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As Filed with the Securities and Exchange Commission on May 15, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
NATIONWIDE FINANCIAL SERVICES, INC. DELAWARE 31-1486870
NATIONWIDE FINANCIAL SERVICES
CAPITAL TRUST II DELAWARE TO BE APPLIED FOR
NATIONWIDE FINANCIAL SERVICES
CAPITAL TRUST III DELAWARE TO BE APPLIED FOR
(Exact Name of Registrant as Specified (State or Other Jurisdiction (I.R.S.Employer Identification
in its Charter) of Incorporation or Organization) Number)
</TABLE>
ONE NATIONWIDE PLAZA
COLUMBUS, OHIO 43215
(614) 249-7111
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
each Registrant's Principal Executive Offices)
W. SIDNEY DRUEN
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
NATIONWIDE FINANCIAL SERVICES, INC.
ONE NATIONWIDE PLAZA
COLUMBUS, OHIO 43215
(614) 249-7640
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
Of Agent for Service)
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COPIES TO:
MICHAEL GROLL/ALEXANDER M. DYE
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
125 WEST 55TH STREET
NEW YORK, NEW YORK 10019
(212) 424-8000
------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities being offered only in connection with dividend or
interest reinvestment plans, please check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1)(2) PER UNIT(1)(2)(3) PRICE(1)(2)(3) FEE
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<S> <C> <C> <C> <C>
Senior debt securities and subordinated debt securities
(collectively, "Debt Securities") of Nationwide Financial
Services, Inc.......................................................
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Preferred Stock, $0.01 par value, of Nationwide Financial
Services, Inc.......................................................
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Depositary Shares of Nationwide Financial Services, Inc...............
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Class A Common Stock, $0.01 par value, of Nationwide Financial
Services, Inc.......................................................
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Preferred Securities of Nationwide Financial Services Capital
Trust II............................................................
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Preferred Securities of Nationwide Financial Services Capital
Trust III...........................................................
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Guarantees of Preferred Securities of Nationwide Financial
Services Trust II and Nationwide Financial Services Capital
Trust III by Capital Financial Services, Inc. (4)..................
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Total......................................................... $1,000,000,000 100% $1,000,000,000 $295,000
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</TABLE>
(1) Such indeterminate number or amount of Debt Securities, Preferred Stock,
Depositary Shares and Class A Common Stock of Nationwide Financial
Services, Inc. and Preferred Securities of Nationwide Financial Services
Capital Trust II and Nationwide Financial Services Capital Trust III as may
from time to time be issued at indeterminate prices. Subordinated Debt
Securities of Nationwide Financial Services, Inc. may be issued and sold to
Nationwide Financial Services Capital Trust II and Nationwide Financial
Services Capital Trust III, in which event such Subordinated Debt
Securities may later be distributed to the holders of Preferred Securities
upon a dissolution of Nationwide Financial Services Capital Trust II or
Nationwide Financial Services Capital Trust III, and the distribution of
the assets thereof.
(2) Such amount in U.S. dollars or the equivalent thereof in foreign currencies
as shall result in an aggregate initial offering price for all securities
of $1,000,000,000. In addition, this Registration Statement includes such
presently indeterminate number of Offered Securities (as defined herein) as
may be issuable from time to time upon conversion or exchange of the
Offered Securities being registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and exclusive of accrued interest and dividends, if
any.
(4) Nationwide Financial Services, Inc. is also registering under this
registration statement all other obligations that it may have with respect
to Preferred Securities issued by Nationwide Financial Services Capital
Trust II and Nationwide Financial Services Capital Trust III. No separate
consideration will be received for any Guarantee or any other obligations.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement to these securities has been filed with the Securities
and Exchange Commission. These securities may not be sold nor may offers to buy
be accepted prior to the time the registration statement becomes effective. This
prospectus shall not constitute an offer to sell or the solicitation of any
offer to buy nor shall there be any sale of these securities in any state in
which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state.
Subject to Completion, Dated , 1998
PROSPECTUS
$1,000,000,000
NATIONWIDE FINANCIAL SERVICES, INC.
Debt Securities
Preferred Stock
Depositary Shares
Class A Common Stock
------------------------------------
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
NATIONWIDE FINANCIAL SERVICES, INC.
------------------------------------
Nationwide Financial Services, Inc. (the "Company") may offer and sell
from time to time (i) its unsecured senior debt securities ("Senior Debt
Securities") and unsecured subordinated debt securities ("Subordinated Debt
Securities"), consisting of debentures, notes or other evidences of
indebtedness, (ii) shares of its Preferred Stock, par value $0.01 per share (the
"Preferred Stock"), which may be represented by depositary shares (the
"Depositary Shares") as described herein or (iii) shares of its Class A Common
Stock, par value $0.01 per share (the "Class A Common Stock"). Such securities
may be offered in one or more separate classes or series, in amounts, at prices
and on terms to be determined by market conditions at the time of sale and to be
set forth in a supplement or supplements to this Prospectus (a "Prospectus
Supplement"). Such securities may be sold for U.S. dollars, foreign denominated
currency or currency units; amounts payable with respect to any such securities
may likewise be payable in U.S. dollars, foreign denominated currency or
currency units, in each case as the Company specifically designates.
Nationwide Financial Services Capital Trust II ("Nationwide Capital
Trust II") and Nationwide Financial Services Capital Trust III ("Nationwide
Capital Trust III" and collectively, the "Nationwide Trusts"), each a statutory
business trust formed under the laws of the State of Delaware, may offer and
sell, from time to time, preferred securities representing undivided beneficial
interests in the assets of the respective Nationwide Trust ("Preferred
Securities"). The payment of periodic cash distributions ("distributions") with
respect to Preferred Securities out of monies held by the Property Trustee (as
defined herein) of each of the Nationwide Trusts and payments on liquidation of
each Nationwide Trust and on redemption of Preferred Securities of such
Nationwide Trust, will be guaranteed by the Company as and to the extent
described herein (each, a "Preferred Securities Guarantee"). See "Description of
the Preferred Securities Guarantees." The Company's obligation under each
Preferred Securities Guarantee is an unsecured obligation of the Company and
will rank (i) subordinate and junior in right of payment to all other
liabilities of the Company, including the Senior Debt Securities and the
Subordinated Debt Securities, except those made pari passu or subordinate by
their terms, and (ii) senior to all capital stock now or hereafter issued by the
Company and to any guarantee now or hereafter entered into by the Company in
respect of any of its capital stock. Subordinated Debt Securities may be issued
and sold from time to time in one or more series to a Nationwide Trust, or a
trustee of such Nationwide Trust, in connection with the investment of the
proceeds from the offering of Preferred Securities and Common Securities (as
defined herein) of such Nationwide Trust. The Subordinated Debt Securities
purchased by a Nationwide Trust may be subsequently distributed pro rata to
holders of Preferred Securities and Common Securities in connection with the
dissolution of such Nationwide Trust upon the occurrence of certain events as
may be described in an accompanying Prospectus Supplement.
Specific terms of the particular Senior Debt Securities, Subordinated
Debt Securities, Preferred Stock, Depositary Shares, Class A Common Stock,
Preferred Securities and the related Preferred Securities Guarantee, in respect
of which this Prospectus is being delivered (the "Offered Securities") will be
set forth in an accompanying Prospectus Supplement or Supplements, together with
the terms of the offering of the Offered Securities, the initial price thereof
and the net proceeds from the sale thereof. The Prospectus Supplement will set
forth with regard to the particular Offered Securities, certain terms thereof,
including, where applicable, (i) in the case of Senior Debt Securities and
Subordinated Debt Securities, the ranking as senior or subordinated Debt
Securities, the specific designation, aggregate
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principal amount, purchase price, maturity, interest rate (which may be fixed or
variable), if any, the time and method of calculating interest payments, if any,
time of payment of interest, if any, any listing on a securities exchange,
authorized denomination, any exchangeability, conversion, redemption, prepayment
or sinking fund provisions, the currency or currencies or currency unit or units
in which principal, premium, if any, or interest, if any, is payable, public
offering price, the right of the Company, if any, to defer payment or interest
on the Subordinated Debt Securities and the maximum length of any such deferral
period, and any other specific terms of the Debt Securities; (ii) in the case of
Preferred Stock, the specific designation, number of shares, purchase price and
the rights, preferences and privileges thereof and any qualifications or
restrictions thereon (including dividends, liquidation value, voting rights,
terms for the redemption, conversion or exchange thereof and any other specific
terms of the Preferred Stock), listing, if any, on a securities exchange and
whether the Company has elected to offer the Preferred Stock in the form of
Depositary Shares and the terms thereof; (iii) in the case of Class A Common
Stock, the number of shares offered, the initial offering price, market price
and dividend information; and (iv) in the case of Preferred Securities of a
Nationwide Trust, the specific designation, number of securities, liquidation
amount per security, initial public offering price, and any listing on a
securities exchange, distribution rate (or method of calculation thereof), dates
on which distributions shall be payable and dates from which distributions shall
accrue, voting rights, if any, terms for any conversion or exchange into other
securities, any redemption or sinking fund provisions and any other rights,
preferences, privileges, limitations or restrictions relating to the Preferred
Securities.
The Offered Securities may be offered in amounts, at prices and on
terms to be determined at the time of offering; provided, however, that the
aggregate offering price to the public of the Offered Securities will be limited
to $1,000,000,000. Any Prospectus Supplement relating to any Offered Securities
will contain information concerning certain United States federal income tax
considerations, if applicable, to the Offered Securities.
The Company's Class A Common Stock is traded on the New York Stock
Exchange ("NYSE") under the symbol "NFS".
The Company and/or each of the Nationwide Trusts may sell the Offered
Securities directly, through agents designated from time to time or through
underwriters or dealers. See "Plan of Distribution" below. If any agents of the
Company and/or any of the Nationwide Trusts or any underwriters or dealers are
involved in the sale of the Offered Securities, the names of such agents,
underwriters or dealers and any applicable commissions and discounts will be set
forth in the related Prospectus Supplement. See "Plan of Distribution" for
possible indemnification arrangements for dealers, underwriters and agents.
------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------------------
The date of this Prospectus is , 1998.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549, or at the public reference facilities of
the regional offices in Chicago and New York. The addresses of these regional
offices are as follows: 500 West Madison Street, Chicago, Illinois 60661, and 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material also can be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington D.C. 20549, upon payment of the
fees prescribed by the rules and regulations of the Commission. Reports, proxy
statements, and other information concerning the Company may also be inspected
at the offices of the NYSE at 20 Broad Street, New York, New York 10005. Such
material may also be accessed electronically by means of the Commission's home
page on the Internet at http://www.sec.gov.
The Company and the Nationwide Trusts have filed with the Commission a
Registration Statement on Form S-3 under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the securities offered by this
Prospectus. This Prospectus does not contain all the information set forth in
the Registration Statement and exhibits thereto. In addition, certain documents
filed by the Company with the Commission have been incorporated in this
Prospectus by reference. See "Incorporation of Certain Documents by Reference."
Statements contained herein concerning the provisions of any document do not
purport to be complete and, in each instance, are qualified in all respects by
reference to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is subject
to and qualified in its entirety by such reference. For further information with
respect to the Company, the Nationwide Trusts and the securities offered hereby,
reference is made to the Registration Statement, including the exhibits thereto,
and the documents incorporated herein by reference.
No separate financial statements of any of the Nationwide Trusts have
been included or incorporated by reference herein. The Company and the
Nationwide Trusts do not consider that such financial statements would be
material to holders of the Preferred Securities because (i) all of the voting
securities of each of the Nationwide Trusts will be owned, directly or
indirectly, by the Company, a reporting company under the 1934 Act, (ii) each of
the Nationwide Trusts is a special purpose entity, has no operating history, has
no independent operations and is not engaged in, and does not propose to engage
in, any activity other than issuing Trust Securities (as defined herein)
representing undivided beneficial interests in the assets of such Nationwide
Trust and (iii) the Company's obligations described herein and in any
accompanying Prospectus Supplement under the Declaration (as defined herein) of
each of the Nationwide Trusts, the Preferred Securities Guarantee with respect
to the Preferred Securities issued by each of the Nationwide Trusts, the
Subordinated Debt Securities purchased by the Nationwide Trusts and the related
Indenture, taken together, constitute a full and unconditional guarantee of
payments due on the Preferred Securities of each of the Nationwide Trusts. See
"The Nationwide Trusts," "Description of the Preferred Securities," "Description
of the Preferred Securities Guarantees" and "Description of the Debt
Securities."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in the Prospectus the
following documents previously filed by the Company (File No. 1-12785) with the
Commission pursuant to the 1934 Act:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
1997 (including that portion of the Annual Report to Shareholders
incorporated by reference therein);
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
and
3. Current Report on Form 8-K dated April 29, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the 1934 Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the securities offered hereby shall be deemed
to be incorporated by reference in the Prospectus and to be part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
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The Company will provide without charge to each person, including any
beneficial owner to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any and all of the information that has been
incorporated by reference in the Prospectus (not including exhibits to the
information that are incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates). Requests for such documents shall be directed to Nationwide
Financial Services, Inc., One Nationwide Plaza, Columbus, Ohio 43215, Attention:
Roger A. Craig, Counsel (telephone (614) 249-7111).
FOR NORTH CAROLINA INVESTORS: THE COMMISSIONER OF INSURANCE OF THE
STATE OF NORTH CAROLINA HAS NOT APPROVED OR DISAPPROVED THIS OFFERING NOR HAS
SUCH COMMISSIONER PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
NO DEALER, SALESMAN OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY, ANY NATIONWIDE TRUST OR ANY UNDERWRITER, DEALER OR AGENT. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER
TO BUY, ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES
IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS
OF THE COMPANY OR ANY NATIONWIDE TRUST SINCE THE DATE HEREOF.
------------------------------------
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars" or
"U.S.$").
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THE COMPANY
The Company, a Delaware corporation, was formed in November 1996 as a
holding company for Nationwide Life Insurance Company ("NLIC") and the other
companies within the Nationwide Insurance Enterprise (as defined below) that
offer or distribute long-term savings and retirement products. The Nationwide
Insurance Enterprise refers to Nationwide Mutual Insurance Company ("Nationwide
Mutual") and its subsidiaries and affiliates, which includes over 100 companies
that offer a wide range of insurance and investment products and services.
On March 11, 1997, the Company sold, in an initial public offering,
approximately 23.6 million shares of its newly issued Class A Common Stock for
net proceeds of approximately $524.2 million (the "Equity Offering"). In March
1997, the Company also sold in a companion public offering, $300 million
aggregate principal amount of 8% Senior Notes (the "Notes Offering"), and
Nationwide Financial Services Capital Trust, a subsidiary trust of the Company,
sold in a companion public offering $100 million aggregate liquidation amount of
7.899% Capital Securities (the "Capital Securities Offering"). Aggregate net
proceeds from the Equity Offering, the Notes Offering and the Capital Securities
Offering totaled approximately $917 million. The Company contributed
approximately $836.8 million of the proceeds to the capital of NLIC and retained
approximately $80.2 million of the proceeds for general corporate purposes.
Prior to the Equity Offering, the Company was a wholly owned subsidiary
of Nationwide Corporation ("Nationwide Corp."). Nationwide Corp. continues to
own all of the outstanding shares of Class B common stock, par value $0.01 per
share (the "Class B Common Stock," together with the Class A Common Stock, the
"Common Stock"), of the Company, which represents approximately 81.6% of the
total number of shares of Common Stock outstanding and approximately 97.8% of
the combined voting power of the stockholders of the Company. Nationwide Corp.
is a subsidiary of Nationwide Mutual Insurance Company ("Nationwide Mutual"),
one of the controlling entities of the Nationwide Insurance Enterprise.
During 1996 and 1997, Nationwide Corp. and the Company completed
restructuring transactions in anticipation of the Equity Offering to focus the
business of the Company on long-term savings and retirement products. On
September 24, 1996, NLIC declared a dividend payable to Nationwide Corp. on
January 1, 1997 consisting of the outstanding shares of common stock of certain
subsidiaries that do not offer or distribute long-term savings or retirement
products. In addition, during 1996, NLIC entered into two reinsurance agreements
whereby all of NLIC's accident and health and group life insurance business was
ceded to two affiliates effective January 1, 1996. On January 27, 1997,
Nationwide Corp. contributed the common stock of NLIC and three marketing and
distribution companies to the Company.
In addition to the transactions discussed above, the Company paid, as
part of the restructuring, $900 million of dividends to Nationwide Corp.,
$50 million on December 31, 1996 and $850 million on February 24, 1997.
The Company is a leading provider of long-term savings and retirement
products. The Company offers variable annuities, fixed annuities and life
insurance as well as mutual funds and pension products and administrative
services. By developing and offering a wide variety of products, the Company
believes that it has positioned itself to compete effectively in various stock
market and interest rate environments. The Company markets its products through
a broad spectrum of wholesale and retail distribution channels, including
financial planners, pension plan administrators, securities firms, banks and
Nationwide Mutual insurance agents.
The mailing address of the Company's principal executive office is One
Nationwide Plaza, Columbus, Ohio 43215 and its telephone number is (614)
249-7111.
THE NATIONWIDE TRUSTS
Each of Nationwide Capital Trust II and Nationwide Capital Trust III is
a statutory business trust formed on May 8, 1998 under the Delaware Business
Trust Act (the "Business Trust Act") pursuant to a separate declaration of trust
among the trustees named therein of each of the Nationwide Trusts and the
Company and the filing of a certificate of trust with the Secretary of State of
the State of Delaware. Each such declaration will be amended and restated in its
entirety by the Company, as sponsor of the Nationwide Trusts, and the Nationwide
Trustees (as defined below) of each of the Nationwide Trusts (as so amended and
restated, the "Declaration") as of or prior to the date each of the Nationwide
Trusts issues any Trust Securities. The Company will acquire securities
representing common undivided beneficial interests in the
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assets of each of the Nationwide Trusts (the "Common Securities" and, together
with the Preferred Securities, the "Trust Securities") in an aggregate
liquidation amount equal to 3% or more of the total capital of each of the
Nationwide Trusts.
The Common Securities of each of the Nationwide Trusts will rank pari
passu, and payment will be made thereon pro rata, with the Preferred Securities
of each of the Nationwide Trusts, except that, upon the occurrence and during
the continuance of an event of default under the Declaration of a Nationwide
Trust, the rights of the holders of the Common Securities of such Nationwide
Trust to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities of such Nationwide Trust. Each of the Nationwide Trusts
exists for the exclusive purposes of (i) issuing the Trust Securities
representing undivided beneficial interests in the assets of the Trust, (ii)
investing the gross proceeds of the Trust Securities in Subordinated Debt
Securities and (iii) engaging in only those other activities necessary or
incidental thereto. The term of each of the Trusts will expire on May 8, 2053,
but may be terminated earlier as provided in the applicable Declaration.
Each Nationwide Trust's business and affairs will be conducted by the
trustees (the "Nationwide Trustees") appointed by the Company as direct or
indirect holder of all of the Common Securities. The holder of Common Securities
will be entitled to appoint, remove or replace any of, or increase or reduce the
number of, the Nationwide Trustees of a Nationwide Trust. The duties and
obligations of the Nationwide Trustees shall be governed by the Declaration of
such Nationwide Trust. A majority of the Nationwide Trustees (the "Regular
Trustees") of each Nationwide Trust will be persons who are employees or
officers of or affiliated with the Company. One Nationwide Trustee of each
Nationwide Trust will be a financial institution which will be unaffiliated with
the Company and which shall act as property trustee and as indenture trustee for
purposes of the Trust Indenture Act of 1939 (the "Trust Indenture Act"),
pursuant to the terms set forth in a Prospectus Supplement (the "Property
Trustee"). In addition, unless the Property Trustee maintains a principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law, one Nationwide Trustee of each Nationwide Trust will have its
principal place of business or reside in the State of Delaware (the "Delaware
Trustee"). The Company will pay all fees and expenses related to the Nationwide
Trusts and the offering of the Trust Securities. The Company will guarantee
payment of distributions and payments on redemption or liquidation with respect
to the Preferred Securities of each Nationwide Trust to the extent the
applicable Nationwide Trust has funds available therefor.
The place of business and the telephone number of each of the
Nationwide Trusts are the principal executive offices and telephone number of
the Company.
USE OF PROCEEDS
Each Nationwide Trust will use all proceeds received from the sale of
its Trust Securities to purchase Subordinated Debt Securities of the Company.
Unless otherwise set forth in a Prospectus Supplement with respect to the
proceeds from the sale of the particular Offered Securities to which such
Prospectus Supplement relates, the net proceeds from the sale of the Offered
Securities are expected to be used by the Company for general corporate
purposes, which may include investments in or advances to subsidiaries, possible
acquisitions of financial services companies or assets thereof, working capital,
repayment or redemption of outstanding debt, and other corporate purposes.
Pending such use, the net proceeds may be temporarily invested.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges
and the ratio of earnings to combined fixed charges and preferred stock
dividends for the Company and its subsidiaries on a consolidated basis for the
year ended December 31, 1997, and for the three months ended March 31, 1998.
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED
ENDED MARCH 31, DECEMBER 31,
1998 1997
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<S> <C> <C>
Ratio of Earnings to Fixed Charges(1)(2).............................. 17.5x 16.6x
<FN>
- --------------------
(1) The Company has authority to issue up to 50,000,000 shares of Preferred
Stock; however, there are currently no shares outstanding and the Company
currently does not have a Preferred Stock dividend obligation. Therefore,
the ratio of earnings to combined fixed charges and preferred stock
dividends is equal to the ratio of earnings to fixed charges and is not
disclosed separately.
(2) The ratio of earnings to fixed charges is calculated by dividing earnings
(income from continuing operations before income taxes plus fixed charges)
by fixed charges (interest expense on debt). Fixed charges do not include
interest credited to policyholder account balances of $1,016.6 million for
the year ended December 31, 1997 and $261.9 million for the three months
ended March 31, 1998.
</TABLE>
DESCRIPTION OF THE DEBT SECURITIES
The Company's Senior Debt Securities and Subordinated Debt Securities
(collectively, for purposes of this Section only, the "Debt Securities"),
consisting of notes, debentures or other evidences of indebtedness, may be
issued from time to time in one or more series, in the case of Senior Debt
Securities, under a Senior Indenture (the "Senior Debt Indenture") to be entered
into between the Company and Wilmington Trust Company, as Trustee, and in the
case of Subordinated Debt Securities, under a Subordinated Indenture (the
"Subordinated Debt Indenture") to be entered into between the Company and
Wilmington Trust Company, as Trustee. The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures." Wilmington Trust
Company, in its capacity as trustee under either or both of the Indentures, is
referred to hereinafter as the "Indenture Trustee." The Indentures are included
as exhibits to the Registration Statement of which this Prospectus is a part.
The following description summarizes the material terms of the Indentures and
the Debt Securities and is qualified in its entirety by reference to the
detailed provisions of the applicable Indenture, which contains the full text of
such provisions, including the definition of certain terms used herein, and
other information regarding the Debt Securities. Numerical references in
parentheses below are to sections in the applicable Indenture. Wherever
particular sections or defined terms of the applicable Indenture are referred
to, such sections or defined terms are incorporated herein by reference as part
of the statement made, and the statement is qualified in its entirety by such
reference. The Indentures are substantially identical except for provisions
relating to subordination and the Company's negative pledge and restrictions on
certain dispositions. Any Debt Securities offered by this Prospectus and the
accompanying Prospectus Supplement are referred to herein as the "Offered Debt
Securities."
GENERAL
The Debt Securities will be unsecured senior or subordinated
obligations of the Company. The Indentures do not limit the aggregate principal
amount of indebtedness that may be issued and provide that Debt Securities may
be issued from time to time in one or more series and may be denominated and
payable in foreign currencies or units based on or related to foreign
currencies, including European Currency Units. Special United States federal
income tax considerations applicable to any Debt Securities so denominated will
be described in the relevant Prospectus Supplement.
Reference is made to the applicable Prospectus Supplement which will
accompany this Prospectus for the following terms of and information relating to
the Offered Debt Securities offered thereby (to the extent such terms are
applicable to such Debt Securities): (i) classification as senior or
subordinated Debt Securities, the specific designation, aggregate
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principal amount, purchase price and denomination; (ii) currency or units based
on or relating to currencies in which the Offered Debt Securities are
denominated and/or in which principal, premium, if any, and/or any interest will
or may be payable; (iii) any date or dates upon which the principal of the
Offered Debt Securities is payable; (iv) interest rate or rates (which may be
fixed or variable) or the method by which such rate will be determined, if any;
(v) the dates on which any such interest will be payable; (vi) the place or
places where the principal of, premium, if any, and interest, if any, on the
Offered Debt Securities will be payable; (vii) any mandatory or optional
redemption, repayment or sinking fund provisions; (viii) whether the Offered
Debt Securities will be issuable in registered form ("Registered Debt
Securities") or bearer form ("Bearer Debt Securities") or both and, if Bearer
Debt Securities are issuable, any restrictions applicable to the place of
payment of any principal of, premium, if any, and interest, if any, on such
Bearer Debt Securities, the exchange of one form for another and the offer, sale
and delivery of such Bearer Debt Securities (except that Registered Debt
Securities will not be exchangeable into Bearer Debt Securities except in
certain circumstances); (ix) whether the Debt Securities will be issuable in
whole or in part in global form and, if so, the identity of the Depositary for
such Securities and the terms and conditions, if any, upon which such Securities
may be exchanged in whole or in part for other definitive securities; (x) any
applicable United States federal income tax consequences; (xi) the proposed
listing, if any, of the Offered Debt Securities on any securities exchange;
(xii) any variation to the provisions of the Indenture with respect to the
satisfaction and discharge of the Company's indebtedness and obligations, or
termination of certain covenants and Events of Default under the Indenture, with
respect to the Debt Securities by deposit of money or Government Obligations;
(xiii) any trustee (other than Wilmington Trust Company), depositary,
authenticating or paying agent, transfer agent, registrar or other agent with
respect to the Debt Securities; (xiv) the right of the Company, if any, to defer
payments of interest on the Subordinated Debt Securities and (xv) any other
specific terms of the Offered Debt Securities, including any modifications of or
additions to the events of default or covenants provided for with respect to
such Debt Securities, and any terms which may be required by or advisable under
applicable laws or regulations not inconsistent with the applicable Indenture.
Debt Securities may be presented for exchange and Registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the applicable Indenture. Such services
will be provided without charge, other than any tax or other governmental charge
payable in connection therewith, but subject to the limitations provided in the
applicable Indenture. Bearer Debt Securities and the coupons, if any,
appertaining thereto will be transferable by delivery.
Debt Securities may bear interest at a fixed rate or a floating rate.
Debt Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the principal
amount payable on any principal payment date, or the amount of interest payable
on any interest payment date, to be determined by reference to one or more
currency exchange rates, commodity prices, equity indices or other factors.
Holders of such Debt Securities may receive a principal amount on any principal
payment date, or a payment of interest on any interest payment date, that is
greater or less than the amount of principal or interest otherwise payable on
such dates, depending upon the value on such dates of applicable currency,
commodity, equity index or other factors. Information as to the methods for
determining the amount of principal or interest payable on any date, the
currencies, commodities, equity indices or other factors to which the amount
payable on such date is linked and certain additional tax considerations will be
set forth in the applicable Prospectus Supplement.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in global form.
Registered Debt Securities issued in global form (each a "Registered Global
Security") will be deposited with a depositary (a "Depositary") or with a
nominee for a Depositary identified in the Prospectus Supplement relating to
such series and registered in the name of the Depositary or a nominee thereof.
In such case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Registered Debt Securities of the series to be
represented by such Registered Global Security or Securities. Unless and until
it is exchanged in whole for Debt Securities in definitive registered form, a
Registered Global Security may not be transferred except as a whole by the
Depositary for such Registered Global Security to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
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The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such series.
The Company anticipates that the following provisions will apply to all such
depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will
be limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the Depositary
for such Registered Global Security will credit, on its book-entry registration
and transfer system, the participants' accounts with the respective principal
amounts of the Debt Securities represented by such Registered Global Security
beneficially owned by such participants. Initially, the accounts to be credited
shall be designated by any dealers, underwriters or agents participating in the
distribution of such Debt Securities. Ownership of beneficial interests in such
Registered Global Security will be shown on, and the transfer of such ownership
interests will be effected only through, records maintained by the Depositary
for such Registered Global Security (with respect to interests of participants)
and on the records of participants (with respect to interests of persons holding
through participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such laws may impair the ability to own, transfer or pledge beneficial
interests in Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the applicable Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global Security will not
be entitled to have the Debt Securities represented by such Registered Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the applicable Indenture.
Accordingly, each person owning a beneficial interest in a Registered Global
Security must rely on the procedures of the Depositary for such Registered
Global Security and, if such person owns through a participant, on the
procedures of the participant through which such person owns its interest, to
exercise any rights of a holder under the applicable Indenture. The Company
understands that under existing securities industry practices, if the Company
requests any action of holders or if an owner of a beneficial interest in a
Registered Global Security desires to give or take any action which a holder is
entitled to give or take under the applicable Indenture, the Depositary for such
Registered Global Security would authorize the participants holding the relevant
beneficial interests to give or take such action, and such participants would
authorize beneficial owners owning through such participants to give or take
such action or would otherwise act upon the instructions of beneficial owners
owning through them.
Payments of principal of and premium, if any, and interest, if any, on
a Registered Global Security will be made to such Depositary or its nominee, as
the case may be. None of the Company, the Trustee or any other agent of the
Company or agent of the Trustee will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in such Registered Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for any Registered Global
Security, upon receipt of any payment of principal, premium or interest in
respect of such Registered Global Security, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in such registered Global Security as shown on
the records of such Depositary.
The Company also expects that payments by participants to owners of
beneficial interests in such registered Global Security owned through such
participants will be governed by standing customer instructions and customary
practices, as is now the case with the securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of such participants.
If the Depositary for any Registered Global Security is at any time
unwilling or unable to continue as Depositary or ceases to be a clearing agency
registered under the 1934 Act, and a successor depositary registered as a
clearing agency under the 1934 Act is not appointed by the Company within 90
days, the Company will issue such Debt Securities in definitive form in exchange
for such Registered Global Security. In addition, the Company may at any time
and in its sole discretion determine not to have any of the Debt Securities of a
series represented by one or more registered Global Securities and, in such
event, will issue Debt Securities of such series in a definitive form in
exchange for all of the Registered Global Security or Securities representing
such Debt Securities. Any Debt Securities issued in definitive form in exchange
for a registered Global Security will be registered in such name or names as the
Depositary shall instruct the
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Trustee. It is expected that such instructions will be based upon directions
received by the Depositary from participants with respect to ownership of
beneficial interests in such Registered Global Security.
Bearer Debt Securities of a series may also be issued in global form (each
a "Bearer Global Security") that will be deposited with a common depositary for
Euro-clear and CEDEL, or with a nominee for such depositary identified in the
Prospectus Supplement relating to such series. The specific terms and
procedures, including the specific terms of the depositary arrangement and any
specific procedures for the issuance of Debt Securities in definitive form in
exchange for a Bearer Global Security, with respect to any portion of a series
of Debt Securities to be represented by a Bearer Global Security will be
described in the Prospectus Supplement relating to such series.
CERTAIN COVENANTS OF THE COMPANY
LIMITATIONS ON LIENS. The Senior Debt Indenture provides that the Company
and its Restricted Subsidiaries (as defined below) may not issue, assume, incur
or guarantee any indebtedness for borrowed money secured by a mortgage, pledge,
lien or other encumbrance (except for certain liens specifically permitted by
the Senior Debt Indenture), directly or indirectly, upon any shares of the
Voting Stock (as defined in the Senior Debt Indenture) of a Restricted
Subsidiary without effectively providing such Senior Debt Securities issued
under the Senior Debt Indenture shall be secured equally and ratably with, or
prior to, any such secured indebtedness so long as such indebtedness remains
outstanding. The foregoing restrictions, however, do not apply to liens upon any
shares of Voting Stock of any corporation existing at the time such corporation
becomes a Restricted Subsidiary and extensions, renewals or replacements
thereof. (Senior Debt Indenture Section 3.9)
The term "Restricted Subsidiary" means (a) so long as they are Subsidiaries
of the Company, NLIC and Nationwide Life and Annuity Insurance Company; (b) any
other present or future Insurance Subsidiary the Consolidated Total Assets (as
defined in the Senior Debt Indenture) of which constitute 20% or more of the
Consolidated Total Assets of the Company; and (c) any Subsidiary which is a
successor, by merger or otherwise, to substantially all of the business or
properties of any Insurance Subsidiary referred to or described in the foregoing
clauses (a) or (b). The term "Subsidiary" means any corporation or other entity
more than 50% of the outstanding shares of Voting Stock of which is at the time
of determination owned or controlled, directly or indirectly, by the Company.
The term "Insurance Subsidiary" means a Subsidiary registered in the state of
its domicile under the insurance laws of such state and qualified to sell
insurance products. (Senior Debt Indenture, Section 1.1)
CONSOLIDATION, MERGER AND SALE OF ASSETS. The Senior Debt Indenture and the
Subordinated Debt both provide that the Company shall not consolidate or merge
with or into, or transfer or lease its assets substantially as an entirety to
any person unless the Company shall be the continuing corporation, or the
successor corporation or person to which such assets are transferred or leased
shall be organized under the laws of the United States or any state thereof or
the District of Columbia and shall expressly assume the Company's obligations on
the Debt Securities and under such Indenture, and after giving effect to such
transaction no Event of Default (as defined in such Indenture) shall have
occurred and be continuing, and certain other conditions are met. (Senior and
Subordinated Debt Indentures Section 9.1)
This covenant would not apply to any recapitalization transaction, a
change of control of the Company or a highly leveraged transaction unless such
transactions or change of control were structured to include a merger or
consolidation or transfer or lease of the Company's assets substantially as an
entirety. Except as may be described in a Prospectus Supplement applicable to a
particular series of Debt Securities, there are no covenants or other provisions
in the Indentures providing for a put or increased interest or that would
otherwise afford holders of Debt Securities additional protection in the event
of a recapitalization transaction, a change of control of the Company or a
highly leveraged transaction.
RESTRICTIONS ON CERTAIN DISPOSITIONS. The Senior Debt Indenture
provides that as long as any of the Senior Debt Securities remain outstanding,
the Company will not, and will not permit any Restricted Subsidiary to, issue,
sell, assign, transfer or otherwise dispose of, directly or indirectly, any of
the Voting Stock of any Restricted Subsidiary, unless (a) the issuance, sale,
assignment, transfer or other disposition is required to comply with the order
of a court or regulatory authority of competent jurisdiction, other than an
order issued at the request of the Company or of one of its Restricted
Subsidiaries; (b) the shares of Voting Stock issued, sold, assigned, transferred
or otherwise disposed of constitute directors' qualifying shares; (c) all of the
Voting Stock of a Restricted Subsidiary then owned by the Company or by its
Restricted Subsidiaries is disposed of, in a single transaction or in a series
of related transactions, for a consideration consisting of cash or other
property the fair market value of which (as determined in good faith by the
Board of Directors) is at least equal to the Fair Value (as defined below) of
such Voting Stock; or (d) after giving effect to the issuance, sale, assignment,
transfer or other
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disposition, the Company and its Restricted Subsidiaries would own directly or
indirectly at least 80% of the issued and outstanding Voting Stock of such
Restricted Subsidiary and such issuance, sale, assignment, transfer or other
disposition is made for a consideration consisting of cash or other property
which is at least equal to the Fair Value of such Voting Stock. (Senior Debt
Indenture Section 9.3) The term "Fair Value" when used with respect to any
Voting Stock means the fair value as determined in good faith by the Board of
Directors of the Company. (Senior Debt Indenture, Section 1.1) The Senior Debt
Indenture does not restrict the transfer of assets from a Restricted Subsidiary
to any person, including the Company or another subsidiary of the Company.
EVENTS OF DEFAULT
An Event of Default is defined under both The Senior Debt Indenture and the
Subordinated Debt Indenture with respect to Debt securities of any series issued
under such Indenture as being: (a) default in payment of all or any part of the
principal of the Debt Securities of such series when due, either at maturity (or
upon any redemption), by declaration or otherwise; (b) default for 30 days in
payment of any interest on any Debt Securities of such series; (c) default in
payment of any sinking fund installment when due; (d) failure to observe or
perform any other covenant or agreement in the Debt Securities of such series or
such Indenture other than a covenant included in such Indenture solely for the
benefit of a series of Debt Securities other than such series after 60 days
written notice as provided in such Indenture; (e) certain events of bankruptcy,
insolvency or reorganization; or (f) an event of default with respect to any
other indebtedness for borrowed money (other than non-recourse obligations) of
the Company or any of its Restricted Subsidiaries, in an aggregate principal
amount exceeding $50,000,000, if such event of default shall result in the
acceleration of such other indebtedness under the terms of the instrument under
which such indebtedness is issued or secured, so long as such acceleration is
not cured, waived, rescinded or annulled, or such indebtedness is not
discharged, within 10 days after written notice thereof as provided in such
Indenture; provided that if any such acceleration shall cease or be cured,
waived, rescinded or annulled, then the Event of Default by reason thereof shall
be deemed likewise to have been thereupon cured. (Senior and Subordinated Debt
Indentures, Section 5.1)
The Senior Debt Indenture and the Subordinated Debt Indenture both provide
that (a) if an Event of Default due to the default in payment of principal of,
premium, if any, or interest on, any series of Debt Securities issued under such
Indenture or due to the default in the performance or breach of any other
covenant or agreement of the Company applicable to the Debt Securities of such
series but not applicable to all outstanding Debt Securities issued under such
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the Debt Securities of
each affected series (treated as one class) issued under such Indenture and then
outstanding may then declare the principal of all Debt Securities of each such
affected series and interest accrued thereon to be due and payable immediately
and (b) if any Event of Default due to a default in the performance of any of
the covenants or agreements in such Indenture applicable to all outstanding Debt
Securities issued thereunder and then outstanding or due to certain events of
bankruptcy, insolvency and reorganization of the Company shall have occurred and
be continuing, either the Indenture Trustee or the holders of not less than 25%
in principal amount of all Debt Securities issued under such Indenture then
outstanding (treated as one class) may declare the principal of all such Debt
Securities and interest accrued thereon to be due and payable immediately.
However, upon certain conditions such declarations may be annulled and past
defaults may be waived (except a continuing default in payment of principal of
(or premium, if any) or interest on such Debt Securities) by the holders of a
majority in principal amount of the Debt Securities of all such affected series
then outstanding. (Senior and Subordinated Debt Indenture, Sections 5.1 and
5.10)
The Senior Debt Indenture and the Subordinated Debt Indenture both contain
a provision entitling the Indenture Trustee, subject to the duty of the Trustee
during the event of default to act with the required standard of care, to be
assured of reasonable indemnity or security by the holders of Debt Securities
issued under either such Indenture requesting the Indenture Trustee to exercise
any right or power under either such Indenture before proceeding to exercise any
such right or power at the request of such holders. (Senior and Subordinated
Debt Indentures, Section 6.2) Subject to such provisions in each such Indenture
for the indemnification of the Indenture Trustee and certain other limitations,
the holders of a majority in aggregate principal amount of the outstanding Debt
Securities of each affected series (treated as one class) issued under such
Indenture may direct the time, method and place of conducting any proceedings
for any remedy available to the Indenture Trustee, or exercising any trust or
power conferred on the Indenture Trustee. (Senior and Subordinated Debt
Indentures, Section 5.9)
The Senior Debt Indenture and the Subordinated Debt Indenture both
provide that no holder of Debt Securities issued under either such Indenture may
institute any action against the Company under either such Indenture (except as
set forth above and actions for payment of overdue principal, premium, if any,
or interest) unless such holder previously shall have
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given to the Indenture Trustee written notice of default and continuance thereof
and unless the holders of not less than 25% in principal amount of the Debt
Securities of each affected series (treated as one class) issued under either
such Indenture and then outstanding shall have requested the Indenture Trustee
to institute such action and shall have offered the Indenture Trustee reasonable
indemnity, the Indenture Trustee shall not have instituted such action within 60
days of such request and the Indenture Trustee shall not have received direction
inconsistent with such written request by the holders of a majority in aggregate
principal amount of the Debt Securities of each affected series (treated as one
class) issued under either such Indenture and then outstanding. (Senior and
Subordinated Debt Indentures Sections 5.6 and 5.9)
If the Subordinated Debt Securities of any series are then held by a
statutory trust created by the Company for the purpose of issuing preferred
securities and common securities and purchasing a series of Subordinated Debt
Securities with the proceeds thereof, each holder of the preferred securities of
the trust may bring suit directly against the Company for the enforcement of
payment to such holder in respect of the Subordinated Debt Securities of such
series held by the trust in a principal amount equal to the aggregate
liquidation amount of the preferred securities held by such holder. At least a
majority of such holders of preferred securities of the trust must consent to
any waiver of an Event of Default with respect to the series of Subordinated
Debt Securities held by the trust and each such holder must consent to any
supplemental indenture that would adversely affect the interests of such
holders. (Subordinated Indenture Sections 5.7, 5.10 and 8.2)
The Senior Debt Indenture and the Subordinated Debt Indenture both
contain a covenant that the Company will file annually with the Indenture
Trustee a certificate of no default or a certificate specifying any default that
exists. (Senior and Subordinated Debt Indentures Section 3.4)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
If indicated in the applicable Prospectus Supplement, the Company can
discharge or defease its obligations under each Indenture as set forth below.
(Senior and Subordinated Debt Indentures Article X and Section 3.2)
Under terms satisfactory to the Indenture Trustee, the Company may
discharge certain obligations to holders of any series of Debt Securities issued
under either the Senior Debt Indenture or the Subordinated Debt Indenture which
have not already been delivered to the Trustee for cancellation and which have
either become due and payable or are by their terms due and payable within one
year (or scheduled for redemption within one year) by irrevocably depositing
with the Trustee cash or, in the case of Debt Securities payable only in U.S.
dollars, U.S. Government Obligations (as defined in either such Indenture), as
trust funds in an amount certified to be sufficient to pay when due, whether at
maturity, upon redemption or otherwise, the principal of, premium, if any, and
interest on such Debt Securities.
If indicated in the applicable Prospectus Supplement, the Company may
elect either (i) to defease and be discharged from any and all obligations with
respect to the Debt Securities of or within any series (except as otherwise
provided in the relevant Indenture) ("defeasance") or (ii) to be released from
its obligations with respect to certain covenants applicable to the Debt
Securities of or within any series ("covenant defeasance"), upon the deposit
with the relevant Indenture Trustee, in trust for such purpose, of money and/or
government obligations which through the payment of principal and interest in
accordance with their terms will provide money in an amount sufficient, without
reinvestment, to pay the principal of and any premium or interest on such Debt
Securities to maturity or redemption, as the case may be, and any mandatory
sinking fund or analogous payments thereon. As a condition to defeasance or
covenant defeasance, the Company must deliver to the Trustee an opinion of
counsel to the effect that the holders of such Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance or covenant defeasance and will be subject to federal income tax
on the same amounts and in the same manner and at the same times as would have
been the case if such defeasance or covenant defeasance had not occurred. Such
opinion of counsel, in the case of defeasance under clause (i) above, must refer
to and be based upon a ruling of the Internal Revenue Service or a change in
applicable federal income tax law occurring after the date of the relevant
Indenture. (Senior and Subordinated Debt Indentures Section 10.6)
The Company may exercise its defeasance option with respect to such
Debt Securities notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its defeasance option, payment of such Debt
Securities may not be accelerated because of an Event of Default. (Senior and
Subordinated Debt Indentures Section 10.6) If the Company exercises its covenant
defeasance option, payment of such Debt Securities may not be accelerated by
reason of a Default or an Event of Default with respect to the covenants to
which such covenant defeasance is applicable. However, if such acceleration were
to occur by reason of another Event of Default, the realizable value at the
acceleration date of the money and Government Obligations in the defeasance
trust could be less than the principal and interest then due on such
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Debt Securities, in that the required deposit in the defeasance trust is based
upon scheduled cash flow rather than market value, which will vary depending
upon interest rates and other factors.
