable to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Preferred Securities, but in any event not less than one business day prior
to such record date. The Company shall cause Nationwide Capital Trust II to give
notice of the Company's selection of such Extended Interest Payment Period to
the holders of the Preferred Securities.
(b) If, pursuant to the Declaration of Trust, Series [ ]%
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extended Interest Payment Period,
the Company shall give the holders of the Series [ ]% Debentures and the Trustee
written notice of its selection of such Extended Interest Payment Period at
least 10 business days prior to the earlier of (i) the next succeeding Interest
Payment Date or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to the New York Stock Exchange
or other applicable self-regulatory organization or to holders of the Series
[ ]% Debentures.
SECTION 3.03. The quarter in which any notice is given
pursuant to Section 3.02 shall be counted as one of the [20 quarters][10
semi-annual periods] permitted in the maximum Extended Interest Payment Period
permitted under this Article III.
ARTICLE IV
Covenants Applicable to Series [ ]% Debentures
SECTION 4.01. In connection with the distribution of the
Series [ ]% Debentures to the holders of the Preferred Securities pursuant to
the Declaration of Trust, the Company will use its best efforts to list such
Series [ ]% Debentures on the New York Stock Exchange or on such other exchange
as the Preferred Securities are then listed and traded.
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SECTION 4.02. In connection with the offering, sale and
issuance of the Securities to the Property Trustee in connection with the sale
of the Trust Securities by the Trust, the Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Securities, including commissions or other
compensation to the Underwriters payable pursuant to the Underwriting Agreement
and compensation of the Trustee under the Indenture in accordance with
provisions of Section 6.6 of the Indenture;
(b) be responsible for and pay for all debts and obligations
(other than with respect to the Trust Securities) of the Trust, pay for all
costs and expenses of the Trust (including, but not limited to, costs and
expenses relating to the organization of the Trust, the offering, sale and
issuance of the Trust Securities (including commissions or other compensation
to, and indemnification of, the Underwriters in connection therewith), the fees
and expenses of the Property Trustee and the Delaware Trustee (as defined in the
Declaration of Trust), the costs and expenses relating to the operation of the
Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust assets);
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration of Trust;
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
SECTION 4.03. The Company covenants that the Company (a) shall
not declare or pay dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to, any of its
capital stock (other than stock dividends paid by the Company which consist of
stock of the same class as that on which the dividend is being paid), (b) shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Securities, and (c) shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Guarantee),
in each case if at such time (i) there shall have occurred any event that with
the giving of notice or the lapse of time or both, would constitute an Event of
Default hereunder, (ii) the Company shall be in default with respect to its
payment of any obligations under the Guarantee or (iii) the Company shall have
given notice of its selection of an Extended Interest Payment Period as provided
herein and such period, or any extension thereof, shall be continuing.
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SECTION 4.04. Prior to the distribution of Series [ ]%
Debentures to the holders of Preferred Securities in accordance with the terms
of the Declaration of Trust, the Company covenants and agrees for the benefit of
the holders of the Preferred Securities (i) not to cause or permit the Common
Securities to be transferred except as permitted by the Declaration of Trust and
(ii) not to take any action which would cause the Trust to cease to be treated
as a grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series [ ]% Debentures as provided in the
Declaration of Trust.
ARTICLE V
Form of Series [ ]% Debentures
SECTION 5.01. The Series [ ]% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE NOTE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative to The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
No. $
CUSIP NO.
NATIONWIDE FINANCIAL SERVICES, INC.
