EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
16,432,000 SHARES
NATIONWIDE FINANCIAL SERVICES, INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
_______, 1997
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
As Representatives of the Several Underwriters
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-8278
Dear Sirs:
1. Introductory. Nationwide Financial Services, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell ("U.S. Offering"), to
the several Underwriters named in Schedule A hereto ("Underwriters") 16,432,000
shares ("U.S. Firm Securities") of its Class A Common Stock, par value $0.01 per
share ("Securities").
It is understood that the Company is concurrently entering into a
Subscription Agreement, dated the date hereof ("Subscription Agreement"), with
Credit Suisse First Boston (Europe) Limited ("CSFBL"),▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and the other managers
named therein ("Managers") relating to the concurrent offering and sale of
4,108,000 shares of Securities ("International Firm Securities") outside the
United States and Canada ("International Offering").
In addition, as set forth below the Company proposes to issue and sell
(i) to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 2,464,800 additional shares of Securities ("U.S. Optional
Securities") and (ii) to the Managers, at the option of the Managers, an
aggregate of not more than 616,200 additional shares of Securities
("International Optional Securities"). The U.S. Firm Securities and the U.S.
Optional Securities are hereinafter called the "U.S.
Securities"; the International Firm Securities and the International Optional
Securities are hereinafter called the "International Securities"; the U.S. Firm
Securities and the International Firm Securities are hereinafter called the
"Firm Securities"; and the U.S. Optional Securities and the International
Optional Securities are hereinafter called the "Optional Securities". The U.S.
Securities and the International Securities are collectively referred to as the
"Offered Securities". To provide for the coordination of their activities, the
Underwriters and the Managers have entered into an Agreement Between U.S.
Underwriters and Managers which permits them, among other things, to sell the
Offered Securities to each other for purposes of resale.
The Company hereby agrees with the several Underwriters that:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-1 (No. 333-18527) relating to
the Offered Securities, including a form of prospectus relating to the U.S.
Securities and a form of prospectus relating to the International Securities
being offered in the International Offering, has been filed with the Securities
and Exchange Commission ("Commission") and either (i) has been declared
effective under the Securities Act of 1933, as amended ("Act"), and is not
proposed to be amended or (ii) is proposed to be amended by amendment or post-
effective amendment. If such registration statement ("initial registration
statement") has been declared effective, either (i) an additional registration
statement ("additional registration statement") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule 462(b)
("Rule 462(b)") under the Act and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been duly registered
under the Act pursuant to the initial registration statement and, if applicable,
the additional registration statement or (ii) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule 462(b)
and will become effective upon filing pursuant to such Rule and upon such filing
the Offered Securities will all have been duly registered under the Act pursuant
to the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial registration
statement or if an additional registration statement has been filed and the
Company does not propose to amend it, and if any post-effective amendment to
either such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment (if any)
to each such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c) ("Rule
462(c)") under the Act or, in the case of the additional registration statement,
Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to
the initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means (i) if
the Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if
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any) filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing pursuant to Rule
462(c), or (ii) if the Company has advised the Representatives that it proposes
to file an amendment or post-effective amendment to such registration statement,
the date and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared effective
by the Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "Effective Time" with
respect to such additional registration statement means the date and time as of
which such registration statement is filed and becomes effective pursuant to
Rule 462(b). "Effective Date" with respect to the initial registration statement
or the additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as amended at its
Effective Time including all information contained in the additional
registration statement (if any) and deemed to be part of the initial
registration statement as of the Effective Time of the additional registration
statement pursuant to the General Instructions of the Form on which it is filed
and including all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act, is hereinafter referred to as the "Initial Registration
Statement". The additional registration statement, as amended at its Effective
Time, including the contents of the initial registration statement incorporated
by reference therein and including all information (if any) deemed to be part of
the additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration Statement".
The Initial Registration Statement and the Additional Registration Statement are
hereinafter referred to collectively as the "Registration Statements" and
individually as a "Registration Statement". The form of prospectus relating to
the U.S. Securities and the form of prospectus relating to the International
Securities, each as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing
is required) as included in a Registration Statement are hereinafter referred to
as the "U.S. Prospectus" and the "International Prospectus" respectively, and
collectively as the "Prospectuses". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (i) on the Effective Date
of the Initial Registration Statement, the Initial Registration Statement
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission ("Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) on the Effective Date of the Additional Registration Statement
(if any), each Registration Statement conformed, or will conform, in all
material respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
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material fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and (iii) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of each of the
Prospectuses pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectuses are included, each Registration Statement and each of the
Prospectuses will conform, in all material respects to the requirements of the
Act and the Rules and Regulations, and none of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and each of the Prospectuses will conform in all
material respects to the requirements of the Act and the Rules and Regulations,
none of such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do not apply
to statements in or omissions from a Registration Statement or either of the
Prospectuses based upon written information furnished to the Company by any
Underwriter through the Representatives or by any Manager through CSFBL
specifically for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectuses; and the Company is duly qualified to
do business as a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its business
requires such qualification, except to the extent that the failure to so qualify
or be in good standing would not have a material adverse effect (i) on the
condition, financial or otherwise, business, properties or results of operations
of the Company and its subsidiaries taken as a whole, (ii) which affects the
issuance or validity of the Offered Securities or, (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 Offered Securities (a
"Material Adverse Effect").