MODIFICATION OF THE INDENTURES
The Senior Debt Indenture and the Subordinated Debt Indenture both
provide that the Company and the Trustee may enter into supplemental indentures
without the consent of the holders of Debt Securities to: (a) secure any Debt
Securities, (b) evidence the assumption by a successor corporation of the
obligations of the Company, (c) add covenants for the protection of the holders
of Debt Securities, (d) cure any ambiguity or correct any inconsistency in such
Indenture, provided that such cure or correction does not adversely affect the
holders of such Debt Securities, (e) establish the forms or terms of Debt
Securities of any series and (f) evidence the acceptance of appointment by a
successor trustee. (Senior and Subordinated Debt Indentures Section 8.1)
The Senior Debt Indenture and the Subordinated Debt Indenture both also
contain provisions permitting the Company and the Indenture Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of Debt Securities of all series issued under such Indenture then outstanding
and affected (voting as one class), to add any provisions to, or change in any
manner or eliminate any of the provisions of, any Indenture or modify in any
manner the rights of the holders of the Debt Securities of each series so
affected; provided that the Company and the Indenture Trustee may not, without
the consent of the holder of each outstanding Debt Security affected thereby,
(a) extend the stated maturity of the principal of any Debt Security, or reduce
the principal amount thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof or change
the currency in which the principal thereof (including any amount in respect of
original issue discount), premium, if any, or interest thereon is payable or
reduce the amount of any original issue discount Debt Security that is payable
upon acceleration or provable in bankruptcy or alter certain provisions of
either such Indenture relating to the Debt Securities issued thereunder not
denominated in U.S. dollars or impair the right to institute suit for the
enforcement of any payment on any Debt Security when due or (b) reduce the
aforesaid percentage in aggregate principal amount of Debt Securities of any
series issued under either such Indenture, the consent of the holders of which
is required for any such modification. (Senior and Subordinated Debt Indentures
Section 8.2)
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without the
consent of each holder of Senior Indebtedness then outstanding that would be
adversely affected thereby. (Subordinated Debt Indenture Section 8.6)
SUBORDINATION
Payment of the principal of, premium, if any, and interest on Debt
Securities issued under the Subordinated Debt Indenture will be subordinate and
junior in right of payment, to the extent and in the manner set forth in the
Subordinated Debt Indenture, to all "Senior Indebtedness" of the Company. The
Subordinated Debt Indenture defines "Senior Indebtedness" as the principal of
and premium, if any, and interest on (a) all indebtedness of the Company,
whether outstanding on the date of the Subordinated Debt Indenture or thereafter
created, (i) for money borrowed by the Company, (ii) for money borrowed by, or
obligations of, others and either assumed or guaranteed, directly or indirectly,
by the Company, (iii) in respect of letters of credit and acceptances issued or
made by banks, or (iv) constituting purchase money indebtedness, or indebtedness
secured by property included in the property, plant and equipment accounts of
the Company at the time of the acquisition of such property by the Company, for
the payment of which the Company is directly liable, and (b) all deferrals,
renewals, extensions and refundings of, and amendments, modifications and
supplements to, any such indebtedness. As used in the preceding sentence, the
term "purchase money indebtedness" means indebtedness evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or other
security interest) issued or assumed as all or a part of the consideration for
the acquisition of property, whether by purchase, merger, consolidation or
otherwise, unless by its terms such indebtedness is subordinate to other
indebtedness of the Company. Notwithstanding anything to the contrary in the
Subordinated Debt Indenture or the Subordinated Debt Securities, Senior
Indebtedness shall not include, (i) any indebtedness of the Company which, by
its terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to or pari passu with the Subordinated Debt
Securities or (ii) any indebtedness of the Company to a Subsidiary of the
Company. (Subordinated Debt Indenture Section 1.1) The Subordinated Debt
Indenture does not contain any limitation on the amount of Senior Indebtedness
that can be incurred by the Company.
In the event (a) of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Company or its property, or (b) that Subordinated Debt Securities
of any series are declared due and payable before their expressed maturity
because of the occurrence of an Event of Default pursuant to
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Section 5.1 of the Subordinated Debt Indenture (under circumstances other than
as set forth in clause (a) above), then the holders of all Senior Indebtedness
shall first be entitled to receive payment of the full amount due thereon in
money or money's worth, before the holders of any of such Subordinated Debt
Securities or coupons appertaining thereto are entitled to receive a payment on
account of the principal of, premium, if any, or interest on the indebtedness
evidenced by such Subordinated Debt Securities or of such coupons appertaining
thereto. In the event and during the continuation of any default in payment of
any Senior Indebtedness or if any Event of Default shall exist under any Senior
Indebtedness, as "Event of Default" is defined therein or in the agreement under
which the same is outstanding, no payment of the principal or interest on the
Subordinated Debt Securities or coupons shall be made. (Subordinated Debt
Indenture, Article XIII) If this Prospectus is being delivered in connection
with a series of Subordinated Debt Securities, the accompanying Prospectus
Supplement will set forth the approximate amount of Senior Indebtedness
outstanding as of the end of the most recent fiscal quarter.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York, except to the
extent the Trust Indenture Act shall be applicable. (Senior and Subordinated
Debt Indentures Section 11.8)
CONCERNING THE TRUSTEE
Wilmington Trust Company is one of a number of banks with which the
Company and its subsidiaries maintain ordinary banking and trust relationships.
DESCRIPTION OF CAPITAL STOCK
AUTHORIZED CAPITAL STOCK
The following statements are subject to and qualified in their entirety
by reference to detailed provisions of the Company's Restated Certificate of
Incorporation (the "Certificate") and Restated Bylaws (copies of which have been
incorporated by reference as exhibits to the Registration Statement of which
this Prospectus forms a part).
The Company is currently authorized to issue 750 million shares of
Class A Common Stock, 750 million shares of Class B Common Stock and 50 million
shares of Preferred Stock. The shares of Class A Common Stock and Class B Common
Stock are identical in all respects except for voting rights and certain
conversion rights and transfer restrictions regarding the shares of Class B
Common Stock as described below.
COMMON STOCK
VOTING. All outstanding shares of Common Stock are fully paid and
nonassessable. Except for the Equity Purchase Rights (as defined below), holders
of Common Stock do not have any preemptive rights to subscribe for or purchase
any additional securities issued by the Company. No redemption or sinking fund
provisions are associated with the Common Stock. Cumulative voting is not
permitted by holders of Common Stock.
The Company has agreed that, to the extent permitted by the NYSE and so
long as Nationwide Mutual controls at least 50% of the combined voting power of
the outstanding voting stock of the Company, Nationwide Corp. may purchase its
pro rata share (based on its then current percentage voting interest in the
Company) of any voting equity securities to be issued by the Company (excluding
any such securities offered pursuant to employee stock options or other benefit
plans, divided reinvestment plans and other offerings other than for cash) (the
"Equity Purchase Rights").
The holders of Class B Common Stock are entitled to ten votes per
share. The holders of Class A Common Stock are entitled to one vote per share.
Proposals submitted to a vote of stockholders will be voted on by holders of
Class A Common Stock and Class B Common Stock voting together as a single class.
At all meetings of the stockholders of the Company, the presence of holders of
record entitled to exercise at least a majority of the voting power of the
Company, represented in person or by proxy, shall constitute a quorum for the
transaction of business; and the affirmative vote of the holders, represented in
person or by proxy, of a majority of the Common Stock present at a meeting at
which a quorum is in existence shall be the act of the stockholders of the
Company. The superior voting rights of the Class B Common Stock might discourage
unsolicited merger proposals and unfriendly tender offers.
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TRANSFER. The Certificate does not contain any restrictions on the
transfer of shares of Class A Common Stock. Upon any sale or other transfer of
shares of Class B Common Stock to any person or persons other than a member of
the Nationwide Insurance Enterprise, such shares of Class B Common Stock will be
converted into an equal number of shares of Class A Common Stock.
CONVERSION. Class A Common Stock has no conversion rights. Class B
Common Stock is convertible into Class A Common Stock, in whole or in part, at
any time and from time to time at the option of the holder, on the basis of one
share of Class A Common Stock for each share of Class B Common Stock converted.
If at any time after the initial issuance of shares of Class A Common Stock the
number of outstanding shares of Class B Common Stock falls below 5% of the
aggregate number of issued and outstanding shares of Common Stock, then each
outstanding share of Class B Common Stock shall automatically convert into one
share of Class A Common Stock. In the event of any sale or transfer of shares of
Class B Common Stock to any person or persons other than a member of the
Nationwide Insurance Enterprise shares of Class B Common Stock so transferred
shall be automatically converted into an equal number of shares of Class A
Common Stock.
DIVIDENDS. Holders of Common Stock are entitled to receive cash
dividends pro rata on a per share basis if and when such dividends are declared
by the Board of Directors of the Company from funds legally available therefor.
In the case of any dividend paid other than in cash or Common Stock (or
securities convertible into or exchangeable for Common Stock), holders of Class
A Common Stock and Class B Common Stock are entitled to receive such dividend
pro rata on a per share basis. Dividends paid in Common Stock (or securities
convertible into or exchangeable for Common Stock) may be paid in shares of
Class A Common Stock (or securities convertible into or exchangeable for Class A
Common Stock) on the Class A Common Stock and in shares of Class B Common Stock
or securities convertible into or exchangeable for Class B Common Stock) on the
Class B Common Stock.
LIQUIDATION, MERGER OR CONSOLIDATION. Holders of Class A Common Stock
and Class B Common Stock share with each other on a ratable basis as a single
class in the net assets of the Company available for distribution in respect of
the Common Stock in the event of liquidation or any payments made on the Common
Stock in the event of a merger or consolidation of the Company.
PREFERRED STOCK
The following summary contains a description of certain general terms
of the Preferred Stock to which any Prospectus Supplement may relate. Certain
terms of Preferred Stock offered by any Prospectus Supplement will be described
in the Prospectus Supplement relating thereto. If so specified in the Prospectus
Supplement, the terms of any series differ from the terms set forth below. As
described under "Description of Depositary Shares", the Company may, at its
option, elect to offer Depositary Shares evidenced by depositary receipts
("Depositary Receipts"), each representing an interest (to be specified in the
Prospectus Supplement relating to the particular series of the Preferred Stock)
in a share of the particular series of the Preferred Stock issued and deposited
with a Preferred Stock Depositary (as defined herein).
The description of certain provisions of the Preferred Stock does not
purport to be complete and is subject to and qualified in its entirety by
reference to the provisions of the Certificate and the amendment thereto
relating to each particular series of Preferred Stock (the "Series Amendment")
which will be filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement of which this Prospectus is a part at or
prior to the time of the issuance of such Preferred Stock.
GENERAL. Under the Certificate, the Board of Directors is authorized,
without further stockholder action, to provide for the issuance of up to 50
million shares of Preferred Stock. As of the date hereof, no shares of Preferred
Stock were outstanding. The Board of Directors may from time to time authorize
issuance of shares of Preferred Stock in series, and each such series shall have
such dividend and liquidation preferences, redemption pries, conversion rights,
and other terms and provisions as may be contained in the resolutions of the
Board of Directors providing for their issuance. All shares of Preferred Stock
offered hereby will be, when issued, fully paid and non-assessable and holders
thereof will have no preemptive rights in connection therewith.
RANK. Any series of Preferred Stock will, with respect to dividend
rights and rights on liquidation, winding up and dissolution, rank (i) senior to
all classes of Common Stock and to all equity securities issued by the Company,
the terms of which specifically provide that such equity securities will rank
junior to such series of Preferred Stock; (ii) pari passu with all equity
securities issued by the Company, the terms of which specifically provide that
such equity securities will rank on
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a parity with such series of Preferred Stock; and (iii) junior to all equity
securities issued by the Company, the terms of which specifically provide that
such equity securities will rank senior to such series of Preferred Stock. As
used in any Series Amendment for these purposes, the term "equity securities"
will not include any debt securities convertible or exchangeable for equity
securities.
DIVIDENDS. Holders of each series of Preferred Stock will be entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available therefor, cash dividends at such rates and on such dates as
are set forth in the Prospectus Supplement relating to such series of Preferred
Stock. Such rate may be fixed or variable or both. Dividends will be payable to
holders of record of Preferred Stock as they appear on the books of the Company
on such record dates as shall be fixed by the Board of Directors. Dividends on
any series of Preferred Stock may be cumulative or noncumulative.
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any series of Preferred Stock unless dividends shall
have been paid or funds set apart for such payment on the equity securities
ranking on a parity with respect to dividends with such series of Preferred
Stock. If full dividends are not so paid, such series of Preferred Stock shall
share dividends pro rata with such other equity securities.
CONVERSION AND EXCHANGE. The Prospectus Supplement for any series of
Preferred stock will state the terms, if any, on which shares of that series are
convertible into shares of another series of Preferred Stock or Class A Common
Stock or exchangeable for another series of Preferred Stock, Class A Common
Stock or Debt Securities of the Company. The Class A Common Stock of the Company
is described under "--Common Stock."
REDEMPTION. A series of Preferred Stock may be redeemable at any time,
in whole or in part, at the option of the Company or the holder thereof and may
be subject to mandatory redemption pursuant to a sinking fund or otherwise upon
terms and at the redemption prices set forth in the Prospectus Supplement
relating to such series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors, or by any
other method determined to be equitable by the Board of Directors.
On and after a redemption date, unless the Company defaults in the
payment of the redemption price, dividends will cease to accrue on shares of
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
LIQUIDATION PREFERENCE. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, holders of each series of Preferred
Stock will be entitled to receive out of assets of the Company available for
distribution to stockholders, before any distribution is made on any securities
ranking junior with respect to liquidation, including Common Stock,
distributions upon liquidation in the amount set forth in the Prospectus
Supplement relating to such series of Preferred Stock, plus an amount equal to
any accrued and unpaid dividends. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Preferred Stock of any series and any other securities of the
Company ranking on a parity with respect to liquidation rights are not paid in
full, the holders of the Preferred Stock of such series and such other
securities will share ratably in any such distribution of assets of the Company
in proportion to the full liquidation preferences to which each is entitled.
After payment of the full amount of the liquidation preference to which they are
entitled, the holders of Preferred Stock will not be entitled to any further
participation in any distribution of assets of the Company.
VOTING RIGHTS. Except as set forth in the Prospectus Supplement
relating to a particular series of Preferred Stock or except as expressly
required by applicable law, the holders of shares of Preferred Stock will have
no voting rights.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for each
series of Preferred Stock will be described in the applicable Prospectus
Supplement.
CERTAIN CERTIFICATE AND BYLAW PROVISIONS
Certain provisions of the Company's Certificate and Bylaws, summarized
in the following paragraphs, may be considered to have an anti-takeover effect
and may delay, deter or prevent a tender offer, proxy contest or other takeover
attempt that a stockholder might consider to be in such stockholder's best
interest, including such an attempt as might result in payment of a premium over
the market price for shares held by stockholders.
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CLASSIFIED BOARD OF DIRECTORS. The Certificate provides for the Board
of Directors of the Company to be divided into three classes of directors, with
each class as nearly equal in number as possible, serving staggered three-year
terms. As a result, approximately one-third of the Board of Directors will be
elected each year at the annual meeting of stockholders. The Board of Directors
believes that a classified board of directors will help to assure the continuity
and stability of the Board of Directors and the business strategies and policies
of the Company as determined by the Board of Directors because continuity and
stability in the composition of the Board of Directors and in the policies
formulated by it will be enhanced by the staggered three-year terms.
The classified board provisions could have the effect of discouraging a
third party from making a tender offer or otherwise attempting to obtain control
of the Company, even though such an attempt might be beneficial to the Company
and its stockholders. In addition, the classified board provisions could delay
stockholders who do not like the policies of the Board of Directors from
removing a majority of the Board of Directors for two years.
NUMBER OF DIRECTORS; REMOVAL; FILLING VACANCIES. The Certificate
provides that the Board of Directors will consist of one to fifteen members, the
exact number to be fixed from time to time by resolution adopted by a majority
of the entire Board of Directors assuming no vacancies. The Board of Directors
currently consists of eleven directors. Further, subject to the rights of the
holders of any series of Preferred Stock then outstanding, the Certificate
authorizes the Board of Directors to fill newly created directorships.
Accordingly, this provision could prevent a stockholder from obtaining majority
representation on the Board of Directors by remitting the Board of Directors to
enlarge the Board of Directors and fill the new directorships with its own
nominees. A director so elected by the Board of Directors holds office until the
next election of the class for which such director has been chosen and until his
successor is elected and qualified. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, the Certificate also provides that
directors may be removed only for cause and only by the affirmative vote of
holders of a majority of the outstanding voting power of the Company. The effect
of these provisions is to preclude a stockholder from removing incumbent
directors without cause and simultaneously gaining control of the Board of
Directors by filling the vacancies created by such removal with its own
nominees.
SPECIAL MEETINGS OF STOCKHOLDERS. The Bylaws provide that special
meetings of stockholders may be called by the Chairman of the Board of
Directors, the Chairman and Chief Executive Officer-Nationwide Insurance
Enterprise or the President and Chief Operating Officer and shall be called by
the Secretary at the request in writing of a majority of the Board of Directors.
Stockholders are not permitted to call special meetings of stockholders.
ADVANCE NOTICE REQUIREMENTS FOR STOCKHOLDER PROPOSALS AND DIRECTOR
NOMINATIONS. The Company's Bylaws provide in order to properly submit any
business to, or to nominate any person for election to the Board of Directors at
an annual meeting of stockholders, a stockholder must provide timely notice
thereof in writing to the Secretary of the Company. To be considered timely, a
stockholder's notice must be delivered to, or mailed and received at, the
principal executive offices of the Company (i) not less than 60 days nor more
than 90 days before the first anniversary date of the Company's proxy statement
in connection with the last annual meeting of stockholders or (ii) if no annual
meeting was held in the previous year or the date of the applicable annual
meeting has been changed by more than 30 days from the date contemplated at the
time of the previous year's proxy statement, not less than a reasonable time, as
determined by the Board of Directors, prior to the date of the applicable annual
meeting. The Bylaws also specify certain requirements pertaining to the form and
substance of a stockholder's notice. These provisions may preclude some
stockholders from making nominations for directors at an annual or special
meeting or from bringing other matters before the stockholders at a meeting.
CLASS B COMMON STOCK. The superior voting rights of the Class B Common
Stock might discourage unsolicited merger proposals and unfriendly tender
offers.
NO ACTION BY WRITTEN CONSENT OF THE STOCKHOLDERS. The Certificate does
not allow the stockholders of the Company to take action by written consent in
lieu of a meeting.
DELAWARE TAKEOVER STATUTE. The Company is subject to the provisions of
Section 203 of the Delaware General Corporation Law (the "DGCL"). Section 203
prohibits a Delaware corporation from engaging in any "business combination"
with any "interested stockholder" for a period of three years following the time
that such stockholder became an interested stockholder unless (i) prior to such
time, the board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder; or (ii) upon the consummation of the transaction which
resulted in the stockholder becoming an interested stockholder owned at least
85% of the voting stock of the corporation, as defined in Section 203 of the
DGCL; or (iii) at or subsequent to such time, the business combination is
approved by the board of directors and authorized at an annual or special
meeting of stockholders, and not by written
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consent, by the affirmative vote of at least 66 % of the outstanding voting
stock which is not owned by the interested stockholder. For these purposes, the
term "business combination" includes but is not limited to mergers, asset or
stock sales and other similar transactions with an "interested stockholder." An
"interested stockholder" is a person who, together with affiliates and
associates, owns (or, within the prior three years, did own) 15% or more of the
corporation's voting stock.
LIMITATION ON LIABILITY. The Company's Certificate contains a provision
that is designed to limit the directors' liability to the extent permitted by
the DGCL and any amendments thereto. Specifically, directors will not be held
liable to the Company or its stockholders for an act or omission in such
capacity as a director, except for liability as a result of (i) a breach of the
duty of loyalty to the Company or its stockholders, (ii) acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) payment of an improper dividend or improper repurchase of the
Company's stock under Section 174 of the DGCL, or (iv) actions or omissions
pursuant to which the director received an improper personal benefit. The
principal effect of the limitation on liability provision is that a stockholder
is unable to prosecute an action for monetary damages against a director of the
Company unless the stockholder can demonstrate one of the specified bases for
liability. This provision, however, does not eliminate or limit director
liability arising in connection with causes of action brought under the federal
securities laws. The Company's Certificate does not eliminate its directors'
duty of care. The inclusion of this provision in the Company's Certificate may,
however, discourage or deter stockholders or management from bringing a lawsuit
against directors for a breach of their fiduciary duties, even though such an
action, if successful, might otherwise have benefited the Company and its
stockholders. This provision should not affect the availability of equitable
remedies such as injunction or rescission based upon a director's breach of the
duty of care.
INDEMNIFICATION. The Company's Bylaws also provide that the Company
will indemnify its directors and officers to the fullest extent permitted by
Delaware law. The Company is generally required to indemnify its directors and
officers for all judgments, fines, settlements, legal fees and other expenses
incurred in connection with pending or threatened legal proceedings because of
the director's or officer's position with the Company or another entity that the
director or officer serves at the Company's request, subject to certain
conditions, and to advance funds to its directors and officers to enable them to
defend against such proceedings. To receive indemnification, the director or
officer must have been successful in the legal proceeding or acted in good faith
and in what was reasonably believed to be a lawful manner in the Company's best
interest.
CERTIFICATE PROVISION RELATING TO CORPORATE OPPORTUNITIES. The
Certificate provides that except as Nationwide Mutual (or its successors or
assigns) may otherwise agree in writing and except as set forth in the
Intercompany Agreement among Nationwide Mutual, Nationwide Corp. and the Company
(the "Intercompany Agreement"):
(i) no member of the Nationwide Insurance Enterprise shall
have a duty to refrain from engaging directly or indirectly in the same
or similar business activities or lines of business as the Company; and
(ii) no member of the Nationwide Insurance Enterprise, nor any
director, officer, employee or agent or any member of Nationwide Mutual
(except as provided below), will be liable to the Company or to its
stockholders for breach of any fiduciary duty by reason of any such
activities of such member's or of such person's participation thereon.
The Certificate also provides that if in the event any member of the
Nationwide Insurance Enterprise (other than the Company) acquires knowledge of a
potential transaction or matter which may be a corporate opportunity both for a
member of the Nationwide Insurance Enterprise and the Company, no member of the
Nationwide Insurance Enterprise shall have any duty to communicate or offer such
corporate opportunity to the Company nor shall any such member be liable to the
Company or its stockholders for breach of any fiduciary duty as a stockholder of
the Company or controlling person of a stockholder by reason of the fact that
any such member of the Nationwide Insurance Enterprise pursues or acquires such
opportunity for itself, directs such corporate opportunity to another person or
entity or does not communicate information regarding, or offer such corporate
opportunity to the Company.
Further, the Certificate provides that in the event that a director,
officer, employee or agent of the Company who is also a director, officer,
employee or agent of any member of the Nationwide Insurance Enterprise acquires
knowledge of a potential transaction or matter that may be a corporate
opportunity for the Company or any member of the Nationwide Insurance Enterprise
(whether such potential transaction or matter is proposed by a third party or is
conceived of by such director, officer, employee or agent of the Company), such
director, officer, employee or agent shall be entitled to offer such corporate
opportunity to the Company or such member of the Nationwide Insurance Enterprise
as such director, officer, employee or agent deems appropriate under the
circumstances in his or her sole discretion, and no such director, officer or
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agent shall be liable to the Company or its stockholders for breach of any
fiduciary duty or duty of loyalty or failure to act in (or not opposed to) the
best interests of the Company or the derivation of any improper personal benefit
by reason of the fact that (i) such director, officer, employee or agent offered
such corporate opportunity to such member of the Nationwide Insurance Enterprise
(rather than the Company) or did not communicate information regarding such
corporate opportunity to the Company or (ii) such member of the Nationwide
Insurance Enterprise pursues or acquires such corporate opportunity for itself
or directs such corporate opportunity to another person or does not communicate
information regarding such corporate opportunity to the Company. The
enforceability of the provisions discussed above under the DGCL has not been
established and counsel to the Company has not delivered an opinion as to the
enforceability of such provisions. These provisions of the Certificate may
eliminate certain rights that might have been available to stockholders under
the DGCL had such provisions not been included in the Certificate.
The Company's Board of Directors currently consists of 11 members, 7 of
whom serve concurrently on the boards of directors of other companies within the
Nationwide Insurance Enterprise. In addition, a significant number of officers
of the Company will also be officers of other companies within the Nationwide
Insurance Enterprise.
The foregoing provisions of the Certificate shall expire on the date
that the members of the Nationwide Insurance Enterprise cease to beneficially
own (directly or indirectly) in the aggregate Common Stock representing at least
50% of the voting power of the outstanding shares of Common Stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts summarizes the material terms of the
Deposit Agreement and of the Depositary Shares and Depositary Receipts, and is
qualified in its entirety by reference to, the form of Deposit Agreement and
form of Depositary Receipts relating to each series of the Preferred Stock.
GENERAL
The Company may, at its option, elect to have shares of Preferred Stock
be represented by Depositary Shares. The shares of any series of the Preferred
Stock underlying the Depositary Shares will be deposited under a separate
deposit agreement (the "Deposit Agreement") between the Company and a bank or
trust company selected by the Company (the "Preferred Stock Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Preferred Stock Depositary. Subject to the terms of
the Deposit Agreement, each owner of a Depositary Share will be entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Stock represented thereby (including dividend, voting, redemption, conversion,
exchange and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the Preferred Stock
described in the applicable Prospectus Supplement.
A holder of Depositary Shares will be entitled to receive the shares of
Preferred Stock (but only in whole shares of Preferred Stock) underlying such
Depositary Shares. If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the whole number of shares of Preferred
Stock to be withdrawn, the Depositary will deliver to such holder at the same
time a new Depositary Receipt evidencing such excess number of Depositary
Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or
other cash distributions in respect to the Preferred Stock to the record holders
of Depositary Receipts in proportion, insofar as possible, to the number of
Depositary Shares owned by such holders.
In the event of a distribution other than in cash in respect to the
Preferred Stock, the Preferred Stock Depositary will distribute property
received by it to the record holders of Depositary Receipts in proportion,
insofar as possible, to the number of Depositary Shares owned by such holders,
unless the Preferred Stock Depositary determines that it is not feasible to make
such distribution, in which case the Preferred Stock Depositary may, with the
approval of the Company, adopt such
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method as it deems equitable and practicable for the purpose of effecting such
distribution, including sale (at public or private sale) of such property and
distribution of the net proceeds from such sale to such holders.
The amount so distributed in any of the foregoing cases will be reduced
by any amount required to be withheld by the Company or the Preferred Stock
Depositary on account of taxes.
CONVERSION AND EXCHANGE
If any Preferred Stock underlying the Depositary Shares is subject to
provisions relating to its conversion or exchange as set forth in the Prospectus
Supplement relating thereto, each record holder of Depositary Shares will have
the right or obligation to convert or exchange such Depositary Shares pursuant
to the terms thereof.
REDEMPTION OF DEPOSITARY SHARES
If Preferred Stock underlying the Depositary Shares is subject to
redemption, the Depositary Shares will be redeemed from the proceeds received by
the Preferred Stock Depositary resulting from the redemption, in whole or in
part, of the Preferred Stock held by the Preferred Stock Depositary. The
redemption price per Depositary Share will be equal to the aggregate redemption
price payable with respect to the number of shares of Preferred Stock underlying
the Depositary Shares. Whenever the Company redeems Preferred Stock from the
Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of the
same redemption date a proportionate number of Depositary Shares representing
the shares of Preferred Stock that were redeemed. If less than all the
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will
be selected by lot or pro rata as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
redemption price upon such redemption. Any funds deposited by the Company with
the Preferred Stock Depositary for any Depositary Shares which the holders
thereof fail to redeem shall be returned to the Company after a period of two
years from the date such funds are so deposited.
VOTING
Upon receipt of notice of any meeting at which the holders of any
shares of Preferred Stock underlying the Depositary Shares are entitled to vote,
the Preferred Stock Depositary will mail the information contained in such
notice to the record holders of the Depositary Receipts. Each record holder of
such Depositary Receipts on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the Preferred
Stock Depositary as to the exercise of the voting rights pertaining to the
number of shares of Preferred Stock underlying such holder's Depositary Shares.
The Preferred Stock Depositary will endeavor, insofar as practicable, to vote
the number of shares of Preferred Stock underlying such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the Preferred Stock to the
extent it does not receive specific written instructions from holders of
Depositary Receipts representing such Preferred Stock.
RECORD DATE
Whenever (i) any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall be offered with respect to the Preferred Stock,
or (ii) the Preferred Stock Depositary shall receive notice of any meeting at
which holders of Preferred Stock are entitled to vote or of which holders of
Preferred Stock are entitled to notice, or of the mandatory conversion of or any
election on the part of the Company to call for the redemption of any Preferred
Stock, the Preferred Stock Depositary shall in each such instance fix a record
date (which shall be the same as the record date for the Preferred Stock) for
the determination of the holders of Depositary Receipts (x) who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof or (y) who shall be entitled
to give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or of such redemption or conversion, subject to
the provisions of the Deposit Agreement.
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AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt and any provision of the Deposit
Agreement may at any time be amended by agreement between the Company and the
Preferred Stock Depositary. However, any amendment which imposes or increases
any fees, taxes or other charges payable by the holders of Depositary Receipts
(other than taxes and other governmental charges, fees and other expenses
payable by such holders as stated under "Charges of Preferred Stock
Depositary"), or which otherwise prejudices any substantial existing right of
holders of Depositary Receipts, will not take effect as to outstanding
Depositary Receipts until the expiration of 90 days after notice of such
amendment has been mailed to the record holders of outstanding Depositary
Receipts.
Whenever so directed by the Company, the Preferred Stock Depositary
will terminate the Deposit Agreement by mailing notice of such termination to
the record holders of all Depositary Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. The Preferred Stock
Depositary may likewise terminate the Deposit Agreement if at any time 45 days
shall have expired after the Preferred Stock Depositary shall have delivered to
the Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment. If any
Depositary Receipts remain outstanding after the date of termination, the
Preferred Stock Depositary thereafter will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit Agreement except as
provided below and except that the Preferred Stock Depositary will continue (i)
to collect dividends on the Preferred Stock and any other distributions with
respect thereto and (ii) to deliver the Preferred Stock together with such
dividends and distributions and the net proceeds of any sales of rights,
preferences, privileges or other property, without liability for interest
thereon, in exchange for Depositary Receipts surrendered. At any time after the
expiration of two years from the date of termination, the Preferred Stock
Depositary may sell the Preferred Stock then held by it at public or private
sales, at such place or places and upon such terms as it deems proper and may
thereafter hold the net proceeds of any such sale, together with any money and
other property then held by it, without liability for interest thereon, for the
pro rata benefit of the holders of Depositary Receipts which have not been
surrendered.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all charges of the Preferred Stock Depositary
including charges in connection with the initial deposit of the Preferred Stock,
the initial issuance of the Depositary Receipts, the distribution of information
to the holders of Depositary Receipts with respect to matters on which Preferred
Stock is entitled to vote, withdrawals of the Preferred Stock by the holders of
Depositary Receipts or redemption or conversion of the Preferred Stock, except
for taxes (including transfer taxes, if any) and other governmental charges and
such other charges as are expressly provided in the Deposit Agreement to be at
the expense of holders of Depositary Receipts or persons depositing Preferred
Stock.
MISCELLANEOUS
The Preferred Stock Depositary will make available for inspection by
holders of Depositary Receipts at its corporate office and its New York office,
all reports and communications from the Company which are delivered to the
Preferred Stock Depositary as the holder of Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable
if it is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of the
Preferred Stock Depositary under the Deposit Agreement are limited to performing
its duties thereunder without negligence or bad faith. The obligations of the
Company under the Deposit Agreement are limited to performing its duties
thereunder in good faith. Neither the Company nor the Preferred Stock Depositary
is obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished.
The Company and the Preferred Stock Depositary are entitled to rely upon advice
of or information from counsel, accountants or other persons believed to be
competent and on documents believed to be genuine.
The Preferred Stock Depositary may resign at any time or be removed by
the Company, effective upon the acceptance by its successor of its appointment;
provided, that if a successor Preferred Stock Depositary has not been appointed
or accepted such appointment within 45 days after the Preferred Stock Depositary
has delivered a notice of election to resign to the Company, the Preferred Stock
Depositary may terminate the Deposit Agreement. See "--Amendment and Termination
of Deposit Agreement" above.
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DESCRIPTION OF THE TRUST PREFERRED SECURITIES
Each of the Nationwide Trusts may issue, from time to time, only one
series of Preferred Securities having terms described in the Prospectus
Supplement relating thereto. The Declaration of each of the Nationwide Trusts
authorizes the Regular Trustees of each such Nationwide Trust to issue on behalf
of each such Nationwide Trust one series of Preferred Securities. Each
Declaration will be qualified as an indenture under the Trust Indenture Act. The
Preferred Securities will have such terms, including distributions, redemption,
voting, liquidation rights and such other preferred, deferred or other special
rights or such restrictions as shall be set forth in the related Declaration or
made part of such Declaration by the Trust Indenture Act or the Business Trust
Act. Reference is made to any Prospectus Supplement relating to the Preferred
Securities of each of the Nationwide Trusts for specific terms, including (i)
the specific designation of such Preferred Securities, (ii) the number of
Preferred Securities issued by each such Nationwide Trust, (iii) the annual
distribution rate (or method of calculation thereof) for Preferred Securities
issued by each such Nationwide Trust, the date or dates upon which such
distributions shall be payable and the record date or dates for the payment of
such distributions, (iv) whether distributions on Preferred Securities issued by
each such Nationwide Trust shall be cumulative, and, in the case of Preferred
Securities having such cumulative distribution rights, the date or dates or
method of determining the date or dates from which distributions on Preferred
Securities issued by each such Nationwide Trust shall be cumulative, (v) the
amount or amounts which shall be paid out of the assets of each such Nationwide
Trust to the holders of Preferred Securities of each such Nationwide Trust upon
voluntary or involuntary dissolution, winding-up or termination of each such
Nationwide Trust, (vi) the obligation or right, if any, of each such Nationwide
Trust to purchase or redeem Preferred Securities issued by each such Nationwide
Trust and the price or prices at which, the period or periods within which and
the terms and conditions upon which Preferred Securities issued by each such
Nationwide Trust shall or may be purchased or redeemed, in whole or in part,
pursuant to such obligation or right, (vii) the voting rights, if any, of
Preferred Securities issued by each such Nationwide Trust in addition to those
required by law, including the number of votes per Preferred Security and any
requirement for the approval by the holders of Preferred Securities, or of
Preferred Securities issued by one or more Nationwide Trusts, or of both, as a
condition to specified actions or amendments to the Declaration of each such
Nationwide Trust, (viii) the terms and conditions, if any, upon which Preferred
Securities issued by such Nationwide Trust may be converted into Class A Common
Stock of the Company, including the conversion price per share and the
circumstances, if any, under which such conversion right will expire, (ix) the
terms and conditions, if any, upon which the Subordinated Debt Securities
purchased by such Nationwide Trust may be distributed to holders of Trust
Preferred Securities, (x) if applicable, any securities exchange upon which the
Preferred Securities shall be listed, and (xi) any other relevant rights,
preferences, privileges, limitations or restrictions of Preferred Securities
issued by each such Nationwide Trust consistent with the Declaration of each
such Nationwide Trust or with applicable law. All Preferred Securities offered
hereby will be guaranteed by the Company as and to the extent set forth below
under "Description of the Preferred Securities Guarantees." Certain United
States federal income tax considerations applicable to any offering of Preferred
Securities will be described in the Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, each of the
Nationwide Trusts will issue one series of Common Securities. The Declaration of
each of the Nationwide Trusts authorizes the Regular Trustees of each such trust
to issue on behalf of each such Nationwide Trust one series of Common Securities
having such terms including distributions, redemption, voting, liquidation
rights or such restrictions as shall be set forth therein. The terms of the
Common Securities issued by each such Nationwide Trust will be substantially
identical to the terms of the Preferred Securities issued by each such
Nationwide Trust and the Common Securities will rank pari passu, and payments
will be made thereon on a pro rata basis with the Preferred Securities except
that if a Declaration Event of Default occurs and is continuing, the rights of
the holders of such Common Securities to payments in respect of distributions
and payments upon liquidation, redemption and maturity will be subordinated to
the rights of the holders of such Preferred Securities. Except in certain
limited circumstances, the Common Securities issued by each of the Nationwide
Trusts will also carry the right to vote and to appoint, remove or replace any
of the Trustees of each such Nationwide Trust. All of the Common Securities of
each of the Nationwide Trusts will be directly or indirectly owned by the
Company.
POTENTIAL TAX LAW CHANGES
From time to time, the Clinton Administration has proposed certain tax
law changes that would, among other things, generally deny interest deductions
to a corporate issuer if the debt instrument has a term exceeding 15 years
(earlier proposed tax law changes would have denied interest deductions if the
debt instrument had a term exceeding 20 years) and is not reflected as
indebtedness on such issuer's consolidated balance sheet. The term of any series
of Subordinated Debentures that may be purchased by a Nationwide Trust with
proceeds from the offering of Trust Securities may vary and may exceed 15 years.
The Company cannot predict what effect, if any, a proposal of the sort discussed
above will have on any series of
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<PAGE> 24
Subordinated Debentures held by to a Nationwide Trust; however, if any such
proposal were to become effective retroactively, the Company would be precluded
from deducting interest paid on such series of Subordinated Debentures which
might give rise to a mandatory redemption of the Preferred Securities of the
applicable Nationwide Trust.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees that will be executed and delivered by the Company for the
benefit of the holders from time to time of Preferred Securities of each of the
Nationwide Trusts. Each Preferred Security Guarantee will be separately
qualified under the Trust Indenture Act and will be held by Wilmington Trust
Company, acting in its capacity as indenture trustee with respect thereto, for
the benefit of holders of the Preferred Securities of the applicable Nationwide
Trust. The terms of each Preferred Securities Guarantee will be those set forth
in such Preferred Securities Guarantee and those made part of such Guarantee by
the Trust Indenture Act. This description summarizes the material terms of each
of the Preferred Securities Guarantees and is qualified in its entirety by
reference to, the form of Preferred Securities Guarantee, which is filed as an
exhibit to the Registration Statement of which this Prospectus forms a part, and
the Trust Indenture Act.
GENERAL
Pursuant to each Preferred Securities Guarantee, the Company will
irrevocably agree, to the extent set forth herein, to pay in full on a
subordinated basis, to the holder of the Preferred Securities issued by a
Nationwide Trust, the Guarantee Payments (as defined herein), as and when due,
regardless of any defense, right of set off or counterclaim that such Nationwide
Trust may have or assert. The following payments with respect to the Preferred
Securities issued by a Nationwide Trust, to the extent not paid by or on behalf
of such Nationwide Trust (the "Guarantee Payments"), will be subject to the
applicable Preferred Securities Guarantee (without duplication): (i) any accrued
and unpaid distributions which are required to be paid on the Preferred
Securities to the extent of funds held by such Nationwide Trust, (ii) the amount
payable upon redemption of the Preferred Securities, to the extent of funds held
by such Nationwide Trust, with respect to any Preferred Securities called for
redemption by such Nationwide Trust and (iii) upon a Liquidation (other than in
connection with the distribution of Subordinated Debentures to the holders of
the Preferred Securities of such Nationwide Trust in exchange for Preferred
Securities as provided in the applicable Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid distributions on
the Preferred Securities to the date of payment, to the extent of funds held by
such Nationwide Trust, and (b) the amount of assets of such Nationwide Trust
remaining available for distribution to holders of Preferred Securities upon the
Liquidation. The Company's obligation to make any Guarantee Payment may be
satisfied by direct payment of the required amounts by the Company to the
holders of such Preferred Securities or by causing such Trust to pay such
amounts to such holders.
Because each of the Guarantees is a guarantee of payment and not of
collection, holders of Preferred Securities of a Nationwide Trust may proceed
directly against the Company as guarantor, rather than having to proceed against
such Trust before attempting to collect from the Company, and the Company waives
any right or remedy to require that any action be brought against a Nationwide
Trust or any other person or entity before proceeding against the Company. Such
obligations will not be discharged except by payment of the Guarantee Payments
in full.
If the Company fails to make interest payments on the Subordinated
Debentures or pay amounts payable upon the redemption, acceleration or maturity
of the Subordinated Debentures, each of the Nationwide Trusts will have
insufficient funds to pay distributions on or to pay amounts payable upon the
redemption or repayment of such Preferred Securities. Each of the Guarantees
does not cover payment of distributions or the amount payable upon redemption or
repayment in respect of Preferred Securities when a Nationwide Trust does not
have sufficient funds to pay such distributions or such amount. The Company has
through each of the Guarantees, and certain back-up obligations, consisting of
obligations of the Company to provide certain indemnities in respect of, and pay
and be responsible for, certain expenses, costs, liabilities and debts of each
of the Trusts as set forth in the applicable Declaration, Indenture and
Subordinated Debentures, taken together, fully and unconditionally guaranteed
all of each of the Trust's obligations under the Preferred Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes any such guarantee. It is only the combined
operation of these documents that has the effect of providing full and
unconditional guarantees of each of the Trust's obligations under the Preferred
Securities.
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CERTAIN COVENANTS OF THE COMPANY
In each of the Guarantees, the Company will covenant that so long as
any Preferred Securities remain outstanding, if at such time (i) the Company has
exercised its option to defer interest payments on the Subordinated Debentures
and such deferral is continuing, (ii) the Company shall be in default with
respect to its payment or other obligations under each of the Guarantees or
(iii) there shall have occurred any event that, with the giving of notice or the
lapse of time or both, would constitute an Event of Default under the applicable
Indenture, then the Company (a) shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to any of its Preferred Stock (other than stock
dividends paid by the Company which consist of the stock of the same class as
that on which the dividend is being paid), (b) shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank pari passu with or junior to the
Subordinated Debentures, and (c) shall not make any guarantee payments with
respect to the foregoing (other than pursuant to the Guarantee).
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the
rights of holders of Preferred Securities of a Nationwide Trust (in which case
no consent of the holders of such Preferred Securities will be required), the
applicable Guarantee may be amended only with the prior approval of the holders
not less than 66-2/3% in aggregate stated liquidation amount of the outstanding
Preferred Securities. The manner of obtaining any such approval of holders of
such Preferred Securities will be as set forth in the Prospectus Supplement. All
guarantees and agreements contained in each of the Guarantees shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the holders of such Preferred Securities then
outstanding.
TERMINATION OF THE GUARANTEES
Each of the Guarantees will terminate and be of no further force and
effect as to the Preferred Securities issued by the applicable Nationwide Trust
upon (i) full payment of the applicable Redemption Price of each Preferred
Security of such Nationwide Trust, (ii) the distribution of the Subordinated
Debentures to all holders of the Preferred Securities of such Nationwide Trust,
or (iii) full payment of the amounts payable upon a Liquidation of such
Nationwide Trust. Each of the Guarantees will continue to be effective or will
be reinstated, as the case may be, if at any time any holder of Preferred
Securities of the applicable Nationwide Trust must restore payment of any sums
paid under such Preferred Securities or such Guarantee.
STATUS OF THE GUARANTEES; SUBORDINATION
Each of the Guarantees will constitute an unsecured obligation of the
Company and will rank (i) subordinate and junior in right of payment to all
liabilities of the Company, except any liabilities that may be made pari passu
expressly by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Company and with any guarantee
now or hereafter entered into by the Company in respect of any preferred or
preference stock or preferred securities of any affiliate of the Company and
(iii) senior to the Common Stock. Upon the bankruptcy, liquidation or winding up
of the Company, its obligations under each of the Guarantees will rank junior to
all its other liabilities (except as aforesaid) and, therefore, funds may not be
available for payment under the Guarantees.