[ ]% SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 20[ ]
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Nationwide Financial Services, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (herein referred
to as the "Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to, or registered assigns, the principal sum of _________ Dollars on [ ], 20[ ],
and to pay interest on said principal sum from [ ], 199[ ] or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on [ ] day if [ ] of each year
commencing [ ], 199[ ] at the rate of [ ]% per annum plus Compounded Interest,
if any, until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months and for any period shorter than a full
[quarterly][semi-annual] interest period for which interest is computed, the
amount of interest payable will be computed on the basis of the actual number of
days elapsed in such a 30-day month. In the event that any date on which
interest is payable on this Debenture is not a business day, then payment of
interest payable on such date will be made on the next succeeding day which is a
business day (and without any interest or other payment in respect of any such
delay), except that, if such business day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding business day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Debentures, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, [which shall be the close of business on the
day next preceding such Interest Payment Date, provided if the Preferred
Securities of Nationwide Capital Trust II are no longer in book-entry only form,
the regular record dates shall be the close of business on the fifteenth day of
the month next preceding such Interest Payment Date] [IF PURSUANT TO THE
PROVISIONS OF SECTION 2.11(c) OF THE INDENTURE THE SERIES [ ]% DEBENTURES ARE
NOT REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the close of business on
the fifteenth day of the month next preceding such Interest Payment Date.] Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered holders on such regular record
date, and may be paid to the person in whose name this Debenture (or one or more
Predecessor Debentures) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of this series
of Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City and
State of New York, in any coin or currency of the United States of America which
at the time of payment is legal tender for payment of public and private debts;
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provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Debenture register and that the payment of principal will only be made
upon the surrender of this Debenture to the Trustee. Notwithstanding the
foregoing, so long as the owner and record holder of this Debenture is the
Property Trustee (as defined in the Indenture referred to on the reverse
hereof), the payment of the principal of (and premium, if any) and interest
(including Compounded Interest, if any) on this Debenture will be made at such
place and to such account of the Property Trustee as may be designated by the
Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated
---------------------
NATIONWIDE FINANCIAL SERVICES, INC.
By:
------------------------
Attest:
By:
---------------------
Secretary
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Supplemental Indenture.
[ ],
as Trustee
----------------------------
or as Authentication Agent
By:
------------------------- -------------------------------
Authorized Signatory Authorized Signatory
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of , 1998 duly executed and
delivered between the Company and Wilmington Trust Company, a Delaware banking
association, as Trustee (herein referred to as the "Trustee"), as supplemented
by the [ ] Supplemental Indenture dated as of [ ], 199[ ] between the Company
and the Trustee (said Indenture as so supplemented being hereinafter referred to
as the "Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures, and, to the extent specifically set forth in the
Indenture, the holders of Senior Indebtedness and Preferred Securities. By the
terms of the Indenture, the Debentures are issuable in series which may vary as
to amount, date of maturity, rate of interest and in other respects as in the
Indenture provided. This series of Debentures is designated the [ ]%
Subordinated Deferrable Interest Debentures due 20[ ] and is limited in
aggregate principal amount as specified in said [ ] Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may
not be redeemed by the Company prior to [ ], 20[ ]. The Company shall have the
right to redeem this Debenture at the option of the Company, in whole or in
part, at any time on or after [ ], 20[ ] (an "Optional Redemption"), at a
redemption price equal to 100% of the principal amount to be redeemed [plus the
Make-Whole Premium, if any] plus any accrued but unpaid interest thereon
(including any Compounded Interest, if any), to the date of such redemption (the
"Optional Redemption Price"). [The Make-Whole Premium means the excess, if any
of (i) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on a
semi-annual basis at the Treasury Rate plus 20 basis points over (ii) 100% of
the principal amount of Securities to be redeemed.] Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice to the holder of the Securities, at the Redemption Price. The Redemption
Price shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines and specifies in
the notice of redemption; provided, that, the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New York
time, on the date such Redemption Price is to be paid. If a partial redemption
of the Securities would result in the delisting of the Preferred Securities
issued by the Trust from any national securities exchange or other organization
on which the Preferred Securities are listed, the Company shall not be permitted
to effect such partial redemption and may only redeem the Securities in whole.
The Company may not redeem fewer than all of the Outstanding Securities unless
all accrued and unpaid interest (including Additional Payments) on the
Securities has been paid as of the Interest Payment Date next preceding the
Redemption Date.
