Nationwide Financial Services, Inc.
6.25% Senior Notes Due 2011
Underwriting Agreement
New York, New York
November 14, 2001
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 to be dated as of November 19,
2001 between the Company and the Trustee (the "First Supplemental Indenture").
The Base Indenture as supplemented by the First 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 information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with
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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,
properties or results of operations of the Company and its subsidiaries
taken as a whole, (ii) which affects the issuance or validity of the
Securities, (iii) which affects the consummation of any of the transactions
contemplated by this Agreement or (iv) is otherwise material in the context
of the sale of the Securities (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 First Supplemental Indenture
has been duly authorized by the Company and has been duly qualified under
the Trust Indenture Act with respect to the Securities registered thereby
and, assuming due authorization, execution and delivery thereof by the
Trustee, constitute valid and legally binding instruments of the Company,
enforceable in
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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 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
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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 of its Material Subsidiaries, wherein an
unfavorable ruling, finding or decision would have a Material Adverse
Effect.
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(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) 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
6
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.
(r) Each of the separate accounts of the Material Subsidiaries that is
an insurance company that is required to be registered as an investment
company under the 1940 Act is so registered. All forms, reports, statements
and other documents required by Law to be filed with the Commission by or
on behalf of each of the separate accounts of such Material Subsidiaries,
including, without limitation, all registration statements and all
amendments and supplements to all such registration statements, in
connection with sales of variable life insurance policies and variable
annuity contracts, have been so filed by or on behalf of such separate
accounts except where failure to file would not have a Material Adverse
Effect; and all such forms, reports, statements and other documents,
including, without limitation, those to be filed after the date hereof, did
not at the time they were filed (at the time they become effective and so
long as they remain effective in the case of registration statements and
amendments thereto), or will not at the time they are filed (at the time
they become effective and so long as they remain effective in the case of
registration statements and amendments thereto), contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(s) 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 50% 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
7
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made on the date and at the time specified in Schedule I hereto or at such
time on such later date not more than three Business Days after the foregoing
date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the Final
Prospectus.
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
8
the Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Final
Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
(1) notify the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section
5, an amendment or supplement which will correct 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
9
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 ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any debt securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I hereto.
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause 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." None of such proceeds will be used to fund any
portion of the consideration to be paid by the Company in the proposed
acquisition of Provident pursuant to the Merger Agreement.
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
10
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, ▇▇▇▇▇▇
& ▇▇▇▇▇▇, 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 First Supplemental
Indenture has been duly authorized by the Company and has been duly
qualified under the Trust Indenture Act with respect to the Securities
registered thereby and, assuming due authorization, execution and
delivery thereof by the Trustee, constitute valid and legally binding
instruments of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Securities have been duly authorized by the Company,
and when executed by the Company and delivered and paid for as
described in the Final Prospectus, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iii) the execution, delivery and performance of this Agreement,
the Indenture, and 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;
(iv) 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; any 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
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Final Prospectus (other than the financial statements and schedules
and other financial and statistical information contained therein, as
to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the statements in the Basic Prospectus and the Final
Prospectus under the captions "Description of Capital Stock,"
"Description of the Debt Securities," and "Description of the Notes",
insofar as they 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;
(vii) 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;
(viii) the Securities, the Base Indenture and the First
Supplemental Indenture conform in all material respects to the
descriptions thereof contained in the Final Prospectus; and
(ix) 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 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
12
financial statements and schedules and other financial and statistical
information contained therein, as to which such counsel need express no
opinion).
In making the statement referred to in the preceding paragraph, such
counsel shall state that their opinion and the belief are based upon their
participation in the preparation of the Registration Statement and Final
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
In rendering the foregoing opinions, such counsel may rely as to matters of
fact upon certificates of the officers of the Company and its subsidiaries, as
to matters involving good standing, authorization to do business and other
matters within their 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 ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., general counsel to the
Company, to the effect that:
(i) each of the Company's Material Subsidiaries 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; 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 the Intercompany Agreement and the issuance of
shares of Class A Common Stock of the Company to policyholders of
Provident pursuant to the Merger Agreement, 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;
13
(iii) none of the execution, delivery and performance of this
Agreement, the Base Indenture, the First Supplemental Indenture, the
Securities, and the consummation of the transactions contemplated
herein and therein, and compliance by the Company with its obligations
hereunder and thereunder, did or will result in a breach or violation
of any 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;
14
(vi) 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 other than the State of
Ohio or the United States, 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 jurisdictions.
(d) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 Supplemental Indenture, the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that to their best knowledge after
due inquiry:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no change, or
any development 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
15
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) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been any 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) 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).
(h) Subsequent to the Execution Time, there shall not have been (i)
any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change or
(ii) any downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or by A.M. Best Company of its
rating of any Insurance Entity, or any public 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.
(i) 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.
(j) 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
16
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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, at ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. 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.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
17
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" or "Plan of Distribution", (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids 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) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. 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, 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. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding
18
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that 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. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or 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 person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
19
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. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
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.
20
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 the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel; or,
if sent to the Company, will be mailed, delivered or telefaxed to Nationwide
Financial Services, Inc., Attention: President (Fax No. (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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.
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.
21
"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 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.
22
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/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board,
Chief Executive Officer
and Director
23
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
UBS Warburg LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing
Agreement.
24
SCHEDULE I
Underwriting Agreement dated November 14, 2001
Registration Statement No. 333-52813
Representative(s): ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
UBS Warburg LLC
Title, Purchase Price and Description of Securities:
Title: 6.25% Senior Notes Due 2011
Principal amount: $300,000,000
Purchase price (include accrued
interest or amortization, if any): 98.875% of principal amount
Sinking fund provisions: None
Redemption provisions: None
Closing Date, Time and Location: November 19, 2001 at 10:00 a.m. at
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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): November 19, 2001
Modification of items to be covered by the letter
from KPMG LLP delivered pursuant to
Section 6(e) at the Execution Time: None
SCHEDULE II
Principal Amount of
Securities to
Underwriters be Purchased
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Underwriters
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc................................... $127,500
UBS Warburg LLC............................................ 127,500
Deutsche Banc Alex. ▇▇▇▇▇ Inc.............................. 15,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated........... 15,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc............................ 15,000
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Total ............................................ $300,000,000
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