The Declaration provides that each holder of Preferred Securities by
acceptance thereof agrees to the subordination provisions and other terms of the
applicable Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default under the
Guarantee, undertakes to perform only such duties as are specifically set forth
in the Guarantee and, after such a default, shall exercise the same degree of
care as a prudent individual would exercise in the conduct of his or her own
affairs. Subject to such provision, the Guarantee Trustee is under no obligation
to exercise any of the powers vested in it by the Guarantee at the request of
any holder of Preferred Securities unless it is offered reasonable security and
indemnity against the costs, expenses and liabilities that might be incurred
thereby.
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GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the
laws of the State of New York.
PLAN OF DISTRIBUTION
The Company and/or a Nationwide Trust may sell the Securities directly
or through agents, underwriters or dealers.
Offers to purchase Offered Securities may be solicited by agents
designated by the Company and/or a Nationwide Trust from time to time. Any such
agent, who may be deemed to be an underwriter as that term is defined in the
Securities Act, involved in the offer or sale of the Offered Securities in
respect of which this Prospectus is delivered will be named, and any commissions
payable by the Company and/or a Nationwide Trust to such agent set forth, in the
Prospectus Supplement. Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a best efforts basis for the period of its
appointment. The Company and/or a Nationwide Trust may also sell Offered
Securities to an agent as principal. Agents may be entitled to, under agreements
which may be entered into with the Company and/or a Nationwide Trust,
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
If any underwriters are utilized in the sale of Offered Securities in
respect of which this Prospectus is delivered, the Company and/or a Nationwide
Trust will enter into an underwriting agreement with such underwriters and the
names of the underwriters and the terms of the transaction will be set forth in
the Prospectus Supplement, which will be used by the underwriters to make
resales of the Offered Securities in respect of which this Prospectus is
delivered to the public. Underwriters may offer and sell the Offered Securities
at a fixed price or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The underwriters may be entitled, under
the relevant underwriting agreement, to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If a dealer is utilized in the sale of the Offered Securities in
respect of which this Prospectus is delivered, the Company and/or a Nationwide
Trust will sell such Offered Securities to the dealer, as principal. The dealer
may then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. Dealers may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
Offered Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("marketing firms"), acting as principals for their own
accounts or as agents for the Company and/or a Nationwide Trust. Any remarketing
firm will be identified and the terms of its agreement, if any, with the Company
and/or a Nationwide Trust and its compensation will be described in the
Prospectus Supplement. Remarketing firms may be deemed to be underwriters in
connection with the Offered Securities remarketing thereby. Remarketing firms
may be entitled under agreements which may be entered into with the Company
and/or a Nationwide Trust to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company and/or a
Nationwide Trust will authorize agents and underwriters or dealers to solicit
offers by certain purchasers to purchase Offered Securities from the Company at
the public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject to only those conditions set
forth in the Prospectus Supplement, and the Prospectus Supplement will set forth
the commission payable for solicitation of such offers.
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LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Offered Securities of Nationwide Financial Services, Inc. will
be passed upon for the Company by LeBoeuf, Lamb, Greene & MacRae, L.L.P., New
York, New York, special counsel to the Company and the Nationwide Trusts. Unless
otherwise indicated in a Prospectus Supplement certain matters of Delaware law
relating to the validity of the Preferred Securities of a Nationwide Trust will
be passed upon for the Nationwide Trusts by Richards, Layton & Finger, P.A.,
Wilmington, Delaware, special Delaware counsel to the Nationwide Trusts.
LeBoeuf, Lamb, Greene & MacRae, L.L.P. will rely as to matters of Delaware law
on Richards, Layton & Finger, P.A.
EXPERTS
The consolidated financial statements and financial statement schedules
of the Company and its subsidiaries incorporated in this Prospectus by reference
to the Company's Annual Report on Form 10-K for the year ended December 31,
1997, have been audited by KPMG Peat Marwick LLP, independent certified public
accountants, as indicated in their reports with respect thereto, and are
incorporated by reference in this Prospectus in reliance upon such reports and
upon the authority of said firm as experts in accounting and auditing.
ERISA MATTERS
THE COMPANY AND CERTAIN AFFILIATES OF THE COMPANY MAY EACH BE
CONSIDERED A "PARTY IN INTEREST" WITHIN THE MEANING OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A "DISQUALIFIED PERSON"
WITHIN THE MEANING OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
WITH RESPECT TO MANY EMPLOYEE BENEFIT PLANS. PROHIBITED TRANSACTIONS WITHIN THE
MEANING OF ERISA OR THE CODE MAY ARISE, FOR EXAMPLE, IF THE OFFERED SECURITIES
ARE ACQUIRED BY A PENSION OR OTHER EMPLOYEE BENEFIT PLAN WITH RESPECT TO WHICH
THE COMPANY OR ANY OF ITS AFFILIATES IS A SERVICE PROVIDER (OR OTHERWISE IS A
"PARTY IN INTEREST" OR A "DISQUALIFIED PERSON"), UNLESS SUCH OFFERED SECURITIES
ARE ACQUIRED PURSUANT TO AN EXEMPTION FOR TRANSACTIONS EFFECTED ON BEHALF OF
SUCH PLAN BY A "QUALIFIED PROFESSIONAL ASSET MANAGER" OR PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION. ANY SUCH PENSION OR EMPLOYEE BENEFIT PLAN PROPOSING TO
INVEST IN THE OFFERED SECURITIES SHOULD CONSULT WITH ITS LEGAL COUNSEL.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates,
except the SEC registration fee.
SEC registration fee..................................... $295,000
NYSE Listing fees........................................ 170,000
Printing and engraving................................... 75,000
Legal fees and expenses.................................. 300,000
Fees of accountants...................................... 50,000
Fees of trustees......................................... 80,000
Blue sky fees and expenses............................... 20,000
Rating agency fees....................................... 150,000
Miscellaneous............................................ 30,000
Total........................................... $1,170,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of DGCL Section 145 empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Subsection (b) of DGCL Section 145 empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Other subsections of DGCL Section 145 further provide that to the
extent a director, officer, employee or agent of a corporation has been
successful on the merits or otherwise in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) of Section 145, or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification provided for by Section 145 shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of such person's heirs, executors and administrators; and that
expenses incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit
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<PAGE> 29
or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation.
Section 1 of Article VI of the Company's Bylaws provided that the
Company shall indemnify its directors, officers, employees and agents to the
fullest extent permitted by the DGCL. This Section further provides that the
Company may advance expenses incurred by any director or officer in defending a
civil or criminal action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to the indemnification
by the Company.
DGCL Section 145 also provides that any indemnification provided for
therein may only be made upon a determination by (i) a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders that the indemnitee has met the standard of conduct required by
Section 145 entitling him to such indemnification.
DGCL Section 145 empowers the corporation to purchase and maintain
insurance on behalf of a director, officer, employee or agent of the corporation
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liabilities under Section
145. Section 3 of Article VI of the Company's Bylaws provides that the Company
may purchase and maintain insurance on behalf of any director or officer against
any liability asserted against and incurred by such person arising out of the
person's status as such, whether or not the Company would have the power to
indemnify such person against such liability under the DGCL.
The Company has in force and effect a policy insuring the directors and
officers of the Company against losses which they or any of them shall become
legally obligated to pay for any reason of any actual or alleged error or
misstatement or misleading statement or act or omission or neglect or breach of
duty by the directors and officers in the discharge of their duties,
individually or collectively, or any matter claimed against them solely by
reason of their being directors or officers, such coverage being limited by the
specific terms and provisions of the insurance policy.
Pursuant to the Underwriting Agreement, in the form filed as an exhibit
to the Registration Statement, any Underwriters under the Underwriting Agreement
will agree to indemnify the registrants' directors and officers and persons
controlling the registrants within the meaning of the Securities Act against
certain liabilities that might arise out of or based upon certain information
furnished to the registrants by any such indemnifying party.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provisions
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal benefit.
Article TWELFTH of the Company's Certificate limits the liability of directors
to the fullest extent permitted by Section 102(b)(7).
Section 3817 of the Delaware Code governing business trusts provides
that a business trust shall have the power to indemnify and hold harmless any
trustee or beneficial owner or other person from and against any and all claims
and demands whatsoever.
The Declaration of each Nationwide Trust provides that no Trustee or
any of its Affiliates (as defined therein), officers, directors, shareholders,
members, partners, employees, representatives or agents, nor any employee or
agent of such Nationwide Trust or its Affiliates (each an "Indemnified Person"),
shall be liable, responsible or accountable in damages or otherwise to such
Nationwide Trust, any officer, director, shareholder, partner, member,
representative, employee or agent of the Trust or its Affiliates, or any holder
of the Trust Securities for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Indemnified Person in good faith on
behalf of such Nationwide Trust and in a manner such Indemnified Person by the
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
II-2
<PAGE> 30
The Declaration of each Nationwide Trust provides further that to the
full extent permitted by law the Company, as sponsor of such Nationwide Trust,
shall indemnify each Indemnified Person against any loss, damage, liability,
tax, penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination of such
Nationwide Trust or any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of such Nationwide Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by the applicable Declaration, except that
no Indemnified Person by reason of negligence or willful misconduct with respect
to such acts or omissions. The Declaration of each Nationwide Trust further
provides that the Company, as sponsor of such Nationwide Trust, shall indemnify
each Indemnified Person in advance for expenses (including legal fees and
expenses) incurred by an Indemnified Person in defending any claim, damage,
action, suit or proceeding upon receipt of the Company, as sponsor of such
Nationwide Trust, of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that such Indemnified Person is not
entitled to be indemnified by the Company, as sponsor of such Nationwide Trust.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
<S> <C>
1.1+ Form of Underwriting Agreement (Debt).
1.2+ Form of Underwriting Agreement (Equity).
1.3+ Form of Underwriting Agreement (Preferred Securities).
3.1 Form of Restated Certificate of Incorporation of Nationwide Financial Services, Inc., (previously filed as
Exhibit 3.1 to Form S-1, Registration Number 333-18527, filed March 5, 1997, and incorporated by reference
herein).
3.2 Form of Restated Bylaws of Nationwide Financial Services, Inc. (previously filed as Exhibit 3.2 to Form S-1,
Registration Number 333-18527, filed March 5, 1997, and incorporated by reference herein).
3.3 Form of Intercompany Agreement among Nationwide Mutual Insurance Company, Nationwide Corporation
and Nationwide Financial Services, Inc. (previously filed as Exhibit 10.1 to Form S-1, Registration Number
333-18527, filed March 5, 1997, and incorporated by reference herein).
4.1 Form of Senior Indenture to be entered into between the Company and Wilmington Trust Company.
4.2 Form of Supplemental Indenture to Senior Indenture providing for
the issuance of senior notes.
4.3 Form of Senior Debt Security (included in Exhibit 4.2).
4.4 Form of Subordinated Indenture to be entered into between the Company and Wilmington Trust Company.
4.5 Form of Supplemental Indenture to Subordinated Indenture providing for the issuance of Junior subordinated
deferrable interest debentures.
4.6 Form of Subordinated Debt Security (included in Exhibit 4.5).
4.7 Form of Class A Common Stock share certificate (previously filed as Exhibit 4.1 to Form S-1, Registration
Number 333-18527, filed March 5, 1997, and incorporated by reference herein).
4.8+ Form of Preferred Stock Certificate.
4.9 Certificate of Trust of Nationwide Financial Services Capital Trust II.
4.10 Declaration of Trust of Nationwide Financial Services Capital Trust II.
4.11 Form of Amended and Restated Declaration of Trust for Nationwide Financial Services Capital Trust II.
4.12 Certificate of Trust of Nationwide Financial Services Capital Trust III.
4.13 Declaration of Trust of Nationwide Financial Services Capital Trust III.
4.14 Form of Amended and Restated Declaration of Trust for Nationwide Financial Services Capital Trust III.
</TABLE>
II-3
<PAGE> 31
<TABLE>
<CAPTION>
Exhibit
<S> <C>
4.15 Form of Trust Preferred Security (included in Exhibits 4.11 and 4.14).
4.16 Form of Preferred Securities Guarantee with respect to Preferred Securities of Nationwide Financial Services
Capital Trust II.
4.17 Form of Preferred Securities Guarantee with respect to Preferred Securities of Nationwide Financial Services
Capital Trust III.
4.18 Form of Deposit Agreement.
4.19 Form of Depositary Receipt (included in Exhibit 4.18).
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
5.2 Opinion of Richards, Layton & Finger, P.A. with respect to Nationwide Financial Services Capital Trust II.
5.3 Opinion of Richards, Layton & Finger, P.A. with respect to Nationwide Financial Services Capital Trust III.
8.1+ Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. regarding tax matters.
12.1 Statement re: Computation of ratio of earnings to fixed charges.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of LeBoeuf, Lamb, Greene, & MacRae, L.L.P. (included in Exhibit 5.1).
23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibits 5.2 and 5.3).
24.1 Powers of Attorney for the Company (included in signature pages).
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, under the Senior Indenture.
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, under the Subordinated Indenture.
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, with respect to the Amended and Restated Declaration of Trust of Nationwide Financial Services
Capital Trust II.
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, with respect to the Amended and Restated Declaration of Nationwide Capital Financial Services
Trust III.
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, under the Preferred Securities Guarantee of the Company with respect to the Preferred Securities
of Nationwide Financial Services Capital Trust II.
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company, as Trustee,
under the Preferred Securities Guarantee of the Company with respect to the Preferred Securities of Nationwide
Financial Services Capital Trust III.
</TABLE>
- -------
+ To be filed under subsequent Form 8-K
II-4
<PAGE> 32
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
I. 1.01. To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(b) To reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(c) To include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Company
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement.
1.02. That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
1.03. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered thereby, and for
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
III. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the provisions referred to in Item 15 of
this Registration Statement, or otherwise, the registrants have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrants will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
IV. 4.01. For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430(A) and
contained in a form of prospectus filed by the registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
4.02. For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 33
POWER OF ATTORNEY
Each director and/or officer of Nationwide Financial Services, Inc.
whose signature appears below hereby appoints W. Sidney Druen, Mark B. Koogler
and Roger A. Craig and each of them severally, as his or her attorneys-in-fact
to sign in his or her name and on his or her behalf, in any and all capacities
stated below, and to file with the Securities and Exchange Commission, any and
all amendments, including post-effective amendments, to this Registration
Statement.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Nationwide
Financial Services, Inc. has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Columbus, State of Ohio, on May 15, 1998.
NATIONWIDE FINANCIAL SERVICES, INC.
By: /s/ Dimon R. McFerson
----------------------------------------
Dimon R. McFerson
Chairman and Chief Executive Officer --
Nationwide Insurance Enterprise
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below on May 15, 1998 by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ Dimon R. McFerson Chairman and Chief Executive Officer--Nationwide
------------------------- Insurance Enterprise and Director (Principal Executive
Dimon R. McFerson Officer)
/s/ Joseph J. Gasper President and Chief Operating Officer and Director
-------------------------
Joseph J. Gasper
/s/ Robert A. Oakley Executive Vice President--Chief Financial Officer
------------------------- (Principal Financial Officer and Principal Accounting
Robert A. Oakley Officer)
/s/ James G. Brocksmith, Jr. Director
-------------------------
James G. Brocksmith, Jr.
/s/ Mark R. Thresher Vice President--Finance and Treasurer
------------------------- (Principal Accounting Officer)
Mark R. Thresher
/s/ Charles L. Fuellgraf, Jr. Director
-------------------------
Charles L. Fuellgraf, Jr.
/s/ Henry S. Holloway Director
-------------------------
Henry S. Holloway
/s/ Lydia Micheaux Marshall Director
-------------------------
Lydia Micheaux Marshall
/s/ Donald L. McWhorter Director
-------------------------
Donald L. McWhorter
/s/ David O. Miller Director
-------------------------
David O. Miller
/s/ James F. Patterson Director
-------------------------
James F. Patterson
/s/ Gerald D. Prothro Director
-------------------------
Gerald D. Prothro
/s/ Arden L. Shisler Director
-------------------------
Arden L. Shisler
</TABLE>
II-6
<PAGE> 34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Nationwide
Capital Trust II and Nationwide Capital Trust III each certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Columbus,
state of Ohio, on May 15, 1998.
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
By: /s/ David A. Diamond
----------------------------------------
David A. Diamond, Regular Trustee
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
By: /s/ David A. Diamond
----------------------------------------
David A. Diamond, Regular Trustee
II-7
<PAGE> 35
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
<S> <C>
1.1+ Form of Underwriting Agreement (Debt).
1.2+ Form of Underwriting Agreement (Equity).
1.3+ Form of Underwriting Agreement (Preferred Securities).
3.1 Form of Restated Certificate of Incorporation of Nationwide Financial Services, Inc. (previously filed as
Exhibit 3.1 to Form S-1, Registration Number 333-18527, filed March 5, 1997, and incorporated by reference
herein).
3.2 Form of Restated Bylaws of Nationwide Financial Services, Inc. (previously filed as Exhibit 3.2 to Form S-1,
Registration Number 333-18527, filed March 5, 1997, and incorporated by reference herein).
3.3 Form of Intercompany Agreement among Nationwide Mutual Insurance Company, Nationwide Corporation
and Nationwide Financial Services, Inc. (previously filed as Exhibit 10.1 to Form S-1, Registration Number
333-18527, filed March 5, 1997, and incorporated by reference herein).
4.1 Form of Senior Indenture to be entered into between the Company and
Wilmington Trust Company.
4.2 Form of Supplemental Indenture to Senior Indenture providing for the issuance of senior notes.
4.3 Form of Senior Debt Security (included in Exhibit 4.2).
4.4 Form of Subordinated Indenture to be entered into between the Company and Wilmington Trust Company.
4.5 Form of Supplemental Indenture to Subordinated Indenture providing for the issuance of Junior subordinated
deferrable interest debentures.
4.6 Form of Subordinated Debt Security (included in Exhibit 4.5).
4.7 Form of Class A Common Stock share certificate (previously filed as Exhibit 4.1 to Form S-1, Registration Number
333-18527, filed March 5, 1997, and incorporated by reference herein).
4.8+ Form of Preferred Stock Certificate.
4.9 Certificate of Trust of Nationwide Financial Services Capital Trust II.
4.10 Declaration of Trust of Nationwide Financial Services Capital Trust II.
4.11 Form of Amended and Restated Declaration of Trust for Nationwide Financial Services Capital Trust II.
4.12 Certificate of Trust of Nationwide Financial Services Capital Trust III.
4.13 Declaration of Trust of Nationwide Financial Services Capital Trust III.
4.14 Form of Amended and Restated Declaration of Trust for Nationwide Financial Services Capital Trust III.
4.15 Form of Trust Preferred Security (included in Exhibits 4.11 and 4.14).
4.16 Form of Preferred Securities Guarantee with respect to Preferred Securities of Nationwide Financial Services
Capital Trust II.
4.17 Form of Preferred Securities Guarantee with respect to Preferred Securities of Nationwide Financial Services
Capital Trust III.
4.18 Form of Deposit Agreement.
4.19 Form of Depositary Receipt (included in Exhibit 4.18).
5.1 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
5.2 Opinion of Richards, Layton & Finger, P.A. with respect to Nationwide Financial Services Capital Trust II.
</TABLE>
II-8
<PAGE> 36
<TABLE>
<CAPTION>
Exhibit
<S> <C>
5.3 Opinion of Richards, Layton & Finger, P.A. with respect to Nationwide Financial Services Capital Trust III.
8.1+ Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. regarding tax matters.
12.1 Statement re: Computation of ratio of earnings to fixed charges.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of LeBoeuf, Lamb, Greene, & MacRae, L.L.P. (included in Exhibit 5.1).
23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibits 5.2 and 5.3).
24.1 Powers of Attorney for the Company (included in signature pages).
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, under the Senior Indenture.
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, under the Subordinated Indenture.
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, with respect to the Amended and Restated Declaration of Trust of Nationwide Financial Services
Capital Trust II.
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, with respect to the Amended and Restated Declaration of Nationwide Capital Financial Services
Trust III.
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wilmington Trust Company,
as Trustee, under the Preferred Securities Guarantee of the Company with respect to the Preferred Securities
of Nationwide Financial Services Capital Trust II.
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of Wilmington Trust Company, as Trustee, under the
Preferred Securities Guarantee of the Company with respect to the
Preferred Securities of Nationwide Financial Services Capital
Trust III.
</TABLE>
- -------
+ To be filed under subsequent Form 8-K
II-9
<PAGE> 1
EXHIBIT 4.1
================================================================================
NATIONWIDE FINANCIAL SERVICES, INC.
AND
WILMINGTON TRUST COMPANY
SENIOR INDENTURE
Dated as of [ ], 1998
================================================================================
<PAGE> 2
CROSS REFERENCE SHEET*
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
, 1998 between Nationwide Financial Services, Inc. and Wilmington
Trust Company, Trustee:
<TABLE>
<CAPTION>
SECTION OF THE ACT SECTION OF INDENTURE
<S> <C>
310(a)(1) and (2)...............................................................................................6.9
310(a)(3) and (4)......................................................................................Inapplicable
310(b).................................................................................6.8 and 6.10(a), (b) and (d)
310(c).................................................................................................Inapplicable
311(a).........................................................................................................6.13
311(b).........................................................................................................6.13
311(c).................................................................................................Inapplicable
312(a)..................................................................................................4.1 and 4.2
312(b)..........................................................................................................4.2
312(c)..........................................................................................................4.2
313(a)..........................................................................................................4.3
313(b)(1)..............................................................................................Inapplicable
313(b)(2).......................................................................................................4.3
313(c)..........................................................................4.3, 5.11, 6.10, 6.11, 8.2 and 12.2
313(d)..........................................................................................................4.3
314(a).................................................................................................3.4 and 3.11
314(b).................................................................................................Inapplicable
314(c)(1) and (2)..............................................................................................11.5
314(c)(3)..............................................................................................Inapplicable
314(d).................................................................................................Inapplicable
314(e).........................................................................................................11.5
314(f).................................................................................................Inapplicable
315(a), (c) and (d).............................................................................................6.1
315(b).........................................................................................................5.11
315(e).........................................................................................................5.12
316(a)(1)..............................................................................................5.9 and 5.10
316(a)(2)..............................................................................................Not required
316(a) (last sentence)..........................................................................................7.4
316(b)..........................................................................................................5.7
317(a)..........................................................................................................5.2
317(b)..........................................................................................................3.3
318(a).........................................................................................................11.7
</TABLE>
* This Cross Reference Sheet is not part of the Indenture.
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
PAGE
----
<S> <C>
Section 1.1 Certain Terms Defined..................................................................1
ARTICLE II
SECURITIES
Section 2.1 Forms Generally........................................................................7
Section 2.2 Form of Trustee's Certificate of Authentication........................................7
Section 2.3 Amount Unlimited; Issuable in Series...................................................8
Section 2.4 Authentication and Delivery of Securities.............................................10
Section 2.5 Execution of Securities...............................................................13
Section 2.6 Certificate of Authentication.........................................................13
Section 2.7 Denomination and Date of Securities; Payments of Interest.............................13
Section 2.8 Registration, Transfer and Exchange...................................................14
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.............................17
Section 2.10 Cancellation of Securities; Destruction Thereof.......................................18
Section 2.11 Temporary Securities..................................................................19
ARTICLE III
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest.....................................................19
Section 3.2 Offices for Payments, Etc.............................................................20
Section 3.3 Money for Security Payments to be Held in Trust; Unclaimed
Money.................................................................................21
Section 3.4 Statements of Officers of Issuer as to Default; Notice of Default.....................22
Section 3.5 Existence.............................................................................22
Section 3.6 Maintenance of Properties.............................................................22
Section 3.7 Payment of Taxes and Other Claims.....................................................23
Section 3.8 Further Instruments and Acts..........................................................23
Section 3.9 Limitation on Liens...................................................................23
Section 3.10 Luxembourg Publications...............................................................23
Section 3.11 Commission Reports....................................................................23
</TABLE>
-i-
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
<S> <C>
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses
of Securityholders....................................................................24
Section 4.2 Preservation of Information; Communications to Holders................................24
Section 4.3 Reports by the Trustee................................................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default...............................................................................24
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................27
Section 5.3 Application of Proceeds...............................................................29
Section 5.4 Suits for Enforcement.................................................................30
Section 5.5 Restoration of Rights on Abandonment of Proceedings...................................30
Section 5.6 Limitations on Suits by Securityholders...............................................30
Section 5.7 Unconditional Right of Securityholders to Institute Certain Suits.....................31
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default............................................................................31
Section 5.9 Control by Holders of Securities......................................................31
Section 5.10 Waiver of Past Defaults...............................................................32
Section 5.11 Trustee to Give Notice of Default, but May Withhold in Certain
Circumstances.........................................................................32
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs..........................33
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default...............................................................................33
Section 6.2 Certain Rights of the Trustee.........................................................34
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof.......................................................35
Section 6.4 Trustee and Agents May Hold Securities or Coupons; Collections,
Etc...................................................................................36
Section 6.5 Moneys Held by Trustee................................................................36
Section 6.6 Compensation and Indemnification of Trustee and its Prior Claim.......................36
Section 6.7 Right of Trustee to Rely on Officer's Certificate, Etc................................36
</TABLE>
-ii-
<PAGE> 5
<TABLE>
PAGE
----
<S> <C>
Section 6.8 Indentures Not Creating Potential Conflicting Interests for the
Trustee...............................................................................37
Section 6.9 Persons Eligible for Appointment as Trustee...........................................37
Section 6.10 Resignation and Removal; Appointment of Successor Trustee.............................37
Section 6.11 Acceptance of Appointment by Successor Trustee........................................38
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of
Trustee...............................................................................39
Section 6.13 Preferential Collection of Claims Against the Issuer..................................40
Section 6.14 Appointment of Authenticating Agent...................................................40
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders...........................................41
Section 7.2 Proof of Execution of Instruments and of Holding of Securities........................41
Section 7.3 Holders to Be Treated as Owners.......................................................42
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding.....................................43
Section 7.5 Right of Revocation of Action Taken...................................................43
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders............................44
Section 8.2 Supplemental Indentures With Consent of Securityholders...............................45
Section 8.3 Effect of Supplemental Indenture......................................................46
Section 8.4 Documents to Be Given to Trustee......................................................46
Section 8.5 Notation on Securities in Respect of Supplemental Indentures..........................46
Section 8.6 Conformity with Trust Indenture Act of 1939...........................................47
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms...................................47
Section 9.2 Successor Substituted for the Issuer..................................................47
Section 9.3 Restrictions on Certain Dispositions..................................................47
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Termination of Issuer's Obligations Under the Indenture...............................48
Section 10.2 Application of Trust Funds............................................................49
Section 10.3 Applicability of Defeasance Provisions; Issuer's Option to Effect
Defeasance or Covenant Defeasance.....................................................49
</TABLE>
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<TABLE>
PAGE
<S> <C>
Section 10.4 Defeasance and Discharge..............................................................49
Section 10.5 Covenant Defeasance...................................................................50
Section 10.6 Conditions to Defeasance or Covenant Defeasance.......................................50
Section 10.7 Deposited Money and U.S. Government Obligations to be Held in
Trust.................................................................................52
Section 10.8 Repayment to Issuer...................................................................52
Section 10.9 Indemnity For U.S. Government Obligations.............................................52
Section 10.10 Reimbursement.........................................................................52
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability......................................................53
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders
of Securities and Coupons.............................................................53
Section 11.3 Successors and Assigns of Issuer Bound by Indenture...................................53
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities
and Coupons...........................................................................53
Section 11.5 Officer's Certificates and Opinions of Counsel; Statements to Be
Contained Therein.....................................................................54
Section 11.6 Payments Due on Saturdays, Sundays and Holidays.......................................55
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of
1939..................................................................................55
Section 11.8 New York Law to Govern................................................................55
Section 11.9 Counterparts..........................................................................55
Section 11.10 Effect of Headings....................................................................55
Section 11.11 Securities in a Foreign Currency or in ECU............................................55
Section 11.12 Judgment Currency.....................................................................56
Section 11.13 Separability Clause...................................................................57
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article..............................................................57
Section 12.2 Notice of Redemption; Partial Redemptions.............................................57
Section 12.3 Payment of Securities Called for Redemption...........................................58
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption............................................................................59
Section 12.5 Mandatory and Optional Sinking Funds..................................................59
</TABLE>
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<PAGE> 7
THIS INDENTURE, dated as of [ ], 1998 between NATIONWIDE FINANCIAL
SERVICES, INC., a Delaware corporation (the "Issuer"), and WILMINGTON TRUST
COMPANY, a national banking association, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities and of the coupons, if any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 CERTAIN TERMS DEFINED. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act of 1939 and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" means such accounting principles as are generally
accepted at the time of any computation. The words "HEREIN", "HEREOF" and
"HEREUNDER" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.
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<PAGE> 8
"AUTHENTICATING AGENT" shall have the meaning set forth in
Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation, in the
official language of the country of publication or in the English language
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized or required by law, executive order or regulation to
close.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
"CONSOLIDATED TOTAL ASSETS" means, in respect of the Issuer as of any
date of determination, the amount of total assets shown on the consolidated
balance sheet of the Issuer and its consolidated subsidiaries contained in the
most recent annual or quarterly report filed with the Commission, or if the
Issuer is not then subject to the Securities Exchange Act of 1934, the most
recent annual or quarterly report to stockholders and, in respect of any
Subsidiary as of any date of determination, the amount of total assets of such
Subsidiary and its consolidated subsidiaries from which such consolidated
balance sheet of the Issuer and its consolidated Subsidiaries was derived.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at [Rodney Square North, 1100 N. Market Street,
Wilmington, Delaware, 19890].
"COUPON" means any interest coupon appertaining to an Unregistered
Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in Section 10.5.
"DEFEASANCE" shall have the meaning set forth in Section 10.4.
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<PAGE> 9
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in global form, the Person designated as Depositary by the
Issuer pursuant to Section 2.3 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"DEPOSITARY" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "DEPOSITARY"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Securities in global form of that
series.
"DOLLAR" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1.
"FAIR VALUE" when used with respect to any Voting Stock means the fair
value as determined in good faith by the Board of Directors of the Issuer.
"FOREIGN CURRENCY" means a currency issued by the government of a
country other than the United States.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms mean (a) in the case of any Registered Security, the person in whose name
such Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section 5.1.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"INSURANCE SUBSIDIARY" means a Subsidiary registered in the state of
its domicile under the insurance laws of such state and qualified to sell
insurance products.
"ISSUER" means (except as otherwise provided in Article Six) Nationwide
Financial Services, Inc., a Delaware corporation and, subject to Article Nine,
its successors and assigns.
"ISSUER ORDER" means a written statement, request or order of the
Issuer signed in its name by the chairman or vice chairman of the Board of
Directors, the president, any executive, senior or other vice president or the
treasurer of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in Section 11.12.
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<PAGE> 10
"OFFICER'S CERTIFICATE" means a certificate signed by the chairman or
vice chairman of the Board of Directors, the president or any executive, senior
or other vice president or the treasurer of the Issuer and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by the General
Counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (1) the date of such Security or (2) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"OUTSTANDING" (except as otherwise provided in Sections 7.4, 10.4 and
10.5), when used with reference to Securities, shall, subject to the provisions
of Sections 7.4, 10.4 and 10.5 mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.1) in
the necessary amount shall have been deposited in trust with the Trustee or with
any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent), PROVIDED that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(3) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
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<PAGE> 11
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"PERMITTED LIENS" means liens for taxes or assessments or governmental
charges or levies not then due and delinquent or the validity of which is being
contested in good faith or which are less than $1,000,000 in amount and liens
created by or resulting from any litigation or legal proceeding which is
currently being contested in good faith by appropriate proceedings or which
involves claims of less than $1,000,000.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"REGISTERED SECURITY" means any Security registered on the Security
register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section 11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
(whether or not designated by numbers or words added before or after the title
"VICE PRESIDENT") the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" means (1) so long as they are Subsidiaries of
the Issuer, Nationwide Life Insurance Company and Nationwide Life and Annuity
Insurance Company; (2) any other future or present Insurance Subsidiary the
Consolidated Total Assets of which constitute 20 percent or more of the
Consolidated Total Assets of the Issuer; and (3) any Subsidiary which is a
successor, by merger or otherwise, to substantially all of the business or
properties of any Insurance Subsidiary referred to or described in the foregoing
clauses (1) or (2).
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"SECURITY" or "SECURITIES" (except as otherwise provided in Section
7.4) has the meaning stated in the first recital of this Indenture, or, as the
case may be, Securities that have been authenticated and delivered under this
Indenture.
"SUBSIDIARY" means any corporation, partnership or other entity of
which at the time of determination the Issuer owns or controls directly or
indirectly more than 50% of the shares of Voting Stock.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the date as of
which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depositary receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment or interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depositary receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt or from any amount held by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depositary
receipt.
"VOTING STOCK" means stock of any class or classes having general
voting power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, PROVIDED that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
"YIELD TO MATURITY" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
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ARTICLE II
SECURITIES
Section 2.1 FORMS GENERALLY. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an
Officer's Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons. If temporary Securities of any series are issued as
permitted by Section 2.11, the form thereof also shall be established as
provided in the preceding sentence. If the forms of Securities and coupons, if
any, of the series are established by, or by action taken pursuant to, a Board
Resolution, a copy of the Board Resolution together with an appropriate record
of any such action taken pursuant thereto, including a copy of the approved form
of Securities or coupons, if any, shall be certified by the Secretary or an
Assistant Secretary of the Issuer and delivered to the Trustee at or prior to
the delivery of the Issuer Order contemplated by Section 2.4 for the
authentication and delivery of such Securities.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within mentioned
Senior Indenture.
---------------------------,
as Trustee
By
-------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
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<PAGE> 14
"This is one of the Securities referred to in the within mentioned
Senior Indenture.
---------------------------,
as Authenticating Agent
By
---------------------------
Authorized Signatory"
Section 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Issuer. There shall be established in or pursuant to one or more
Board Resolutions (and to the extent established pursuant to rather than set
forth in a Board Resolution, in an Officer's Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the Securities
of that series are denominated (including, but not limited to, any Foreign
Currency or ECU);
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or
dates shall be determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.2);
(7) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, the price or
prices at which and any terms and conditions upon which Securities of the series
may be so redeemed, pursuant to any sinking fund or otherwise;
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<PAGE> 15
(8) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such series
are to be payable, at the election of the Issuer or a Holder thereof, in a coin
or currency other than that in which the Securities are denominated, the period
or periods within which, and the terms and conditions upon which, such election
may be made;
(13) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities or Unregistered Securities (with or without Coupons), and
whether such Securities will be issuable in global form or any combination of
the foregoing, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon and, if other than as
provided in Section 2.8, the terms upon and locations at which Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and vice versa;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who is not a
U.S. person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(16) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
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<PAGE> 16
(17) any Trustees, Depositaries, Authenticating Agents, paying or
transfer Agents or Registrars or any other agents with respect to the Securities
of such series;
(18) any deletions from, modifications of or additions to the Events of
Default or covenants with respect to the Securities of such series;
(19) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(20) the date as of which any Unregistered Securities of the series and
any temporary Security in global form representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(21) the applicability, if any, to the Securities of or within the
series of Article X, or such other means of Defeasance or Covenant Defeasance as
may be specified for the Securities and Coupons, if any, of such series;
(22) if the Securities of the series shall be issued in whole or in
part in global form (a) the Depositary for such global Securities, (b) the form
of any legend in addition to or in lieu of that in Section 2.4 which shall be
borne by such global security, (c) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any authorized form
and denomination, and (d) if other than as provided in Section 2.8, the
circumstances under which any such exchange may occur; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officer's Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or pursuant
to such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
Section 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. (1) The Issuer
may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in this
Section) or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral
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<PAGE> 17
electronic instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive (in the
case of subparagraphs 2, 3 and 4 below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.1) shall be fully protected in relying upon, unless
and until such documents have been superseded or revoked:
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, PROVIDED that, with respect to Securities of a series
subject to a Periodic Offering, (i) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (ii) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to an Issuer Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by an Issuer Order, (iii) the
maturity date or dates, original issue date or dates, interest rate or rates and
any other terms of Securities of such series shall be determined by an Issuer
Order or pursuant to such procedures and (iv) if provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Issuer or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing;
(b) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officer's Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and terms
of the Securities and Coupons, if any, have been established pursuant to
Sections 2.1 and 2.3 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(d) At the option of the Issuer, either one or more Opinions of
Counsel, or a letter addressed to the Trustee permitting it to rely on one or
more Opinions of Counsel, substantially to the effect that:
(i) the forms of the Securities and Coupons, if any, have been
duly authorized and established in conformity with the provisions of this
Indenture;
(ii) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been established pursuant to
a Board Resolution, an Officer's Certificate or a supplemental indenture in
accordance with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by the Issuer and
will have been established in conformity with the provisions of this Indenture;
and
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(iii) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture, will
be entitled to the benefits of this Indenture, and will be valid and binding
obligations of the Issuer, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability.
In rendering such opinions, any counsel may qualify any
opinions as to enforceability by stating that such enforceability may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee, in which case the
opinion shall state that such counsel believes he or she and the Trustee are
entitled so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, he or she has relied, to the extent he or she deems
proper, upon certificates of officers of the Issuer and its subsidiaries and
certificates of public officials.
(2) The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
(3) If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in whole or in part in global form, then
the Issuer shall execute and the Trustee shall, in accordance with this Section
and the Issuer Order with respect to such series, authenticate and deliver one
or more Securities in global form that (a) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of all of the
Securities of such series issued and not yet cancelled, (b) if such Securities
are Registered Securities, shall be registered in the name of the Depositary for
such Security or Securities in global form or the nominee of such Depositary,
(c) if such Securities are Registered Securities, shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions and (d)
shall bear a legend substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in definitive form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
(4) Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
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Section 2.5 EXECUTION OF SECURITIES. The Securities and, if applicable,
each Coupon appertaining thereto shall be signed on behalf of the Issuer by the
chairman or vice chairman of its Board of Directors or its president or any
executive, senior or other vice president or its treasurer, under its corporate
seal (except in the case of Coupons) which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
Section 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
herein before recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
Section 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.3 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee, as evidenced
by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.3.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.3.
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The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the Holders of Registered Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
Section 2.8 REGISTRATION, TRANSFER AND EXCHANGE. (1) The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
(2) Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities in global form) and Coupons (except for Coupons attached to any
temporary Unregistered Securities in global form) shall be transferable by
delivery.
(3)(a) At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Security in global form, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of
such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.2 and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. Whenever any Registered Securities are so
surrendered for exchange, the Issuer shall
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execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) Unless otherwise specified as contemplated by Section 2.3,
at the option of the Holder, Unregistered Securities of such series may be
exchanged for Registered Securities (if the Securities of such series are
issuable in registered form) or Unregistered Securities (if Unregistered
Securities of such series are issuable in more than one denomination and such
exchanges are permitted by such series) of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Securities to be exchanged at the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.2, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of an Unregistered Security is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such exchange may be effected
if the Unregistered Securities are accompanied by payment in funds acceptable to
the Issuer and the Trustee in an amount equal to the face amount of such missing
Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be
waived by the Issuer and the Trustee if there be furnished to them such security
or indemnity as they may require to save each of them and any paying agent
harmless. If thereafter the Holder of such Security shall surrender to any
paying agent any such missing Coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment as provided in Section 3.2. Notwithstanding the foregoing, in case any
Unregistered Security of any series is surrendered at any such office or agency
in exchange for a Registered Security of the same series after the close of
business at such office or agency on (i) any record date and before the opening
of business at such office or agency on the relevant interest payment date, or
(ii) any special record date for payment of defaulted interest and before the
opening of business at such office or agency on the related date for payment of
defaulted interest, such Unregistered Security shall be surrendered without the
Coupon relating to such interest or defaulted interest payment date or proposed
date of payment, as the case may be (or, if such Coupon is so surrendered with
such Unregistered Security, such Coupon shall be returned to the person so
surrendering the Unregistered Security), and interest or defaulted interest, as
the case may be, will not be payable on such date or proposed date for payment,
as the case may be, in respect of the Registered Security issued in exchange for
such Unregistered Security, but will be payable only to the Holder of such
Coupon, when due in accordance with the provisions of this Indenture.
(c) Registered Securities of any series may not be exchanged
for Unregistered Securities of such series unless (i) otherwise specified
pursuant to Section 2.3 and (ii) the Issuer has delivered to the Trustee an
Opinion of Counsel that (A) the Issuer has received from the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that the
inclusion of terms permitting Registered Securities to be exchanged for
Unregistered Securities would result in no adverse Federal income tax effect to
the Issuer or to any Holder. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be cancelled promptly and disposed of by
the Trustee and the Trustee will deliver a certificate of disposition thereof to
the Issuer.
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(4) All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such series
to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
(5) Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Securities in global form
notifies the Issuer that it is unwilling or unable to continue as Depositary for
such Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4 for
such Registered Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered Securities be
represented by one or more Registered Securities in global form shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Security or Securities in global form representing such
Registered Securities in exchange for such Registered Security or Securities in
global form.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of one
or more Registered Securities in global form shall no longer be represented by a
Registered Security or Securities in global form. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Registered
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Security or Securities in global form representing such Registered Securities,
in exchange for such Registered Security or Securities in global form.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Security in global form, the
Depositary for such Registered Security in global form may surrender such
Registered Security in global form in exchange in whole or in part for
Registered Securities of the same series in definitive form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(a) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the Registered
Security in global form; and
(b) to such Depositary a new Registered Security in global
form in a denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Security in global form and the aggregate
principal amount of Registered Securities authenticated and delivered pursuant
to clause (a) above.
Upon the exchange of a Registered Security in global form for
Registered Securities in definitive form without coupons, in authorized
denominations, such Registered Security in global form shall be cancelled by the
Trustee or an agent of the Issuer or the Trustee. Registered Securities in
definitive form issued in exchange for a Registered Security in global form
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Security in
global form, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Issuer or the
Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
(6) All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
(7) Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States federal income tax laws.
Section 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES.
In case any Security or any Coupon appertaining to any Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion
may execute, and upon the written request of
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any officer of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution
for the Security to which such mutilated, defaced, destroyed, lost or stolen
Coupon appertained, with Coupons appertaining thereto corresponding to the
Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) or its agent connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any agent of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
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its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent for cancellation.
Section 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Registered Securities of such
series may be surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to Section 3.2
and, in the case of Unregistered Securities, at any agency maintained by the
Issuer for such purpose as specified pursuant to Section 3.2, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.3 (including any provision that Unregistered Securities of such series
initially be issued in the form of a single Unregistered Security in global form
to be delivered to a Depositary or agency located outside the United States and
the procedures pursuant to which Unregistered Securities in definitive or global
form of such series would be issued in exchange for such temporary Unregistered
Security in global form).
ARTICLE III
COVENANTS OF THE ISSUER
Section 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining
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thereto and in this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and surrender of the several
Coupons for such interest installments as are evidenced thereby as they
severally mature. If any temporary Unregistered Security provides that interest
thereon may be paid while such Security is in temporary form, the interest on
any such temporary Unregistered Security (together with any additional amounts
payable pursuant to the terms of such Security) shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon
of the payment of such interest, in each case subject to any restrictions that
may be established pursuant to Section 2.3. The interest on Registered
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to or upon the written order of the
Holders thereof and, at the option of the Issuer, may be paid by wire transfer
or by mailing checks for such interest payable to or upon the written order of
such Holders at their last addresses as they appear on the registry books of the
Issuer.