If, at any time, a Tax Event (as defined below) shall occur or
be continuing after receipt of a Dissolution Tax Opinion (as defined below) and
(i) the Regular Trustees and the
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Company shall have received an opinion (a "Redemption Tax Opinion") of a
nationally recognized independent tax counsel experienced in such matters that,
as a result of a Tax Event, there is more than an insubstantial risk that the
Company would be precluded from deducting the interest on the Series [ ]%
Debentures for United States federal income tax purposes even if the
Series [ ]% Debentures were distributed to the holders of Preferred Securities
and Common Securities in liquidation of such holder's interest in Nationwide
Capital Trust II as set forth in the Declaration of Trust or (ii) the Regular
Trustees shall have been informed by such tax counsel that a No Recognition
Opinion (as defined below) cannot be delivered to Nationwide Capital Trust II,
the Company shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Series [ ]% Debentures in whole or in
part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees on behalf of Nationwide Capital
Trust II, the opportunity to eliminate, within such 90 day period, the Tax Event
by taking some ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure, which
has no adverse effect on Nationwide Capital Trust II, the Company or the holders
of the Preferred Securities, the Company or the Regular Trustees on behalf of
Nationwide Capital Trust II will pursue such measure in lieu of redemption and
provided further that the Company shall have no right to redeem the
Series [ ]% Debentures while the Regular Trustees on behalf of Nationwide
Capital Trust II are pursuing any such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after [ ], 19[ ], as a result of (a) any amendment to, or change (including
any announced prospective change; provided that a Tax Event shall not occur more
than 90 days before the effective date of any such prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after [ ], 19[ ], there is more than an insubstantial risk that (i)
Nationwide Capital Trust II is, or will be, subject to United States federal
income tax with respect to income accrued or received on the Series [ ]%
Debentures, (ii) Nationwide Capital Trust II is, or will be, subject to more
than a de minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to Nationwide Capital Trust II on the Series [
]% Debentures is not, or will not be, deductible by the Company for United
States federal income tax purposes.
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"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal Revenue
Service, to the effect that the holders of the Preferred Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of a dissolution of Nationwide Capital Trust II and distribution of the
Series [ ]% Debentures as provided in the Declaration of Trust.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or in some other
equitable manner determined by the Trustee. Notwithstanding the foregoing, if a
partial redemption of the Series [ ]% Debentures would result in the delisting
of the Preferred Securities by any national securities exchange or other
organization on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and will only redeem
the Series [ ]% Debentures in whole.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture (and, in the case of any series of
Debentures held as trust assets of a Nationwide Capital Trust and with respect
to which a Security Exchange has not theretofore occurred, such consent of
holders of the Preferred Securities and the Common Securities of such Nationwide
Capital Trust as may be required under the Declaration of Trust of such
Nationwide Capital Trust), to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Debentures; provided, however, that
no such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of each
Debenture so affected or (ii) reduce the aforesaid percentage of Debentures, the
holders of which are required to consent to any such supplemental indenture,
without the consent
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19
of the holders of each Debenture (and, in the case of any series of Debentures
held as trust assets of a Nationwide Capital Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of the holders of
the Preferred Securities and the Common Securities of such Nationwide Capital
Trust as may be required under the Declaration of Trust of such Nationwide
Capital Trust) then outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Debentures of a series at the time outstanding affected thereby
(subject, in the case of any series of Debentures held as trust assets of a
Nationwide Capital Trust and with respect to which a Securities Exchange has not
theretofore occurred, to such consent of holders of Preferred Securities and
Common Securities of such Nationwide Capital Trust as may be required under the
Declaration of Trust of such Nationwide Capital Trust), on behalf of the Holders
of the Debentures of such series, to waive any past default in the performance
of any of the covenants contained in the Indenture, or established pursuant to
the Indenture with respect to such series, and its consequences, except a
default in the payment of the principal of or premium, if any, or interest on
any of the Debentures of such series. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Debenture and of any Debenture issued in exchange
herefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Debenture.
Subject to Section 13.4 of the Indenture, no reference herein
to the Indenture (other than such Section) and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place at the rate and in the money
herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right, at any time during
the term of the Debentures, from time to time to extend the interest payment
period of such Debentures for up to [20 consecutive quarterly][10 consecutive
semi-annual] interest periods (the "Extended Interest Payment Period"), at the
end of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate of [ ]% per annum to the extent
permitted by applicable law, compounded quarterly ("Compounded Interest")). At
the end of the Extended Interest Payment Period the Company shall pay all
interest accrued and unpaid on the Series [ ]% Debentures including any
Compounded Interest which shall be payable to the holders of the Series [ ]%
Debentures in whose names the Series [ ]% Debentures are registered in the
Debenture register on the first record date after the end of the Extended
Interest Payment Period. Prior to the termination of any such Extended Interest
Payment Period, the Company may further extend such Extended Interest Payment
Period, provided that such Period together with all such further extensions
thereof shall not exceed [20 consecutive quarterly][10 consecutive semi-annual]
interest periods. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest then due,
together with Compounded Interest, the
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Company may select a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest on this Debenture shall be due and payable
during an Extended Interest Payment Period, except at the end thereof.