(d) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectuses; and each
subsidiary of the Company is duly qualified to do business as a foreign
corporation in good standing in
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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 would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each 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; and the capital stock
of each subsidiary owned (directly or through subsidiaries) by the Company is
owned free from liens, claims, encumbrances, claims and defects.
(e) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding shares
of capital stock of the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement and the Subscription
Agreement on each Closing Date (as defined below), such Offered Securities will
have been, validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectuses; and, except as set forth in
the Intercompany Agreement (as defined in the Prospectuses), the stockholders of
the Company have no preemptive rights with respect to the Securities.
(f) Except as disclosed in the Prospectuses, there are no contracts,
agreements or understandings between the Company and any person that would give
rise to a valid claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this Offering.
(g) Except as set forth in the Intercompany 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 a Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(h) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the consummation of
the transactions contemplated by this Agreement or the Subscription Agreement
(which shall include, for all purposes of this Agreement, the Special Dividend
(as defined in the Prospectuses) and the other transactions described in the
"Recent History" section of the Prospectuses (collectively, the
"Restructuring")) in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained under the insurance
laws of the State of Ohio (the "Ohio Insurance Laws"), the insurance laws of the
States of California and Michigan, the Act, the Rules and Regulations, and the
by-laws of the National Association of Securities Dealers, Inc. ("NASD") and
such as may be required under foreign or state securities laws (including
insurance securities laws).
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(i) Each of this Agreement and the Subscription Agreement has been
duly authorized, executed and delivered by the Company and constitutes the valid
and binding obligation of the Company enforceable in accordance with its
respective terms (except as may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting creditors' rights generally
and by general principles of equity, except that the remedies of specific
performance and injunctive and other forms of equitable relief are subject to
the discretion of the court before which any proceeding therefor may be brought
and except with respect to the obligations of the Company regarding
indemnification and contribution as provided in Section 7 below).
(j) The execution, delivery and performance of this Agreement and the
Subscription Agreement and the issuance and sale of the Offered Securities will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary is subject,
or the amended and restated certificate of incorporation or bylaws of the
Company or the articles or amended articles of incorporation and code of
regulations or bylaws, as the case may be, of any such subsidiary, in each case,
except for such breaches, violations or defaults as would not have a Material
Adverse Effect; and the Company has full power and authority to authorize, issue
and sell the Offered Securities and to consummate the transactions contemplated
by this Agreement and the Subscription Agreement, respectively.
(k) Except as disclosed in the Prospectuses, the Company and its
subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens, encumbrances
and defects, except where the failure to possess such title would not have a
Material Adverse Effect; and except as disclosed in the Prospectuses, the
Company and its subsidiaries hold any leased real or personal property under
valid and enforceable leases, except where the failure to hold such property
under such leases would not have a Material Adverse Effect.
(l) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, service marks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently employed by
them, except where the failure to own or possess such intellectual property
rights or the inability to acquire such intellectual property rights on
reasonable terms would not have a Material Adverse Effect, and have not received
any notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights (including,
6
without limitation, "The Best of America(R)" service ▇▇▇▇) that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect. Nationwide Life Insurance Company
is the owner, free and clear of any lien, claim or encumbrance of any kind, of
the service ▇▇▇▇ "The Best of America(R)", which is a registered federal service
▇▇▇▇.
(m) The Company and each of its subsidiaries hold all licenses,
certificates and permits from governmental authorities (including, without
limitation, insurance licenses from the Insurance Departments of the various
states in which the subsidiaries write insurance business (the "Insurance
Licenses")) which are necessary to the conduct of their businesses, except where
the failure to hold such licenses, certificates or permits would not have a
Material Adverse Effect; the Company's insurance subsidiaries 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 Material Adverse Effect.
(n) Except as disclosed in the Prospectuses, neither the Company nor
any of its subsidiaries is in violation of any statute, rule, regulation,
decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and
to the Company's knowledge, there is no pending investigation which might lead
to such a claim.
(o) Except as disclosed in the Prospectuses, there are no pending
actions, suits or proceedings (including, without limitation, any proceeding to
revoke or deny renewal of any Insurance License) against or affecting the
Company, any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and no such
actions, suits or proceedings (including, without limitation, any proceeding to
revoke or deny renewal of any Insurance License) are, to the Company's
knowledge, threatened or contemplated.
(p) The financial statements (other than the notes to the financial
statements) included in each Registration Statement and the Prospectuses present
fairly, and the notes to the financial statements included in the Registration
Statement and Prospectus present fairly in all material respects, the financial
position of the
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Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Prospectuses as being prepared in accordance with the
Statutory Accounting Practices (as hereinafter defined), such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis; and
the schedules included in each Registration Statement present fairly the
information required to be stated therein; and the assumptions used in preparing
the pro forma financial statements included in each Registration Statement and
each of the Prospectuses provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments in the corresponding historical financial
statement amounts.