Section 3.2 OFFICES FOR PAYMENTS, ETC. So long as any Securities are
issued as Registered Securities, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities of
each series may be presented for exchange as is provided in this Indenture and,
if applicable, pursuant to Section 2.3 and where the Registered Securities of
each series may be presented for registration of transfer as in this Indenture
provided.
So long as any Securities are issued as Unregistered Securities, the
Issuer will maintain one or more offices or agencies in a city or cities located
outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if any,
of each series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in the Borough of Manhattan, The City of New York if such
payment in Dollars at each agency maintained by the Issuer outside the United
States for payment on such Unregistered Securities is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section, or shall fail
to give such notice of the location or of any change in the
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location of any of the above agencies, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
Section 3.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST; UNCLAIMED
MONEY. If the Issuer shall at any time act as its own paying agent, it will, on
or before each due date of the principal of and premium, if any, or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Holders entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Holders
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Issuer shall have one or more paying agents, it will, on
or prior to each due date of the principal of and premium, if any, or interest
on any Securities, deposit with the paying agent or paying agents a sum
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum to be held in trust for the benefit of the Holders entitled to such
principal, premium, if any, or interest, and, unless such paying agent is the
Trustee, the Issuer will promptly notify the Trustee of its action or failure so
to act.
The Issuer will cause each paying agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section, that
such paying agent will:
(1) hold all sums held by it for the payment of the principal of and
premium, if any, or interest on Securities in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Holders (or any other
obligor upon the Securities) in the making of any payment of principal and
premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any paying agent to pay, to the Trustee all sums held in
trust by the Issuer or such paying agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such
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paying agent; and, upon such payment by any paying agent to the Trustee, such
paying agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any paying agent, or then held
by the Issuer in trust for the payment of the principal of and premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and payable shall be
paid to the Issuer on Issuer Order, or, if then held by the Issuer, shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Issuer cause to
be published once, in a newspaper customarily published on each Business Day and
of general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 3.4 STATEMENTS OF OFFICERS OF ISSUER AS TO DEFAULT; NOTICE OF
DEFAULT. (1) The Issuer will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Issuer ending after the date hereof, a
certificate, signed by the principal executive officer, principal financial
officer or principal accounting officer, stating whether or not to the best
knowledge of the signers thereof the Issuer is in default (without regard to
periods of grace or requirements of notice) in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Issuer shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(2) The Issuer shall file with the Trustee written notice of the
occurrence of any default or Event of Default within five Business Days of its
becoming aware of any such default or Event of Default.
Section 3.5 EXISTENCE. Subject to Article IX, the Issuer will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises and those of
each of its Subsidiaries; PROVIDED, HOWEVER, that the Issuer shall not be
required to preserve any such right or franchise if its Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Issuer or the business of any Subsidiary and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 3.6 MAINTENANCE OF PROPERTIES. The Issuer will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Issuer may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Issuer from discontinuing the operation
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or maintenance of any such properties if such discontinuance is, in the judgment
of the Issuer, desirable in the conduct of its business or the business of any
Subsidiary and not disadvantageous in any material respect to the Holders.
Section 3.7 PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary, and (2) all material lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Issuer or any Subsidiary; PROVIDED, HOWEVER, that the Issuer
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which disputed
amounts adequate reserves have been made.
Section 3.8 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Issuer will execute and deliver such further instruments and perform such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 3.9 LIMITATION ON LIENS. The Issuer and its Restricted
Subsidiaries may not issue, assume, incur or guarantee any indebtedness for
borrowed money secured by a mortgage, pledge, lien or other encumbrance,
directly or indirectly, upon any shares of the Voting Stock of a Restricted
Subsidiary which shares are owned by the Issuer or its Restricted Subsidiaries
without effectively providing that the Securities (and if the Issuer so elects,
any other indebtedness of the Issuer ranking on a parity with the Securities)
shall be secured equally and ratably with, or prior to, any such secured
indebtedness so long as such indebtedness remains outstanding. This Section 3.9
shall not apply to Permitted Liens or to any mortgage, pledge, lien or other
encumbrance upon any shares of Voting Stock of any corporation existing at the
time such corporation becomes a Restricted Subsidiary and any extensions,
renewals or replacements thereof.
Section 3.10 LUXEMBOURG PUBLICATIONS. In the event of the publication
of any notice pursuant to Section 5.11, 6.10, 6.11, 8.2, [ ] or 12.2, the party
making such publication in the Borough of Manhattan, The City of New York and
London shall also, to the extent that notice is required to be given to Holders
of Securities of any series by applicable Luxembourg law or stock exchange
regulation, as evidenced by an Officer's Certificate delivered to such party,
make a similar publication in Luxembourg.
Section 3.11 COMMISSION REPORTS. The Issuer shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the Commission, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Issuer is required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
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ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF SECURITYHOLDERS. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act of 1939 (1) semi-annually not more than 5
days after each record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.3 for non-interest bearing Registered
Securities in each year, and (2) at such other times as the Trustee may request
in writing, within thirty days after receipt by the Issuer of any such request
as of a date not more than 15 days prior to the time such information is
furnished.
Section 4.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. (1)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 4.1 and the names and addresses of Holders
received by the Trustee in its capacity as Security registrar or paying agent.
The Trustee may destroy any list furnished to it as provided in Section 4.1 upon
receipt of a new list so furnished.
(2) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act of 1939.
(3) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of any of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Sections 4.1 and 4.2(2), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
4.2(2).
Section 4.3 REPORTS BY THE TRUSTEE. Any Trustee's report required under
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or
before [ ] 15 in each year beginning [ ] 15, 199[ ], as provided in Section
313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER
OF DEFAULT. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
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law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise; or
(3) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of such
series; or
(4) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series (other than a covenant or agreement in respect of the Securities
of such series a default in the performance or breach of which is elsewhere in
this Section specifically dealt with) or contained in this Indenture (other than
a covenant or agreement included in this Indenture solely for the benefit of a
series of Securities other than such series) for a period of 60 days after the
date on which written notice specifying such failure, stating that such notice
is a "Notice of Default" hereunder and demanding that the Issuer remedy the
same, shall have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by the
holders of at least 25% in aggregate principal amount of the Outstanding
Securities of all series affected thereby; or
(5) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer or any Restricted Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Issuer or of any
Restricted Subsidiary for any substantial part of its or their property or
ordering the winding up or liquidation of its or their affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(6) the Issuer or any Restricted Subsidiary shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Issuer or any Restricted Subsidiary or for any
substantial part of its or their property, or make any general assignment for
the benefit of creditors; or
(7) an event of default, as defined in any one or more mortgages,
indentures, instruments, bonds, debentures, notes or other similar instruments
under which there may be issued, or by which there may be secured or evidenced,
any indebtedness (other than the Securities of such series or nonrecourse
obligations) ("Indebtedness") in excess of $50,000,000 for money borrowed by the
Issuer or a Restricted Subsidiary shall occur, if such event of default
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shall result in the acceleration of such Indebtedness prior to its expressed
maturity unless such Indebtedness is discharged or such acceleration is cured,
waived, rescinded or annulled within 10 days after written notice thereof shall
have been given by registered or certified mail, return receipt requested, to
the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities (treated
as one class) which notice shall state that it is a "Notice of Default"
hereunder; or
(8) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security for
such series; PROVIDED that if any such default or acceleration referred to in
clause (7) above shall cease or be cured, waived, rescinded or annulled, then
the Event of Default hereunder by reason thereof shall be deemed likewise to
have been thereupon cured.
If an Event of Default described in clause (1), (2), (3), (4) or (8)
(if the Event of Default under clause (4) or (8), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (4) or (8) (if the Event of Default under
clause (4) or (8), as the case may be, is with respect to all series of
Securities then Outstanding), (5), (6) or (7) occurs and is continuing, then and
in each and every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities then Outstanding, and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield
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to Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series (or at the respective rates of interest or Yields
to Maturity of all the Securities, as the case may be) to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which shall
have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then and in every such case the Holders of a
majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE
DEBT. (1) The Issuer covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
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Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such Series be overdue.
(2) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or other obligor upon the
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon the Securities, wherever situated the moneys
adjudged or decreed to be payable.
(3) In case there shall be pending proceedings relative to the Issuer
or any other obligor upon the Securities under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee, except as a result of negligence or bad faith) and of
the Securityholders allowed in any judicial proceedings relative to the Issuer
or other obligor upon the Securities, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any election of
a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to the Securityholders, to pay to the Trustee such
amounts as shall be sufficient
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to cover reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(4) All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of such
Securities or Coupons or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities or Coupons appertaining to such Securities in respect of which such
action was taken.
(5) In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
Section 5.3 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their respective
agents and attorneys and of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the
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overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in such Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest upon
the overdue principal, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and interest or
Yield to Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
Section 5.4 SUITS FOR ENFORCEMENT. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
Section 5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of each affected series then Outstanding
(treated as a single class) shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such
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reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 5.9; it
being understood and intended, and being expressly covenanted by the taker and
Holder of every Security or Coupon with every other taker and Holder and the
Trustee, that no one or more Holders of Securities of any series or Coupons
appertaining to such Securities shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN
SUITS. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon, or to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
Section 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. Except as provided in Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
Section 5.9 CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority
in aggregate principal amount of the Securities of each series affected (with
all such series voting as a single class) at the time Outstanding shall have the
right to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
PROVIDED that such direction shall not be otherwise than in accordance with law
and the
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provisions of this Indenture, PROVIDED FURTHER that (subject to the provisions
of Section 6.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors, the executive committee, or a trust
committee of directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions or
forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 5.10 WAIVER OF PAST DEFAULTS. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.1, the Holders of a majority
in aggregate principal amount of the Securities of all series at the time
Outstanding with respect to which an event of default shall have occurred and be
continuing (voting as a single class) may on behalf of the Holders of all such
Securities waive any past default or Event of Default described in Section 5.1
and its consequences, except a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the Holder of
each Security affected. In the case of any such waiver, the Issuer, the Trustee
and the Holders of all such Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN
CERTAIN CIRCUMSTANCES. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (1) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.10, at least once in an Authorized
Newspaper in Luxembourg) and (2) to all Holders of Securities of such series in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act of 1939, unless in each case such defaults shall have been cured before the
mailing or publication of such notice (the term "defaults" for the purpose of
this Section being hereby defined to mean any event or condition which is, or
with notice or lapse of time or both would become, an Event of Default);
PROVIDED that, except in the case of default in the payment of the principal of
or interest on any of the Securities of such series, or in the payment of
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any sinking fund installment on such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders of such series.
Section 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY
COSTS. All parties to this Indenture agree, and each Holder of any Security or
Coupon by his or her acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (4) or (8) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (4) or (8) (if
the suit under clause (4) or (8) relates to all the Securities then
Outstanding), (5), (6) or (7) of Section 5.1, 10% in aggregate principal amount
of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT;
PRIOR TO DEFAULT. (1) With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(2) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have occurred:
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(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.9 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
(3) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Section 315 of the Trust Indenture Act of 1939.
Section 6.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(2) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
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(3) The Trustee may consult with legal counsel of its choice or other
experts, and the advice of such experts within the scope of such expert's area
of expertise or opinion of counsel with respect to legal matters shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion.
(4) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(5) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(6) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected by such Event of Default and then Outstanding; PROVIDED that, if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care by
it hereunder.
Section 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of any Securities or Coupons. The
Trustee shall not be accountable for the use or application by the Issuer of any
of the Securities or of the proceeds thereof.
Section 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS;
COLLECTIONS, ETC. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may
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become the owner or pledgee of Securities or Coupons with the same rights it
would have if it were not the Trustee or such agent and may otherwise deal with
the Issuer and receive, collect, hold and retain collections from the Issuer
with the same rights it would have if it were not the Trustee or such agent.
Section 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section [ ] hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability [in the premises]. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or Coupons, and the Securities are hereby subordinated
to such senior claim.
Section 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE, ETC.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
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Section 6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR
THE TRUSTEE. The following indentures are hereby specifically described for the
purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: this Indenture
with respect to the Securities of any series.
Section 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee
for each series of Securities hereunder shall at all times be a corporation or
banking association organized and doing business under the laws of the United
States of America or of any State or the District of Columbia having a combined
capital and surplus of at least $5,000,000, and which is authorized under such
laws to exercise corporate trust powers and is subject to supervision or
examination by Federal, State or District of Columbia authority. Such
corporation or banking association shall have a place of business in the Borough
of Manhattan, The City of New York if there be such a corporation in such
location willing to act upon reasonable and customary terms and conditions. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(1) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and (a) if any Unregistered Securities of a
series affected are then Outstanding, by giving notice of such resignation to
the Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York, and at least once in an
Authorized Newspaper in London (and, if required by Section 3.10, at least once
in an Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of
a series affected are then Outstanding, by mailing notice of such resignation to
the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 at such
addresses as were so furnished to the Trustee and (c) by mailing notice of such
resignation to the Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books.
Upon receiving such notice of resignation, the Issuer shall promptly appoint a
successor Trustee or Trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee or Trustees. If no successor Trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself or herself and
all others similarly situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor Trustee.
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(2) In case at any time any of the following shall occur:
(a) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any Securityholder
who has been a bona fide Holder of a Security or Securities of such series for
at least six months; or
(b) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and Section 310(a) of the Trust Indenture Act of
1939 and shall fail to resign after written request therefor by the Issuer or by
any Securityholder; or
(c) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a successor Trustee
for such series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 315(e) of the Trust Indenture Act of 1939,
any Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months may on behalf of himself or herself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper, remove the Trustee and appoint a successor Trustee.
(3) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor Trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by such
Securityholders.
(4) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor Trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor Trustee as provided in Section
6.11.
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor Trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as Trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor Trustee, upon payment
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of its charges then unpaid, the Trustee ceasing to act shall, subject to Section
[ ], pay over to the successor Trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor Trustee, the Issuer shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor Trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts under separate
indentures.
No successor Trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.11, the Issuer shall give notice thereof (1) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.10, at least once in an
Authorized Newspaper in Luxembourg), (2) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act of 1939, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (3) if any Registered
Securities of a series affected are then Outstanding, to the Holders thereof by
mailing such notice to such Holders at their addresses as they shall appear on
the registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 6.10.
If the Issuer fails to give such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Issuer.
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which
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the Trustee shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
PROVIDED that such corporation shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; PROVIDED, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.9 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating
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Agent without the execution or filing of any paper or any further act on the
part of the Trustee or such Authenticating Agent. Any Authenticating Agent may
at any time, and if it shall cease to be eligible shall, resign by giving
written notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee shall upon receipt of an Issuer Order appoint
a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
Section 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his or her agent or proxy may be proved in the following
manner:
(1) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him or her the
execution thereof, or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the person
executing the same.
(2) The fact of the holding by any Holder of an Unregistered Security
of any series, and the identifying number of such Security and the date of his
or her holding the same, may be
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proved by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the Trustee
to be satisfactory. Each such certificate shall be dated and shall state that on
the date thereof a Security of such series bearing a specified identifying
number was deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Unregistered Securities of
one or more series specified therein. The holding by the person named in any
such certificate of any Unregistered Securities of any series specified therein
shall be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (a) another
certificate bearing a later date issued in respect of the same Securities shall
be produced, or (b) the Securities of such series specified in such certificate
shall be produced by some other person, or (c) the Securities of such series
specified in such certificate shall have ceased to be Outstanding. Subject to
Sections 6.1 and 6.2, the fact and date of the execution of any such instrument
and the amount and numbers of Securities of any series held by the person so
executing such instrument and the amount and numbers of any Security or
Securities for such series may also be proven in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee for such series or in
any other manner which the Trustee for such series may deem sufficient.
(3) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security registrar.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to vote
or consent to any action referred to in Section 7.1, which record date may be
set at any time or from time to time by notice to the Trustee, for any date or
dates (in the case of any adjournment or reconsideration) not more than 60 days
nor less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
Section 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his or her order, shall be valid, and, to the extent of the sum or sums so
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paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Unregistered Security or Coupon.
Section 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer's Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall
be entitled to accept such Officer's Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
Section 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
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Section 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
(1) The Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer pursuant
to Article IX;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the Trustee
shall consider to be for the protection of the Holders of Securities or Coupons,
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; PROVIDED, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may deem
necessary or desirable, PROVIDED that no such action shall adversely affect the
interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted by
Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11.
(2) The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such
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supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
(3) Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
Section 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
(1) With the consent (evidenced as provided in Article VII) of the Holders of
not less than a majority in aggregate principal amount of the Securities at the
time Outstanding of all series affected by such supplemental indenture (voting
as one class), the Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series or of the Coupons appertaining to such
Securities; PROVIDED, that no such supplemental indenture shall (a) extend the
final maturity of any then issued Security, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on redemption thereof, or make the principal
thereof (including any amount in respect of original issue discount), or
interest thereon payable in any coin or currency other than that provided in
such Securities and any Coupons thereon or in accordance with the terms thereof,
or reduce the amount of the principal of a then issued Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy
pursuant to Section 5.2, or alter the provisions of Section 11.11 or 11.12 or
impair or affect the right of any Securityholder to institute suit for the
payment thereof or, if such Securities provide therefor, any right of repayment
at the option of the Securityholder, in each case without the consent of the
Holder of each Security so affected, or (b) reduce the percentage in principal
amount of then issued Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected.
(2) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
(3) Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if
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any, required by Section 7.1, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
(4) It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
(5) Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (a) if any Registered Securities of a series affected
thereby are then Outstanding, to the Holders thereof by mailing a notice thereof
by first-class mail to such Holders at their addresses as they shall appear on
the Security register, (b) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act of 1939, by mailing a notice thereof by first-class mail to such
Holders at such addresses as were so furnished to the Trustee and (c) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.10, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
Section 8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Officer's Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article VIII complies with the applicable provisions
of this Indenture.
Section 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by
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the Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
Section 8.6 CONFORMITY WITH TRUST INDENTURE ACT OF 1939. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act of 1939 as then in effect.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The
Issuer shall not consolidate with or merge into another Person or sell other
than for cash or lease all or substantially all its assets to another Person, or
purchase all or substantially all the assets of another Person, unless:
(1) either the Issuer is the continuing Person, or the successor Person
(if other than the Issuer) expressly assumes by supplemental indenture the
obligations evidenced by the Securities (in which case, except in the case of
such a lease, the Issuer will be discharged therefrom), and
(2) immediately thereafter, the Issuer or the successor Person (if
other than the Issuer) would not be in default in the performance of any
covenant or condition contained herein.
Section 9.2 SUCCESSOR SUBSTITUTED FOR THE ISSUER. Upon any
consolidation of the Issuer with, or merger of the Issuer into, any other Person
or any conveyance, transfer or lease of the properties and assets of the Issuer
substantially as an entirety in accordance with Section 9.1, the successor
Person formed by such consolidation or into which the Issuer is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such successor Person had been named
as the Issuer herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
Section 9.3 RESTRICTIONS ON CERTAIN DISPOSITIONS. As long as any of the
Securities remain Outstanding, the Issuer will not, and will not permit any
Restricted Subsidiary to, issue, sell, assign, transfer or otherwise dispose of,
directly or indirectly, any of the Voting Stock of any Restricted Subsidiary,
unless:
(1) the issuance, sale, assignment, transfer or other disposition is
required to comply with the order of a court or regulatory authority of
competent jurisdiction, other than an order issued at the request of the Issuer
or of one of its Restricted Subsidiaries;
(2) the shares of Voting Stock issued, sold, assigned, transferred or
otherwise disposed of constitute directors' qualifying shares;
(3) all of the Voting Stock of a Restricted Subsidiary then owned by
the Issuer or by its Restricted Subsidiaries is disposed of in a single
transaction or in a series of related
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transactions, for a consideration consisting of cash or other property the fair
market value of which (as determined in good faith by the Board of Directors) is
at least equal to the Fair Value of such Voting Stock; or
(4) after giving effect to the issuance sale, assignment, transfer or
other disposition, the Issuer and its Restricted Subsidiaries would own directly
or indirectly at least 80% of the issued and outstanding Voting Stock of such
Restricted Subsidiary and such issuance, sale, assignment, transfer or other
disposition is made for a consideration consisting of cash or other property
which is at least equal to the Fair Value of such Voting Stock.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 TERMINATION OF ISSUER'S OBLIGATIONS UNDER THE INDENTURE.
(1) This Indenture shall upon an Issuer Order cease to be of further effect with
respect to Securities of or within any series and any coupons appertaining
thereto (except as to any surviving rights of registration of transfer or
exchange of such Securities and replacement of such Securities which may have
been lost, stolen or mutilated as herein expressly provided for) and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any Coupons appertaining thereto when
(a) either
(i) all such Securities previously authenticated and
delivered and all Coupons appertaining thereto (other than (A)
such Coupons appertaining to Unregistered Securities
surrendered in exchange for Registered Securities and maturing
after such exchange, surrender of which is not required or has
been waived as provided in Section 2.8, (B) such Securities
and Coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9,
(C) such Coupons appertaining to Unregistered Securities
called for redemption and maturing after the date fixed for
redemption thereof, surrender of which has been waived as
provided in Section 12.3 and (D) such Securities and Coupons
for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust
as provided in Section 3.3) have been delivered to the Trustee
for cancellation; or
(ii) all Securities of such series and, in the case
of (X) or (Y) below, all Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (X) have
become due and payable, or (Y) will become due and payable
within one year, or (Z) if redeemable at the option of the
Issuer, are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Issuer, and the Issuer, in the case of (x),
(y) or (z) above, has irrevocable deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies or currency
unit or units in which
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the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and
such Coupons not theretofore delivered to the Trustee for
cancellation, for principal, premium, if any, and interest,
with respect thereto, to the date of such deposit (in the case
of Securities which have become due and payable) or maturity
date or redemption date, as the case may be;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
(2) Notwithstanding the satisfaction and discharge of this Indenture,
the obligation of the Issuer to the Trustee and any predecessor Trustee under
Section 6.11, the obligations of the Issuer to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to (1)(a)(ii) of this Section, the obligations of the Trustee under Section 10.2
and the last paragraph of Section 3.3 shall survive.
Section 10.2 APPLICATION OF TRUST FUNDS. Subject to the revisions of
the last paragraph of Section 3.3, all money deposited with the Trustee pursuant
to Section 10.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and this Indenture, to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent) as the Trustee may determine, to the Persons entitled thereto
of the principal, premium, if any and any interest for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 10.3 APPLICABILITY OF DEFEASANCE PROVISIONS; ISSUER'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 2.3 provision
is made for either both of (1) defeasance of the Securities of or within a
series under Section 10.4 or (2) covenant defeasance of the Securities of or
within a series under Section 10.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 10.6
through 10.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 2.3 with respect to any Securities, shall be applicable to
such Securities and any Coupons appertaining thereto, and the Issuer may at its
option by or pursuant to Board Resolution, at any time, with respect to such
Securities and any Coupons appertaining thereto, elect to have Section 10.4 (if
applicable) or Section 10.5 (if applicable) be applied to such Outstanding
Securities and any Coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 10.4 DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of
the option specified in Section 10.3 applicable to this Section with respect to
the Securities of or within a series, the Issuer shall be deemed to have been
discharged from its obligations with respect to such Securities and any Coupons
appertaining thereto on and after the date the conditions set forth in Section
10.6 are satisfied (hereinafter "defeasance"). For this purpose, such defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness
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represented by such Securities and any Coupons appertaining thereto which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 10.7
and the other Sections of this Indenture referred to in clause (2) of this
Section, and to have satisfied all its other obligations under such Securities
and any Coupons appertaining thereto and this Indenture insofar as such
Securities and any Coupons appertaining thereto are concerned (and the Trustee,
at the expense of the Issuer, shall on an Issuer Order execute proper
instruments acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (1) the rights of Holders of
such Securities and any Coupons appertaining thereto to receive, solely from the
trust funds described in Section 10.6(1) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
if any, on such Securities or any Coupons appertaining thereto when such
payments are due; (2) the Issuer's obligations with respect to such Securities
under Sections 2.8, 2.9, 3.2 and 3.3 and with respect to the payment of
additional amounts, if any, payable with respect to such Securities as specified
pursuant to Section 2.3; (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (4) this Article X. Subject to compliance with this
Article X, the Issuer may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 10.5 with respect to such
Securities and any coupons appertaining thereto. Following a defeasance, payment
of such Securities may not be accelerated because of an Event of Default.
Section 10.5 COVENANT DEFEASANCE. Upon the Issuer's exercise of the
option specified in Section 10.3 applicable to this Section with respect to any
Securities of or within a series, the Issuer shall be released from its
obligations under Section 9.1 and 3.5 and, if specified pursuant to Section 2.3,
its obligations under any other covenant with respect to such Securities and any
Coupons appertaining thereto on and after the date the conditions set forth in
Section 10.6 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any Coupons appertaining thereto shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 9.1 and 3.5 or such other covenant, but shall continue
to be deemed "Outstanding" for all other purposes hereunder. For this purpose,
such covenant defeasance means that, with respect to such Securities and any
Coupons appertaining thereto, the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 5.1(1) or (8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any Coupons appertaining thereto shall be
unaffected thereby.
Section 10.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 10.4 or Section 10.5
to any Securities of or within a series and any Coupons appertaining thereto:
(1) The Issuer shall have deposited or caused to be deposited
irrevocably with the Trustee (or another Trustee satisfying the requirements of
Section 6.9 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 10.3 through 10.9 inclusive
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and the last paragraph of Section 3.3 applicable to the Trustee, for purposes of
such Sections also a "Trustee") as trust funds in trust for the purpose of
making the payments referred to in clauses (X) and (Y) of this Section 10.6(1),
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities and any Coupons appertaining thereto, with
instructions to the Trustee as to the application thereof, (a) money in an
amount (in such currency, currencies or currency unit or units in which such
Securities and any Coupons appertaining thereto are then specified as payable at
maturity), or (b) if Securities of such Series are not subject to repayment at
the option of Holders, U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment referred to
in clause (X) or (Y) of this Section 10.6(1), money in an amount or (c) a
combination thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, (X) the
principal of, premium, if any, and interest, if any, on Securities and any
Coupons appertaining thereto on the maturity of such principal or installment of
principal or interest and (Y) any mandatory sinking fund payments applicable to
such Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities and any Coupons
appertaining thereto. Before such a deposit the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date or
dates in accordance with Article XII which shall be given effect in applying the
foregoing.
(2) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under,
any other material agreement or instrument to which the Issuer is a party or by
which it is bound.
(3) In the case of an election under Section 10.4, the Issuer shall
have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
to the effect that [(a) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date of
execution of this Indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that,] the Holders of such Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for federal income
tax purposes as a result of such defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred.
(4) In the case of an election under Section 10.5, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(5) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under
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Section 10.4 or the covenant defeasance under Section 10.5 (as the case may be),
including those contained in this Section 10.6 other than the 90 day period
specified in Section 10.6(g), have been complied with.
(6) This Issuer shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other Securities
of the same series, if then listed on any securities exchange, will be delisted
as a result of such deposit.
(7) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 5.1(5) and (6), at any time
on or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(8) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940 unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Issuer in connection therewith as contemplated by
Section 2.3.
Section 10.7 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST. Subject to the provisions of the last paragraph of Section 3.3, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 2.3) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 10.6 in respect of any Securities of any series and
any Coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any Coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any paying Agent (including the Issuer acting as its own paying agent)
as the Trustee may determine, to the Holders of such Securities and any Coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Section 10.8 REPAYMENT TO ISSUER. The Trustee (any paying agent) shall
promptly pay to the Issuer upon Issuer Order any excess money or securities held
by them at any time.
Section 10.9 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer
shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against U.S. Government Obligations deposited pursuant to
this Article or the principal and interest and any other amount received on such
U.S. Government Obligations.
Section 10.10 REIMBURSEMENT. If the Trustee or the paying agent is
unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or government
authority enjoining, restraining or otherwise prohibiting
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such application, then the obligations under this Indenture and such Securities
from which the Issuer has been discharged or released pursuant to Section 10.4
or 10.5 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time as the
Trustee or paying agent is permitted to apply all money held in trust pursuant
to Section 10.7 with respect to such Securities in accordance with this Article;
PROVIDED, HOWEVER, that if the Issuer makes any payment of principal of or any
premium or interest on any such Security following such reinstatement of its
obligations, the Issuer shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
Section 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
Section 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
Section 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES AND COUPONS. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Nationwide Financial Services, Inc.,
One Nationwide Plaza, Columbus, Ohio 43215. Any notice, direction, request or
demand by the Issuer or any Holder of Securities or Coupons to or upon the
Trustee shall be deemed to have been sufficiently given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
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provided herein) addressed (until another address of the Trustee is filed by the
Trustee with the Issuer) to Wilmington Trust Company, Rodney Square North, 1100
Market Street, Wilmington, Delaware, 19890, Attention: Corporate Trust
Administration.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his or her last address as it appears in the
Security register. In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
Section 11.5 OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS
TO BE CONTAINED THEREIN. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (3) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information
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with respect to which is in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an officer or officers of the
Issuer, unless such counsel actually knows that the certificate, statement or
opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
Section 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939, such
imposed duties or incorporated provision shall control.
Section 11.8 NEW YORK LAW TO GOVERN. This Indenture and each Security
and Coupon shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of law.
Section 11.9 COUNTERPARTS. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 11.10 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
Section 11.11 SECURITIES IN A FOREIGN CURRENCY OR IN ECU. Unless
otherwise specified in an Officer's Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by
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the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series which are denominated in a coin or currency other than Dollars (including
ECUs), then the principal amount of Securities of such series which shall be
deemed to be Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the Market Exchange
Rate. For purposes of this Section 11.11, Market Exchange Rate shall mean the
noon Dollar buying rate in New York City for cable transfers of that currency as
published by the Federal Reserve Bank of New York; PROVIDED, HOWEVER, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by
the Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such publication
or any successor publication, the "Journal"). If such Market Exchange Rate is
not available for any reason with respect to such currency, the Trustee shall
use, in its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York or, in the case of ECUs, the rate of
exchange as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more major
banks in The City of New York or in the country of issue of the currency in
question, which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the Trustee shall
deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a series denominated
in a currency other than Dollars in connection with any action taken by Holders
of Securities pursuant to the terms of this Indenture including without
limitation any determination contemplated in Section 5.1(7).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
Section 11.12 JUDGMENT CURRENCY. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (1) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business
Day, then, to the extent permitted by applicable law, the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the Business Day preceding the day on which final
unappealable judgment is entered and (2) its obligations under this Indenture to
make payments in the Required Currency (a) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (1)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (b) shall be enforceable as
an alternative or additional cause of action
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for the purpose of recovering in the Required Currency the amount, if any, by
which such actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (c) shall not be affected by judgment
being obtained for any other sum due under this Indenture.
Section 11.13 SEPARABILITY CLAUSE. If any provision of this Indenture
or of the Securities, or the application of any such provision to any Person or
circumstance, shall be held to be invalid, illegal or unenforceable, the
remainder of this Indenture or of the Securities, or the application of such
provision to Persons or circumstances other than those as to whom or which it is
invalid, illegal or unenforceable, shall not in any way be affected or impaired
thereby.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
Section 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Notice of redemption to the Holders of Unregistered
Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act of 1939 shall be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least 30 days and not more than 60 prior to the date
fixed for redemption, to such Holders at such addresses as were so furnished to
the Trustee (and, in the case of any such notice given by the Issuer, the
Trustee shall make such information available to the Issuer for such purpose).
Notice of redemption to all Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and in an Authorized Newspaper in London (and, if required by Section
3.10, in an Authorized Newspaper in Luxembourg), in each case, once in each of
three successive calendar weeks, the first publication to be not less than 30
nor more than 60 days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify, the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case,
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that interest accrued to the date fixed for redemption will be paid as specified
in such notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Security of a
series is to be redeemed in part only the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.3) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Issuer will
deliver to the Trustee at least 70 days prior to the date fixed for redemption
an Officer's Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officer's Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.5 and [ ], such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
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<PAGE> 65
together with all Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; PROVIDED that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, such Security may be redeemed after deducting from
the redemption price any amount equal to the face amount of all such missing
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Issuer and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any paying agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
paying agent any such missing Coupon in respect of which a deduction shall have
been made from the redemption price, such Holder shall be entitled to receive
the amount so deducted; PROVIDED, HOWEVER, that interest represented by Coupons
shall be payable as provided in Section 2.9 and, unless otherwise specified as
contemplated by Section 2.3, only upon presentation and surrender of those
Coupons.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
Section 12.5 MANDATORY AND OPTIONAL SINKING FUNDS. (1) The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
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<PAGE> 66
(2) In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
(3) On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (which need not contain the statements required by Section 11.5) (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series has theretofore been so credited, (c) stating that no defaults in
the payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer's Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officer's Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
(4) If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign Currency or ECU)
if the Issuer shall so request with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer makes no such request then it
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<PAGE> 67
shall be carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) is available. The Trustee shall select,
in the manner provided in Section 12.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers of the Securities of such series
(or portions thereof) so selected. Securities shall be excluded from eligibility
for redemption under this Section if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at least
60 days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b)
an entity specifically identified in such Officer's Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series shall
be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.
(5) On or before each sinking fund payment date, the Issuer shall pay
to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
(6) The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
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<PAGE> 68
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of [ ].
NATIONWIDE FINANCIAL SERVICES, INC.
By: [ ]
Title: [ ]
[CORPORATE SEAL]
Attest:
WILMINGTON TRUST COMPANY, as Trustee
By: [ ]
Title: [ ]
[CORPORATE SEAL]
Attest:
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<PAGE> 69
STATE OF [ ] )
) ss.:
COUNTY OF [ - )]
On this [ ], 1998 before me personally came [ ], to me
personally known, who, being by me duly sworn, did depose and say that he
resides at [ ], that he is the [ ] of Nationwide Financial Services,
Inc., one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
/s/ [ ]
- ------------------------------
Notary Public
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<PAGE> 70
STATE OF [ ] )
)ss.:
COUNTY OF [ ] )
On this [ ], 1998 before me personally came [ ],
to me personally known, who, being by me duly sworn, did depose and say that he
resides at [ ] that he is a [ ] of [Wilmington Trust Company],
one of the corporations described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
/s/ [ ]
- ------------------------------
Notary Public
-64-
<PAGE> 1
Exhibit 4.2
================================================================================
NATIONWIDE FINANCIAL SERVICES, INC.
TO
WILMINGTON TRUST COMPANY
Trustee
-----------------------------------------------------
SUPPLEMENTAL INDENTURE
Dated as of [ ], 199[ ]
-----------------------------------------------------
$
Series [ ]% Senior Notes
Due [ ]
===============================================================================
<PAGE> 2
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Series [ ]% Senior Notes....................................................................1
SECTION 1.01. Establishment.............................................................................1
SECTION 1.02. Definitions...............................................................................2
SECTION 1.03. Payment of Principal and Interest.........................................................2
SECTION 1.04. Denominations.............................................................................3
SECTION 1.05. Global Securities.........................................................................3
SECTION 1.06. Redemption................................................................................3
SECTION 1.07. Paying Agent..............................................................................4
ARTICLE II Miscellaneous Provisions........................................................................4
SECTION 2.01. Recitals by Corporation...................................................................4
SECTION 2.02. Ratification and Incorporation of Original Indenture......................................4
SECTION 2.03. Executed in Counterparts..................................................................4
</TABLE>
EXHIBIT A Form of Series [ ] Senior Note Due [ ], [ ]
EXHIBIT B Certificate of Authentication
- --------
(1)This Table of Contents does not constitute part of the Indenture or
have any bearing upon the interpretation of any of its terms and provisions.
-i-
<PAGE> 3
THIS [ ] SUPPLEMENTAL INDENTURE is made as of the [ ] day
of [ ], 199[ ], by and between NATIONWIDE FINANCIAL SERVICES, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and WILMINGTON TRUST COMPANY, a Delaware banking corporation,
as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Senior
Indenture, dated as of [ ], 1998 (the "Original Indenture") with Wilmington
Trust Company, as Trustee;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as may be amended and supplemented to the
date hereof, including by this [ ] Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Indenture, a new series of Securities may
at any time be established in accordance with the provisions of the Indenture
and the terms of such series may be described by a supplemental indenture
executed by the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a
series of Securities;
WHEREAS, additional Securities of other series hereafter
established, except as may be limited in the Indenture as at the time
supplemented and modified, may be issued from time to time pursuant to the
Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution
and delivery of this [ ] Supplemental Indenture and to make it a valid and
binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Series [ ]% Senior Notes
SECTION 1.01. ESTABLISHMENT. There is hereby established a
new series of Securities to be issued under the Indenture, to be designated as
the Company's Series [ ]% Senior Notes due [ ], [ ]
(the "Series [ ] Notes").
There are to be authenticated and delivered $[ ] principal
amount of Series [ ] Notes, and no further Series [ ] Notes shall be
authenticated and delivered
<PAGE> 4
except as provided by Sections 2.8, 2.9, 2.11, 8.5 or 12.3 of the Original
Indenture. The Series [ ] Notes shall be issued in definitive fully registered
form without coupons.
The Series [ ] Notes shall be in substantially the form set
out in Exhibit A hereto, and the form of the Trustee's Certificate of
Authentication for the Series [ ] Notes shall be in substantially the form set
forth in Exhibit B hereto.
Each Series [ ] Note shall be dated the date of
authentication thereof and shall bear interest from the date of original
issuance thereof or from the most recent Interest Payment Date to which interest
has been paid or duly provided for.
SECTION 1.02. DEFINITIONS. The following defined terms used
herein shall, unless the context otherwise requires, have the meanings specified
below. Capitalized terms used herein for which no definition is provided herein
shall have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means [ ].
"Regular Record Date" means [ ].
"Stated Maturity" means [ ].
SECTION 1.03. PAYMENT OF PRINCIPAL AND INTEREST. The unpaid
principal amount of the Series [ ] Notes shall bear interest at the rate of
[ ]% per annum until paid or duly provided for, such interest to accrue from
[ ], [ ] or from the most recent Interest Payment Date to which interest
has been paid or duly provided for. Interest shall be paid [ ] in arrears on
each Interest Payment Date to the Person in whose name in the Series [ ]
Notes are registered on the Regular Record Date for such Interest Payment Date;
provided that interest payable at the Stated Maturity of principal or on a
Redemption Date as provided herein will be paid to the Person to whom principal
is payable. Any such interest that is not so punctually paid or duly provided
for will forthwith cease to be payable to the Holders on such Regular Record
Date and will be paid to the Person or Persons in whose name the Series [ ]
Notes are registered at the close of business on a Special Record Date for the
payment of such defaulted interest to be fixed by the Company ("Special Record
Date"), notice whereof shall be given to Holders of the Series [ ] Notes not
less than fifteen (15) days prior to such Special Record Date, as more fully
provided in the Original Indenture.
Payments of interest on the Series [ ] Notes will include
interest accrued to but excluding the respective Interest Payment Dates.
Interest payments for the Series [ ] Notes shall be computed and paid on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on the Series [ ] Notes is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or payment in respect of
any such delay) with the same force and effect as if made on the date the
payment was originally payable.
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<PAGE> 5
Payment of the principal and interest on the Series [ ]
Notes shall be made at the office of the Paying Agent in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts, with any such payment that is due at the
Stated Maturity or at earlier redemption of any Series [ ] Notes being made
upon surrender of such Series [ ] Notes to the Paying Agent. Payments of
interest (including interest on any Interest Payment Date) will be made, subject
to such surrender where applicable, at the option of the Company, (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer at such place and to
such account at a banking institution in the United States as may be designated
in writing to the Trustee at least sixteen (16) days prior to the date for
payment by the Person entitled thereto.
SECTION 1.04. DENOMINATIONS. The Series [ ] Notes may be
issued in denominations of $[ ] or any integral multiple thereof.
SECTION 1.05. GLOBAL SECURITIES. The Series [ ] Notes will
initially be issued in the form of one or more Global Securities registered in
the name of the Depositary (which initially shall be The Depository Trust
Company) or its nominee. Except under the limited circumstances described below,
Series Notes represented by such Global Security or Global Securities will not
be exchangeable for, and will not otherwise be issuable as, Series Notes in
definitive form. The Global Securities described above may not be transferred
except by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or to a
successor Depositary or its nominee.
A Global Security shall be exchangeable for Series [ ] Notes
registered in the names of the persons other than the Depositary or its nominee
only if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as a Depositary for such Global Security and no successor Depositary
shall have been appointed by the Company within 90 days of receipt by the
Company of such notification, or if at any time the Depositary ceases to be a
clearing agency registered under the Exchange Act at a time when the Depositary
is required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Company within 90 days after it
becomes aware of such cessation, or (ii) the Company in its sole discretion
determines that such Global Security shall be so exchangeable. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series [ ] Notes registered in such names as the Depositary
shall direct.
SECTION 1.06. REDEMPTION. The Series [ ] Notes shall not
be subject to redemption. The Series [ ] Notes shall not have a sinking
fund.(2)
- --------
(2) Subject to change.
-3-
<PAGE> 6
SECTION 1.07. PAYING AGENT. The Trustee shall initially serve
as Paying Agent with respect to the Series [ ] Notes , with the Place of
Payment initially being the Corporate Trust Office.
ARTICLE II
Miscellaneous Provisions
SECTION 2.01. RECITALS BY CORPORATION. The recitals in this
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of the Series [ ] Notes and of this [ ] Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 2.02. RATIFICATION AND INCORPORATION OF ORIGINAL
INDENTURE. As supplemented hereby, the Original Indenture is in all respects
ratified and confirmed, and the Original Indenture and this [ ] Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
SECTION 2.03. EXECUTED IN COUNTERPARTS. This [ ]
Supplemental Indenture may be executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
-4-
<PAGE> 7
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
NATIONWIDE FINANCIAL SERVICES, INC.
[CORPORATE SEAL]
Attest:
____________________________ By:_________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
[CORPORATE SEAL] as Trustee
Attest:
_____________________________ By:__________________________________
Name:
Title:
-5-
<PAGE> 8
EXHIBIT A
FORM OF
SERIES [ ]% SENIOR NOTE
DUE [ ], [ ]
No. CUSIP NO.
NATIONWIDE FINANCIAL SERVICES, INC.
SERIES [ ]% SENIOR NOTE
DUE [ ], [ ]
Principal Amount: $[ ]
Regular Record Date: [ ], [ ]
Original Issue Date: [ ], [ ]
Stated Maturity: [ ], [ ]
Interest Payment Dates: [ ], [ ]
Interest Rate: [ ]% per annum
Authorized Denomination: $[ ] or any integral multiples thereof
Nationwide Financial Services, a corporation duly organized
and existing under the laws of the State of Delaware (the "Company"), which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to [ ], or
registered assigns, the principal sum of [ ] DOLLARS
($[ ]) on the Stated Maturity shown above and to pay interest
thereon from the Original Issue Date shown above, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, [ ]
in arrears on each Interest Payment Date as specified above, commencing on the
Interest Payment Date next succeeding the Original Issue Date shown above and on
the Stated Maturity at the rate per annum shown above (the "Interest Rate")
until the principal hereof is paid or made available for payment and on any
overdue principal and on any overdue installment of interest. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
(other than an Interest Payment Date that is the Stated Maturity will, as
provided in such Indenture, be paid to the Person in whose name this Series
[ ]% Senior Note (this "Security") is registered at the close of business on
the Regular Record Date as specified above next preceding such Interest Payment
Date; provided that any interest payable at Stated Maturity will be paid to the
Person to whom principal is payable. Except as otherwise
A-1
<PAGE> 9
provided in the Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and will be paid to the Person in whose name this Security is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 15 days prior to
such Special Record Date, as more fully provided in said Indenture.
Payments of interest on this Security will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for this Security shall be computed and paid on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Security is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or payment in respect of any such delay) with the
same force and effect as if made on the date the payment was originally payable.
"Business Day" means a day other than a day on which banks in New York, New York
are authorized or required by law, executive order or regulation to remain
closed.