The Company covenants that the Company (a) shall not declare
or pay dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital stock
(other than stock dividends paid by the Company which consist of stock of the
same class as that on which the dividend is being paid), (b) shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities, and (c) shall not make any guarantee payments with
respect to the foregoing (other than pursuant to the Guarantee), in each case if
at such time (i) there shall have occurred any event that with the giving of
notice or the lapse of time or both, would constitute an Event of Default
hereunder, (ii) the Company shall be in default with respect to its payment of
any obligations under the Guarantee or (iii) the Company shall have given notice
of its selection of an Extended Interest Payment Period as provided herein and
such period, or any extension thereof, shall be continuing.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
holder hereof on the Debenture register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company in
the Borough of Manhattan, The City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Debenture Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or
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penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
[If certificated Debentures -- The Debentures of this series
are issuable only in registered form without coupons in denominations of $[ ]
and any integral multiple thereto.] [If Global Debenture -- This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture. Debentures of this series so
issued are issuable only in registered form without coupons in denominations of
$[ ] or any integral multiple thereof.] As provided in the Indenture and subject
to certain limitations [If Global Debenture -- herein and] therein set forth,
Debentures of this series [If Global Debenture -- so issued] are exchangeable
for a like aggregate principal amount of Debentures of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE VI
Original Issue of Series [ ]% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series [ ]% Debentures in the aggregate principal amount equal to
$[ ] may, upon execution of this [ ] Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its President, or any Vice President and
its Treasurer or an Assistant Treasurer, without any further action by the
Company. Upon exercise of the overallotment option set forth in the Underwriting
Agreement, additional Series [ ]% Debentures in the aggregate principal amount
of up to $[ ] may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Series [ ]% Debentures executed as aforesaid by the Company, to or upon the
written order of the Company, which order shall be accompanied by evidence
satisfactory to the Trustee that the overallotment option has been exercised.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this [
] Supplemental Indenture or in the form of Series [ ]% Debenture or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Series [ ]% Debenture that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
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[SECTION 7.02. The Indenture, as supplemented by this [ ]
Supplemental Indenture, is in all respects ratified and confirmed; provided that
the words ", may after a period of 30 days has elapsed from such holder's
written request to the Property Trustee to enforce such rights," in the ninth
and tenth lines of Section 13.12 of the Indenture shall not be applicable to the
Series [ ]% Debentures. This [ ] Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein provided.]
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the validity
or sufficiency of this [ ] Supplemental Indenture.
SECTION 7.04. This [ ] Supplemental Indenture may be executed
in any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this [ ]
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
NATIONWIDE FINANCIAL SERVICES, INC.
By
---------------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
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WILMINGTON TRUST COMPANY
as Trustee
By
---------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
----------------------------
Name:
Title:
-21-
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STATE OF DELAWARE )
) ss.:
COUNTY OF ) _______ __, 199_
On the ______ day of _______, in the year one thousand nine
hundred ninety-____, before me personally came[ ] to me known, who, being by me
duly sworn, did depose and say that he resides at [ ]; that he
is [Senior Vice President and Treasurer] of NATIONWIDE FINANCIAL SERVICES, INC.,
one of the corporations described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal affixed to
the said instrument is such corporation seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
----------------------------
NOTARY PUBLIC
My Commission Expires
STATE OF DELAWARE )
) ss.:
COUNTY OF ) _______ __, 199_
On the ______ day of _______, in the year one thousand nine
hundred ninety-____, before me personally came [ ] to me known, who,
being by me duly sworn, did depose and say that he resides at [ ]
that he is a [Vice President] of [ ], one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation and that he signed his name thereto by like
authority.
-------------------------------
NOTARY PUBLIC
My Commission Expires
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