(q) Except as disclosed in the Prospectuses, since the date of the
latest audited financial statements included in the Prospectuses 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,
and, except as disclosed in or contemplated by the Prospectuses, there has been
no dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(r) The Company is not, and after giving effect to the sale of the
Offered Securities and the application of the proceeds thereof as described in
the Prospectuses, will not be, an "investment company" or an entity "controlled"
by an "investment company" required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
(s) Neither the Company nor any of its respective affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes.
(t) The statutory financial statements of each of the Company's
insurance subsidiaries, 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.
(u) The Company has filed an application to list the Offered
Securities on the New York Stock Exchange ("NYSE") and has received notification
that such listing has been approved subject to notice of issuance. The Offered
Securities will
8
be registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to or concurrently with the effectiveness of the
Registration Statement.
(v) All reserves and other liabilities reflected in lines 1, 2, 3,
4.1, 4.2, 5 and 7.1 of page 3 of the statutory annual statements of each of the
Company's insurance subsidiaries, filed with or submitted to the Department of
Insurance of the State of Ohio, and any other state department of insurance or
similar regulatory authority for the year ended December 31, 1996 (the "Reserve
Liabilities"):
(i) Are computed in all material respects in accordance with
actuarial standards which have been adopted by the Actuarial
Standards Board, consistently applied and are fairly stated, in
accordance with sound actuarial principles;
(ii) Are based in all material respects on actuarial assumptions
which produce reserves at least as great as those called for in
any contract provision as to reserve basis and method, and are
in accordance with all other contract provisions;
(iii) Meet all material requirements of the insurance law and duly
adopted regulations, in effect at the valuation date, of the
State of Ohio and are at least as great as the minimum
aggregate amounts required by the insurance law and duly
adopted regulations, in effect at the valuation date, of the
State of Ohio and any other states in which the Company's
insurance subsidiaries file an actuarial opinion;
(iv) Are computed on the basis of assumptions consistent with those
used in computing the corresponding items in the annual
statement of the preceding year end (except as noted in the
supporting memorandum; and
(v) Include provisions for all actuarial reserves and related
annual statement items which are required under Ohio Insurance
Laws to be established.
Adequate provision for all such Reserve Liabilities has been made in accordance
with Ohio Insurance Laws to cover the total amount of all reasonably anticipated
matured and unmatured benefits, claims and other liabilities of the Company's
insurance subsidiaries under all insurance policies and annuity contracts under
which the Company's insurance subsidiaries had any liability (including, without
limitation, any liability arising under or as a result of any reinsurance,
coinsurance or other similar agreement) on the Closing Date.
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(w) Each of the Company's insurance subsidiaries has duly and validly
filed or caused to be filed all material reports, statements, documents,
registrations, filings or submissions that were required by applicable Laws (as
defined below) to be filed; all such filings complied with all applicable Laws
in all material respects when filed, and no material deficiencies have been
asserted with respect to any such filings which have not been satisfied. All
outstanding insurance policies, annuity contracts and assumption certificates
issued by any of the Company's insurance subsidiaries and now in force are, to
the extent required under applicable Laws, on forms approved by the insurance
regulatory authority of the jurisdiction where issued and utilize premium rates
which if required to be filed with or approved by insurance regulatory
authorities have been so filed or approved, except where the failure to use
approved forms or to file or have approved such premium rates would not have a
Material Adverse Effect, and the premiums charged conform thereto, except where
the failure to conform would not have a Material Adverse Effect.
(x) Each of the Company's broker/dealer subsidiaries, 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. The Company's insurance and broker/dealer subsidiaries have filed all
forms, reports, statements and other documents required by Law to be filed by
them with the Commission, all other reports (periodic or otherwise) and
registration statements, including, without limitation, in connection with sales
of variable annuity or variable life contracts, and all amendments and
supplements to all such reports and registration statements, 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.
(y) Each of the separate accounts of the Company's insurance
subsidiaries 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 the Company's insurance 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, 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
10
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 statement
therein, in the light of the circumstances under which they were made, not
misleading.
(z) Except as set forth in the Prospectuses, neither the Company nor
any of the Company's insurance subsidiaries is a party to any contract with or
other undertaking to, or is subject to any governmental order by, or is a
recipient of any presently applicable supervisory letter or other written
communication of any kind from, any governmental authority which (i) has had a
Material Adverse Effect, (ii) relates materially and adversely to its reserve
adequacy, or its investment or underwriting practices or policies or its sales
practices or policies, or (iii) would reasonably be expected to have a Material
Adverse Effect , nor has the Company or any of the Company's insurance
subsidiaries been notified by any governmental authority that it is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such governmental order, contract, undertaking,
letter or other written communication.