Payment of the principal of and interest due at the Stated
Maturity of this Security shall be made upon surrender of this Security, at the
Corporate Trust Office, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts. Payment of interest (including interest on an Interest Payment Date) will
be made, subject to such surrender where applicable, at the option of the
Company, (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or (ii) by wire transfer at
such place and to such account at a banking institution in the United States as
may be designated in writing to the Trustee at least sixteen (16) days prior to
the date for payment by the Person entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
A-2
<PAGE> 10
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: [ ], 199[ ]
NATIONWIDE FINANCIAL SERVICES, INC.
By:_________________________________
Attest:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Senior Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:_________________________________
A-3
<PAGE> 11
(Reverse Side of Security)
This Security is one of a duly authorized issue of Securities
of the Company (the "Securities"), issued and issuable in one or more series
under a Senior Indenture, dated as of [ ], 1998, as supplemented (the
"Indenture"), between the Company and Wilmington Trust Company, as Trustee (the
"Trustee"), which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities issued thereunder and of the terms upon which said Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof as Series [ ]% Senior Notes due [ ], [ ]
(the "Series [ ] Notes") in the aggregate principal amount of up to $[ ].
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Indenture.
[The Securities of this series are not subject to redemption
prior to their Stated Maturity.](3)
If an Event of Default with respect to the Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
all series affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all series affected thereby (voting as
one class). The Indenture contains provisions permitting the Holders of not less
than a majority in principal amount of the Outstanding Securities of all series
with respect to which a default under the Indenture shall have occurred and be
continuing (voting as one class), on behalf of the Holders of the Securities of
all such series, to waive, with certain exceptions, such default under the
Indenture and its consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
- --------
(3) Subject to change.
A-4
<PAGE> 12
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the security register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Trustee and duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and of like
tenor and for the same aggregate principal amount, will be issued to the
designated transferee or transferees. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in aggregate
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and shall have offered the Trustee such
indemnity as it may require, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request and shall have
failed to institute any such proceeding for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit, instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any interest hereon on or after the respective
due dates expressed herein.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of the Securities of this series [ ] and for
covenant defeasance at any time of certain covenants in the Indenture upon
compliance with certain conditions set forth in the Indenture.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered
form without coupons in denominations of $[ ] and any integral multiple
thereof. As provided in the Indenture and subject to the limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same upon surrender of the Security or
Securities to be exchanged at the office or agency of the Company.
A-5
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This Security shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
--------
(Cust)
TEN ENT - as tenants by the entireties Custodian
--------
(Minor)
JT TEN - as joint tenants with rights under Uniform Gifts
of survivorship and not as to Minors Act
tenants in common
--------
(State)
Additional abbreviations may also be used though not on
the above list.
---------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s) and
transfer(s) unto _______________ (please insert Social Security or other
identifying number of assignee) the within Security and all rights thereunder,
hereby irrevocably constituting and appointing agent to transfer said Security
on the books of the Company, with full power of substitution in the premises.
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Dated:
----------------------- --------------------------------------------
--------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular without alteration or
enlargement, or any change whatever.
A-6
<PAGE> 14
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Senior Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
---------------------------------
Authorized Officer
B-1
<PAGE> 1
EXHIBIT 4.4
================================================================================
NATIONWIDE FINANCIAL SERVICES, INC.
AND
WILMINGTON TRUST COMPANY, Trustee
SUBORDINATED INDENTURE
Dated as of [ ] , 1998
================================================================================
<PAGE> 2
CROSS REFERENCE SHEET(*)
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of __, 1998 between NATIONWIDE FINANCIAL SERVICE, INC. and WILMINGTON TRUST
COMPANY, Trustee:
<TABLE>
<CAPTION>
SECTION OF THE ACT SECTION OF INDENTURE
- ------------------ --------------------
<C> <C>
310(a)(1) and (2)...............................................................................................6.9
310(a)(3) and (4)......................................................................................Inapplicable
310(b).................................................................................6.8 and 6.10(a), (b) and (d)
310(c).................................................................................................Inapplicable
311(a).........................................................................................................6.13
311(b).........................................................................................................6.13
311(c).................................................................................................Inapplicable
312(a)..................................................................................................4.1 and 4.2
312(b)..........................................................................................................4.2
312(c)..........................................................................................................4.2
313(a)..........................................................................................................4.3
313(b)(1)..............................................................................................Inapplicable
313(b)(2).......................................................................................................4.3
313(c)..........................................................................4.3, 5.11, 6.10, 6.11, 8.2 and 12.2
313(d)..........................................................................................................4.3
314(a).................................................................................................3.4 and 3.10
314(b).................................................................................................Inapplicable
314(c)(1) and (2)..............................................................................................11.5
314(c)(3)..............................................................................................Inapplicable
314(d).................................................................................................Inapplicable
314(e).........................................................................................................11.5
314(f).................................................................................................Inapplicable
315(a), (c) and (d).............................................................................................6.1
315(b).........................................................................................................5.11
315(e).........................................................................................................5.12
316(a)(1)..............................................................................................5.9 and 5.10
316(a)(2)..............................................................................................Not required
316(a) (last sentence)..........................................................................................7.4
316(b)..........................................................................................................5.7
317(a)..........................................................................................................5.2
317(b)..........................................................................................................3.3
318(a).........................................................................................................11.7
</TABLE>
(*) This Cross Reference Sheet is not part of the Indenture.
<PAGE> 3
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
<S> <C>
Section 1.1 Certain Terms Defined..................................................................1
ARTICLE II
SECURITIES
Section 2.1 Forms Generally........................................................................7
Section 2.2 Form of Trustee's Certificate of Authentication........................................7
Section 2.3 Amount Unlimited; Issuable in Series...................................................8
Section 2.4 Authentication and Delivery of Securities.............................................11
Section 2.5 Execution of Securities...............................................................13
Section 2.6 Certificate of Authentication.........................................................13
Section 2.7 Denomination and Date of Securities; Payments of Interest.............................14
Section 2.8 Registration, Transfer and Exchange...................................................14
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.............................18
Section 2.10 Cancellation of Securities; Destruction Thereof.......................................19
Section 2.11 Temporary Securities..................................................................19
ARTICLE III
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest.....................................................20
Section 3.2 Offices for Payments, Etc.............................................................20
Section 3.3 Money for Security Payments to Be Held in Trust; Unclaimed Money......................21
Section 3.4 Statements of Officers of Issuer as to Default; Notice of Default.....................22
Section 3.5 Existence.............................................................................23
Section 3.6 Maintenance of Properties.............................................................23
Section 3.7 Payment of Taxes and Other Claims.....................................................23
Section 3.8 Further Instruments and Acts..........................................................23
Section 3.9 Luxembourg Publications...............................................................23
Section 3.10 Commission Reports....................................................................24
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders...................................................................24
</TABLE>
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<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 4.2 Preservation of Information; Communications to Holders................................24
Section 4.3 Reports by the Trustee................................................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default.................................................................25
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................27
Section 5.3 Application of Proceeds...............................................................29
Section 5.4 Suits for Enforcement.................................................................30
Section 5.5 Restoration of Rights on Abandonment of Proceedings...................................30
Section 5.6 Limitations on Suits by Securityholders...............................................30
Section 5.7 Unconditional Right of Securityholders to Institute Certain Suits.....................31
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default...........................................................................31
Section 5.9 Control by Holders of Securities......................................................32
Section 5.10 Waiver of Past Defaults...............................................................32
Section 5.11 Trustee to Give Notice of Default, but May Withhold in Certain
Circumstances.....................................................................33
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs..........................33
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default..................................................................34
Section 6.2 Certain Rights of the Trustee.........................................................35
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof...................................................36
Section 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, Etc..................................................................36
Section 6.5 Moneys Held by Trustee................................................................36
Section 6.6 Compensation and Indemnification of Trustee and its Prior Claim.......................36
Section 6.7 Right of Trustee to Rely on Officer's Certificate, Etc................................37
Section 6.8 Indentures Not Creating Potential Conflicting Interests
for the Trustee...................................................................37
Section 6.9 Persons Eligible for Appointment as Trustee...........................................37
Section 6.10 Resignation and Removal; Appointment of Successor Trustee.............................37
Section 6.11 Acceptance of Appointment by Successor Trustee........................................39
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee...............................................................40
Section 6.13 Preferential Collection of Claims Against the Issuer..................................40
</TABLE>
ii
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<TABLE>
<CAPTION>
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<S> <C>
Section 6.14 Appointment of Authenticating Agent...................................................40
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders...........................................41
Section 7.2 Proof of Execution of Instruments and of Holding of Securities........................42
Section 7.3 Holders to Be Treated as Owners.......................................................43
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding.....................................43
Section 7.5 Right of Revocation of Action Taken...................................................44
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders............................44
Section 8.2 Supplemental Indentures with Consent of Securityholders...............................45
Section 8.3 Effect of Supplemental Indenture......................................................47
Section 8.4 Documents to Be Given to Trustee......................................................47
Section 8.5 Notation on Securities in Respect of Supplemental Indentures..........................47
Section 8.6 Subordination Unimpaired..............................................................47
Section 8.7 Conformity with Trust Indenture Act of 1939...........................................47
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms...................................47
Section 9.2 Successor Substituted for the Issuer..................................................48
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Termination of Issuer's Obligations Under the Indenture...............................48
Section 10.2 Application of Trust Funds............................................................49
Section 10.3 Applicability of Defeasance Provisions; Issuer's Option to Effect
Defeasance or Covenant Defeasance.................................................49
Section 10.4 Defeasance and Discharge..............................................................49
Section 10.5 Covenant Defeasance...................................................................50
Section 10.6 Conditions to Defeasance or Covenant Defeasance.......................................50
Section 10.7 Deposited Money and U.S. Government Obligations
to be Held in Trust...............................................................52
Section 10.8 Repayment to Issuer...................................................................52
Section 10.9 Indemnity For U.S. Government Obligations.............................................52
Section 10.10 Reimbursement.........................................................................53
</TABLE>
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<TABLE>
<CAPTION>
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ARTICLE XI
MISCELLANEOUS PROVISIONS
<S> <C>
Section 11.1 Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability..................................................53
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons.................................................53
Section 11.3 Successors and Assigns of Issuer Bound by Indenture...................................53
Section 11.4 Notices and Demands on Issuer, Trustee and Holders
of Securities and Coupons.........................................................53
Section 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein................................................54
Section 11.6 Payments Due on Saturdays, Sundays and Holidays.......................................55
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of
1939..............................................................................55
Section 11.8 New York Law to Govern................................................................55
Section 11.9 Counterparts..........................................................................55
Section 11.10 Effect of Headings....................................................................55
Section 11.11 Securities in a Foreign Currency or in ECU............................................56
Section 11.12 Judgment Currency.....................................................................56
Section 11.13 Separability Clause...................................................................57
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article..............................................................57
Section 12.2 Notice of Redemption; Partial Redemptions.............................................57
Section 12.3 Payment of Securities Called for Redemption...........................................58
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption....................................................................59
Section 12.5 Mandatory and Optional Sinking Funds..................................................59
ARTICLE XIII
SUBORDINATION
Section 13.1 Agreement to Subordinate..............................................................62
Section 13.2 Rights of Senior Indebtedness in the Event of Insolvency, Etc.,
of the Issuer.....................................................................62
Section 13.3 Payment Over of Proceeds Received on Securities.......................................63
Section 13.4 Payments to Holders...................................................................64
Section 13.5 Holders of Securities Authorize Trustee to Effectuate Subordination
of Securities.....................................................................64
</TABLE>
iv
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<TABLE>
<CAPTION>
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<S> <C>
Section 13.6 Notice to Trustee.....................................................................65
Section 13.7 Trustee May Hold Senior Indebtedness..................................................65
Section 13.8 Applicability of Article XIII to Paying Agents........................................65
</TABLE>
v
<PAGE> 8
THIS INDENTURE, dated as of [ ], 1998 between NATIONWIDE FINANCIAL
SERVICES, INC., a Delaware corporation (the "Issuer"), and WILMINGTON TRUST
COMPANY, a national banking association, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities and of the coupons, if any, appertaining thereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 CERTAIN TERMS DEFINED. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act of 1939 and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" means such accounting principles as are generally
accepted at the time of any computation. The words "HEREIN", "HEREOF" and
"HEREUNDER" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular.
<PAGE> 9
"AUTHENTICATING AGENT" shall have the meaning set forth in
Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general circulation, in the
official language of the country of publication or in the English language
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized or required by law or regulation to close.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
"CONSOLIDATED TOTAL ASSETS" means, in respect of the Issuer as of any
date of determination, the amount of total assets shown on the consolidated
balance sheet of the Issuer and its consolidated subsidiaries contained in the
most recent annual or quarterly report filed with the Commission, or if the
Issuer is not then subject to the Securities Exchange Act of 1934, the most
recent annual or quarterly report to stockholders and, in respect of any
Subsidiary as of any date of determination, the amount of total assets of such
Subsidiary and its consolidated subsidiaries from which such consolidated
balance sheet of the Issuer and its consolidated Subsidiaries was derived.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at Rodney Square North, 1100 N. Market Street,
Wilmington, Delaware, 19890.
"COUPON" means any interest coupon appertaining to an Unregistered
Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in Section 10.5.
"DEFEASANCE" shall have the meaning set forth in Section 10.4
-2-
<PAGE> 10
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in global form, the Person designated as Depositary by the
Issuer pursuant to Section 2.3 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"DEPOSITARY" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "DEPOSITARY"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Securities in global form of that
series.
"DOLLAR" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1.
"FOREIGN CURRENCY" means a currency issued by the government of a
country other than the United States.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms mean (a) in the case of any Registered Security, the person in whose name
such Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section 5.1.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"INSURANCE SUBSIDIARY" means a Subsidiary registered in the state of
its domicile under the insurance laws of such state and qualified to sell
insurance products.
"ISSUER" means (except as otherwise provided in Article VI) Nationwide
Financial Services, Inc., a Delaware corporation and, subject to Article IX, its
successors and assigns.
"ISSUER ORDER" means a written statement, request or order of the
Issuer signed in its name by the chairman or vice chairman of the Board of
Directors, the president, any executive, senior or other vice president or the
treasurer of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in Section 11.12.
"NATIONWIDE TRUST" means a statutory business trust created by the
Issuer for the purpose of issuing Trust Securities and to use the proceeds of
the sale thereof to purchase one or more series of Securities.
-3-
<PAGE> 11
"OFFICER'S CERTIFICATE" means a certificate signed by the chairman or
vice chairman of the Board of Directors, the president or any executive, senior
or other vice president or the treasurer of the Issuer and delivered to the
Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by the General
Counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (1) the date of such Security or (2) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"OUTSTANDING," when used with reference to Securities, shall, subject
to the provisions of Section 7.4, 10.4 and 10.5 mean, as of any particular time,
all Securities authenticated and delivered by the Trustee under this Indenture,
except
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.1) in
the necessary amount shall have been deposited in trust with the Trustee or with
any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent), PROVIDED that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(3) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer) or Securities not deemed outstanding pursuant to Section 12.2.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
-4-
<PAGE> 12
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"REGISTERED SECURITY" means any Security registered on the Security
register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section 11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
(whether or not designated by numbers or words added before or after the title
"VICE PRESIDENT") the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"RESTRICTED SUBSIDIARY" means (1) so long as they are Subsidiaries of
the Issuer, Nationwide Life Insurance Company and Nationwide Life and Annuity
Insurance Company; (2) any other future or present Insurance Subsidiary the
Consolidated Total Assets of which constitute 20 percent or more of the
Consolidated Total Assets of the Issuer; and (3) any Subsidiary which is a
successor, by merger or otherwise, to substantially all of the business or
properties of any Insurance Subsidiary referred to or described in the foregoing
clauses (1) or (2).
"SENIOR INDEBTEDNESS" means the principal of and premium, if any, and
interest on (1) all indebtedness of the Issuer, whether outstanding on the date
of this Indenture or thereafter created, (a) for money borrowed by the Issuer,
(b) for money borrowed by, or obligations of, others and either assumed or
guaranteed, directly or indirectly, by the Issuer, (c) in respect of letters of
credit and acceptances issued or made by banks, or (d) constituting purchase
money
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indebtedness, or indebtedness secured by property included in the property,
plant and equipment accounts of the Issuer at the time of the acquisition of
such property by the Issuer, for the payment of which the Issuer is directly
liable, and (2) all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any such indebtedness. As used in
the preceding sentence the term "purchase money indebtedness" means indebtedness
evidenced by a note, debenture, bond or other instrument (whether or not secured
by any lien or other security interest) issued or assumed as all or a part of
the consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, unless by its terms such indebtedness is subordinate
to other indebtedness of the Issuer. Notwithstanding anything to the contrary in
this Indenture or the Securities, Senior Indebtedness shall not include (a) any
indebtedness of the Issuer which, by its terms or the terms of the instrument
creating or evidencing it, is subordinate in right of payment to or pari passu
with the Securities or (b) any indebtedness of the Issuer to a Subsidiary.
"SECURITY" or "SECURITIES" (except as otherwise provided in Section
7.4) has the meaning stated in the first recital of this Indenture, or, as the
case may be, Securities that have been authenticated and delivered under this
Indenture.
"SUBSIDIARY" means any corporation, partnership or other entity of
which at the time of determination the Issuer owns or controls directly or
indirectly more than 50% of the shares of Voting Stock.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the date as of
which this Indenture was originally executed.
"TRUST SECURITIES" means the undivided beneficial interests in a
Nationwide Trust.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also include a depositary receipt issued by a New York
Clearing House bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment or interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depositary receipt, provided that (except as required by law) such
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<PAGE> 14
custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt or from any amount held by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depositary
receipt.
"YIELD TO MATURITY" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
Section 2.1 FORMS GENERALLY. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an
Officer's Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons. If temporary Securities of any series are issued as
permitted by Section 2.11, the form thereof also shall be established as
provided in the preceding sentence. If the forms of Securities and coupons, if
any, of any series are established by, or by action taken pursuant to, a Board
Resolution, a copy of the Board Resolution together with an appropriate record
of any such action taken pursuant thereto, including a copy of the approved form
of Securities or coupons, if any, shall be certified by the Secretary or an
Assistant Secretary of the Issuer and delivered to the Trustee at or prior to
the delivery of the Issuer Order contemplated by Section 2.4 for the
authentication and delivery of such Securities.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within mentioned
Subordinated Indenture.
---------------------------,
as Trustee
By ________________________
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Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within mentioned
Subordinated Indenture.
---------------------------,
as Authenticating Agent
By
-------------------------,
Authorized Signatory"
Section 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with the Securities of each other series, but
all Securities issued hereunder and any Coupons and the payment of principal of
and interest on any Securities and of any Coupons shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
XIII, to all Senior Indebtedness. There shall be established in or pursuant to
one or more Board Resolutions (and to the extent established pursuant to rather
than set forth in a Board Resolution, in an Officer's Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.8, 2.9, 2.11, 8.5, or 12.3);
(3) if other than Dollars, the coin or currency in which the Securities
of that series are denominated (including, but not limited to, any Foreign
Currency or ECU);
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of
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Holders to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.2);
(7) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, the price or
prices at which and any terms and conditions upon which Securities of the series
may be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such series
are to be payable, at the election of the Issuer or a Holder thereof, in a coin
or currency other than that in which the Securities are denominated, the period
or periods within which, and the terms and conditions upon which, such election
may be made;
(13) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (with or without Coupons), and so, whether such Securities
will be issuable in global form or Unregistered Securities, or any combination
of the foregoing, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon and, if other than as
provided in Section 2.8, the terms upon and locations at which Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and vice versa;
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(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who is not a
U.S. person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(16) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(17) any Trustees, Depositaries, Authenticating Agents, paying or
transfer Agents or Registrars or any other agents with respect to the Securities
of such series;
(18) any deletions from, modifications of or additions to the Events of
Default or covenants with respect to the Securities of such series;
(19) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(20) the date as of which any Unregistered Securities of the series and
any temporary Security in global form representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(21) the applicability, if any, to the Securities of or within the
series of Article X, or such other means of defeasance or Covenant Defeasance as
may be specified for the Securities and Coupons, if any, of such series;
(22) if the Securities of the series shall be issued in whole or in
part in global form (a) the Depositary for such global Securities, (b) the form
of any legend in addition to or in lieu of that in Section 2.4 which shall be
borne by such global security, (c) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any authorized form
and denomination, and (d) if other than as provided in Section 2.8, the
circumstances under which any such exchange may occur;
(23) the right of the Issuer, if any, to defer any payment of principal
of or interest on the Securities of the series, or any Tranche thereof, and the
maximum length of any such deferral period;
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officer's Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
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one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or pursuant
to such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
Section 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. (1) The Issuer
may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section, and
the Trustee shall thereupon authenticate and deliver such Securities to or upon
the order of the Issuer (contained in the Issuer Order referred to below in this
Section) or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by an Issuer Order. The
maturity date, original issue date, interest rate and any other terms of the
Securities of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Issuer Order and procedures. If provided for
in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Issuer or its duly
authorized agent, which instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (in the case of subparagraphs (b), (c) and (d) below only at
or before the time of the first request of the Issuer to the Trustee to
authenticate Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(a) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, PROVIDED that, with respect to Securities of a series
subject to a Periodic Offering, (i) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (ii) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to an Issuer Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by an Issuer Order, (iii) the
maturity date or dates, original issue date or dates, interest rate or rates and
any other terms of Securities of such series shall be determined by an Issuer
Order or pursuant to such procedures and (iv) if provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Issuer or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing;
(b) any Board Resolution, Officer's Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities and Coupons, if any,
were established;
(c) an Officer's Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the form or forms
and terms of the Securities and Coupons, if any, have been established pursuant
to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
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(d) At the option of the Issuer, either one or more Opinions
of Counsel, or a letter addressed to the Trustee permitting it to rely on one or
more Opinions of Counsel, substantially to the effect that:
(i) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the provisions of
this Indenture;
(ii) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and established in conformity
with the provisions of this Indenture, and, in the case of an offering that is
not underwritten, certain terms of the Securities have been established pursuant
to a Board Resolution, an Officer's Certificate or a supplemental indenture in
accordance with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by the Issuer and
will have been established in conformity with the provisions of this Indenture;
and
(iii) when the Securities and Coupons, if any, have
been executed by the Issuer and authenticated by the Trustee in accordance with
the provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture, will
be entitled to the benefits of this Indenture, and will be valid and binding
obligations of the Issuer, enforceable in accordance with their respective terms
except as (A) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (B) rights
of acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability.
In rendering such opinions, any counsel may qualify any
opinions as to enforceability by stating that such enforceability may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee, in which case the
opinion shall state that such counsel believes he or she and the Trustee are
entitled so to rely. Such counsel may also state that, insofar as such opinion
involves factual matters, he or she has relied, to the extent he or she deems
proper, upon certificates of officers of the Issuer and its subsidiaries and
certificates of public officials.
(2) The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
(3) If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in whole or in part in global form, then
the Issuer shall execute and the Trustee
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shall, in accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Securities in global form that (a)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and not yet
cancelled, (b) if such Securities are Registered Securities, shall be registered
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary, (c) if such Securities are Registered
Securities, shall be delivered by the Trustee to such Depositary or pursuant to
such Depositary's instructions and (d) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
(4) Each Depositary designated pursuant to Section 2.3 must, at the
time of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
Section 2.5 EXECUTION OF SECURITIES. The Securities and, if applicable,
each Coupon appertaining thereto shall be signed on behalf of the Issuer by the
chairman or vice chairman of its Board of Directors or its president or any
executive, senior or other vice president or its treasurer, under its corporate
seal (except in the case of Coupons) which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
Section 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
herein before recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the
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Issuer shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture.
Section 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.3 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee, as evidenced
by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.3.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the Holders of Registered Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
Section 2.8 REGISTRATION, TRANSFER AND EXCHANGE. (1) The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
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(2) Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to be maintained
for the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same
series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities in global form) and Coupons (except for Coupons attached to any
temporary Unregistered Securities in global form) shall be transferable by
delivery.
(3)(a) At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. Whenever any Registered Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive.
(b) Unless otherwise specified as contemplated by Section 2.3,
at the option of the Holder, Unregistered Securities of such series may be
exchanged for Registered Securities (if the Securities of such series are
issuable in registered form) or Unregistered Securities (if Unregistered
Securities of such series are issuable in more than one denomination and such
exchanges are permitted by such series) of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Unregistered Securities to be exchanged at the agency of the Issuer that
shall be maintained for such purpose in accordance with Section 3.2, with all
unmatured Coupons and all matured Coupons in default thereto appertaining. If
the Holder of an Unregistered Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Unregistered Securities are accompanied by payment in funds
acceptable to the Issuer and the Trustee in an amount equal to the face amount
of such missing Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
paying agent harmless. If thereafter the Holder of such Security shall surrender
to any paying agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment in the manner set forth in Section 3.2. Notwithstanding the
foregoing, in case any Unregistered Security of any series is surrendered at any
such office or agency in exchange for a Registered Security of the same series
after the close of business at such office or agency on (i) any record date and
before the opening of business at such office or agency on the relevant interest
payment date, or (ii) any special record date for payment of defaulted interest
and before the opening of business at such office or agency on the related date
for payment of defaulted interest, such Unregistered Security shall be
surrendered without the Coupon relating to such interest or defaulted interest
payment date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such
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Unregistered Security, such Coupon shall be returned to the person so
surrendering the Unregistered Security), and interest or defaulted interest, as
the case may be, will not be payable on such date or proposed date for payment,
as the case may be, in respect of the Registered Security issued in exchange for
such Unregistered Security, but will be payable only to the Holder of such
Coupon, when due in accordance with the provisions of this Indenture.
(c) Registered Securities of any series may not be exchanged
for Unregistered Securities of such series unless (i) otherwise specified
pursuant to Section 2.3 and (ii) the Issuer has delivered to the Trustee an
Opinion of Counsel that (A) the Issuer has received from the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that the
inclusion of terms permitting Registered Securities to be exchanged for
Unregistered Securities would result in no adverse Federal income tax effect to
the Issuer or to any Holder. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be cancelled promptly and disposed of by
the Trustee and the Trustee will deliver a certificate of disposition thereof to
the Issuer.
(4) All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the Holder or his or her attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such series
to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
(5) Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of
a series represented by one or more Registered Securities in global form
notifies the Issuer that it is unwilling or unable to continue as Depositary for
such Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
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appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4 for
such Registered Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered Securities be
represented by one or more Registered Securities in global form shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Security or Securities representing such Registered Securities in
exchange for such Registered Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of one
or more Registered Securities in global form shall no longer be represented by a
Registered Security or Securities in global form. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Registered Security or Securities in
global form representing such Registered Securities, in exchange for such
Registered Security or Securities in global form.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Security in global form, the
Depositary for such Registered Security in global form may surrender such
Registered Security in global form in exchange in whole or in part for
Registered Securities of the same series in definitive form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(a) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Security in
global form; and
(b) to such Depositary a new Registered Security in global form in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Security in global form and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to clause
(a) above.
Upon the exchange of a Registered Security in global form for
Registered Securities in definitive form without coupons, in authorized
denominations, such Registered Security in global form shall be cancelled by the
Trustee or an agent of the Issuer or the Trustee. Registered Securities in
definitive form issued in exchange for a Registered Security in global form
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Security in
global form, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an
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agent of the Issuer or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
(6) All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
(7) Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States federal income tax laws.
Section 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES.
In case any Security or any Coupon appertaining to any Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion
may execute, and upon the written request of any officer of the Issuer, the
Trustee shall authenticate and deliver a new Security of the same series,
maturity date, interest rate and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for a
substitute Security or Coupon shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the Security
and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) or its agent connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same or the payment of the relevant Coupon (without
surrender thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any
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agent of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent for cancellation.
Section 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Registered Securities of such
series may be surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to Section 3.2
and, in the case of Unregistered Securities, at any agency maintained by the
Issuer for such purpose as specified pursuant to Section 3.2, and the Trustee
shall authenticate and deliver in exchange for such temporary Securities of such
series an
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equal aggregate principal amount of definitive Securities of the same series
having authorized denominations and, in the case of Unregistered Securities,
having attached thereto any appropriate Coupons. Until so exchanged, the
temporary Securities of any series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.3. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.3 (including any provision that Unregistered Securities of such series
initially be issued in the form of a single Unregistered Security in global form
to be delivered to a Depositary or agency located outside the United States and
the procedures pursuant to which Unregistered Securities in definitive or global
form of such series would be issued in exchange for such temporary Unregistered
Security in global form).
ARTICLE III
COVENANTS OF THE ISSUER
Section 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant to Section 2.3. The
interest on Registered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or upon the
written order of the Holders thereof and, at the option of the Issuer, may be
paid by wire transfer or by mailing checks for such interest payable to or upon
the written order of such Holders at their last addresses as they appear on the
registry books of the Issuer.
Section 3.2 OFFICES FOR PAYMENTS, ETC. So long as any Securities are
issued as Registered Securities, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Registered
Securities of each series may be presented for payment, where the Securities of
each series may be presented for exchange as is provided in this Indenture and,
if applicable, pursuant to Section 2.3 and where the Registered Securities of
each series may be presented for registration of transfer as in this Indenture
provided.
So long as any Securities are issued as Unregistered Securities, the
Issuer will maintain one or more offices or agencies in a city or cities located
outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange
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on which the Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto may
be presented for payment. No payment on any Unregistered Security or Coupon will
be made upon presentation of such Unregistered Security or Coupon at an agency
of the Issuer within the United States nor will any payment be made by transfer
to an account in, or by mail to an address in, the United States unless pursuant
to applicable United States laws and regulations then in effect such payment can
be made without adverse tax consequences to the Issuer. Notwithstanding the
foregoing, payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Issuer maintained in the Borough of Manhattan, The City of New
York if such payment in Dollars at each agency maintained by the Issuer outside
the United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section, or shall fail
to give such notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
Section 3.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST; UNCLAIMED
MONEY. If the Issuer shall at any time act as its own paying agent, it will, on
or before each due date of the principal of and premium, if any, or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Holders entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Holders
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Issuer shall have one or more paying agents, it will, on
or prior to each due date of the principal of and premium, if any, or interest
on any Securities, deposit with the paying agent or paying agents a sum
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum to be held in trust for the benefit of the Holders entitled to such
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principal, premium, if any, or interest, and, unless such paying agent is the
Trustee, the Issuer will promptly notify the Trustee of its action or failure so
to act.
The Issuer will cause each paying agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section, that
such paying agent will:
(1) hold all sums held by it for the payment of the principal of and
premium, if any, or interest on Securities in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer (or any other
obligor upon the Securities) in the making of any payment of principal and
premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any paying agent to pay, to the Trustee all sums held in
trust by the Issuer or such paying agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such paying agent and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any paying agent, or then held
by the Issuer in trust for the payment of the principal of and premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and payable shall be
paid to the Issuer on Issuer Order, or, if then held by the Issuer, shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Issuer cause to
be published once, in a newspaper customarily published on each Business Day and
of general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 3.4 STATEMENTS OF OFFICERS OF ISSUER AS TO DEFAULT; NOTICE OF
DEFAULT. (1) The Issuer will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Issuer ending after the date hereof, a
certificate, signed by the principal executive officer, principal financial
officer, or principal accounting officer, stating whether or not to the best
knowledge of the signers thereof the Issuer is in default (without regard to
periods of grace or requirements of notice) in the performance and observance of
any of the terms, provisions and conditions hereof,
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and if the Issuer shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
(2) The Issuer shall file with the Trustee written notice of the
occurrence of any default or Event of Default within five Business Days of its
becoming aware of any such default or Event of Default.
Section 3.5 EXISTENCE. Subject to Article IX, the Issuer will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises and those of
each of its Subsidiaries; PROVIDED, HOWEVER, that the Issuer shall not be
required to preserve any such right or franchise if its Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Issuer or the business of any Subsidiary and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 3.6 MAINTENANCE OF PROPERTIES. The Issuer will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Issuer may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Issuer from discontinuing the operation or maintenance of any of such properties
if such discontinuance is, in the judgment of the Issuer, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
Section 3.7 PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary, and (2) all material lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Issuer or any Subsidiary; PROVIDED, HOWEVER, that the Issuer
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which disputed
amounts adequate reserves have been made.
Section 3.8 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Issuer will execute and deliver such further instruments and perform such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 3.9 LUXEMBOURG PUBLICATIONS. In the event of the publication of
any notice pursuant to Section 5.11, 6.10, 6.11, 8.2, [ ] or 12.2, the party
making such publication in the Borough of Manhattan, The City of New York and
London shall also, to the extent that notice is required to be given to Holders
of Securities of any series by applicable Luxembourg law or stock
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exchange regulation, as evidenced by an Officer's Certificate delivered to such
party, make a similar publication in Luxembourg.
Section 3.10 COMMISSION REPORTS. The Issuer shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the Commission, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) which the Issuer is required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF SECURITYHOLDERS. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act of 1939 (1) semi-annually not more than 5
days after each record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.3 for non-interest bearing Registered
Securities in each year, and (2) at such other times as the Trustee may request
in writing, within thirty days after receipt by the Issuer of any such request
as of a date not more than 15 days prior to the time such information is
furnished.
Section 4.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. (1)
The Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished
to the Trustee as provided in Section 4.1 and the names and addresses of Holders
received by the Trustee in its capacity as Security registrar or paying agent.
The Trustee may destroy any list furnished to it as provided in Section 4.1 upon
receipt of a new list so furnished.
(2) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act of 1939.
(3) Every holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of any of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 4.2(2), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 4.2(2).
Section 4.3 REPORTS BY THE TRUSTEE. Any Trustee's report required under
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted at the
time and in the manner provided pursuant thereto.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER
OF DEFAULT. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise; or
(3) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of such
series; or
(4) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series (other than a covenant or agreement in respect of the Securities
of such series a default in the performance or breach of which is elsewhere in
this Section specifically dealt with) or contained in this Indenture (other than
a covenant or agreement included in this Indenture solely for the benefit of a
series of Securities other than such series) for a period of 60 days after the
date on which written notice specifying such failure, stating that such notice
is a "Notice of Default" hereunder and demanding that the Issuer remedy the
same, shall have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by the
holders of at least 25% in aggregate principal amount of the Outstanding
Securities of all series affected thereby; or
(5) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer or any Restricted Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Issuer or of any
Restricted Subsidiary for any substantial part of its or their property or
ordering the winding up or liquidation of its or their affairs, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(6) the Issuer or any Restricted Subsidiary shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
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sequestrator (or similar official) of the Issuer or any Restricted Subsidiary or
for any substantial part of its or their property, or make any general
assignment for the benefit of creditors; or
(7) an event of default, as defined in any one or more mortgages,
indentures, instruments, bonds, debentures, notes or other similar instruments
under which there may be issued, or by which there may be secured or evidenced,
any indebtedness (other than the Securities of such series or nonrecourse
obligations) ("Indebtedness") in excess of $50,000,000 for money borrowed by the
Issuer or a Restricted Subsidiary shall occur, if such event of default shall
result in the acceleration of such Indebtedness prior to its expressed maturity
unless such Indebtedness is discharged or such acceleration is cured, waived,
rescinded or annulled within 10 days after written notice thereof shall have
been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities (treated
as one class) which notice shall state that it is a "Notice of Default"
hereunder; or
(8) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security for
such series; PROVIDED that if any such default or acceleration referred to in
clause (6) above shall cease or be cured, waived, rescinded or annulled, then
the Event of Default hereunder by reason thereof shall be deemed likewise to
have been thereupon cured.
If an Event of Default described in clause (1), (2), (3), (4) or (8)
(if the Event of Default under clause (4) or (8), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (4) or (8) (if the Event of Default under
clause (4) or (8), as the case may be, is with respect to all series of
Securities then Outstanding), (5), (6) or (7) occurs and is continuing, then and
in each and every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities then Outstanding, and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the
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Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of each such series
(or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of each such series (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which shall
have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then and in every such case the Holders of a
majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE
DEBT. (1) The Issuer covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield
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to Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such Series be overdue.
(2) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or other obligor upon the
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon the Securities, wherever situated the moneys
adjudged or decreed to be payable.
(3) In case there shall be pending proceedings relative to the Issuer
or any other obligor upon the Securities under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee, except as a result of negligence or bad faith) and of
the Securityholders allowed in any judicial proceedings relative to the Issuer
or other obligor upon the Securities, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any election of
a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
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(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to the Securityholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(4) All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of such
Securities or Coupons or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities or Coupons appertaining to such Securities in respect of which such
action was taken.
(5) In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
Section 5.3 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall, subject to the
subordination provisions hereof, be applied in the following order at the date
or dates fixed by the Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the several Securities
and Coupons appertaining to such Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their respective
agents and attorneys and of all expenses and liabilities
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incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest upon
the overdue principal, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and interest or
Yield to Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
Section 5.4 SUITS FOR ENFORCEMENT. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
Section 5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in
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bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25% in aggregate principal amount of the Securities of each affected series then
Outstanding (treated as a single class) shall have made written request upon the
Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security or Coupon with every other taker and Holder and the Trustee, that no
one or more Holders of Securities of any series or Coupons appertaining to such
Securities shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities or Coupons appertaining to such Securities,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable series and Coupons appertaining to such Securities.
For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN
SUITS. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon, or to institute
suit for the enforcement of any such payment on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
Notwithstanding any other provision of this Indenture, if the Securities of a
series are then held by a Nationwide Trust, each holder of Preferred Securities
of such Nationwide Trust shall have the right to bring suit directly against the
Company for the enforcement of payment to such holder in respect of Securities
of such series in a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder.
Section 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. Except as provided in Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
Section 5.9 CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority
in aggregate principal amount of the Securities of each series affected (with
all such series voting as a single class) at the time Outstanding shall have the
right to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
PROVIDED that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture, PROVIDED FURTHER that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 5.10 WAIVER OF PAST DEFAULTS. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.1, the Holders of a majority
in aggregate principal amount of the Securities of all series at the time
Outstanding with respect to which an event of default shall have occurred and be
continuing, (or, if the affected series of Securities is held by a Nationwide
Trust, the holders of at least a majority of the aggregate liquidation amount of
the preferred securities of such Nationwide Trust) may (voting as a single
class) on behalf of the Holders of all such Securities waive any past default or
Event of Default described in Section 5.1 and its consequences, except a default
in respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of any
such waiver, the Issuer, the Trustee and the Holders of all such Securities
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall
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extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
Section 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN
CERTAIN CIRCUMSTANCES. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (1) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.9, at least once in an Authorized
Newspaper in Luxembourg) and (2) to all Holders of Securities of such series in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act of 1939, unless in each case such defaults shall have been cured before the
mailing or publication of such notice (the term "defaults" for the purpose of
this Section being hereby defined to mean any event or condition which is, or
with notice or lapse of time or both would become, an Event of Default);
PROVIDED that, except in the case of default in the payment of the principal of
or interest on any of the Securities of such series, or in the payment of any
sinking fund installment on such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders of such series.
Section 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY
COSTS. All parties to this Indenture agree, and each Holder of any Security or
Coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (4) or (8) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (4) or (8) (if
the suit under clause (4) or (8) relates to all the Securities then
Outstanding), (5), (6) or (7) of Section 5.1, 10% in aggregate principal amount
of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security or
any date fixed for redemption.
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ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT;
PRIOR TO DEFAULT. (1) With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular series and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(2) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of all
such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.9 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
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(3) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Section 315 of the Trust Indenture Act of 1939.
Section 6.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(2) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(3) the Trustee may consult with legal counsel of its choice or other
experts, and the advice of such experts within the scope of such expert's areas
of expertise or opinion of counsel with respect to legal matters shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion;
(4) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(5) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(6) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then by such Event of Default and Outstanding; PROVIDED that, if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the
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opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
Section 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of any Securities or Coupons. The
Trustee shall not be accountable for the use or application by the Issuer of any
of the Securities or of the proceeds thereof.
Section 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS;
COLLECTIONS, ETC. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
Section 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section [ ] hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
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against or investigating any claim of [liability in the premises]. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or Coupons, and the Securities are hereby subordinated
to such senior claim.
Section 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE, ETC.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR
THE TRUSTEE. The following indentures are hereby specifically described for the
purposes of Section 310(b)(1) of the Trust Indenture Act of 1939; this Indenture
with respect to the Securities of any series.
Section 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee
for each series of Securities hereunder shall at all times be a corporation or
banking association organized and doing business under the laws of the United
States of America or of any State or the District of Columbia having a combined
capital and surplus of at least $5,000,000, and which is authorized under such
laws to exercise corporate trust powers and is subject to supervision or
examination by Federal, State or District of Columbia authority. Such
corporation or banking association shall have a place of business in the Borough
of Manhattan, The City of New York if there be such a corporation in such
location willing to act upon reasonable and customary terms and conditions. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(1) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and (a) if any Unregistered Securities of a
series affected are then Outstanding, by giving notice of such resignation to
the Holders thereof, by publication at least once in an Authorized Newspaper in
the
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Borough of Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.9, at least once in an
Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a
series affected are then Outstanding, by mailing notice of such resignation to
the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 at such
addresses as were so furnished to the Trustee and (c) by mailing notice of such
resignation to the Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books.
Upon receiving such notice of resignation, the Issuer shall promptly appoint a
successor Trustee or Trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee or Trustees. If no successor Trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.
(2) In case at any time any of the following shall occur:
(a) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any Securityholder
who has been a bona fide Holder of a Security or Securities of such series for
at least six months; or
(b) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and Section 310(a) of the Trust Indenture Act of
1939 and shall fail to resign after written request therefor by the Issuer or by
any Securityholder; or
(c) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a successor Trustee
for such series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 315(e) of the Trust Indenture Act of 1939,
any Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper, remove the Trustee and appoint a successor Trustee.
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(3) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor Trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by such
Securityholders.
(4) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor Trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor Trustee as provided in Section
6.11.
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor Trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as Trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor Trustee, upon payment of its
charges then unpaid, the Trustee ceasing to act shall, subject to Section [ ],
pay over to the successor Trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
Trustee all such rights, powers, duties and obligations. Upon request of any
such successor Trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor Trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts under separate
indentures.
No successor Trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.9.
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Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.11, the Issuer shall give notice thereof (1) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.9, at least once in an
Authorized Newspaper in Luxembourg), (2) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act of 1939, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (3) if any Registered
Securities of a series affected are then Outstanding, to the Holders thereof, by
mailing such notice to such Holders at their addresses as they shall appear on
the registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 6.10.
If the Issuer fails to give such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Issuer.
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, PROVIDED that such
corporation shall be qualified under Section 310(b) of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 6.9, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; PROVIDED, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the
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approval of the Issuer an authenticating agent (the "Authenticating Agent")
which shall be authorized to act on behalf of the Trustee to authenticate
Securities, including Securities issued upon exchange, registration of transfer,
partial redemption or pursuant to Section 2.9. Securities of each such series
authenticated by such Authenticating Agent shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee. Whenever reference is made in this Indenture to
the authentication and delivery of Securities of any series by the Trustee or to
the Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.9 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee shall upon receipt of an Issuer Order appoint
a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in
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writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee. Proof of execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Article.
Section 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his or her agent or proxy may be proved in the following
manner:
(1) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him or her the
execution thereof, or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer. Where such execution is by or on
behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the person
executing the same.
(2) The fact of the holding by any Holder of an Unregistered Security
of any series, and the identifying number of such Security and the date of his
or her holding the same, may be proved by the production of such Security or by
a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the person named in such certificate. Any such certificate may be issued in
respect of one or more Unregistered Securities of one or more series specified
therein. The holding by the person named in any such certificate of any
Unregistered Securities of any series specified therein shall be presumed to
continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (a) another certificate bearing a
later date issued in respect of the same Securities shall be produced, or (b)
the Security of such series specified in such certificate shall be produced by
some other person, or (c) the Securities of such series specified in such
certificate shall have ceased to be Outstanding. Subject to Sections 6.1 and
6.2, the fact and date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the person so executing such
instrument and the amount and numbers of any Security or Securities for such
series may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in any other
manner which the Trustee for such series may deem sufficient.