(aa) Except as set forth in the Prospectuses, and with respect to all
insurance issued:
(i) No outstanding insurance policy or annuity contract issued
or assumed by any of the Company's insurance subsidiaries entitles the
holder thereof or any other Person (as defined below) to receive dividends,
distributions or other benefits based on the revenues or earnings of the
Company or the Company's insurance subsidiaries or any other individual,
partnership, firm, corporation, association, trust, unincorporated
organization, governmental authority or other entity, as well as any
syndicate or group that would be deemed to be a person under Section
13(d)(3) of the Exchange Act (each, a "Person").
(ii) To the Company's and the Company's insurance subsidiaries'
knowledge, no other party to any reinsurance, coinsurance or other similar
agreement with any of the Company's insurance subsidiaries is in default
thereunder, except for such default that would not reasonably be expected
to have a Material Adverse Effect.
(iii) Except as set forth in the Prospectuses, all advertising,
promotional and sales materials and other marketing practices used by the
Company and/or the Company's insurance subsidiaries, or, to the Company's
knowledge, any agent of the Company or the Company's insurance
subsidiaries, have complied and are currently in compliance with applicable
Laws, except where the failure to comply or be in compliance would not have
a Material Adverse Effect.
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(iv) Each annuity contract issued by any of the Company's insurance
subsidiaries qualifies as an annuity contract under Section 72 of the
Internal Revenue Code of 1986, as amended through the date hereof, except
where the failure to so qualify would not have a Material Adverse Effect.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $_____ per share, the respective number
of shares of U.S. Firm Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver the U.S. Firm Securities to the Representatives
for the accounts of the Underwriters, against payment of the purchase price in
funds available on the same day by wire transfer to the account of the Company
at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC") or by
official Federal Reserve Bank check or checks drawn to the order of the Company
at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, 1301 Avenue of the Americas, at 10 A.M., New
York time, on _________, 1997 or at such other time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "First Closing Date". For purposes of Rule 15c6-1
under the Exchange Act, the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
U.S. Offering and the International Offering. The certificates for the U.S.
Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests and will be made
available for checking and packaging at the office of CSFBC at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from time
to time not more than 30 days subsequent to the date of the Prospectuses, the
Underwriters may purchase all or less than all of the U.S. Optional Securities
at the purchase price per Security to be paid for the U.S. Firm Securities. The
U.S. Optional Securities to be purchased by the Underwriters on any Optional
Closing Date shall be in the same proportion to all the Optional Securities to
be purchased by the Underwriters and the Managers on such Optional Closing Date
as the U.S. Firm Securities bear to all the Firm Shares. The Company agrees to
sell to the Underwriters the number of shares of U.S. Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such U.S. Optional Securities. Such U.S. Optional Securities shall
be purchased for the account of each Underwriter in the same proportion as the
number of shares of U.S. Firm Securities set forth opposite such Underwriter's
name bears to the total number of shares of U.S. Firm Securities (subject to
adjustment by CSFBC to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the U.S. Firm Securities. No
12
Optional Securities shall be sold or delivered unless the U.S. Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC on behalf of the Underwriters and
the Managers to the Company. It is understood that CSFBC is authorized to make
payment for and accept delivery of such Optional Securities on behalf of the
Underwriters and Managers pursuant to the terms of CSFBC's instructions to the
Company.
Each time for the delivery of and payment for the U.S. Optional Securities,
being herein referred to as an "Optional Closing Date," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in funds available on the same day by wire transfer
to the account of the Company at a bank acceptable to CSFBC or by official
Federal Reserve Bank check or checks drawn to the order of the Company, at the
office of CSFBC. The certificates for the Optional Securities being purchased
on each Optional Closing Date will be in definitive form, in such denominations
and registered in such names as CSFBC requests upon reasonable notice prior to
such Optional Closing Date and will be made available for checking and packaging
at the office of CSFBC at a reasonable time in advance of such Optional Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the U.S. Securities for sale to the public as set
forth in the U.S. Prospectus.
The Company and the Underwriters agree that up to 1,437,800 shares of the
Securities to be purchased by the Underwriters (the "Reserved Securities") shall
be reserved for sale by the Underwriters to certain eligible employees and
persons having business relationships with the Company (including, without
limitation, agents) at the public offering price, as part of the distribution of
the Securities by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the NASD and all other
applicable laws, rules and regulations. Any such Reserved Securities not orally
confirmed for purchase by such eligible employees and persons having business
relationships with the Company by the later of (a) the date on which the
Registration Statement has become effective or (b) if the Company has elected to
rely on Rule 430A promulgated under the Act, the date of this Agreement, will be
offered to the public by the Underwriters as set forth in the U.S. Prospectus.
13
5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will file
each of the Prospectuses with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC subparagraph
(4)) of Rule 424(b) not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or (B) the fifteenth
business day after the Effective Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities under the
Act but the Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement or, if
filed, will file a post-effective amendment thereto with the Commission pursuant
to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, on or prior to the time either
Prospectus is printed and distributed to any Underwriter or Manager, or will
make such filing at such later date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as filed or
either of the related prospectuses or the Initial Registration Statement, the
Additional Registration Statement (if any) or either of the Prospectuses and
will not effect such amendment or supplementation without CSFBC's consent; and
the Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or either of the Prospectuses and of the institution by
the Commission of any stop order proceedings in respect of a Registration
Statement and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with the
sales by any Underwriter, Manager or dealer, any event occurs as a result of
which either or both of the Prospectuses as then amended or supplemented would
include an 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 is necessary at any time to
amend either or both of the Prospectuses to comply with the Act, the Company
will promptly notify CSFBC of such event and will promptly prepare and file with
the Commission, at its own expense, an amendment or supplement which will
correct such statement or omission
14
or an amendment which will effect such compliance with the Act. Neither CSFBC's
consent to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
stockholders an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Company will furnish to the Representatives hard copies of
each Registration Statement (four of which will be signed and will include all
exhibits), copies of each ▇▇▇▇▇ filing of each Registration Statement (and
confirmations for each ▇▇▇▇▇ filing of each Registration Statement), each
preliminary prospectus relating to the U.S. Securities, and, so long as delivery
of a prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the U.S.
Prospectus and all amendments and supplements to such documents, in each case in
such quantities as CSFBC requests. The U.S. Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, the business day following the later of
the execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other documents shall be so furnished as
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will use its best efforts, in cooperation with the
Underwriters, to arrange for the qualification of the Offered Securities for
sale under the laws of such jurisdiction as CSFBC designates and will continue
such qualifications in effect so long as required for the distribution;
provided, however, that the Company shall not be obligated to file any general
-------- -------
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
(g) During the period of three years hereafter, the Company will
furnish to the Representatives, and, upon request, to each of the other
Underwriters, (i) as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year, (ii) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
stockholders, and (iii) from time to time, such other
15
information as shall be furnished by the Company to its stockholders generally
and as shall be reasonably requested by CSFBC.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement for any filing fees and other reasonable
expenses (including reasonable fees and disbursements of counsel) incurred by
them in connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBC designates and the printing of memoranda
relating thereto, for the filing fee incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the NASD of the Offered Securities and approval of the transactions contemplated
hereby by the NASD, for all reasonable costs and expenses of the Underwriters,
including the reasonable fees and disbursements of counsel for the Underwriters,
in connection with matters related to the Reserved Securities which are
designated by the Company for sale to employees and other having a business
relationship with the Company, for any travel expenses of the Company officers
and employees and any other expenses of the Company in connection with attending
or hosting meetings with prospective purchasers of the Offered Securities and
for expenses incurred in distributing preliminary prospectuses and the
Prospectuses (including any amendments and supplements thereto) to the
Underwriters.
(i) The Company will notify CSFBC of any material adverse change
affecting any of its representations, warranties, agreements and indemnities
herein at any time prior to payment to the Company on the First Closing Date or
any Optional Closing Date.
(j) The Company will use the net proceeds received by it from the
sale of the Offered Securities in the manner specified in the Prospectuses under
the caption "Use of Proceeds."
(k) The Company will use its best efforts to list the Offered
Securities on the NYSE subject to notice of issuance and to register the Offered
Securities under the Exchange Act.
(l) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not, and will not permit
Nationwide Corporation to, offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any shares of Securities, or Class B Common
Stock (as defined below) of the Company, or any other securities convertible
into or exchangeable or exercisable for Securities or Class B Common Stock of
the Company or publicly disclose of its intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of CSFBC, other
than grants of options or shares pursuant to the Company's 1996 Long-Term Equity
Compensation Plan.
16
(m) The Company will cause each of its directors and certain
executive officers listed on Schedule B hereto to agree that after the date of
----------
the initial public offering of the Offered Securities for a period of 180 days,
such directors and executive officers will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any shares of
Securities, or publicly disclose of its intention to make any such offer, sale,
pledge, disposal or filing, without CSFBC's written permission, except that such
officers and directors may sell or otherwise dispose of Securities to members of
their respective families; provided, however, that such member(s) shall first
-------- -------
agree to be bound by the terms of this paragraph (m).
(n) The Company hereby agrees that it will ensure that the Reserved
Securities will be restricted as required by the NASD or the NASD rules from
sale, transfer, assignment, pledge or hypothecation for a period of five months
following the date of this Agreement. The Company will make arrangements with
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") to have
▇▇▇▇▇▇▇ ▇▇▇▇▇ notify the Company as to which persons will need to be so
restricted. At the request of ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Company will direct the
transfer agent to place a stop transfer restriction upon such securities for
such period of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to reimburse the
Underwriters for any reasonable expenses (including, without limitation,
reasonable legal expenses) they incur in connection with such release.