(3) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security registrar.
The Issuer may set a record date for purposes of determining
the identity of Holders of Registered Securities of any series entitled to vote
or consent to any action referred to in Section 7.1, which record date may be
set at any time or from time to time by notice to the Trustee, for any date or
dates (in the case of any adjournment or reconsideration) not more than
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60 days nor less than five days prior to the proposed date of such vote or
consent, and thereafter, notwithstanding any other provisions hereof, with
respect to Registered Securities of any series, only Holders of Registered
Securities of such series of record on such record date shall be entitled to so
vote or give such consent or revoke such vote or consent.
Section 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his or her order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Unregistered Security or Coupon.
Section 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer's Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall
be entitled to accept such Officer's Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
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Section 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
(1) The Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto which
comply with the Trust Indenture Act of 1939, as then in effect, for one or more
of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer pursuant to Article IX;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons, and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; PROVIDED, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
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(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, PROVIDED that no such action shall adversely affect the interests of
the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.1 and
2.3; and
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11.
(2) The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
(3) Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
Section 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
(1) With the consent (evidenced as provided in Article VII) of the Holders of
not less than a majority in aggregate principal amount of the Securities at the
time Outstanding of all series affected by such supplemental indenture (or, if
the affected series of the Securities are held by a Nationwide Trust, the
holders of at least a majority in aggregate liquidation amount of the preferred
Securities of such Nationwide Trust) (voting as one class), the Issuer, when
authorized by a resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to an Issuer Order), and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto, which comply with the
Trust Indenture Act of 1939, as then in effect, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series or of the
Coupons appertaining to such Securities; PROVIDED, that no such supplemental
indenture shall (a) extend the final maturity of any then issued Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof,
or make the principal thereof (including any amount in respect of original issue
discount), or interest thereon payable in any coin or currency other than that
provided in such Securities and any Coupons thereon or in accordance with the
terms thereof, or reduce the amount of the principal of a then issued Original
Issue Discount Security that would be
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due and payable upon an acceleration of the maturity thereof pursuant to Section
5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or
alter the provisions of Section 11.11 or 11.12 or impair or affect the right of
any Securityholder to institute suit for the payment thereof or, if such
Securities provide therefor, any right of repayment at the option of the
Securityholder, in each case without the consent of the Holder of each Security
so affected, or (b) reduce the percentage in principal amount of then issued
Securities of any series, the consent of the Holders of which is required for
any such supplemental indenture, without the consent of the Holders of each
Security so affected.
(2) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
(3) Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
(4) It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
(5) Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (a) if any Registered Securities of a series affected
thereby are Outstanding to the Holders thereof, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (b) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act of 1939, by mailing a notice thereof by first-class mail to such
Holders at such addresses as were so furnished to the Trustee and (c) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.9, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
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Section 8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Officer's Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article VIII complies with the applicable provisions
of this Indenture.
Section 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
Section 8.6 SUBORDINATION UNIMPAIRED. This Indenture may not be amended
to alter the subordination of any of the Outstanding Securities without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby.
Section 8.7 CONFORMITY WITH TRUST INDENTURE ACT OF 1939. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act of 1939 as then in effect.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The
Issuer shall not consolidate with or merge into another Person or sell other
than for cash or lease all or substantially all its assets to another Person, or
purchase all or substantially all the assets of another Person, unless:
(1) either the Issuer is the continuing Person, or the successor Person
(if other than the Issuer) expressly assumes by supplemental indenture the
obligations evidenced by the Securities (in which case, except in the case of
such a lease, the Issuer will be discharged therefrom), and
(2) immediately thereafter, the Issuer or the successor Person (if
other than the Issuer) would not be in default in the performance of any
covenant or condition contained herein.
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Section 9.2 SUCCESSOR SUBSTITUTED FOR THE ISSUER. Upon any
consolidation of the Issuer with, or merger of the Issuer into, any other Person
or any conveyance, transfer or lease of the properties and assets of the Issuer
substantially as an entirety in accordance with Section 9.1, the successor
Person formed by such consolidation or into which the Issuer is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such successor Person had been named
as the Issuer herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 TERMINATION OF ISSUER'S OBLIGATIONS UNDER THE INDENTURE.
(1) This Indenture shall upon an Issuer Order cease to be of further effect with
respect to Securities of or within any series and any coupons appertaining
thereto (except as to any surviving rights of registration of transfer or
exchange of such Securities and replacement of such Securities which may have
been lost, stolen or mutilated as herein expressly provided for) and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any Coupons appertaining thereto when
(a) either
(i) all such Securities previously authenticated and
delivered and all Coupons appertaining thereto (other than (A)
such Coupons appertaining to Unregistered Securities
surrendered in exchange for Registered Securities and maturing
after such exchange, surrender of which is not required or has
been waived as provided in Section 2.8, (B) such Securities
and Coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9,
(C) such Coupons appertaining to Unregistered Securities
called for redemption and maturing after the date fixed for
redemption thereof, surrender of which has been waived as
provided in Section 12.3 and (D) such Securities and Coupons
for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust
as provided in Section 3.3) have been delivered to the Trustee
for cancellation; or
(ii)all Securities of such series and, in the case of
(X) or (Y) below, all Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation (X) have
become due and payable, or (Y) will become due and payable
within one year, or (Z) if redeemable at the option of the
Issuer, are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Issuer and, in the case of (X), (Y) or (Z),
the Issuer has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount in the currency or currencies or currency unit or
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units in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on
such Securities and such Coupons not theretofore delivered to
the Trustee for cancellation, for principal, premium, if any,
and interest, with respect thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or maturity date or redemption date, as the case may
be;
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
(2) Notwithstanding the satisfaction and discharge of this Indenture,
the obligation of the Issuer to the Trustee and any predecessor Trustee under
Section 6.11, the obligations of the Issuer to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to (1)(a)(ii) of this Section, the obligations of the Trustee under Section 10.2
and the last paragraph of Section 3.3 shall survive.
Section 10.2 APPLICATION OF TRUST FUNDS. Subject to the revisions of
the last paragraph of Section 3.3, all money deposited with the Trustee pursuant
to Section 10.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and this Indenture, to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent) as the Trustee may determine, to the Persons entitled thereto
of the principal, premium, if any and any interest for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 10.3 APPLICABILITY OF DEFEASANCE PROVISIONS; ISSUER'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 2.3 provision
is made for either both of (1) defeasance of the Securities of or within a
series under Section 10.4 or (2) covenant defeasance of the Securities of or
within a series under Section 10.5, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 10.6
through 10.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 2.3 with respect to any Securities, shall be applicable to
such Securities and any Coupons appertaining thereto, and the Issuer may at its
option by or pursuant to Board Resolution, at any time, with respect to such
Securities and any Coupons appertaining thereto, elect to have Section 10.4 (if
applicable) or Section 10.5 (if applicable) be applied to such Outstanding
Securities and any Coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 10.4 DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of
the option specified in Section 10.3 applicable to this Section with respect to
the Securities of or within a series, the Issuer shall be deemed to have been
discharged from its obligations with respect to such Securities and any Coupons
appertaining thereto on and after the date the conditions set
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forth in Section 10.6 are satisfied (hereinafter "defeasance"). For this
purpose, such defeasance means that the Issuer shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and any
Coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 10.7 and the other Sections of
this Indenture referred to in clause (2) of this Section, and to have satisfied
all its other obligations under such Securities and any Coupons appertaining
thereto and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Issuer, shall on an Issuer Order execute proper instruments acknowledging the
same), except the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Securities and any
Coupons appertaining thereto to receive, solely from the trust funds described
in Section 10.6(1) and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest, if any, on such
Securities or any Coupons appertaining thereto when such payments are due; (2)
the Issuer's obligations with respect to such Securities under Sections 2.8,
2.9, 3.2 and 3.3 and with respect to the payment of additional amounts, if any,
payable with respect to such Securities as specified pursuant to Section 2.3;
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (4) this Article X. Subject to compliance with this Article X, the Issuer
may exercise its option under this Section notwithstanding the prior exercise of
its option under Section 10.5 with respect to such Securities and any coupons
appertaining thereto. Following a defeasance, payment of such Securities may not
be accelerated because of an Event of Default.
Section 10.5 COVENANT DEFEASANCE. Upon the Issuer's exercise of the
option specified in Section 10.3 applicable to this Section with respect to any
Securities of or within a series, the Issuer shall be released from its
obligations under Section 9.1 and 3.5 and, if specified pursuant to Section 2.3,
its obligations under any other covenant with respect to such Securities and any
Coupons appertaining thereto on and after the date the conditions set forth in
Section 10.6 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any Coupons appertaining thereto shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 9.1 and 3.5 or such other covenant, but shall continue
to be deemed "Outstanding" for all other purposes hereunder. For this purpose,
such covenant defeasance means that, with respect to such Securities and any
Coupons appertaining thereto, the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 5.1(1) or (8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any Coupons appertaining thereto shall be
unaffected thereby.
Section 10.6 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 10.4 or Section 10.5
to any Securities of or within a series and any Coupons appertaining thereto:
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(1) The Issuer shall have deposited or caused to be deposited
irrevocably with the Trustee (or another Trustee satisfying the requirements of
Section 6.9 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 10.3 through 10.9 inclusive and the last
paragraph of Section 3.3 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (X) and (Y) of this Section 10.6(1),
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities and any Coupons appertaining thereto, with
instructions to the Trustee as to the application thereof, (a) money in an
amount (in such currency, currencies or currency unit or units in which such
Securities and any Coupons appertaining thereto are then specified as payable at
maturity), or (b) if Securities of such Series are not subject to repayment at
the option of Holders, U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment referred to
in clause (X) or (Y) of this Section 10.6(1), money in an amount or (c) a
combination thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge, (X) the
principal of, premium, if any, and interest, if any, on Securities and any
Coupons appertaining thereto on the maturity of such principal or installment of
principal or interest and (Y) any mandatory sinking fund payments applicable to
such Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities and any Coupons
appertaining thereto. Before such a deposit the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date or
dates in accordance with Article XII which shall be given effect in applying the
foregoing.
(2) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under,
any other material agreement or instrument to which the Issuer is a party or by
which it is bound.
(3) In the case of an election under Section 10.4, the Issuer shall
have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
to the effect that (a) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling, or (b) since the date of execution of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for federal income tax purposes
as a result of such defeasance and will be subject to federal income tax on the
same amount and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred.
(4) In the case of an election under Section 10.5, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
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(5) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 10.4 or the covenant defeasance under
Section 10.5 (as the case may be), including those contained in this Section
10.6 other than the 90 day period specified in Section 10.6(7), have been
complied with.
(6) This Issuer shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other Securities
of the same series, if then listed on any securities exchange, will be delisted
as a result of such deposit.
(7) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 5.1(5) and (6), at any time
on or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(8) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940 unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Issuer in connection therewith as contemplated by
Section 2.3.
Section 10.7 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST. Subject to the provisions of the last paragraph of Section 3.3, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 2.3) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 10.6 in respect of any Securities of any series and
any Coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any Coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any paying Agent (including the Issuer acting as its own paying agent)
as the Trustee may determine, to the Holders of such Securities and any Coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Section 10.8 REPAYMENT TO ISSUER. The Trustee (any paying agent) shall
promptly pay to the Issuer upon Issuer Order any excess money or securities held
by them at any time.
Section 10.9 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer
shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against U.S. Government Obligations deposited pursuant to
this Article or the principal and interest and any other amount received on such
U.S. Government Obligations.
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Section 10.10 REIMBURSEMENT. If the Trustee or the paying agent is
unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or government
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which the Issuer
has been discharged or released pursuant to Section 10.4 or 10.5 shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
paying agent is permitted to apply all money held in trust pursuant to Section
10.7 with respect to such Securities in accordance with this Article; PROVIDED,
HOWEVER, that if the Issuer makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Issuer shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
Section 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the holders of Senior Indebtedness and
the Holders of the Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors, the holders of the Senior Indebtedness and
the Holders of the Securities or Coupons, if any.
Section 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
Section 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES AND COUPONS. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Nationwide Financial Services, Inc.,
One Nationwide Plaza,
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Columbus, Ohio 43215. Any notice, direction, request or demand by the Issuer or
any Holder of Securities or Coupons to or upon the Trustee shall be deemed to
have been sufficiently given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee with the Issuer)
to Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware, 19890, Attention: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his or her last address as it appears in the
Security register. In any case where notice to such Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
Section 11.5 OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS
TO BE CONTAINED THEREIN. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (3) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon
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which his or her certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
actually knows that the certificate, statement or opinion or representations
with respect to the matters upon which his or her certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
Section 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939, such
imposed duties or incorporated provision shall control.
Section 11.8 NEW YORK LAW TO GOVERN. This Indenture and each Security
and Coupon shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of law.
Section 11.9 COUNTERPARTS. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 11.10 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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Section 11.11 SECURITIES IN A FOREIGN CURRENCY OR IN ECU. Unless
otherwise specified in an Officer's Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; PROVIDED, HOWEVER, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations or,
in the case of ECU, rates of exchange as the Trustee shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture including without limitation any determination
contemplated in Section 5.1(7).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
Section 11.12 JUDGMENT CURRENCY. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (1) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business
Day, then, to the extent permitted by applicable law, the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the Business Day preceding the day on which final
unappealable judgment is entered and (2) its obligations under this Indenture to
make payments in the Required Currency (a) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (1)), in any currency other than
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the Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (b) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (c) shall not be affected by judgment being obtained
for any other sum due under this Indenture.
Section 11.13 SEPARABILITY CLAUSE. If any provision of this Indenture
or of the Securities, or the application of any such provision to any Person or
circumstance, shall be held to be invalid, illegal or unenforceable, the
remainder of this Indenture or of the Securities, or the application of such
provision to Persons or circumstances other than those as to whom or which it is
invalid, illegal or unenforceable, shall not in any way be affected or impaired
thereby.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
Section 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Notice of redemption to the Holders of Unregistered
Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act of 1939 shall be given by mailing notice of such redemption, by first class
mail, postage prepaid, at least 30 days and not more than 60 prior to the date
fixed for redemption, to such Holders at such addresses as were so furnished to
the Trustee (and, in the case of any such notice given by the Issuer, the
Trustee shall make such information available to the Issuer for such purpose).
Notice of redemption to all other Holders of Unregistered Securities shall be
published in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and in an Authorized Newspaper in London (and, if required by Section
3.9, in an Authorized Newspaper in Luxembourg), in each case, once in each of
three successive calendar weeks, the first publication to be not less than 30
nor more than 60 days prior to the date fixed for redemption. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify, the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation
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and surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the date
fixed for redemption, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Issuer will
deliver to the Trustee at least 70 days prior to the date fixed for redemption
an Officer's Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officer's Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.5 and [ ], such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit or
security under
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this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; PROVIDED that payment
of interest becoming due on or prior to the date fixed for redemption shall be
payable in the case of Securities with Coupons attached thereto, to the Holders
of the Coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption such Security may be redeemed after deducting from the
redemption price any amount equal to the face amount of all such missing
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Issuer and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any paying agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
paying agent any such missing Coupon in respect of which a deduction shall have
been made from the redemption price, such Holder shall be entitled to receive
the amount so deducted; PROVIDED, HOWEVER, that interest represented by Coupons
shall be payable as provided in Section 2.9 and, unless otherwise specified as
contemplated by Section 2.3, only upon presentation and surrender of those
Coupons.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
Section 12.5 MANDATORY AND OPTIONAL SINKING FUNDS. (1) The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional
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sinking fund payment". The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date".
(2) In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
(3) On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (which need not contain the statements required by Section 11.5) (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series has theretofore been so credited, (c) stating that no defaults in
the payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer's Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officer's Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
(4) If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign Currency or ECU)
if the Issuer shall so request with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment
date to the
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redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner provided in Section
12.2, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such Officer's Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) for the redemption
of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier, if
such maturity is accelerated), which are not held for the payment or redemption
of particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
(5) On or before each sinking fund payment date, the Issuer shall pay
to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
(6) The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
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ARTICLE XIII
SUBORDINATION
Section 13.1 AGREEMENT TO SUBORDINATE. The Issuer, for itself, its
successors and assigns, covenants and agrees, and each Holder of a Security or
Coupon, by its acceptance thereof, likewise covenants and agrees, that the
payment of the principal of and interest on, each and all of the Securities and
any Coupons is hereby expressly subordinated, to the extent and in the manner
hereinafter in this Article XIII set forth, in right of payment to the prior
payment in full of all Senior Indebtedness.
Section 13.2 RIGHTS OF SENIOR INDEBTEDNESS IN THE EVENT OF INSOLVENCY,
ETC., OF THE ISSUER.
(1) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, relative to the Issuer or to its creditors, as such, or to
its property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Issuer, whether or not involving
insolvency or bankruptcy, and in the event of any execution sale, then the
holders of Senior Indebtedness shall be entitled to receive payment in full of
principal thereof and interest due thereon (including, without limitation,
except to the extent, if any, prohibited by mandatory provisions of law,
post-petition interest in any such proceedings) in money or money's worth of all
Senior Indebtedness before the Holders are entitled to receive any payment on
account of the principal of or interest on the indebtedness evidenced by the
Securities or of the Coupons, and to that end the holders of Senior Indebtedness
shall be entitled to receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or property or
securities, which may be payable or deliverable in connection with any such
proceedings or sale in respect of the principal of or interest on the Securities
or Coupons other than securities of the Issuer as reorganized or readjusted or
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in this Article XIII with respect to the Securities or
Coupons, to the payment of all indebtedness of the nature of Senior
Indebtedness, provided that the rights of the holders of the Senior Indebtedness
are not altered by such reorganization or readjustment;
(2) In the event and during the continuation of any default in payment
of any Senior Indebtedness or if any event of default, as therein defined, shall
exist under any Senior Indebtedness or any agreement pursuant to which any
Senior Indebtedness is issued, no payment of the principal of or interest on the
Securities or Coupons shall be made and the Issuer covenants that it will, upon
ascertaining any such default or event of default, provide written notice to the
Trustee of such default or event of default;
(3) In the event that the Securities of any series are declared due and
payable before their expressed maturity because of the occurrence of an Event of
Default (under circumstances when the provisions of Subsection (1) of this
Section 13.2 shall not be applicable), the holders of all Senior Indebtedness
shall be entitled to receive payment in full in money or money's worth of such
Senior Indebtedness before such Holders are entitled to receive any payment on
account of the principal of or interest on the Securities or Coupons; and
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(4) No holder of Senior Indebtedness shall be prejudiced in his or her
right to enforce subordination of the Securities or Coupons by any act or
failure to act on the part of the Issuer.
Section 13.3 PAYMENT OVER OF PROCEEDS RECEIVED ON SECURITIES. In the
event that, notwithstanding the provisions of Section 13.2, any payment or
distribution of assets of the Issuer of any kind or character, whether in cash,
property or securities (other than securities of the Issuer as reorganized or
readjusted or securities of the Issuer or any other corporation provided for by
a plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in this Article XIII with respect to the Securities
or Coupons, to the payment of all indebtedness of the nature of Senior
Indebtedness, PROVIDED that the rights of the holders of the Senior Indebtedness
are not altered by such reorganization or readjustment) shall be received by the
Holders or by the Trustee for their benefit in connection with any proceedings
or sale referred to in Subsection (1) of Section 13.2 before all Senior
Indebtedness is paid in full in money or money's worth, such payment or
distribution shall be paid over to the holders of such Senior Indebtedness or
their representative or representatives or to the Trustee or Trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, for
application to the payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full in money or money's worth,
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
From and after the payment in full in money or money's worth of all
Senior Indebtedness, the Holders (together with the holders of any other
indebtedness of the Issuer which is subordinate in right of payment to the
payment in full of all Senior Indebtedness, which is not subordinate in right of
payment to the Securities or Coupons and which by its terms grants such right of
subrogation to the holder thereof) shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets or
securities of the Issuer applicable to the Senior Indebtedness until the
Securities and any Coupons shall be paid in full, and, for the purposes of such
subrogation, no such payments or distributions to the holders of Senior
Indebtedness of assets or securities, which otherwise would have been payable or
distributable to Holders, shall, as between the Issuer, its creditors other than
the holders of Senior Indebtedness, and the Holders, be deemed to be a payment
by the Issuer to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article XIII are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Indebtedness, on the other hand, and nothing contained in
this Article XIII or elsewhere in this Indenture or in the Securities or Coupons
is intended to or shall impair as between the Issuer, its creditors other than
the holders of Senior Indebtedness, and the Holders, the obligation of the
Issuer, which is unconditional and absolute, to pay to the Holders the principal
of and interest on the Securities or Coupons as and when the same shall become
due and payable in accordance with their terms, or to affect the relative rights
of the Holders and creditors of the Issuer other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Security or Coupon from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture subject to the
rights of the holders of Senior Indebtedness, under Section 13.2, to receive
cash, property or
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securities of the Issuer otherwise payable or deliverable to the holders of the
Securities or Coupons.
Upon any distribution or payment in connection with any proceedings or
sale referred to in Subsection (1) of Section 13.2, the Trustee, subject as
between the Trustee and the Holders to the provisions of Sections 6.1 and 6.2
hereof, shall be entitled to rely upon a certificate of the liquidating trustee
or agent or other Person making any distribution or payment to the Trustee for
the purpose of ascertaining the holders of Senior Indebtedness entitled to
participate in such payment or distribution, the amount of such Senior
Indebtedness or the amount payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
XIII. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Section 13.3, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Section 13.3, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness, and shall not be liable to any such holders
if it shall in good faith pay over or distribute to Holders or the Issuer or any
other Person moneys or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of Article XIII of this Indenture or otherwise.
Section 13.4 PAYMENTS TO HOLDERS. Nothing contained in this Article
XIII or elsewhere in this Indenture, or in any of the Securities or in any
Coupon, shall prevent at any time, (1) the Issuer from making payments at any
time of principal of or interest on the Securities or Coupons, except under the
conditions described in Section 13.2 or during the pendency of any proceedings
or sale therein referred to, PROVIDED, HOWEVER, that payments of principal of or
interest on the Securities or Coupons shall only be made by the Issuer within
three business days of the due dates for such payments or (2) the application by
the Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of or interest on the Securities or Coupons, if at the
time of such deposit the Trustee did not have written notice in accordance with
Section 13.6 of any event prohibiting the making of such deposit by the Issuer
or if in the event of redemption, the Trustee did not have such written notice
prior to the time that the notice of redemption pursuant to Section 12.2 was
given (which notice of redemption shall in no event be given more than 60 days
prior to the date fixed for redemption).
Section 13.5 HOLDERS OF SECURITIES AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES. Each Holder by his acceptance of a Security or
Coupon authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
as provided in this Article XIII and appoints the Trustee as attorney-in-fact
for any and all such purposes, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Issuer (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Issuer, the immediate filing of a claim for the unpaid
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<PAGE> 72
balance of such Holder's Securities or Coupons in the form required in said
proceedings and cause said claim to be approved.
Section 13.6 NOTICE TO TRUSTEE. Notwithstanding the provisions of this
Article XIII or any other provisions of this Indenture, the Trustee shall not be
charged with the knowledge of the existence of any facts which would prohibit
the making of any payment of moneys to the Trustee, unless and until the Trustee
shall have received written notice thereof from the Issuer or from the holder or
the representative of any class of Senior Indebtedness; PROVIDED, HOWEVER, that
if at least two Business Days prior to the date upon which by the terms hereof
any such monies may become payable for any purpose (including, without
limitation, the payment of either the cash amount payable at maturity or
interest on any Security or Coupon), the Trustee shall not have received with
respect to such monies the notice provided for in this Section 13.6, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary, which may be received by it on or after such two
Business Days prior to such date.
Section 13.7 TRUSTEE MAY HOLD SENIOR INDEBTEDNESS. Subject to the
provisions of Section 6.13, the Trustee shall be entitled to all the rights set
forth in this Article XIII with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness.
Section 13.8 APPLICABILITY OF ARTICLE XIII TO PAYING AGENTS. In case at
any time any paying agent other than the Trustee shall be appointed by the
Issuer and be then acting hereunder, the term "Trustee" as used in this Article
XIII in such case (unless the context shall otherwise require) be construed as
extending to and including such paying agent within its meaning as fully for all
intents and purposes as if such paying agent were named in this Article XIII in
place of the Trustee.
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<PAGE> 73
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of [ ].
NATIONWIDE FINANCIAL
SERVICES, INC.
By: [ ]
Title: [ ]
[CORPORATE SEAL]
Attest:
WILMINGTON TRUST COMPANY,
as Trustee
By: [ ]
Title: [ ]
[CORPORATE SEAL]
Attest:
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<PAGE> 74
STATE OF [ ] )
) ss.:
COUNTY OF [ ] )
On this ____ of [ ] before me personally came, to me personally
known, who, being by me duly sworn, did depose and say that he resides at that
he is the of Nationwide Financial Services, Inc., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
- -----------------------
Notary Public
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<PAGE> 75
STATE OF [ ] )
) ss.:
COUNTY OF [ ] )
On this ____ of [ ] before me personally came, to me personally
known, who, being by me duly sworn, did depose and say that he resides at [ ],
that he is a [ ] of Wilmington Trust Company, one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
- ---------------------
Notary Public
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<PAGE> 76
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- -CENTRAL SECRETARIAL CONTROL SHEET- JOB #:
PLEASE COMPLETE THIS FORM IN ENTIRETY.
WRITE OUT ALL SPECIAL INSTRUCTIONS TO ASSURE THAT YOUR WORK WILL BE COMPLETED.
ATTORNEY: Suzanne Bagert ATTORNEY #: 1518 EXT.: 8163
CLIENT: Nationwide CLIENT #: 01233 FLOOR:
OVERTIME
MATTER: '33 Act Filings MATTER #: 00779 / / Yes / / No
===================================
DOCUMENT TITLE: Exhibit 4.3
DATE/TIME DUE: RETURN INSTRUCTIONS
SPECIAL INSTRUCTIONS: / / 15-Minute Pickup
/ / Call when Ready
/ / Page when Ready
/ / Interoffice (after 4:45P)
/ / Hold in Center for Pickup
/ / Other:
WORD PROCESSING / SECRETARIAL SERVICES
TREATMENT PROOFREADING SERVICES
PROOFREADING
/ / Input/Scan / / Full Read (Word-for-word proofing of all text)
/ / Revise / / Verbatim (Keep errors that appear in original)
/ / Cold Read (Read through for sense - no master)
/ / Copy to New File Name and Revise / / Revisions and Slugs (Full read riders)
/ / Create New Version
under Same File Name and Revise BLACKLINING
/ / Pencil Changes (Caret and score all
deletions/additions)
/ / Proofread Only / / Composite (Caret and score all differences from two
or more masters)
/ / Print Only / / Print-to-Print (Full read final
/ / Tape Transcription against master and mark all differences on final)
COMPARERITE
ADDITIONS DELETIONS LIST VERSIONS:
/ / Bold/Double Underline / / Strikethrough
/ / Shade / / Caret / / Latest Two Versions
/ / Other ________________ / / Caret/Score
/ / Deletions at End Old Version___________
(Choose one from each column) / / Other _______________
New Version___________
TIME CLOCKED IN TIME CLOCKED OUT
[ / / H / / Left Message with______________
SYSTEM FILE NAME: Word Processing Operators N.B.
B3 332669.6 / / Return to Spvr. when done
/ / See Spvr. for special instructions
Originated: EDFLOOD -- 3/17/98 at 5:51am
Modified: CDOUGLAS -- 5/11/98 at 9:35am
</TABLE>
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<PAGE> 1
Exhibit 4.5
================================================================================
NATIONWIDE FINANCIAL SERVICES, INC.
AND
WILMINGTON TRUST COMPANY
as Trustee
---------------------------
[ ] SUPPLEMENTAL INDENTURE
Dated as of [ ], 199[ ]
TO
INDENTURE
Dated as of [ ], 199[ ]
---------------------------
[ ]% Subordinated Deferrable Interest Debentures
Due 20[ ]
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I General Terms and Conditions of the Series [ ]% Debentures............................2
SECTION 1.01.............................................................................................2
SECTION 1.02.............................................................................................2
SECTION 1.03.............................................................................................3
ARTICLE II Optional Redemption of the Series [ ]% Debentures.....................................4
SECTION 2.01.............................................................................................4
SECTION 2.02.............................................................................................5
SECTION 2.03.............................................................................................6
ARTICLE III Extension of Interest Payment Period...................................................6
SECTION 3.01.............................................................................................6
SECTION 3.02.............................................................................................7
SECTION 3.03.............................................................................................7
ARTICLE IV Covenants Applicable to Series [ ]% Debentures........................................7
SECTION 4.01.............................................................................................7
SECTION 4.02.............................................................................................8
SECTION 4.03.............................................................................................8
SECTION 4.04.............................................................................................9
ARTICLE V Form of Series [ ]% Debentures........................................................9
SECTION 5.01.............................................................................................9
ARTICLE VI Original Issue of Series [ ]% Debentures.............................................19
SECTION 6.01............................................................................................19
ARTICLE VII Miscellaneous Provisions..............................................................19
SECTION 7.01............................................................................................19
SECTION 7.02............................................................................................20
SECTION 7.03............................................................................................20
SECTION 7.04............................................................................................20
</TABLE>
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<PAGE> 3
[ ] SUPPLEMENTAL INDENTURE, dated as of the [ ] day of [ ]
199[ ] (the "[ ] Supplemental Indenture"), between NATIONWIDE FINANCIAL
SERVICES, INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter sometimes referred to as the "Company") and
WILMINGTON TRUST COMPANY, a Delaware banking association, as trustee
(hereinafter sometimes referred to as the "Trustee") under the Indenture dated
as of , 1998 between the Company and the Trustee (the "Indenture"); as
set forth in Section 7.01 hereto and except as otherwise set forth herein, all
terms used and not defined herein are used as defined in the Indenture),
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of its subordinated debentures
(the "Debentures"), said Debentures to be issued from time to time in series as
might be determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered thereunder
as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debentures to be
known as its [ ]% Subordinated Deferrable Interest Debentures due 20[ ] (said
series being hereinafter referred to as the "Series [ ]% Debentures"), the form
and substance of such Series [ ]% Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this [ ]
Supplemental Indenture; and
WHEREAS, Nationwide Capital Trust II, a Delaware statutory
business trust (the "Trust"), intends to offer to the public $ million
aggregate liquidation amount of its % Preferred Securities (the "Preferred
Securities"), representing preferred undivided beneficial interests in the
assets of the Trust, and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $ million aggregate liquidation amount of its % common securities
(the "Common Securities," and together with the Preferred Securities, the "Trust
Securities"), representing common undivided beneficial interests in the assets
of the Trust, in $ million aggregate principal amount of the Series [ ]%
Debentures; and
WHEREAS, the Company desires and has requested the Trustee to
join with it in the execution and delivery of this [ ] Supplemental Indenture,
and all requirements necessary to make this [ ] Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Series [ ]%
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed and
fulfilled, and the execution and delivery hereof have been in all respects duly
authorized;
NOW THEREFORE, in consideration of the purchase and acceptance
of the Series [ ]% Debentures by the holders thereof, and for the purpose of
setting forth, as provided in the Indenture, the form and substance of the
Series [ ]% Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
<PAGE> 4
ARTICLE I
General Terms and Conditions of the Series [ ]% Debentures
SECTION 1.01. There shall be and is hereby authorized a series
of Debentures designated the "[ ]% Subordinated Deferrable Interest Debentures
Due 20[ ]", limited in aggregate principal amount to $[ ] (except as provided in
this Section 1.01 and 6.01). The Series [ ]% Debentures shall mature and the
principal shall be due and payable together with all accrued and unpaid interest
thereon, including Compounded Interest (as hereinafter defined) on [ ],
20[ ].
SECTION 1.02. (a) Except as provided in Section 1.02(b), the
Series [ ]% Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Series [ ]% Debentures
issued in certificated form will be payable, the transfer of such Series [ ]%
Debentures will be registrable and such Series [ ]% Debentures will be
exchangeable for Series [ ]% Debentures bearing identical terms and provisions
at the office or agency of the Company in the Borough of Manhattan, The City and
State of New York; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the registered holder at such
address as shall appear in the Debenture register and that the payment of
principal with respect to the Series [ ]% Debentures will only be made upon
surrender of the Series [ ]% Debentures to the Trustee. Notwithstanding the
foregoing, so long as the Property Trustee is the legal owner and record holder
of the Series [ ]% Debentures, the payment of the principal of and interest
(including Compounded Interest, if any) on the Series [ ]% Debentures held by
the Property Trustee will be made by the Company in immediately available funds
on the payment date therefor at such place and to the Property Trustee Account
(as defined in the Declaration of Trust) established and maintained by the
Property Trustee pursuant to the Declaration of Trust.
(b) In connection with a distribution of the Securities to
holders of the Trust Securities pursuant to the Declaration of Trust;
(i) Series [ ]% Debentures in certificated form
may be presented to the Trustee by the
Property Trustee in exchange for a Global
Debenture representing the Series [ ]%
Debentures in an aggregate principal amount
equal to all Outstanding Series [ ]%
Debentures, to be registered in the name of
the Depository, or its nominee, and
delivered by the Trustee to the Depository
for crediting to the accounts of its
participants pursuant to the instructions of
the Regular Trustees (as defined in the
Declaration of Trust). The Company upon any
such presentation shall execute a Global
Debenture representing the Series [ ]%
Debentures in such aggregate principal
amount and deliver the same to the
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<PAGE> 5
Trustee for authentication and delivery in
accordance with the Indenture and this [ ]
Supplemental Indenture. Payments on the
Series [ ]% Debentures issued as a Global
Debenture will be made to the Depository;
and
(ii) if any Preferred Securities are held in non
book-entry certificated form, Series [ ]%
Debentures in certificated form may be
presented to the Trustee by the Property
Trustee and any Preferred Security
Certificate (as defined in the Declaration
of Trust) which represents Preferred
Securities other than Preferred Securities
held by the initial clearing agency or its
nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent
beneficial interests in Series [ ]%
Debentures presented to the Trustee by the
Property Trustee having an aggregate
principal amount equal to the aggregate
liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred
Security Certificate is presented to the
Debenture Registrar for transfer or
reissuance at which time such Preferred
Security Certificate will be cancelled and a
Series [ ]% Debenture, registered in the
name of the holder of the Preferred Security
Certificate or the transferee of the holder
of such Preferred Security Certificate, as
the case may be, with an aggregate principal
amount equal to the aggregate liquidation
amount of the Preferred Security Certificate
canceled will be executed by the Company and
delivered to the Trustee for authentication
and delivery in accordance with the
Indenture and this [ ] Supplemental
Indenture. On issue of such Series [ ]%
Debentures, Series [ ]% Debentures with an
equivalent aggregate amount that were
presented by the Property Trustee to the
Trustee will be deemed to have been
canceled.
SECTION 1.03. Each Series [ ]% Debenture will bear interest at
the rate of [ ]% per annum from [ ], 199[ ] until the principal thereof becomes
due and payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum, compounded [quarterly][semi-annually],
payable (subject to the provisions of Article Three) [quarterly][semi- annually]
in arrears on the [ ] day of [ ]of each year (each, an "Interest Payment Date",
commencing on [ ], 199[ ]), to the person in whose name such Series [ ]%
Debenture or any predecessor Series [ ]% Debenture is registered, at the close
of business on the regular record date for such interest installment, which,
except as set forth below, shall be, in respect of any Series [ ]% Debentures of
which the Property Trustee is the registered holder of or a Global Debenture,
the close of business on the business day next preceding that Interest Payment
Date. Notwithstanding the foregoing sentence, if the Preferred Securities are no
longer in book-entry only form or if pursuant to the provisions of Section
2.11(c) of the Indenture the Series [ ]%
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<PAGE> 6
Debentures are not represented by a Global Debenture, the regular record dates
for such interest installment shall be the close of business on the 15th day of
the month next preceding that Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered holders on such regular record date, and may be paid
to the person in whose name the Series [ ]% Debenture (or one or more
Predecessor Debentures) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of the Series
[ ]% Debentures not less than 10 days prior to such special record date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Series [ ]% Debentures may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly interest period for which interest is computed,
the amount of interest payable will be computed on the basis of the actual
number of days elapsed in such a 30-day month. In the event that any date on
which interest is payable on the Series [ ]% Debentures is not a business day,
then payment of interest payable on such date will be made on the next
succeeding day which is a business day (and without any interest or other
payment in respect of any such delay), except that, if such business day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding business day, in each case with the same force and effect as if made
on such date.
ARTICLE II
Optional Redemption of the Series [ ]% Debentures
SECTION 2.01. (a) Subject to the provisions of this Article
II, the Company shall have the right to redeem the Securities, in whole or in
part, at any time or from time to time, after the issuance of the Preferred
Securities, at a redemption price equal to 100% of the principal amount to be
redeemed [plus the Make-Whole Premium, if any,] plus any accrued and unpaid
interest thereon, (including Compounded Interest, if any), to the date of such
redemption (the "Optional Redemption Price"). [The Make-Whole Premium means the
excess, if any of (i) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the redemption date on
a semi-annual basis at the Treasury Rate plus 20 basis points over (ii) 100% of
the principal amount of Securities to be redeemed.] Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice to the Holder of the Securities, at the Redemption Price. The Redemption
Price shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines and specifies in
the notice of redemption; PROVIDED, that, the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New York
time, on the date such Redemption Price is to be paid.
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<PAGE> 7
(b) If a partial redemption of the Securities would result in
the delisting of the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred Securities are
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Securities in whole.
(c) The Company may not redeem fewer than all of the
Outstanding Securities unless all accrued and unpaid interest (including
Additional Payments) on the Securities has been paid as of the Interest Payment
Date next preceding the Redemption Date.
SECTION 2.02. If, at any time, a Tax Event (as defined below)
shall occur or be continuing and (i) the Regular Trustees and the Company shall
have received an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a result of a Tax
Event, there is more than an insubstantial risk that the Company would be
precluded from deducting the interest on the Series [ ]% Debentures for United
States federal income tax purposes even if the Series [ ]% Debentures were
distributed to the holders of Preferred Securities and Common Securities in
liquidation of such holder's interest in Nationwide Capital Trust II as set
forth in the Declaration of Trust or (ii) the Regular Trustees shall have been
informed by such tax counsel that a No Recognition Opinion (as defined below)
cannot be delivered to Nationwide Capital Trust II, the Company shall have the
right at any time, upon not less than 30 nor more than 60 days' notice, to
redeem the Series [ ]% Debentures in whole or in part for cash at the Optional
Redemption Price within 90 days following the occurrence of such Tax Event;
provided, however, that, if at the time there is available to the Company or the
Regular Trustees on behalf of Nationwide Capital Trust II the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some ministerial
action ("Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
Nationwide Capital Trust II, the Company or the holders of the Preferred
Securities, the Company or the Regular Trustees on behalf of Nationwide Capital
Trust II will pursue such measure in lieu of redemption and provided further
that the Company shall have no right to redeem the Series [ ]% Debentures while
the Regular Trustees on behalf of Nationwide Capital Trust II are pursuing any
such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after [ ], 199[ ] as a result of (a) any amendment to, or change (including
any announced prospective change; PROVIDED that a Tax Event shall not occur more
than 90 days before the effective date of any such prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority,
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<PAGE> 8
which amendment or change is enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or which action is taken,
in each case on or after [ ], 199[ ] there is more than an insubstantial risk
that (i) Nationwide Capital Trust II is, or will be, subject to United States
federal income tax with respect to income accrued or received on the Series [ ]%
Debentures, (ii) Nationwide Capital Trust II is, or will be, subject to more
than a de minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to Nationwide Capital Trust II on the Series
[ ]% Debentures is not, or will not be, deductible by the Company for United
States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal Revenue
Service, to the effect that the holders of the Preferred Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of a dissolution of Nationwide Capital Trust II and distribution of the
Series [ ]% Debentures as provided in the Declaration of Trust.
SECTION 2.03. If the Series [ ]% Debentures are only partially
redeemed pursuant to this Article II, the Series [ ]% Debentures will be
redeemed pro rata or by lot or by any other method utilized by the Trustee,
provided that if at the time of redemption, the Series [ ]% Debentures are
registered as a Global Debenture, the Depository shall determine by lot the
principal amount of such Series [ ]% Debentures held by each Debenture Holder to
be redeemed in accordance with its customary procedures. Notwithstanding the
foregoing, if a partial redemption of the Series [ ]% Debentures would result in
the delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Company shall not be permitted to effect such partial redemption and will only
redeem the Series [ ]% Debentures in whole.
ARTICLE III
Extension of Interest Payment Period
SECTION 3.01. So long as the Company is not in default in the
payment of interest on the Series [ ]% Debentures, the Company shall have the
right, at any time during the term of the Series [ ]% Debentures, from time to
time to extend the interest payment period of such Series [ ]% Debentures for up
to [20 consecutive quarterly][10 consecutive semi-annual] interest periods (the
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid thereon (together with interest
thereon at the rate of [ ]% per annum to the extent permitted by applicable law,
compounded quarterly ("Compounded Interest")). At the end of the Extended
Interest Payment Period the Company shall pay all interest accrued and unpaid on
the Series [ ]% Debentures including any Compounded Interest which shall be
payable to the holders of the Series [ ]% Debentures in whose names the Series
[ ]% Debentures are registered in the Debenture register on the first
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<PAGE> 9
record date after the end of the Extended Interest Payment Period. Prior to the
termination of any such Extended Interest Payment Period, the Company may
further extend such Period; provided that such Period together with all such
further extensions thereof shall not exceed [20 consecutive quarterly][10
semi-annual] interest periods. Upon the termination of any Extended Interest
Payment Period and upon the payment of all accrued and unpaid interest then due,
together with Compounded Interest, the Company may select a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except at
the end thereof.
SECTION 3.02. (a) So long as the Property Trustee is the legal
owner and holder of record of the Series [ ]% Debentures, at the time the
Company selects an Extended Interest Payment Period, the Company shall give both
the Property Trustee and the Trustee written notice of its selection of such
Extended Interest Payment Period one business day prior to the earlier of (i)
the next succeeding date on which distributions on the Preferred Securities are
payable or (ii) the date Nationwide Capital Trust II is required to give notice
of the record date or the date such distributions are payable to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Preferred Securities, but in any event not less than one business day prior
to such record date. The Company shall cause Nationwide Capital Trust II to give
notice of the Company's selection of such Extended Interest Payment Period to
the holders of the Preferred Securities.
(b) If, pursuant to the Declaration of Trust, Series [ ]%
Debentures have been distributed to holders of Preferred Securities and Common
Securities, at the time the Company selects an Extended Interest Payment Period,
the Company shall give the holders of the Series [ ]% Debentures and the Trustee
written notice of its selection of such Extended Interest Payment Period at
least 10 business days prior to the earlier of (i) the next succeeding Interest
Payment Date or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to the New York Stock Exchange
or other applicable self-regulatory organization or to holders of the Series
[ ]% Debentures.
SECTION 3.03. The quarter in which any notice is given
pursuant to Section 3.02 shall be counted as one of the [20 quarters][10
semi-annual periods] permitted in the maximum Extended Interest Payment Period
permitted under this Article III.
ARTICLE IV
Covenants Applicable to Series [ ]% Debentures
SECTION 4.01. In connection with the distribution of the
Series [ ]% Debentures to the holders of the Preferred Securities pursuant to
the Declaration of Trust, the Company will use its best efforts to list such
Series [ ]% Debentures on the New York Stock Exchange or on such other exchange
as the Preferred Securities are then listed and traded.