(o) The Company shall comply with Section 517.075, Florida Statutes,
if prior to the completion of the Offered Securities it or any of its affiliates
commences doing business with the government of Cuba with any person or
affiliate located in Cuba within the meaning of such Section 517.075, Florida
Statutes.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the U.S. Firm Securities on the
First Closing Date and the U.S. Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of the Company's officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of KPMG Peat Marwick LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
17
(i) in their opinion the financial statements and
schedules audited by them and included in the Registration Statements
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations;
(ii) on the basis of a reading of the latest available
interim financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries, or, at the date of the latest
available balance sheet read by such accountants, there was any
decrease in total assets or stockholder's equity as compared with
amounts shown on the latest balance sheet included in the
Prospectuses; or
(C) for the period from the closing date of the latest
income statement included in the Prospectuses to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period for the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectuses, in the total or per share amounts total assets
or net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectuses disclose have occurred or may
occur or which are described in such letter; and
18
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter; and
(iv) they have examined the statutory financial statements
of each of the Company's insurance subsidiaries, from which certain
ratios and other statistical data contained in the Registration
Statement have been derived, and in their opinion such statements,
with respect to each such insurance subsidiary, have for each relevant
period been prepared in accordance with accounting practices
prescribed or permitted by the appropriate Insurance Department of the
state of domicile of such subsidiary, except as disclosed therein; and
(v) with respect to the pro forma financial information
included in the Registration Statement, they have performed the
procedures specified by the American Institute of Certified Public
Accountants Statement on Standards for Attestation Engagements No. 1,
"Reporting on Pro Forma Financial Statements"; and
(vi) on the basis of the procedures referred to in clause
(vi) above, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that the pro forma financial information and statements
included in the Registration Statements do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations or any
material modifications should be made to such pro forma financial
information and statements for them to be in accordance with such
requirements and generally accepted accounting principles.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is
19
prior to the execution and delivery of this Agreement but the Effective Time of
the Additional Registration Statement is subsequent to such execution and
delivery, "Registration Statements" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be filed or
as proposed to be amended by the post-effective amendment to be filed shortly
prior to its Effective Time, and (iii) "Prospectuses" shall mean the
prospectuses included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or such later date as shall have been consented to by CSFBC. If
the Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, at the time either of the Prospectuses is printed and
distributed to any Underwriter or Manager, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of this
Agreement, each of the Prospectuses shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this Agreement.
Prior to such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company or its subsidiaries which, in the
reasonable judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or inadvisable
to proceed with the completion of the public offering or sale of and payment for
the U.S. Securities; (ii) any downgrading in the rating of any debt securities
or preferred securities (including preferred trust securities of any trust
affiliated with the Company) of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred securities
(including preferred trust securities of any trust affiliated with the Company)
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating) or any downgrading of the financial and operating performance of the
Company's insurance subsidiaries by A.M. Best Company that results in the
Company's insurance subsidiaries being rated lower than A- (Excellent); (iii)
any suspension or limitation of trading in securities generally on the NYSE, or
any setting of minimum prices for trading on such exchange or system, or any
suspension of trading of any securities of
20
the Company on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any outbreak
or escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters including the Representatives the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of and payment for the U.S. Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel for the
Company to the effect that:
(i) The Company is an existing corporation in good
standing under the laws of the state of its incorporation, with power
and authority (corporate and otherwise) to own its properties and
conduct its business as described in the Prospectuses; the Company 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 would not have a
Material Adverse Effect;
(ii) The Offered Securities delivered on such Closing Date
and all shares of the Class B common stock, $.01 par value per share,
of the Company (the "Class B Common Stock"), have been duly authorized
and, with respect to the Offered Securities, when issued and delivered
to, and paid for by, the Underwriters in accordance with the terms of
this Agreement, will be validly issued, fully paid and nonassessable;
the description of the Class A Common Stock and the Class B Common
Stock contained in the Prospectuses fairly and accurately sets forth
the material terms of such stock; and the stockholders of the Company
have no preemptive rights with respect to the Offered Securities,
except as provided in the Intercompany Agreement;
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any 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
Offered Securities by the Company, except such as have been obtained
and made under the General Corporation Law of Delaware, the Ohio
Insurance Laws, the insurance laws of the States of California and
Michigan, the Act, the Rules and Regulations, or the by-laws of the
21
NASD and such as may be required under foreign securities laws or
state securities laws (including insurance securities laws);
(iv) The execution, delivery and performance of this
Agreement and the Subscription Agreement and the issuance and sale of
the Offered Securities will not result in a breach or violation of any
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 or the articles or amended articles of incorporation and code
of regulations or by-laws, as the case may be, of any such subsidiary
of the Company, and the Company has full power and authority
(corporate and otherwise) to authorize, issue and sell the Offered
Securities as contemplated by this Agreement and the Subscription
Agreement;
(v) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed and
became effective under the Act as of the date and time (if
determinable) specified in such opinion, each of the Prospectuses
either was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date specified therein or
was included in the Initial Registration Statement or the Additional
Registration Statement (as the case may be) and, to the best knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectuses, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; the descriptions in the "Business-Regulation,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations - Liquidity and Capital Resources," and
"Business-Legal Proceedings" in the Registration Statements and
Prospectuses of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in a
Registration Statement or the Prospectuses which are not described as
required or any contracts or documents of a character required to be
described in a Registration Statement or the Prospectuses or to be
filed as exhibits to a Registration Statement which are not described
and filed as required; it being understood that such counsel need
express no opinion as to the financial statements or schedules or
other financial and statistical data contained in the Registration
Statement or the Prospectuses;
22
(vi) This Agreement and the Subscription Agreement have
been duly authorized, executed and delivered by the Company and
constitute the valid and binding obligations of the Company
enforceable in accordance with their respective terms (except as may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting creditors' rights generally,
except that the remedies of specific performance and injunctive and
other forms of equitable relief are subject to certain equitable
defenses and the discretion of the court before which any proceeding
therefor may be brought, and except that no opinion need be expressed
with respect to the obligations of the Company regarding
indemnification and contribution as provided in Section 7 below);
(vii) The statements in the Prospectuses under the captions
"Description of Capital Stock" insofar as they purport to constitute a
summary of the terms of the securities therein described, and under
the caption "Underwriting" (other than statements based on information
furnished by an Underwriter expressly for use or incorporation by
reference therein); insofar as they purport to constitute summaries of
the terms of the documents referred to therein, and the statements in
the Prospectuses under "Business - Regulation," "Management's
Discussion and Analysis of Financial Condition and Results of
Financial Information - Liquidity and Capital Resources," and
"Business - Legal Proceedings" insofar as they purport to constitute
descriptions of laws, rules, regulations or NAIC model laws, fairly
summarize the terms of such documents or fairly and accurately present
the information disclosed therein in all material respects;
(viii) The Company is not, and after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectuses, will not be an
"investment company" or an entity "controlled" by an "investment
company" as defined under the Investment Company Act of 1940; and
(ix) The Company has filed an application to list the
Offered Securities on the NYSE and has received notification that such
listing has been approved subject to notice of issuance and the
Offered Securities have been registered under the Exchange Act.
Such counsel also shall state that no facts have come to the attention of
such counsel that have caused it to believe that (except for financial
statements and schedules and other financial and statistical data, as aforesaid)
the Registration Statement and the Prospectuses, at the time the Registration
Statement became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein
23
not misleading, or that the Prospectuses, as amended or supplemented, if
applicable (except for financial statements and schedules and other financial
and statistical data, as aforesaid), contain, at the time distributed, any
untrue statement of a material fact or omits 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.
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 the
Prospectuses 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.
(e) The Representatives shall have received an opinion, dated such
Closing Date, from W. ▇▇▇▇▇▇ ▇▇▇▇▇, general counsel to the Company to the effect
that:
(i) Each of the Company's subsidiaries is an existing corporation in
good standing under the laws of the state of its incorporation, with power and
authority (corporate and otherwise) to own its properties and conducts its
business as described in the Prospectuses; each of the Company and it's
subsidiaries has been duly incorporated and each of the Company's subsidiaries
is an existing corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and otherwise) to own its
properties and conduct its business as described in the Prospectuses; and each
of the Company's 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 would not have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
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; and all of the capital stock of the subsidiaries is owned (directly
or through subsidiaries) by the Company; and the capital stock of each
subsidiary owned (directly or through subsidiaries) by the Company is owned free
from liens, claims, encumbrances and defects;
(ii) Except for the Intercompany Agreement, there are no contracts,
agreements or understandings between the Company and any person granting such
24
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act;
(iii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any 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 Offered Securities by the Company, except such
as have been obtained and made under the General Corporation Law of Delaware,
the Ohio Insurance Laws, the insurance laws of the States of California and
Michigan, the Act, the Rules and Regulations, the by-laws of the NASD and such
as may be required under foreign securities laws or state securities laws
(including insurance securities laws);
(iv) The execution, delivery and performance of this Agreement and
the Subscription Agreement and the issuance and sale of the Offered Securities
will not result in a breach or violation of any of any of the terms and
provisions of, or constitute a default under, any statute, any rule, regulation
or order of any governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is subject; and
(v) The Company and each of its 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
insurance subsidiaries 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 the aggregate would have a Material Adverse Effect.
(f) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities delivered on such Closing Date, the Registration Statements, the
Prospectuses and other related matters as the Representatives may 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. In rendering such
opinion, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ may
25
rely as matters governed the laws of the states in which such counsel is not
licensed to practice upon the opinions of local counsel.
(g) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration Statement
has been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement (if any)
satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was
filed pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time either
Prospectus was printed and distributed to any Underwriter or Manager; and,
subsequent to the date of the most recent financial statements in the
Prospectuses, there has been no change, nor any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries which has or could
reasonably be expected to have a Material Adverse Effect except as set forth in
or contemplated by the Prospectuses or as described in such certificate.
(h) The Representatives shall have received a letter, dated such
Closing Date, from KPMG Peat Marwick LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to in
such subsection will be a date not more than three business days prior to such
Closing Date for the purposes of this subsection.
(i) The Offered Securities to be sold by the Company at the Closing
Date shall have been duly listed on the NYSE subject to notice of issuance and
shall have been registered under the Exchange Act.