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<PAGE> 10
SECTION 4.02. In connection with the offering, sale and
issuance of the Securities to the Property Trustee in connection with the sale
of the Trust Securities by the Trust, the Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Securities, including commissions or other
compensation to the Underwriters payable pursuant to the Underwriting Agreement
and compensation of the Trustee under the Indenture in accordance with
provisions of Section 6.6 of the Indenture;
(b) be responsible for and pay for all debts and obligations
(other than with respect to the Trust Securities) of the Trust, pay for all
costs and expenses of the Trust (including, but not limited to, costs and
expenses relating to the organization of the Trust, the offering, sale and
issuance of the Trust Securities (including commissions or other compensation
to, and indemnification of, the Underwriters in connection therewith), the fees
and expenses of the Property Trustee and the Delaware Trustee (as defined in the
Declaration of Trust), the costs and expenses relating to the operation of the
Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust assets);
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration of Trust;
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
SECTION 4.03. The Company covenants that the Company (a) shall
not declare or pay dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to, any of its
capital stock (other than stock dividends paid by the Company which consist of
stock of the same class as that on which the dividend is being paid), (b) shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Securities, and (c) shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Guarantee),
in each case if at such time (i) there shall have occurred any event that with
the giving of notice or the lapse of time or both, would constitute an Event of
Default hereunder, (ii) the Company shall be in default with respect to its
payment of any obligations under the Guarantee or (iii) the Company shall have
given notice of its selection of an Extended Interest Payment Period as provided
herein and such period, or any extension thereof, shall be continuing.
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<PAGE> 11
SECTION 4.04. Prior to the distribution of Series [ ]%
Debentures to the holders of Preferred Securities in accordance with the terms
of the Declaration of Trust, the Company covenants and agrees for the benefit of
the holders of the Preferred Securities (i) not to cause or permit the Common
Securities to be transferred except as permitted by the Declaration of Trust and
(ii) not to take any action which would cause the Trust to cease to be treated
as a grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series [ ]% Debentures as provided in the
Declaration of Trust.
ARTICLE V
Form of Series [ ]% Debentures
SECTION 5.01. The Series [ ]% Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE NOTE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the name
of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative to The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
No. $
CUSIP NO.
NATIONWIDE FINANCIAL SERVICES, INC.
[ ]% SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE 20[ ]
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<PAGE> 12
Nationwide Financial Services, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (herein referred
to as the "Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to, or registered assigns, the principal sum of _________ Dollars on [ ], 20[ ],
and to pay interest on said principal sum from [ ], 199[ ] or from the most
recent interest payment date (each such date, an "Interest Payment Date") to
which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on [ ] day if [ ] of each year
commencing [ ], 199[ ] at the rate of [ ]% per annum plus Compounded Interest,
if any, until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months and for any period shorter than a full
[quarterly][semi-annual] interest period for which interest is computed, the
amount of interest payable will be computed on the basis of the actual number of
days elapsed in such a 30-day month. In the event that any date on which
interest is payable on this Debenture is not a business day, then payment of
interest payable on such date will be made on the next succeeding day which is a
business day (and without any interest or other payment in respect of any such
delay), except that, if such business day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding business day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Debentures, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, [which shall be the close of business on the
day next preceding such Interest Payment Date, provided if the Preferred
Securities of Nationwide Capital Trust II are no longer in book-entry only form,
the regular record dates shall be the close of business on the fifteenth day of
the month next preceding such Interest Payment Date] [IF PURSUANT TO THE
PROVISIONS OF SECTION 2.11(c) OF THE INDENTURE THE SERIES [ ]% DEBENTURES ARE
NOT REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the close of business on
the fifteenth day of the month next preceding such Interest Payment Date.] Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered holders on such regular record
date, and may be paid to the person in whose name this Debenture (or one or more
Predecessor Debentures) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of this series
of Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City and
State of New York, in any coin or currency of the United States of America which
at the time of payment is legal tender for payment of public and private debts;
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<PAGE> 13
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Debenture register and that the payment of principal will only be made
upon the surrender of this Debenture to the Trustee. Notwithstanding the
foregoing, so long as the owner and record holder of this Debenture is the
Property Trustee (as defined in the Indenture referred to on the reverse
hereof), the payment of the principal of (and premium, if any) and interest
(including Compounded Interest, if any) on this Debenture will be made at such
place and to such account of the Property Trustee as may be designated by the
Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
Unless the Certificate of Authentication hereon has been
executed by the Trustee referred to on the reverse side hereof, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
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<PAGE> 14
IN WITNESS WHEREOF, the Company has caused this Instrument to
be executed.
Dated
---------------------
NATIONWIDE FINANCIAL SERVICES, INC.
By:
------------------------
Attest:
By:
---------------------
Secretary
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<PAGE> 15
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures
described in the within-mentioned Supplemental Indenture.
[ ],
as Trustee
----------------------------
or as Authentication Agent
By:
------------------------- -------------------------------
Authorized Signatory Authorized Signatory
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<PAGE> 16
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of , 1998 duly executed and
delivered between the Company and Wilmington Trust Company, a Delaware banking
association, as Trustee (herein referred to as the "Trustee"), as supplemented
by the [ ] Supplemental Indenture dated as of [ ], 199[ ] between the Company
and the Trustee (said Indenture as so supplemented being hereinafter referred to
as the "Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures, and, to the extent specifically set forth in the
Indenture, the holders of Senior Indebtedness and Preferred Securities. By the
terms of the Indenture, the Debentures are issuable in series which may vary as
to amount, date of maturity, rate of interest and in other respects as in the
Indenture provided. This series of Debentures is designated the [ ]%
Subordinated Deferrable Interest Debentures due 20[ ] and is limited in
aggregate principal amount as specified in said [ ] Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may
not be redeemed by the Company prior to [ ], 20[ ]. The Company shall have the
right to redeem this Debenture at the option of the Company, in whole or in
part, at any time on or after [ ], 20[ ] (an "Optional Redemption"), at a
redemption price equal to 100% of the principal amount to be redeemed [plus the
Make-Whole Premium, if any] plus any accrued but unpaid interest thereon
(including any Compounded Interest, if any), to the date of such redemption (the
"Optional Redemption Price"). [The Make-Whole Premium means the excess, if any
of (i) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on a
semi-annual basis at the Treasury Rate plus 20 basis points over (ii) 100% of
the principal amount of Securities to be redeemed.] Any redemption pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice to the holder of the Securities, at the Redemption Price. The Redemption
Price shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines and specifies in
the notice of redemption; provided, that, the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New York
time, on the date such Redemption Price is to be paid. If a partial redemption
of the Securities would result in the delisting of the Preferred Securities
issued by the Trust from any national securities exchange or other organization
on which the Preferred Securities are listed, the Company shall not be permitted
to effect such partial redemption and may only redeem the Securities in whole.
The Company may not redeem fewer than all of the Outstanding Securities unless
all accrued and unpaid interest (including Additional Payments) on the
Securities has been paid as of the Interest Payment Date next preceding the
Redemption Date.
If, at any time, a Tax Event (as defined below) shall occur or
be continuing after receipt of a Dissolution Tax Opinion (as defined below) and
(i) the Regular Trustees and the
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<PAGE> 17
Company shall have received an opinion (a "Redemption Tax Opinion") of a
nationally recognized independent tax counsel experienced in such matters that,
as a result of a Tax Event, there is more than an insubstantial risk that the
Company would be precluded from deducting the interest on the Series [ ]%
Debentures for United States federal income tax purposes even if the
Series [ ]% Debentures were distributed to the holders of Preferred Securities
and Common Securities in liquidation of such holder's interest in Nationwide
Capital Trust II as set forth in the Declaration of Trust or (ii) the Regular
Trustees shall have been informed by such tax counsel that a No Recognition
Opinion (as defined below) cannot be delivered to Nationwide Capital Trust II,
the Company shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Series [ ]% Debentures in whole or in
part for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees on behalf of Nationwide Capital
Trust II, the opportunity to eliminate, within such 90 day period, the Tax Event
by taking some ministerial action ("Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure, which
has no adverse effect on Nationwide Capital Trust II, the Company or the holders
of the Preferred Securities, the Company or the Regular Trustees on behalf of
Nationwide Capital Trust II will pursue such measure in lieu of redemption and
provided further that the Company shall have no right to redeem the
Series [ ]% Debentures while the Regular Trustees on behalf of Nationwide
Capital Trust II are pursuing any such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees
shall have obtained an opinion of nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after [ ], 19[ ], as a result of (a) any amendment to, or change (including
any announced prospective change; provided that a Tax Event shall not occur more
than 90 days before the effective date of any such prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment to, or
change in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after [ ], 19[ ], there is more than an insubstantial risk that (i)
Nationwide Capital Trust II is, or will be, subject to United States federal
income tax with respect to income accrued or received on the Series [ ]%
Debentures, (ii) Nationwide Capital Trust II is, or will be, subject to more
than a de minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by the Company to Nationwide Capital Trust II on the Series [
]% Debentures is not, or will not be, deductible by the Company for United
States federal income tax purposes.
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<PAGE> 18
"No Recognition Opinion" means an opinion of a nationally
recognized independent tax counsel experienced in such matters, which opinion
may rely on any then applicable published revenue ruling of the Internal Revenue
Service, to the effect that the holders of the Preferred Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of a dissolution of Nationwide Capital Trust II and distribution of the
Series [ ]% Debentures as provided in the Declaration of Trust.
If the Debentures are only partially redeemed by the Company
pursuant to an Optional Redemption or as a result of a Tax Event as described
above, the Debentures will be redeemed pro rata or by lot or in some other
equitable manner determined by the Trustee. Notwithstanding the foregoing, if a
partial redemption of the Series [ ]% Debentures would result in the delisting
of the Preferred Securities by any national securities exchange or other
organization on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and will only redeem
the Series [ ]% Debentures in whole.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture (and, in the case of any series of
Debentures held as trust assets of a Nationwide Capital Trust and with respect
to which a Security Exchange has not theretofore occurred, such consent of
holders of the Preferred Securities and the Common Securities of such Nationwide
Capital Trust as may be required under the Declaration of Trust of such
Nationwide Capital Trust), to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Debentures; provided, however, that
no such supplemental indenture shall (i) extend the fixed maturity of any
Debentures of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder of each
Debenture so affected or (ii) reduce the aforesaid percentage of Debentures, the
holders of which are required to consent to any such supplemental indenture,
without the consent
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<PAGE> 19
of the holders of each Debenture (and, in the case of any series of Debentures
held as trust assets of a Nationwide Capital Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of the holders of
the Preferred Securities and the Common Securities of such Nationwide Capital
Trust as may be required under the Declaration of Trust of such Nationwide
Capital Trust) then outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Debentures of a series at the time outstanding affected thereby
(subject, in the case of any series of Debentures held as trust assets of a
Nationwide Capital Trust and with respect to which a Securities Exchange has not
theretofore occurred, to such consent of holders of Preferred Securities and
Common Securities of such Nationwide Capital Trust as may be required under the
Declaration of Trust of such Nationwide Capital Trust), on behalf of the Holders
of the Debentures of such series, to waive any past default in the performance
of any of the covenants contained in the Indenture, or established pursuant to
the Indenture with respect to such series, and its consequences, except a
default in the payment of the principal of or premium, if any, or interest on
any of the Debentures of such series. Any such consent or waiver by the
registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Debenture and of any Debenture issued in exchange
herefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Debenture.
Subject to Section 13.4 of the Indenture, no reference herein
to the Indenture (other than such Section) and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place at the rate and in the money
herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right, at any time during
the term of the Debentures, from time to time to extend the interest payment
period of such Debentures for up to [20 consecutive quarterly][10 consecutive
semi-annual] interest periods (the "Extended Interest Payment Period"), at the
end of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate of [ ]% per annum to the extent
permitted by applicable law, compounded quarterly ("Compounded Interest")). At
the end of the Extended Interest Payment Period the Company shall pay all
interest accrued and unpaid on the Series [ ]% Debentures including any
Compounded Interest which shall be payable to the holders of the Series [ ]%
Debentures in whose names the Series [ ]% Debentures are registered in the
Debenture register on the first record date after the end of the Extended
Interest Payment Period. Prior to the termination of any such Extended Interest
Payment Period, the Company may further extend such Extended Interest Payment
Period, provided that such Period together with all such further extensions
thereof shall not exceed [20 consecutive quarterly][10 consecutive semi-annual]
interest periods. At the termination of any such Extended Interest Payment
Period and upon the payment of all accrued and unpaid interest then due,
together with Compounded Interest, the
-17-
<PAGE> 20
Company may select a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest on this Debenture shall be due and payable
during an Extended Interest Payment Period, except at the end thereof.
The Company covenants that the Company (a) shall not declare
or pay dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital stock
(other than stock dividends paid by the Company which consist of stock of the
same class as that on which the dividend is being paid), (b) shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to the Securities, and (c) shall not make any guarantee payments with
respect to the foregoing (other than pursuant to the Guarantee), in each case if
at such time (i) there shall have occurred any event that with the giving of
notice or the lapse of time or both, would constitute an Event of Default
hereunder, (ii) the Company shall be in default with respect to its payment of
any obligations under the Guarantee or (iii) the Company shall have given notice
of its selection of an Extended Interest Payment Period as provided herein and
such period, or any extension thereof, shall be continuing.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
holder hereof on the Debenture register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Company in
the Borough of Manhattan, The City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Debenture Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or
-18-
<PAGE> 21
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
[If certificated Debentures -- The Debentures of this series
are issuable only in registered form without coupons in denominations of $[ ]
and any integral multiple thereto.] [If Global Debenture -- This Global
Debenture is exchangeable for Debentures in definitive form under certain
limited circumstances set forth in the Indenture. Debentures of this series so
issued are issuable only in registered form without coupons in denominations of
$[ ] or any integral multiple thereof.] As provided in the Indenture and subject
to certain limitations [If Global Debenture -- herein and] therein set forth,
Debentures of this series [If Global Debenture -- so issued] are exchangeable
for a like aggregate principal amount of Debentures of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE VI
Original Issue of Series [ ]% Debentures
SECTION 6.01. Except as provided in Section 1.01 and this
Section 6.01, Series [ ]% Debentures in the aggregate principal amount equal to
$[ ] may, upon execution of this [ ] Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its President, or any Vice President and
its Treasurer or an Assistant Treasurer, without any further action by the
Company. Upon exercise of the overallotment option set forth in the Underwriting
Agreement, additional Series [ ]% Debentures in the aggregate principal amount
of up to $[ ] may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Series [ ]% Debentures executed as aforesaid by the Company, to or upon the
written order of the Company, which order shall be accompanied by evidence
satisfactory to the Trustee that the overallotment option has been exercised.
ARTICLE VII
Miscellaneous Provisions
SECTION 7.01. Except as otherwise expressly provided in this [
] Supplemental Indenture or in the form of Series [ ]% Debenture or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Series [ ]% Debenture that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
-19-
<PAGE> 22
[SECTION 7.02. The Indenture, as supplemented by this [ ]
Supplemental Indenture, is in all respects ratified and confirmed; provided that
the words ", may after a period of 30 days has elapsed from such holder's
written request to the Property Trustee to enforce such rights," in the ninth
and tenth lines of Section 13.12 of the Indenture shall not be applicable to the
Series [ ]% Debentures. This [ ] Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and therein provided.]
SECTION 7.03. The recitals herein contained are made by the
Company and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the validity
or sufficiency of this [ ] Supplemental Indenture.
SECTION 7.04. This [ ] Supplemental Indenture may be executed
in any number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this [ ]
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
NATIONWIDE FINANCIAL SERVICES, INC.
By
---------------------------------
Name:
Title:
Attest:
- ----------------------------
Name:
Title:
-20-
<PAGE> 23
WILMINGTON TRUST COMPANY
as Trustee
By
---------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
- ----------------------------
Name:
Title:
-21-
<PAGE> 24
STATE OF DELAWARE )
) ss.:
COUNTY OF ) _______ __, 199_
On the ______ day of _______, in the year one thousand nine
hundred ninety-____, before me personally came[ ] to me known, who, being by me
duly sworn, did depose and say that he resides at [ ]; that he
is [Senior Vice President and Treasurer] of NATIONWIDE FINANCIAL SERVICES, INC.,
one of the corporations described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal affixed to
the said instrument is such corporation seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
----------------------------
NOTARY PUBLIC
My Commission Expires
STATE OF DELAWARE )
) ss.:
COUNTY OF ) _______ __, 199_
On the ______ day of _______, in the year one thousand nine
hundred ninety-____, before me personally came [ ] to me known, who,
being by me duly sworn, did depose and say that he resides at [ ]
that he is a [Vice President] of [ ], one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation and that he signed his name thereto by like
authority.
-------------------------------
NOTARY PUBLIC
My Commission Expires
-22-
<PAGE> 1
Exhibit 4.9
CERTIFICATE OF TRUST OF
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
THIS CERTIFICATE OF TRUST of Nationwide Financial Services Capital
Trust II (the "Trust"), dated as of May 7, 1998, is being duly executed and
filed by the undersigned, as trustees, to form a business trust under the
Delaware Business Trust Act (12 DEL. C. ss. 3801, et seq.).
(i) Name. The name of the business trust being formed hereby is
Nationwide Financial Services Capital Trust II.
(ii) Delaware Trustee. The name and business address of the Trustee
of the Trust with a principal place of business in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, DE 19890-0001, Attn: Corporate Trust Administration.
(iii) Counterparts. This Certificate of Trust may be executed in one
or more counterparts, all of which together shall constitute one and the same
instrument.
(iv) Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Emmett R. Harmon
------------------------------
Name: Emmett R. Harmon
Title: Vice President
/s/ David A. Diamond
----------------------------------
David A. Diamond,
as Trustee
<PAGE> 1
Exhibit 4.10
DECLARATION OF TRUST
This DECLARATION OF TRUST, dated as of May 7, 1998 (this
"Declaration"), among Nationwide Financial Services, Inc., a Delaware
corporation, as "Sponsor," Wilmington Trust Company, a Delaware banking
corporation, and David A. Diamond, as Trustee (the "Trustees"). The Sponsor and
the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Nationwide Financial
Services Capital Trust II," in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 DEL. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement (including the prospectus,
prospectus supplements and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12(b) or
12(g) of the Securities Exchange Act of 1934, as amended, including any
amendments thereto; (ii) to file with the New
<PAGE> 2
York Stock Exchange or any other national stock exchange or The Nasdaq National
Market (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on any of the Exchanges; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or blue sky laws of such jurisdictions
as the Sponsor, on behalf of the Trust, may deem necessary or desirable and (iv)
to negotiate the terms of and to execute, deliver and perform on behalf of the
Trust that certain Underwriting Agreement relating to the Preferred Securities
among the Trust, the Sponsor and the several Underwriters named therein,
substantially in the form included as an exhibit to the 1933 Act Registration
Statement. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on behalf of the
Trust by any of the Trustees, David A. Diamond, in his capacity as Trustee of
the Trust, is hereby authorized and directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing. In connection with
all of the foregoing, the Sponsor hereby constitutes and appoints Joseph J.
Gasper, W. Sidney Druen and Mark B. Koogler, and each of them, as its true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Sponsor or in the Sponsor's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Sponsor might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their respective substitute or substitutes, shall do or cause to be done by
virtue hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
Any Trustee may resign upon thirty (30) days' prior notice to the Sponsor.
7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
-2-
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
to be duly executed as of the day and year first above written.
NATIONWIDE FINANCIAL SERVICES, INC.,
as Sponsor
By: /s/ Mark B. Koogler
-----------------------------
Name: Mark B. Koogler
Title: Counsel
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Trustee
By: /s/ Emmett R. Harmon
-----------------------------
Name: Emmett R. Harmon
Title: Vice President
/s/ David A. Diamond
---------------------------------
David A. Diamond, not in his individual capacity
but solely as Trustee
-3-
<PAGE> 1
EXHIBIT 4.11
- --------------------------------------------------------------------------------
Form of
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
Dated as of ____________ __, _____
- --------------------------------------------------------------------------------
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
Interpretation and Definitions
<S> <C>
SECTION 1.01 Definitions................................................................................1
ARTICLE II
Trust Indenture Act
SECTION 2.01 Trust Indenture Acts; Application..........................................................7
SECTION 2.02 Lists of Holders of Securities.............................................................7
SECTION 2.03 Reports by the Property Trustee............................................................7
SECTION 2.04 Periodic Reports to Property Trustee.......................................................8
SECTION 2.05 Evidence of Compliance with Conditions Precedent...........................................8
SECTION 2.06 Events of Default; Waiver..................................................................8
SECTION 2.07 Event of Default; Notice...................................................................9
ARTICLE III
Organization
SECTION 3.01 Name......................................................................................10
SECTION 3.02 Office....................................................................................10
SECTION 3.03 Declaration...............................................................................10
SECTION 3.04 Authority.................................................................................10
SECTION 3.05 Title to Property of the Trust............................................................11
SECTION 3.06 Powers and Duties of the Regular Trustees.................................................11
SECTION 3.07 Prohibition of Actions by the Trust and the Trustees......................................13
SECTION 3.08 Powers and Duties of the Property Trustee.................................................14
SECTION 3.09 Certain Duties and Responsibilities of the Property Trustee...............................16
SECTION 3.10 Certain Rights of Property Trustee........................................................17
SECTION 3.11 Delaware Trustee..........................................................................19
SECTION 3.12 Execution of Documents....................................................................20
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities....................................20
SECTION 3.14 Duration of Trust.........................................................................20
SECTION 3.15 Mergers...................................................................................20
</TABLE>
B-i
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE IV
Sponsor
<S> <C>
SECTION 4.01 Sponsor's Purchase of Common Securities...................................................22
SECTION 4.02 Responsibilities of the Sponsor...........................................................22
SECTION 4.03 Guarantee of Payment of Trust Obligations.................................................22
ARTICLE V
Trustees
SECTION 5.01 Number of Trustees........................................................................23
SECTION 5.02 Delaware Trustee..........................................................................23
SECTION 5.03 Property Trustee; Eligibility.............................................................23
SECTION 5.04 Qualifications of Regular Trustees and Delaware Trustee Generally.........................24
SECTION 5.05 Initial Trustees..........................................................................24
SECTION 5.06 Appointment, Removal and Resignation of Trustees..........................................25
SECTION 5.07 Vacancies Among Trustees..................................................................26
SECTION 5.08 Effect of Vacancies.......................................................................26
SECTION 5.09 Meetings..................................................................................26
SECTION 5.10 Delegation of Power.......................................................................27
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business...............................27
ARTICLE VI
Distributions
SECTION 6.01 Distributions.............................................................................27
ARTICLE VII
Issuance of Securities
SECTION 7.01 General Provisions Regarding Securities...................................................28
SECTION 7.02 Execution and Authentication..............................................................28
SECTION 7.03 Book-Entry Preferred Securities Certificates; Definitive Preferred
Securities Certificates; Common Securities Certificate....................................29
SECTION 7.04 Registrar and Paying Agent................................................................30
SECTION 7.05 Paying Agent to Hold Money in Trust.......................................................31
SECTION 7.06 Replacement Securities. .................................................................31
SECTION 7.07 Outstanding Preferred Securities..........................................................31
SECTION 7.08 Preferred Securities in Treasury..........................................................32
SECTION 7.09 Temporary Securities......................................................................32
SECTION 7.10 Cancellation..............................................................................33
</TABLE>
B-ii
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE VIII
Termination of Trust
<S> <C>
SECTION 8.01 Termination of Trust......................................................................33
ARTICLE IX
Exchange
SECTION 9.01 General...................................................................................34
SECTION 9.02 Deemed Security Holders...................................................................34
ARTICLE X
Limitation of Liability of Holders of Securities, Trustees or Others
SECTION 10.01 Liability................................................................................35
SECTION 10.02 Exculpation..............................................................................35
SECTION 10.03 Fiduciary Duty...........................................................................35
SECTION 10.04 Indemnification..........................................................................36
SECTION 10.05 Outside Businesses.......................................................................37
ARTICLE XI
Accounting
SECTION 11.01 Fiscal Year..............................................................................37
SECTION 11.02 Certain Accounting Matters...............................................................37
SECTION 11.03 Banking..................................................................................38
SECTION 11.04 Withholding..............................................................................38
ARTICLE XII
Amendments and Meetings
SECTION 12.01 Amendments...............................................................................39
SECTION 12.02 Meetings of the Holders of Securities; Action by Written Consent.........................40
ARTICLE XIII
Representations of Delaware and Property Trustee
SECTION 13.01 Representations and Warranties of Delaware Trustee.......................................42
</TABLE>
B-iii
<PAGE> 5
<TABLE>
<CAPTION>
ARTICLE XIV
Miscellaneous
<S> <C>
SECTION 14.01 Notices..................................................................................43
SECTION 14.02 Governing Law............................................................................44
SECTION 14.03 Intention of the Parties.................................................................44
SECTION 14.04 Headings.................................................................................45
SECTION 14.05 Successors and Assigns...................................................................45
SECTION 14.06 Partial Enforceability...................................................................45
SECTION 14.07 Counterparts.............................................................................45
ANNEX I Terms of __% Preferred Securities and __% Common Securities
Exhibit A Form of Preferred Security
Exhibit B Form of Common Security
</TABLE>
B-iv
<PAGE> 6
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<S> <C>
310(a)..............................................................................................5.3(a)
310(c)........................................................................................Inapplicable
311(c)........................................................................................Inapplicable
312(a)..............................................................................................2.2(a)
312(b)..............................................................................................2.2(b)
313....................................................................................................2.3
314(a).................................................................................................2.4
314(b)........................................................................................Inapplicable
314(c).................................................................................................2.5
314(d)........................................................................................Inapplicable
314(f)........................................................................................Inapplicable
315(a)..............................................................................................3.9(b)
315(c)..............................................................................................3.9(a)
315(d)..............................................................................................3.9(a)
316(a).............................................................................................Annex I
316(c)..............................................................................................3.6(e)
</TABLE>
- ----------------
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
B-v
<PAGE> 7
AMENDED AND RESTATED DECLARATION OF TRUST
OF
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
_____________ __, 1998
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of __________ __, 1998, by the undersigned trustees
(together with all other persons from time to time duly appointed and serving as
trustees in accordance with the provisions of this Declaration, the "Trustees"),
Nationwide Financial Services, Inc., a Delaware corporation, as trust sponsor
(the "Sponsor"), and by the holders, from time to time, of the securities
representing the undivided beneficial interests in the assets of the Trust
issued pursuant to the Declaration;
WHEREAS, the Trustees and the Sponsor established a trust (the
"Trust") under the Delaware Business Trust Act (as hereinafter defined) pursuant
to a Declaration of Trust dated as of May 7, 1998 (the "Original Declaration"),
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on May 8, 1998, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain Debentures of the Debenture
Issuer (as hereinafter defined); and
WHEREAS, as of the date hereof, no interests in the Trust have
been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the Original
Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing the undivided beneficial interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
------------------------------
SECTION 1.01 DEFINITIONS. Unless the context otherwise
requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.01;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
<PAGE> 8
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning as when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"AFFILIATE" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"AGENT" means any registrar, Paying Agent or co-registrar.
"AUTHORIZED OFFICER" of a Person means any Person that is
authorized to bind such Person.
"BENEFICIARIES" has the meaning set forth in Section 4.03(a).
"BOOK ENTRY INTEREST" means a beneficial interest in a Global
Certificate, ownership and transfers of which all be maintained and made through
book entries by a Depositary as described in Section 7.03.
"BUSINESS DAY" means any day other than a day on which banking
institutions in New York, New York or Wilmington, Delaware are authorized or
required by law or regulation to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 ET SEQ., as it may be amended from time
to time.
"CERTIFICATE" means a certificate in global or definitive form
representing a Common Security or a Preferred Security.
"CERTIFICATE DEPOSITARY AGREEMENT" means the Agreement among
the Trust, the Depositary and the Sponsor as the same may be amended from time
to time.
"CLOSING DATE" means the First Closing Date as defined in the
Underwriting Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission.
2
<PAGE> 9
"COMMON SECURITY" means an undivided beneficial interest in
the assets of the Trust, having a liquidation amount of $ and having the rights
provided therefor in this Declaration, including the right to receive
Distributions as provided herein.
"COVERED PERSON" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"DEBENTURE ISSUER" means Nationwide Financial Services, Inc.,
as issuer of the Debentures.
"DEBENTURE TRUSTEE" means Wilmington Trust Company, as trustee
under the Indenture until a successor is appointed thereunder, and thereafter
means such successor trustee.
"DEBENTURES" means the series of Subordinated Deferrable
Interest Debentures due __________to be issued by the Debenture Issuer under the
Indenture to be held by the Property Trustee.
"DELAWARE TRUSTEE" has the meaning set forth in Section 5.02.
"DEFINITIVE PREFERRED SECURITIES" means the Preferred
Securities in definitive form issued by the Trust, a specimen certificate for
such preferred securities being attached hereto as Exhibit A.
"DEPOSITARY" means The Depository Trust Company, the initial
clearing agency.
"DISTRIBUTION" means a distribution payable to Holders of
Securities in accordance with Section 6.01.
"EVENT OF DEFAULT" in respect of the Securities means an Event
of Default (as defined in the Indenture) in respect of the Debentures or a
default by the Sponsor under the Preferred Securities Guarantee has occurred and
is continuing.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"GLOBAL CERTIFICATE" has the meaning set forth in Section
7.03(a).
"HOLDER" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"INDEMNIFIED PERSON" means (a) any Trustee; (b) any Affiliate
of any Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee or (d) any employee or agent
of the Trust or its Affiliates.
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"INDENTURE" means the Subordinated Indenture dated as of
_______ __, 1998, between the Debenture Issuer and Debenture Trustee, and any
indenture supplemental thereto pursuant to which the Debentures are to be
issued.
"INVESTMENT COMPANY" means an investment company as defined in
the Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"LEGAL ACTION" has the meaning set forth in Section 3.06(g).
"LIST OF HOLDERS" has the meaning set forth in Section
2.02(a).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES" means,
except as provided in the terms of the Preferred Securities and by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"OBLIGATIONS" means any costs, expenses or liabilities of the
Trust, other than obligations of the Trust to pay to Holders of any Securities
or other similar interests in the Trust the amounts due such Holders pursuant to
the terms of the Securities or such other similar interests, as the case may be.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate
has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each
officer in rendering the Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been
complied with.
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"PARTICIPANT" means a member of, or participant in, the
Depositary.
"PAYING AGENT" has the meaning specified in Section 7.04.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"PREFERRED SECURITIES" means a preferred security issued by
the Trust, constituting an undivided beneficial interest in the assets of the
Trust, having rights provided therefor in this Declaration, including the right
to Distributions as provided herein. The specific designation of the Preferred
Securities issued by the Trust will be determined by the Regular Trustees, as
set forth in Section 3.06.
"PREFERRED SECURITIES GUARANTEE" means the guarantee agreement
to be dated as of __________ __, 1998, of the Sponsor in respect to the
Preferred Securities.
"PREFERRED SECURITY BENEFICIAL OWNER" means, with respect to a
Book Entry interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Participant or
as an indirect participant, in each case in accordance with the rules of such
Depositary).
"PROPERTY TRUSTEE" means the Trustee meeting the eligibility
requirements set forth in Section 5.03.
"PROPERTY TRUSTEE ACCOUNT" has the meaning set forth in
Section 3.08(c).
"PROSPECTUS" has the meaning set forth in Section 3.06(b)(i).
"QUORUM" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"REGISTRAR" has the meaning set forth in Section 7.04.
"REGISTRATION STATEMENT" has the meaning set forth in Section
3.06(b)(i).
"REGULAR TRUSTEE" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"RESPONSIBLE OFFICER" means, with respect to the Property
Trustee, any vice-president, any assistant vice-president, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer in Corporate Trust Administration of the Property Trustee customarily
performing functions similar to those performed by any of the above
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designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"SECURITIES" means the Common Securities and the Preferred
Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SPONSOR" means Nationwide Financial Services, Inc., a
Delaware corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
"SUPER MAJORITY" has the meaning set forth in Section
2.06(a)(ii).
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
provided in the terms to the Preferred Securities or by the Trust Indenture Act,
Holders of outstanding Securities voting together as a single class or, as the
context any require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, representing 10% of
the aggregate liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"TREASURY REGULATION" means the income tax regulation,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions to succeeding regulations).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended from time to time.
"TRUST PROPERTY" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Property Trustee Account and (c) all proceeds and
rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to the
trusts of this Declaration.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving an Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement,
dated _______, 1998, among the Sponsor, the Trust and [ ], as
representatives of the several underwriters named in Schedule A attached
thereto.
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ARTICLE II
TRUST INDENTURE ACT
-------------------
SECTION 2.01 TRUST INDENTURE ACTS; APPLICATION. (a) This
Declaration is subject to the provisions of the Trust Indenture Act that are
required to be part of this Declaration, which are incorporated by reference in
and made part of this Declaration and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purpose of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by
Sections 310 to 377, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.02 LISTS OF HOLDERS OF SECURITIES. (a) Each of the
Sponsor and the Regular Trustees on behalf of the Trust shall provide the
Property Trustee (i) within 14 days after each record date for payment of
Distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the Securities ("List of
Holders") as of such record date; PROVIDED THAT neither the Sponsor nor the
Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust, and (ii) a List of Holders at any other time,
within 30 days of receipt by the Regular Trustees on behalf of the Trust of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Property Trustee. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
its capacity as Paying Agent (if acting in such capacity); provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 311(a), 312(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03 REPORTS BY THE PROPERTY TRUSTEE. Within 60 days
after May 15 of each year, the Property Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
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SECTION 2.04 PERIODIC REPORTS TO PROPERTY TRUSTEE. Each of the
Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER. (a) The Holders of a
Majority in liquidation preference of Preferred Securities may, by vote, on
behalf of the Holders of all of the Preferred Securities, waive any past Event
of Default in respect of the Preferred Securities and its consequences; PROVIDED
THAT, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under
the Declaration may only be waived by the vote of the Holders of at
least the proportion in liquidation amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Declaration, but
no such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of an Event of
Default with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Event of
Default with respect to the Common Securities for all purpose of this
Declaration without any further act, vote, or consent of the Holders of the
Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences; PROVIDED THAT, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived such
Event of Default under the
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Declaration as provided below in this Section 2.06(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration as provided
below in this Section 2.06(b), the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation preference of the Common Securities that
the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
PROVIDED, FURTHER, each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until the effects of all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
in accordance with the terms of the Securities. Subject to the foregoing
provisions of this Section 2.06(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.06(c) shall be in lieu
of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.07 EVENT OF DEFAULT; NOTICE. (a) The Property
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Securities,
notices of all defaults with respect to the Securities actually known to the
Property Trustee, unless such defaults have been cured before the giving of such
notice (the term "defaults" for the purposes of this Section 2.07(a) being
hereby defined to be an Event of Default as defined in the Indenture not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); PROVIDED THAT, except for a default in
the payment of principal of (or premium, if any) or interest on any of the
Debentures or in the payment of any sinking fund installment established for the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Property Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Securities.
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(b) The Property Trustee shall not be deemed to have knowledge
of any default unless a Responsible Officer has actual knowledge of or has
received written notice of such default.
ARTICLE III
ORGANIZATION
------------
SECTION 3.01 NAME. The Trust is named Nationwide Financial
Services Capital Trust II, as such name may be modified from time to time by the
Regular Trustees following written notice to the Holders of Securities. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 3.02 OFFICE. The address of the principal office of
the Trust is c/o Nationwide Financial Services, Inc., One Nationwide Plaza,
Columbus, Ohio 43215, Attention: Chief Financial Officer. On ten Business Days
written notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.03 DECLARATION. (a) The exclusive purposes and
functions of the Trust are (i) to issue and sell Securities and use the gross
proceeds from such sale to acquire the Debentures, (ii) to maintain the status
of the Trust as a grantor trust for United States federal income tax purposes,
and (iii) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest profits derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States Federal income tax
purposes as a grantor trust.
(b) The Trust will be classified as a grantor trust for United
States federal income tax purposes under Subpart E of Subchapter J of the Code,
pursuant to which the Holders of the Preferred Securities and the Common
Securities will be the owners of the Trust for United States federal income tax
purposes, and such Holders will include directly in their gross income the
income, gain, deduction or loss of the Trust as if the Trust did not exist. By
the acceptance of this Trust, neither the Trustees, the Sponsor nor the owners
of the Preferred Securities or Common Securities will take any position for
United States federal income tax purposes which is contrary to the
classification of the Trust as a grantor trust.
SECTION 3.04 AUTHORITY. Subject to the limitations provided in
this Declaration and to the specific duties of the Property Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Property Trustee in accordance with its powers shall constitute the
act of and serve to bind the Trust. In dealing with the Trustees acting on
behalf of the Trust, no person shall be required to inquire into the authority
of the Trustees to bind the Trust. Persons dealing with the Trust are entitled
to rely conclusively on the power and authority of the Trustees as set forth in
this Declaration.
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SECTION 3.05 TITLE TO PROPERTY OF THE TRUST. Except as
provided in Section 3.08 with respect to the Debentures and the Property Trustee
Account or as otherwise provided in this Declaration, legal title to all assets
of the Trust shall be vested in the Trust. The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
SECTION 3.06 POWERS AND DUTIES OF THE REGULAR TRUSTEES. The
Regular Trustees shall have the exclusive power, duty and authority to act on
behalf of the Trust with respect to the following activities:
(a) determining the specific designation of the Preferred
Securities issued by the Trust and issuing and selling the Preferred Securities
and Common Securities in accordance with this Declaration; PROVIDED, HOWEVER,
that the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities; and PROVIDED, FURTHER, that there
shall be no interests in the Trust other than the Securities, and the issuance
of Securities shall be limited to simultaneous issuances of both Preferred
Securities and Common Securities on the Closing Date;
(b) in connection with the issuance and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) assist in the preparation of a prospectus (the
"Prospectus") in preliminary and final form prepared by the Sponsor, in
relation to the offering and sale of Preferred Securities and to
execute and file with the Commission, a registration statement filed on
Form S-3 prepared by the Sponsor, including any amendments thereto in
relation to the Preferred Securities (including any registration
statement filed pursuant to Rule 462) (the "Registration Statement");
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary
in order to qualify or register all or part of the Preferred Securities
in any State or foreign jurisdiction in which the Sponsor has
determined to qualify or register such Preferred Securities for sale
and to qualify this Declaration under the Trust Indenture Act;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange for listing or quotation of the Preferred Securities;
(iv) execute and deliver letters, documents, or
instruments with the Depositary relating to the Preferred Securities;
(v) execute and file with the Commission, at such time
as determined by the Sponsor, a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor relating to
the registration of the Preferred Securities under Section 12 of the
Exchange Act; and
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(vi) execute and enter into the Underwriting Agreement
and other related agreements providing for the sale of the Preferred
Securities and consummate the transactions contemplated thereby;
(c) acquiring the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; PROVIDED, HOWEVER, that the
Regular Trustees shall cause title to the Debentures to be held of record in the
name of the Property Trustee for the benefit of the Holders of the Preferred
Securities and the Holders of the Common Securities;
(d) giving the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Tax Event; PROVIDED, THAT the Regular Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any Ministerial Action in relation to a Tax Event;
(e) establishing a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) taking all action, and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the Securities (set
forth in Annex I hereto and made a part hereof);
(g) bringing or defending, paying, collecting, compromising,
arbitrating, resorting to legal action, or otherwise adjusting claims or demands
of or against the Trust ("Legal Action"), unless pursuant to Section 3.08(e),
the Property Trustee has the exclusive power to bring such Legal Action;
(h) employing or otherwise engaging employees and agents (as
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) causing the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) giving the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(k) incurring expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) acting as, or appoint another Person to act as, Registrar
and transfer agent for the Securities;
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(m) giving prompt written notice to the Holders of the
Securities of any notice received from the Sponsor of its election to defer
payments of interest on the Debentures by extending the interest payment period
under the Indenture;
(n) to the extent provided in this Declaration, terminating,
dissolving and liquidating the Trust and preparing, executing and filing the
certificate of cancellation with the Secretary of State of the State of
Delaware;
(o) taking all action that may be necessary or appropriate for
the preservation and the confirmation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the trust to effect the purposes for which the Trust was
created;
(p) taking any action, not inconsistent with this Declaration
or with applicable law, that the Regular Trustees determine in their discretion
to be necessary or desirable in carrying out the activities of the Trust as set
out in this Section 3.06, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the
Debentures will be treated as indebtedness of the Sponsor for United
States federal income tax purposes; PROVIDED THAT such action does not
adversely affect the interests of Holders; and
(q) taking all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust; and
(r) executing all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in
this Section 3.06 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.03, and the Regular Trustees shall not take
any action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.03.
Subject to this Section 3.06, the Regular Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.08.
SECTION 3.07 PROHIBITION OF ACTIONS BY THE TRUST AND THE
TRUSTEES. (a) The Trust shall not, and the Trustees (including the Property
Trustee) shall not, engage in any activity
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other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees (including the Property Trustee) shall cause
the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this Declaration and of
the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust other
than the Securities; or
(vii) other than as provided in this Declaration or Annex
I hereto, (A) direct the time, method and place of exercising any trust
or power conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is not waivable under
Section 5.13 of the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the Debentures shall be
due and payable, or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent shall
be required unless the Trust shall have received an opinion of counsel
to the effect that such amendment, modification or termination will not
cause more than an insubstantial risk that for United States federal
income tax purposes the Trust will not be classified as a grantor
trust.
SECTION 3.08 POWERS AND DUTIES OF THE PROPERTY TRUSTEE. (a)
The legal title to the Debentures shall be owned by and held of record in the
name of the Property Trustee in trust for the benefit of the Holders of the
Securities. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.06. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
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(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of
and under the exclusive control of the Property Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trust Account and make payments to
the Holders of the Preferred Securities and Holders of the Common
Securities from the Property Trustee Account in accordance with Section
6.01. Funds in the Property Trustee Account shall be held uninvested
until disbursed in accordance with this Declaration.
(ii) engage in such unilateral activities as so directed
and as shall be necessary or appropriate to effect the redemption of
the Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities, engage
in such ministerial activities as so directed as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Securities pursuant to the terms of the Securities.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of the Securities (set forth in Annex I hereto and made a part
hereof).
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 5.06.
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
(h) The Property Trustee will act as initial paying agent and
registrar to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all securities and as such, shall comply
with Section 317(b) of the Trust Indenture Act. Any Paying Agent (as defined in
Section 7.04) may be removed by the Property Trustee at any time and a
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successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.08, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.06.
The Property Trustee must exercise the powers set forth in
this Section 3.08 in a manner that is consistent with the purpose and functions
of the Trust set out in Section 3.03, and the Property Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.03.
SECTION 3.09 CERTAIN DUTIES AND RESPONSIBILITIES OF THE
PROPERTY TRUSTEE. (a) The Property Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that any have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.06), the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(ii) (A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration; but in
the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Declaration;
(C) the Property Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Property Trustee, unless it shall be
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proved that the Property Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Declaration or adequate indemnity against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or sufficiency
of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee pursuant to
Section 3.06(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the Regular Trustees
or the Sponsor.
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE. (a) Subject
to the provisions of Section 3.09:
(i) the Property Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
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indebtedness or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have provided to the Property Trustee adequate security and indemnity,
which would satisfy a reasonable person in the position of the Property
Trustee, against the costs, expenses (including its attorneys' fees and
expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested in writing by the Property Trustee provided, that,
nothing contained in this Section 3.10(a)(vi) shall be taken to relieve
the Property Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, security, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
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(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any such action and
no third party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request instructions from
the Holders of the Securities which instructions may only be given by
the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Property Trustee under
the terms of the Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy, right or taking such other
action until such instructions are received, and (iii) shall be
protected in acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration; and
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 DELAWARE TRUSTEE. Notwithstanding any other
provision of this Declaration other than Section 5.02, the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Regular Trustees or the
Property Trustee described in this Declaration. Except as set forth in Section
5.02, the Delaware Trustee shall be a Trustee for the sole and limited purpose
of fulfilling the requirements to Section 3807 of the Business Trust Act.