(j) The Representatives shall have received the lock-up letters of
the Company and the directors and executive officers as contemplated by Sections
5(l) and 5(m), respectively.
(k) On the Closing Date, the Managers shall have purchased the
International Firm Securities or the International Optional Securities, pursuant
to the Subscription Agreement.
(l) On or before the Closing Date, the Company shall have received
from the Ohio Insurance Department its consent and approval of those
transactions contemplated by the Restructuring requiring Ohio Insurance
Department approval.
26
(m) On or before the Closing Date, the Company shall have received
from the Staff of the Commission an exemptive order (or, with the approval of
the Representatives, which shall not be unreasonably withheld, a no-action
letter) in form and substance reasonably satisfactory to the Representatives
with respect to the non-applicability of Section 17 of the 1940 Act and the
rules and regulations promulgated thereunder to the offering, sale and resale of
the Offered Securities contemplated by this Agreement and the Subscription
Agreement to affiliates of the Company or to affiliates of affiliates of the
Company that are registered investment companies. Such exemptive order (or, if
applicable, no-action letter) shall not have been withdrawn or amended in any
manner by the Staff of the Commission and shall be in full force and effect as
of the Closing Date.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as the Representatives may
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, either of the Prospectuses, or any amendment or supplement thereto,
or any related preliminary prospectus, 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, or
(ii) arise out of or are based upon any actions or inactions taken by or omitted
to be taken by the Underwriters in respect of or pursuant to the implementation
of the reserved share program and the sale of Reserved Securities contemplated
by the 13th paragraph of the "Underwriting" Section of the U.S. Prospectus, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case (A) to
-------- -------
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below or (B) with respect to any
preliminary prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Offered Securities to a person who was not sent, at or prior to the written
confirmation of such sale, a copy of the Prospectus and the loss,
27
claim, damage or liability of such Underwriter results from an untrue statement
or omission of a material fact contained in the preliminary prospectus that was
corrected in the Prospectus; provided that the Company delivered the preliminary
--------
prospectuses to the several Underwriters in requisite quantity and on a timely
basis to permit such sending.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act 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 any material fact contained in any Registration Statement, either of the
Prospectuses, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the U.S. Prospectus furnished on behalf of each Underwriter: the last
paragraph at the bottom of the cover page concerning the terms of the offering
by the Underwriters, the legend concerning over-allotments and stabilizing on
the inside front cover page, and the first, fifth, sixth, seventh, eighth,
twelfth, and fifteenth paragraphs and second sentence of the eleventh paragraph
under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section
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
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election to or assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs
28
of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering
of the U.S. Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the U.S. Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters bear to the total price to the
public of the Offered Securities. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the U.S. Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. 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. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
29
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions to each officer of the Company, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of U.S.
Securities that such defaulting Underwriter or Underwriters agreed, but failed,
to purchase does not exceed 10% of the total number of U.S. Securities that the
Underwriters are obligated to purchase on such Closing Date, CSFBC may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase U.S. Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of U.S. Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of U.S. Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Company for the purchase of such U.S. Securities by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 9 (provided that if such default occurs with respect to
U.S. Optional Securities after the First Closing Date, this Agreement will not
terminate as to the U.S. Firm Securities or any U.S. Optional Securities
purchased prior to such termination). As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the U.S. Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the U.S. Securities by the
Underwriters is not consummated,
30
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the Company and
the Underwriters pursuant to Section 7 shall remain in effect, and if any U.S.
Securities have been purchased hereunder, the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the U.S. Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the U.S. Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3628, Attention: Investment Banking Department--
Transactions Advisory Group, or, if sent to the Company will be mailed,
delivered or telegraphed and confirmed to it at Nationwide Financial Services,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: President (with a
copy to the General Counsel); provided, however, that any notice to an
-------- -------
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
31
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
NATIONWIDE FINANCIAL SERVICES, INC.
By __________________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By Credit Suisse First Boston Corporation
By ___________________
Name:
Title:
32
SCHEDULE A
Underwriter Number of U.S. Firm Securities
----------- ------------------------------
Total....................... $________
========
33
SCHEDULE B
DIRECTORS AND EXECUTIVE OFFICERS TO SIGN LOCK-UPS
Dimon ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇........................................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇..............................................................
▇▇▇▇▇ ▇. ▇▇▇▇▇▇...............................................................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇...........................................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇...........................................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇..............................................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇........................................................
▇▇▇▇▇ ▇. ▇▇▇▇▇................................................................
W. ▇▇▇▇▇▇ ▇▇▇▇▇...............................................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇........................................................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇..............................................................
▇▇▇▇▇ ▇. ▇▇▇▇▇▇...............................................................
▇▇▇▇▇▇ ▇. Click...............................................................
▇▇▇▇▇ ▇. Diamond..............................................................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.............................................................
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇..............................................................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇......................................................
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.............................................................
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.......................................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇...........................................................
▇▇▇▇▇ ▇. ▇▇▇▇▇▇...............................................................
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇............................................................
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇..............................................................
34