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SECTION 3.12 EXECUTION OF DOCUMENTS. Unless otherwise
determined by the Regular Trustees, and except as otherwise required by the
Business Trust Act, any Regular Trustee is authorized to execute on behalf of
the Trust any documents that the Regular Trustees have the power and authority
to execute pursuant to Section 3.06; PROVIDED THAT, the Registration Statement
referred to in Section 3.06(b)(i), including any amendments thereto, shall be
signed by all of the Regular Trustees.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 DURATION OF TRUST. The Trust, unless terminated
pursuant to the provisions of Article VIII hereof, shall exist until
___________, 20__.
SECTION 3.15 MERGERS. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other entity or person, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the
Regular Trustees and without the consent of the Holders of Securities or the
Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or
into or be replaced by a trust organized as such under the laws of any State or
the District of Columbia; PROVIDED THAT:
(i) if the Trust in not the surviving entity, the entity
(the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Preferred
Securities (the "Successor Securities") as long as the
Successor Securities rank, with respect to participation in
the profits and distributions or in the assets of the
Successor Entity at least as high as the Preferred Securities
rank with respect to participation in the profits and
dividends or in the assets of the Trust;
(ii) the Sponsor expressly acknowledges such Successor
Entity as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities
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exchange or with any other organization on which the Preferred
Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the powers, preferences and other
special rights of the Holders of the Preferred Securities (including
any Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel (reasonably acceptable to the Property
Trustee) to the Trust experienced in such matters to the effect that:
(A) the Successor Entity will be treated as a
grantor trust for United States federal income tax purposes;
(B) following such merger, consolidation,
amalgamation or replacement, neither the Sponsor nor the
Successor Entity will be required to register as an Investment
Company; and
(C) such merger, consolidation, amalgamation or
replacement will not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect; and
(viii) the Sponsor provides a guarantee to the Holders of
the Successor Securities with respect to the Successor Entity having
substantially the same terms as the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the Common
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
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ARTICLE IV
SPONSOR
-------
SECTION 4.01 SPONSOR'S PURCHASE OF COMMON SECURITIES. On the
Closing Date the Sponsor will purchase an amount of Common Securities issued by
the Trust such that the aggregate liquidation amount of such Common Securities
purchased by the Sponsor shall at such date equal at least 3% of the total
capital of the Trust.
SECTION 4.02 RESPONSIBILITIES OF THE SPONSOR. In connection
with the issuance and sale of the Preferred Securities, the Sponsor shall have
the exclusive right and responsibility to engage in the following activities:
(a) to prepare the Prospectus and to prepare for filing by the
Trust with the Commission the Registration Statement, including any amendments
thereto;
(b) to determine the states and foreign jurisdictions in which
to take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable law of any such States and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange for listing or
quotation of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12 of the Exchange Act, including any amendments
thereto; and
(e) to negotiate the terms of and to execute and deliver an
Underwriting Agreement and other related agreements providing for the sale of
the Preferred Securities.
SECTION 4.03 GUARANTEE OF PAYMENT OF TRUST OBLIGATIONS. (a)
Subject to the terms and conditions of this Section 4.03, the Holder of Common
Securities hereby irrevocably and unconditionally guarantees to each Person to
whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
to such Beneficiaries.
(b) The agreement of the Sponsor in Section 4.03(a) is
intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice hereof.
(c) The agreement of the Sponsor set forth in Section 4.03(a)
shall terminate and be of no further force and effect upon the later of (a) the
date on which full payment has been
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made of all amounts payable to all Holders of all the Preferred Securities
(whether upon redemption, liquidation, exchange or otherwise) and (b) the date
on which there are no Beneficiaries remaining; PROVIDED, HOWEVER, that such
agreement shall continue to be effective or shall be reinstated, as the case may
be, if at any time any Holder of Preferred Securities or any Beneficiary must
restore payment of any sums paid under the Preferred Securities, under any
Obligation, under the Preferred Securities Guarantee or under this Agreement for
any reason whatsoever. Such agreement is continuing, irrevocable, unconditional
and absolute.
ARTICLE V
TRUSTEES
--------
SECTION 5.01 NUMBER OF TRUSTEES. The number of Trustees shall
initially be four (4), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities; PROVIDED THAT, if the Property Trustee
does not also act as Delaware Trustee, the number of Trustees shall be at least
five (5).
SECTION 5.02 DELAWARE TRUSTEE. If required by the Business
Trust Act, one Trustee (the "Delaware Trustee") shall be an entity which has its
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law; PROVIDED THAT, if the Property Trustee has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.03 PROPERTY TRUSTEE; ELIGIBILITY. (a) There shall at
all times be one Trustee which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the Unites States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision
or examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of conditions at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.03(a)(ii), the combined capital
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and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition
so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.03(a), the Property Trustee shall immediately
resign in the manner and with the effect as set forth in Section 5.06(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interests" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities (as
if it were the obliger referred to in Section 310(b) of the Trust Indenture Act)
shall in all respects comply with the provisions of Section 320(b) of the Trust
Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 5.04 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE
TRUSTEE GENERALLY. Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
SECTION 5.05 INITIAL TRUSTEES. The initial Regular Trustees
shall be:
[NAME]
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
[NAME]
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
[NAME]
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
The initial Delaware Trustee shall be:
WILMINGTON TRUST COMPANY
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
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The initial Property Trustee shall be:
WILMINGTON TRUST COMPANY
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
SECTION 5.06 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.06(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities;
PROVIDED, HOWEVER, that if an Event of Default shall have occurred and
be continuing, the Property Trustee may be removed only by the vote of
Holders of a majority in liquidation amount of the Preferred Securities
voting as a class at a meeting of Holders of Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.06(a) until a successor Property Trustee
(the "Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) The Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.06(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under Sections 5.02 and 5.04 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustees
and delivered to the Regular Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; PROVIDED, HOWEVER,
that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
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(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.06.
(f) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.06 within 60 days after delivery to the Sponsor and the Trust of an
instrument of resignation or removal, the Property Trustee or Delaware Trustee
resigning or being removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.07 VACANCIES AMONG TRUSTEES. If a Trustee ceases to
hold office for any reason and the number of Trustees is not reduced pursuant to
Section 5.01, or if the number of Trustees is increased pursuant to Section
5.01, a vacancy shall occur. A resolution certifying the existence of such
vacancy by a majority of the Regular Trustees shall be conclusive evidence of
the existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 5.06.
SECTION 5.08 EFFECT OF VACANCIES. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until
such vacancy in filled by the appointment of a Regular Trustee in accordance
with Section 5.06, the Regular Trustees in office, regardless of their number,
shall have all the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.09 MEETINGS. Meetings of the Regular Trustees shall
be held from time to time upon the call of any Regular Trustee. Regular meetings
of the Regular Trustees may be held at a time and place fixed by resolution of
the Regular Trustees. Notice of any in-person meetings of the Regular Trustees
shall be hand delivered or otherwise delivered in writing
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(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees.
SECTION 5.10 DELEGATION OF POWER. (a) Any Regular Trustee may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 3.06, including any registration statement
or amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Property Trustee or
the Delaware Trustee, as the case may be, hereunder provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI
DISTRIBUTIONS.
--------------
SECTION 6.01 DISTRIBUTIONS. Holders shall receive
Distributions (as defined below) in accordance with the applicable terms of the
relevant Holder's Securities (set forth in Annex I and Exhibits A and B hereto
and incorporated herein by reference). Distributions shall be made on the
Preferred Securities and the Common Securities in accordance with the
preferences
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set forth in their respective terms. If and to the extent that the Sponsor makes
a payment of interest (including Compounded Interest (an defined in the
Indenture)), premium and principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a distribution (a "Distribution") of the Payment Amount to
Holders.
ARTICLE VII
Issuance of Securities
SECTION 7.01 GENERAL PROVISIONS REGARDING SECURITIES. (a) The
Regular Trustees shall on behalf of the Trust issue one class of Preferred
Securities, having such terms (the "Terms") as are set forth in Annex I and one
class of Common Securities, having such terms as are set forth in Annex I. The
Trust shall have no securities or other interests in the assets of the Trust
other than the Preferred Securities and the Common Securities. The Trust shall
issue no Securities in bearer form.
(b) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable, subject to Section 10.01 with respect to the
Common Securities.
(d) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
SECTION 7.02 EXECUTION AND AUTHENTICATION. (a) The Securities
shall be signed on behalf of the Trust by one Regular Trustee. In case any
Regular Trustee of the Trust who shall have signed any of the Securities shall
cease to be such Regular Trustee before the Securities so signed shall be
delivered by the Trust, such Securities nevertheless may be delivered as though
the person who signed such Securities had not ceased to be such Regular Trustee;
and any Securities may be signed on behalf of the Trust by such persons who, at
the actual date of execution of such Security, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee.
(b) One Regular Trustee shall sign the Preferred Securities
for the Trust by manual or facsimile signature. Unless otherwise determined by
the Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Preferred Security shall not be valid until authenticated by
the manual signature of an authorized officer of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Declaration.
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Upon a written order of the Trust signed by one Regular
Trustee, the Property Trustee shall authenticate the Preferred Securities for
original issuance. The aggregate number of Preferred Securities outstanding at
any time shall not exceed the number set forth in the Terms in Annex I hereto
except as provided in Section 7.06.
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Preferred Securities. An authenticating
agent may authenticate Preferred Securities whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Company or an Affiliate.
SECTION 7.03 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES;
DEFINITIVE PREFERRED SECURITIES CERTIFICATES; COMMON SECURITIES CERTIFICATE. (a)
The Preferred Securities, upon original issuance, will be issued in the form of
a typewritten Preferred Securities Certificate or Certificates representing
Book-Entry Preferred Securities Certificates ("Global Certificate"), to be
delivered to the Depositary by, or on behalf of, the Trust. Such Global
Certificate or Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Holder will receive a definitive Preferred Securities Certificate
representing such Holder's interest in such Preferred Securities, except as
provided in Section 7.03(b) below. Unless and until Definitive Preferred
Securities Certificates have been issued to Holders pursuant to Section 7.03(b):
(i) the provisions of this Section 7.03(a) shall be in
full force and effect;
(ii) the Securities Registrar, the Paying Agent and the
Trustees shall be entitled to deal with the Depositary for all purposes
of this Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of principal of and Distributions
on the Book-Entry Preferred Securities and the giving of instructions
or directions to Holders of Book-Entry Preferred Securities) and shall
have no obligations to the Holders thereof;
(iii) to the extent that the provisions of this Section
7.03(a) conflict with any other provisions of this Trust Agreement, the
provisions of this Section 7.03(a) shall control; the rights of the
Holders of the Book-Entry Preferred Securities Certificates shall be
exercised only through the Depositary and shall be limited to those
established by law and agreements between such Holders and the
Depositary and/or the Depositary Participants. Pursuant to the
Certificate Depositary Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 7.03(b), the
initial Depositary will make book-entry transfers among the Depositary
Participants and receive and transmit payments on the Preferred
Securities to such Depositary Participants; and
(iv) whenever this Declaration requires or permits
actions to be taken based upon instructions or directions of Holders of
Preferred Securities Certificates evidencing a specified percentage of the
aggregate liquidation amount of the Securities, the Depositary shall be deemed
to represent such percentage only to the extent that it has received
instructions to such
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effect from Holders and/or Participants owning or representing, respectively,
such required percentage of the beneficial interest in the applicable class of
Preferred Securities Certificates and has delivered such instructions to the
Regular Trustees.
(b) If (i) the Sponsor advises the Trustees in writing that
the Depositary is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Sponsor is unable to locate a qualified successor, (ii) the Sponsor at its
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Depositary or (iii) after the occurrence of an
Event of Default, Holders of Preferred Securities Certificates representing
beneficial interests aggregating at least a Majority in liquidation amount of
the Securities advise the Depositary in writing that the continuation of a
book-entry system through the Depositary is no longer in the best interest of
the Holders of Preferred Securities Certificates, then the Depositary shall
notify all Holders of Preferred Securities Certificates and the Trustees of the
occurrence of any such event and of the availability of the Definitive Preferred
Securities Certificates to Holders requesting the same. If the Depositary elects
to discontinue its services as securities depositary with respect to the
Preferred Securities, the Regular Trustees may, in their sole discretion,
appoint a successor Depositary with respect to such Preferred Securities. Upon
surrender to the Regular Trustees of the typewritten Global Certificate or
Certificates by the Depositary, accompanied by registration instructions, the
Regular Trustees, or any one of them, shall execute the Definitive Preferred
Securities Certificates in accordance with the instructions of the Depositary.
Neither the Securities Registrar or the Trustees shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Security Holders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by the execution thereof by the Regular
Trustees or any one of them.
(c) Common Securities Certificate. A single Common Securities
Certificate representing the Common Securities shall be issued to the Sponsor, a
specimen certificate being attached hereto as Exhibit B.
SECTION 7.04 REGISTRAR AND PAYING AGENT. The Trust shall
maintain in Wilmington, Delaware (i) an office or agency where Preferred
Securities may be presented for registration of transfer or for exchange
("Registrar"), and (ii) an office or agency where Preferred Securities may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Preferred Securities and of their transfer and exchange. The Trust may
appoint the Registrar and the Paying Agent and may appoint one or more
co-registrars and one or more additional paying agents in such other locations
as it shall determine. The term "Paying Agent" includes any additional paying
agent. The Trust may change any Paying Agent, Registrar or co-registrar without
prior notice to any Holder. The Trust shall notify the Property Trustee of the
name and address of any Agent not a party to this Declaration. If the Trust
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Property Trustee shall act as such. The Trust or
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any of its Affiliates may act as Paying Agent or Registrar. The Trust shall act
as Paying Agent, Registrar and co-registrar for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar
and Paying Agent for the Preferred Securities.
SECTION 7.05 PAYING AGENT TO HOLD MONEY IN TRUST. The Trust
shall require each Paying Agent other than the Property Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or
the Property Trustee all money held by the Paying Agent for the payment of
principal or Distributions on Securities, and will notify the Property Trustee
if there are insufficient funds. While any such insufficiency continues, the
Property Trustee may require a Paying Agent to pay all money held by it to the
Property Trustee. The Trust at any time may require a Paying Agent to pay all
money held by it to the Property Trustee and to account for any money disbursed
by it. Upon payment over to the Property Trustee, the Paying Agent (if other
than the Trust or an Affiliate of the Trust) shall have no further liability for
the money. If the Trust or the Sponsor or an Affiliate of the Trust or the
Sponsor acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent.
SECTION 7.06 REPLACEMENT SECURITIES. If the Holder of a
Security claims that the Security has been mutilated, lost, destroyed or
wrongfully take nor if such Security is mutilated and is surrendered to the
Trust or in the case of the Preferred Securities to the Property Trustee, the
Trust shall issue and the Property Trustee shall authenticate a replacement
Security if the Property Trustee's and the Trust's reasonable requirements, as
the case may be, are met. If required by the Property Trustee or the Trust, such
Holder shall provide an indemnity bond sufficient in the judgment of the
Property Trustee and the Trust to protect the Trustees, the Property Trustee,
the Sponsor or any authenticating agent from any loss which any of them may
suffer if a Security is replaced. The Company may charge for its expenses in
replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Sponsor in its discretion
may, instead of issuing a new Security, pay such Security.
SECTION 7.07 OUTSTANDING PREFERRED SECURITIES. The Preferred
Securities outstanding at any time are all the Preferred Securities
authenticated by the Property Trustee except for those canceled by it, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
If a Preferred Security is replaced, paid or purchased
pursuant to Section 7.06 hereof, it ceases to be outstanding unless the Property
Trustee receives proof satisfactory to it that the replaced, paid or purchased
Preferred Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with
the terms of this Declaration, they cease to be outstanding and interest on them
ceases to accrue.
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A Preferred Security does not cease to be outstanding because
one of the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.08 PREFERRED SECURITIES IN TREASURY. In determining
whether the Holders of the required amount of Securities have concurred in any
direction, waiver or consent, Preferred Securities owned by the Trust, the
Sponsor or an Affiliate of the Sponsor, as the case may be, shall be disregarded
and deemed not to be outstanding, except that for the purposes of determining
whether the Property Trustee shall be fully protected in relying on any such
direction, waiver or consent, only Securities which the Property Trustee knows
are so owned shall be so disregarded.
SECTION 7.09 TEMPORARY SECURITIES. (a) Until definitive
Securities are ready for delivery, the Trust may prepare and, in the case of the
Preferred Securities, the Property Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Trust considers
appropriate for temporary Securities. Without unreasonable delay, the Trust
shall prepare and, in the case of the Preferred Securities, the Property Trustee
shall authenticate definitive Securities in exchange for temporary Securities.
(b) A Global Certificate deposited with the Depositary or with
the Property Trustee as custodian for the Depositary pursuant to Section 7.03
shall be transferred to the beneficial owners thereof in the form of
certificated Preferred Securities only if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Certificate or if at any time such Depositary ceases to be a "clearing agency"
registered under the Exchange Act and a successor depositary is not appointed by
the Sponsor within 90 days of such notice, (ii) an Event of Default has occurred
and is continuing, or (iii) any of the events set forth in Section 7.03(b)
occurs and is continuing.
(c) Any Global Certificate that is transferable to the
beneficial owners thereof in the form of certificated Preferred Securities
pursuant to this Section 7.09 shall be surrendered by the Depositary to the
Property Trustee's office located in the Borough of Manhattan, City of New York,
to be so transferred, in whole or from time to time in part, without charge, and
the Property Trustee shall authenticate and deliver, upon such transfer of each
portion of such Global Certificate, an equal aggregate liquidation amount of
Securities of authorized denominations in the form of certificated Securities.
Any portion of a Global Certificate transferred pursuant to this Section shall
be any registered in such names as the Depositary shall direct.
(d) Subject to the provisions of Section 7.09(c) and
12.02(b)(ii), the registered holder of a Global Certificate may grant proxies
and otherwise authorize any person, including Participants and persons that may
hold interests through Participants, to take any action which a holder is
entitled to take under this Declaration or the Securities.
(e) In the event of the occurrence of any of the events
specified in Section 7.09(b), the Trust will promptly make available to the
Property Trustee a reasonable supply of certificated Securities in definitive,
fully registered form without interest coupons.
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SECTION 7.10 CANCELLATION. The Trust at any time may deliver
Preferred Securities to the Property Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Property Trustee any Preferred Securities
surrendered to them for registration of transfer, redemption, exchange or
payment. The Property Trustee shall promptly cancel all Preferred Securities,
surrendered for registration of transfer, redemption, exchange, payment,
replacement or cancellation and shall dispose of cancelled Preferred Securities
as the Trust directs. The Trust may not issue new Preferred Securities to
replace Preferred Securities that it has paid or that have been delivered to the
Property Trustee for cancellation or that any holder has converted.
ARTICLE VIII
TERMINATION OF TRUST
--------------------
SECTION 8.01 TERMINATION OF TRUST. (a) The Trust shall
terminate upon the earliest to occur of the following:
(i) the bankruptcy of the Holder of the Common
Securities or the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common Securities or the
Sponsor; the filing of a certificate of cancellation with respect to
the Trust or the revocation of the charter of the Holder of the Common
Securities or the Sponsor and the expiration of 90 days after the date
of revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities or the Sponsor;
(iv) the distribution, upon the terms and subject to the
conditions set forth in Annex I, of an aggregate principal amount of
Debentures with an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate identical to the
Distribution rate of, and accrued and unpaid interest equal to accrued
and unpaid Distributions on, the Securities; provided, however, that
such distribution is conditioned on the receipt of an opinion of
independent tax counsel experienced in such matters to the effect that
the Holders of the Securities will not recognize any gain or loss for
United States federal income tax purposes as a result of the
dissolution of the Trust and such distribution of Debentures;
(v) the redemption of the Securities upon the final
maturity of the Debentures and the amounts necessary for redemption
thereof having been paid to the Holders in accordance with the terms of
the Securities;
(vi) the expiration of the term of the Trust as provided
in Section 3.14; and
(vii) the entry of an order for the dissolution of the
Trust by a court of competent jurisdiction.
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(b) In addition to the termination events set forth in Section
8.01(a), the Trust may be voluntarily terminated by the Sponsor at any time,
upon payment of the amount of cash, or distribution of the Debentures, as set
forth in Annex I.
(c) As soon as is practicable after the occurrence of an event
referred to in Section 8.01(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(d) The provisions of Section 3.09 and Article X shall
survive the termination of the Trust.
ARTICLE IX
EXCHANGE
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SECTION 9.01 GENERAL. (a) Where Preferred Securities are
presented to the Registrar or a co-registrar with a request to register a
transfer or to exchange them for an equal number of Preferred Securities
represented by different certificates, the Registrar shall register the transfer
or make the exchange if its reasonable requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trust shall issue
and the Property Trustee shall authenticate Preferred Securities at the
Registrar's request.
(b) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(c) Subject to this Article IX, the Sponsor and any Affiliate
may only transfer Common Securities to the Sponsor or an Affiliate of the
Sponsor; PROVIDED THAT, any such transfer is subject to the condition precedent
that the transferor obtain an opinion of counsel experienced in such matters
that such transfer would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or
the transferee would become an Investment Company.
SECTION 9.02 DEEMED SECURITY HOLDERS. The Trustees may treat
the Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust, the Property Trustee, the Registrar or a
co-Registrar shall have actual or other notice thereof.
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ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
--------------------------------------------------------------------
SECTION 10.01 LIABILITY. (a) Except as expressly set forth in
this Declaration, the Preferred Securities Guarantee and the terms of the
Securities the Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.02 EXCULPATION. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by the
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 10.03 FIDUCIARY DUTY. (a) To the extent that, at law
or in equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the
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Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities, the Indemnified
Person shall resolve such conflict of interest, take such action or
provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any
applicable generally accepted accounting practices or principles. In
the absence of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or any other
agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
SECTION 10.04 INDEMNIFICATION. (a) To the fullest extent
permitted by applicable law, the Sponsor shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by such Indemnified
Person by reason of the creation, operation or termination of the Trust or any
act or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim
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incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees and expenses) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking
by or on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.04(a). The indemnification shall survive the
termination of this Declaration.
SECTION 10.05 OUTSIDE BUSINESSES. Any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
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SECTION 11.01 FISCAL YEAR. The fiscal year ("Fiscal Year") of
the Trust shall be the calendar year, or such other year as is required by the
Code.
SECTION 11.02 CERTAIN ACCOUNTING MATTERS. (a) At all times
during the existence of the Trust, the Regular Trustees shall keep, or cause to
be kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal Year by a firm of independent
certified public accountants selected by the Regular Trustees.
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(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
SECTION 11.03 BANKING. The Trust shall maintain one or more
bank accounts in the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures held by the
Property Trustee shall be made directly to the Property Trustee Account and no
other funds of the Trust shall be deposited in the Property Trustee Account. The
sole signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Property Trustee shall designate the signatories for
the Property Trustee Account.
SECTION 11.04 WITHHOLDING. The Trust and the Regular Trustees
shall comply with all withholding requirements under United States federal,
state and local law. The Trust shall request, and the Holders shall provide to
the Trust, such forms or certificates as are necessary to establish an exemption
from withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Regular Trustees
shall file required forms with the applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to distributions or allocations to any Holder, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to the Holder. In the event of any claimed over-withholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
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ARTICLE XII
AMENDMENTS AND MEETINGS
-----------------------
SECTION 12.01 AMENDMENTS. (a) Except as otherwise provided in
this Declaration or by any applicable terms of the Securities, this Declaration
may only be amended by a written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee;
(a) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
(iii) to the extent the result of such amendment would be
to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a
grantor trust;
(B) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture
Act; or
39
<PAGE> 46
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(b) at such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(c) This Section 12.01 shall not be amended without the
consent of all of the Holders of the Securities;
(d) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(e) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities; and
(f) notwithstanding Section 12.01(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations
of the Sponsor;
(iv) conform to any change in Rule 3a-5 under the
Investment Company Act or written change in interpretation or
application of Rule 3a-5 under the Investment Company Act by any
legislative body, court, government agency or regulatory authority
which amendment does not have a material adverse effect on the rights,
preferences or privileges of the Holders; and
(v) to modify, eliminate or add to any provisions to
such extent as shall be necessary to ensure that the Trust will be
classified for Federal income tax purposes as a grantor trust at all
times that any Securities are outstanding which amendment does not have
an adverse effect on the rights, preferences or privileges of the
Holders.
SECTION 12.02 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY
WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
40
<PAGE> 47
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more requests in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities represented by the Certificates so specified
shall be counted for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum aggregate liquidation
amount of Securities that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having a right
to vote thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The Regular
Trustees may specify that any written ballot submitted to the Security
Holders for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of Securities
is entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the
41
<PAGE> 48
Preferred Securities are then listed or trading, provide otherwise, the
Regular Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at which any matter
is to be voted on by any Holders of Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF DELAWARE AND PROPERTY TRUSTEE
------------------------------------------------
SECTION 13.01 REPRESENTATIONS AND WARRANTIES OF DELAWARE
TRUSTEE. The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration and at
the Closing Date, and each Successor Delaware Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, with corporate power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration.
(b) The execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been duly
executed and delivered by the Delaware Trustee, and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or constitute a
breach of the certificate of incorporation or By-laws of the Delaware Trustee.
(d) No consent, approval or authorization of, or registration
with or notice to, any state or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this Declaration.
(e) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
(f) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration.
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<PAGE> 49
SECTION 13.02 REPRESENTATIONS AND WARRANTIES OF PROPERTY
TRUSTEE. The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) The Property Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
its state of organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of the
Declaration;
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) The execution, delivery and performance of the Declaration
by the Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(d) No consent, approval or authorization of, or registration
with or notice to, any state or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the Declaration.
ARTICLE XIV
MISCELLANEOUS
-------------
SECTION 14.01 NOTICES. All notices provided for in this
Declaration shall be in writing, duly signed by the party giving such notice,
and shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities):
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
Attention: Chief Financial Officer
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<PAGE> 50
(b) if given to the Property Trustee, at the mailing address
set forth below (or such other address as the Property Trustee may give notice
of to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(c) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
Attention: Chief Financial Officer
(d) If given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give notice
to the Trust):
Wilmington Trust Company
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust or the Registrar, as applicable.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.02 GOVERNING LAW. This Declaration and the rights
of the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
SECTION 14.03 INTENTION OF THE PARTIES. It is the intention of
the parties hereto that the Trust be classified for United States federal income
tax purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
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<PAGE> 51
SECTION 14.04 HEADINGS. Headings contained in this Declaration
are inserted for convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.05 SUCCESSORS AND ASSIGNS. Whenever in this
Declaration any of the parties hereto is named or referred to, the successors
and assigns of such party shall be deemed to be included, and all covenants and
agreements in this Declaration by the Sponsor and the Trustee shall bind and
inure to the benefit of their respective successors and assigns, whether so
expressed.
SECTION 14.06 PARTIAL ENFORCEABILITY. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.07 COUNTERPARTS. This Declaration may contain more
than one counterpart of the signature page and this Declaration may be executed
by the affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
As Trustee
--------------------------
As Trustee
--------------------------
45
<PAGE> 52
WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Delaware Trustee and
Property Trustee
By:
-----------------------------------
Name:
Title:
NATIONWIDE FINANCIAL SERVICES, INC.
as Sponsor
By:
-----------------------------------
Name:
Title:
46
<PAGE> 53
ANNEX I
TERMS OF
__% [PREFERRED] SECURITIES*
__% COMMON SECURITIES
Pursuant to Section 7.01 of the Amended and Restated
Declaration of Trust, dated as of ________ __, 1998 (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the [Preferred] Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus) (as defined in the Declaration):
I DESIGNATION AND NUMBER.
- -------------------------
1.01 [Preferred] Securities." [ ] [Preferred] Securities of the
Trust with an aggregate liquidation amount with respect to the
assets of the Trust of $ million Dollars ($ ), and a
liquidation amount with respect to the assets of the Trust of
$ per [Preferred] Security, are hereby designated for the
purposes of identification only as "__% [Preferred] Securities
(liquidation amount $ per [Preferred] Security)" (the
"[Preferred] Securities"). The [Preferred] Security
Certificates evidencing the [Preferred] Securities shall be
substantially in the form attached hereto as EXHIBIT A, with
such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to
conform to the rules of any stock exchange or other
organization on which the [Preferred] Securities are listed.
1.02 "Common Securities." [number representing 3% assets] Common
Securities of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of
_____________________ Dollars ($_____________), and a
liquidation amount with respect to the assets of Trust of $
per Common Security, are hereby designated for the purposes of
identification only as "___% Common Securities (liquidation
amount $ per Common Security)" (the "Common Securities").
The Common Securities Certificates evidencing the Common
Securities shall be substantially in the form attached hereto
as EXHIBIT B, with such changes and additional thereto or
deletions therefrom as may be required by ordinary usage,
custom or practice.
* Designation to be determined by Regular Trustees.
<PAGE> 54
II DISTRIBUTIONS.
- -----------------
2.01 Distributions payable on each Security will be fixed at a rate
per annum of __% (the "Coupon Rate") of the stated liquidation
amount of $ per Security, such rate being the rate of
interest payable on the Debentures to be held by the Property
Trustee. Distributions in arrears will bear interest thereon
compounded [quarterly][semi-annually] at the Coupon Rate (to
the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has
funds available therefor. The amount of Distributions payable
for any period will be computed for any full
[quarterly][semi-annual] Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period of
less than a full calendar month the number of days elapsed in
such month.
2.02 Distributions on the Securities will be cumulative, will
accrue from the date of original issuance and will be payable
[quarterly][semi-annually] in arrears, on the following dates,
which dates correspond to the interest payment dates on the
Debentures: __________________ and ________________ of each
year, commencing on ___________, 1998, except as otherwise
described below. So long as no Event of Default (or an event
which would be an Event of Default with the giving of required
notice or the passage of time) has occurred and is continuing,
the Sponsor has the right under the Indenture to defer
payments of interest by extending the interest payment period
from time to time on the Debentures for a period not exceeding
[20 consecutive quarters][10 consecutive semi-annual periods]
(each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such
deferral, [quarterly][semi-annual] Distributions will continue
to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded
[quarterly][semi-annually] during any such Extension Period.
Prior to the termination of any such Extension Period, the
Sponsor may further extend such Extension Period so long as no
Event of Default (or an event which would be an Event of
Default with the giving of required notice or the passage of
time) has occurred and is continuing; PROVIDED THAT such
Extension Period together with all such previous
and further extensions thereof may not exceed [20 consecutive
quarters][10 consecutive semi-annual periods] or extend beyond
the maturity (whether at the stated maturity or by declaration
of acceleration, call for redemption or otherwise) of the
Debentures under the Indenture. Payments of accrued
Distributions will be payable to Holders as they appear on the
books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Sponsor may commence a new Extension Period, subject to the
above requirements.
2
<PAGE> 55
2.03 Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust
on the relevant record dates. The relevant record dates shall
be the first day of the month in which the relevant payment
date falls, except as otherwise described in this Annex I to
the Declaration. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such
payment in respect to [Preferred] Securities being held in
book-entry form through The Depository Trust Company (the
"Depositary") will be made as described under the heading
"Description of the [Preferred] Securities -- Book-Entry-Only
Issuance --The Depository Trust Company" in the Prospectus.
The relevant record dates for the Common Securities shall be
the same record dates as for the [Preferred] Securities.
Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a result
of the Sponsor having failed to make payment under the
Debentures, will cease to be payable to the Person in whose
name such Securities are registered on the relevant record
date, and such distributions on Securities will instead be
payable to the Persons in whose name such Securities are
registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on
which Distributions are payable on the Securities is not a
Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day in each case
with the same force and effect as if made on such date.
2.04 In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein)
among the Holders of the Securities.
III LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
------------------------------------------
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust (including without limitation pursuant to
Section 8.01(b) of the Declaration), the Holders of the Securities on the date
of the dissolution, winding-up or termination, as the case may be, will be
entitled to receive out of the assets of the Trust available for distribution to
Holders of Securities after satisfaction of liabilities of creditors of the
Trust as provided by applicable law an amount equal to the aggregate of the
stated liquidation amount of $ per Security plus [any additional amount
payable upon redemption of the Debentures as a result of the Make-Whole Premium
(defined in the Indenture) and] accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, Debentures, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities as provided in this Paragraph 3.
3
<PAGE> 56
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis in
accordance with paragraph 8.
If a termination of the Trust occurs as described in clause
(i), (ii), (iii), (vi) or (vii) of Section 8.01(a) of the Declaration, the Trust
shall be liquidated by the Regular Trustees as expeditiously as the Regular
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
holder of the [Preferred] Securities, Debentures with an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on, the [Preferred] Securities.
In addition to the paragraph above, at any time the Sponsor
has the right to terminate the Trust and, after satisfaction of the liabilities
of creditors of the Trust as provided by applicable law, cause Debentures with
an aggregate principal amount of, with an interest rate identical to the Coupon
Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on, the outstanding Securities, to be distributed to the Holders
of the Securities in liquidation of the Trust.
The distribution of Debentures upon any dissolution of the
Trust is conditioned upon the receipt by the Regular Trustees of an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that the holders of the securities will not recognize any gain or loss
for United States federal income tax purposes as a result of such dissolution of
the Trust and distribution of Debentures.
After the date fixed for any distribution of Debentures
(including pursuant to a Tax Event as set forth in paragraph 4(c) below: (i) the
Securities will no longer be deemed to be outstanding, (ii) the Depositary or
its nominee (or any successor Depositary or its nominee), as record Holder of
[Preferred] Securities represented by global certificates, will receive a
registered global certificate or certificates representing the Debentures to be
delivered upon such distribution and (iii) any certificates representing
Securities, except for certificates representing [Preferred] Securities held by
the Depositary or its nominee (or any successor Depositary or its nominee), will
be deemed to represent Debentures with an aggregate principal amount equal to
the aggregate stated liquidation amount of, with an interest rate identical to
the Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on, such Securities until such certificates are presented to the
Sponsor or its agent for transfer or reissuance.
If, in connection with any dissolution, winding-up or
termination of the Trust, Debentures are distributed to Holders of the
Securities as provided in this paragraph 3, the procedures set forth in
paragraph 4(e) will be applicable thereto.
4
<PAGE> 57
IV REDEMPTION AND DISTRIBUTION.
----------------------------
4.01 Upon the repayment or payment of the Debentures in whole or in
part, whether at maturity or upon redemption or otherwise, the
proceeds from such repayment or redemption shall be
simultaneously applied to redeem Securities having an
aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so repaid or redeemed at the
Redemption Price per Security of 100% of the liquidation
amount of the Security to be redeemed, [plus the Make-Whole
Premium (as defined in the Indenture), if any,] together with
accrued and unpaid Distributions thereon through the date of
the redemption, payable in cash. Holders will be given not
less than 30 nor more than 60 days' notice of such redemption.
4.02 If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the [Preferred] Securities
will be redeemed Pro Rata and the [Preferred] Securities to be
redeemed will be as described in Paragraph 4(e)(ii) below.
4.03 If, at any time, a Tax Event shall occur and be continuing,
the Trust shall, except as set forth below, be dissolved and
Debentures with an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid distributions on, the
Securities, will be distributed to the Holders of the
Securities in liquidation of such Holders' interests in the
Trust Pro Rata within 90 days following the occurrence of such
Tax Event (the "90 Day Period"); PROVIDED, HOWEVER, that such
dissolution and distribution shall be conditioned on (i) the
Regular Trustees' receipt of an opinion of nationally
recognized independent tax counsel experienced in such matters
(a "No Recognition Opinion"), which opinion may rely on
published revenue rulings of the Internal Revenue Service, to
the effect that the Holders of the Securities will not
recognize any gain or loss for United States federal income
tax purposes as a result of such dissolution and distribution
of Debentures and (ii) the Company being unable to avoid such
Tax Event within the 90 Day Period by taking some ministerial
action or pursuing some other reasonable measure that will
have no adverse effect on the Trust, the Company or the
Holders of the Trust Securities ("Ministerial Action").
If after receipt of a Dissolution Tax Opinion (as defined
below) by the Regular Trustees (i) the Company has received an
opinion (a "Redemption Tax Opinion") of nationally recognized
independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial
risk that the Company would be precluded from deducting the
interest on the Debentures for United States federal income
tax purposes, even after the Debentures were distributed to
the Holders of Securities in liquidation of such Holders'
interests in the Trust or (ii) the Regular Trustees shall have
been informed by such tax counsel that it cannot deliver a No
Recognition Opinion to the Trust, the Company shall have the
right, upon not less than 30 nor more than 60 days' notice, to
redeem the Debentures at 100% of the liquidation amount plus
accrued and unpaid interest
5
<PAGE> 58
thereon to the date fixed for redemption, in whole or in part,
for cash within 90 days following the occurrence of such Tax
Event, and, following such redemption, Securities with an
aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed shall be redeemed Pro
Rata by the Trust at the Tax Event Redemption Price (as
defined in the Indenture); PROVIDED, HOWEVER, that (i) no
Make-Whole Premium (as defined in the Indenture) shall be
payable in connection with a redemption of Debentures upon the
occurrence of a Tax Event and (ii) if at the time there is
available to the Company or the Trust the opportunity to
eliminate, within the 90 Day Period, the Tax Event by taking
some Ministerial Action, the Company or the Trust will pursue
such measure in lieu of redemption.
"Tax Event" means that the Regular Trustees shall
have obtained an opinion of nationally recognized independent
tax counsel (reasonably acceptable to the Regular Trustees)
experienced in such matters (a "Dissolution Tax Opinion") to
the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change; PROVIDED
that a Tax Event shall not occur more than 90 days before the
effective date of any such prospective change) in, the laws
(or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein
or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations by
any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory
determination on or after the date of original issuance of the
[Preferred] Securities), which amendment or change is
effective or which pronouncement or decision is announced on
or after the date of original issuance of the [Preferred]
Securities, there is more than an insubstantial risk that (i)
the Trust is or will be subject to United States Federal
income tax with respect to interest received on the
Debentures, (ii) interest payable in cash to the Trust on the
Debentures is not, or will not be, deductible, in whole or in
part, by the Company for United States Federal income tax
purposes or (iii) the Trust is or will be subject to more than
a de minimis amount of other taxes, duties, assessments or
other governmental charges.
4.04 The Securities will not be redeemed unless all accrued and
unpaid Distributions have been paid on all Securities for all
[quarterly][semi-annual] Distribution periods terminating on
or before the date of redemption.
4.05 (a) Notice of any redemption of, or notice of
distribution of Debentures in exchange for the
Securities (a "Redemption/Distribution Notice") will
be given by the Trust by mail to each Holder of
Securities to be redeemed or exchanged not fewer than
30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of
a redemption, will be the date fixed for redemption
of the Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on
which notices are given pursuant to this paragraph
4(e)(i), a
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<PAGE> 59
Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall
be addressed to the Holders of Securities at the
address of each such Holder appearing in the books
and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall
affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(b) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be
redeemed shall be redeemed Pro Rata from each Holder
of [Preferred] Securities, it being understood that,
in respect of [Preferred] Securities registered in
the name of and held of record by the Depositary (or
any successor Depositary) or any nominee, the
distribution of the proceeds of such redemption will
be made to each Depositary Participant (or Person on
whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency
or nominee.
(c) If Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice, which notice may
only be issued if the Debentures are redeemed as set
out in this paragraph 4 (which notice will be
irrevocable), then (A) with respect to [Preferred]
Securities held in book-entry form, by 12:00 noon,
New York City time, on the redemption date, provided
that the Sponsor has paid the Property Trustee a
sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the
Property Trustee will deposit irrevocably with the
Depositary (or successor Depositary) funds sufficient
to pay the amount payable on redemption with respect
to such [Preferred] Securities and will give the
Depositary irrevocable instructions and authority to
pay the amount payable on redemption to the Holders
of such [Preferred] Securities, and (B) with respect
to [Preferred] Securities issued in certificated form
and Common Securities, provided that the Sponsor has
paid the Property Trustee a sufficient amount of cash
in connection with the related redemption or maturity
of the Debentures, the Property Trustee will
irrevocably deposit with the Paying Agent funds
sufficient to pay the amount payable on redemption to
the Holders of such Securities upon surrender of
their certificates. If a Redemption/ Distribution
Notice shall have been given and funds deposited as
required, then on the date of such deposit, all
rights of Holders of such Securities so called for
redemption will cease, except the right of the
Holders of such Securities to receive the redemption
price, but without interest on such redemption price.
Neither the Regular Trustees nor the Trust shall be
required to register or cause to be registered the
transfer of any Securities that have been so called
for redemption. If any date fixed for redemption of
Securities is not a Business Day, then payment of the
amount payable on such date will be made on the
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<PAGE> 60
next succeeding day that is a Business Day (without
any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with
the same force and effect as if made on such date
fixed for redemption. If payment of the redemption
price in respect of any Securities is improperly
withheld or refused and not paid either by the Trust
or by the Sponsor as guarantor pursuant to the
[Preferred] Securities Guarantee, Distributions on
such Securities will continue to accrue at the then
applicable rate, from the original redemption date to
the date of payment, in which case the actual payment
date will be considered the date fixed for redemption
for purposes of calculating the amount payable upon
redemption (other than for purposes of calculating
any premium).
(d) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to (A) in the
case of [Preferred] Securities held in book-entry
form, the Depositary and, in the case of Securities
held in certificated form, the Holders of such
certificates and (B) in respect of the Common
Securities, the Holder thereof.
(e) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), the Sponsor or any of its
subsidiaries may at any time and from time to time
purchase outstanding [Preferred] Securities by
tender, in the open market or by private agreement.
V VOTING RIGHTS - [PREFERRED] SECURITIES.
---------------------------------------
5.01 Except as provided in this Annex I, in the Business Trust Act
and as otherwise required by law, the Declaration and the
Indenture, the Holders of the [Preferred] Securities will have
no voting rights.
5.02 The Holders of the [Preferred] Securities shall have the
rights with respect to the enforcement of payment of
principal, premium, if any, and interest on the Debentures as
are set forth herein, in the Declaration or in the Indenture.
Subject to the requirements set forth in this paragraph, the
Holders of a majority in liquidation amount of the [Preferred]
Securities, voting separately as a class may direct the time,
method, and place of conducting any proceeding for any remedy
available to the Property Trustee, or direct the exercise of
any trust or power conferred upon the Property Trustee under
the Declaration, including the right to direct the Property
Trustee, as holder of the Debentures, to (i) direct the time,
method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or
power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences
that is waivable under Section 5.13 of the Indenture or
otherwise,
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<PAGE> 61
(iii) exercising any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such
consent shall be required; provided, however, that, where a
consent under the Indenture would require the consent or act
of the Holders of greater than a majority of the Holders in
principal amount of Debentures affected thereby (a "Super
Majority"), the Property Trustee may only give such consent or
take such action at the direction of the Holders of at least
the proportion in liquidation amount of the [Preferred]
Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding. The
Property Trustee shall not, and none of the other Trustees
shall in any event, revoke any action previously authorized or
approved by a vote of the Holders of the [Preferred]
Securities, except by a subsequent vote of the Holders of the
[Preferred] Securities. Other than with respect to directing
the time, method and place of conducting any remedy available
to the Property Trustee as set forth above, the Property
Trustee shall not take any action in accordance with the
directions of the Holders of the [Preferred] Securities under
this paragraph unless the Property Trustee has obtained an
opinion of tax counsel to the effect that, as a result of such
action, the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes.
If the Property Trustee is the sole holder of the Debentures,
any Holder of the [Preferred] Securities shall have the right,
to the fullest extent permitted by applicable law, to
institute suit on behalf of the Trust for the enforcement of
the right to receive payment of the principal of and interest,
and premium, if any, on the Debentures on or after the Stated
Maturity (as defined in the Indenture) of such Debentures or,
in the case of redemption, on the Redemption Date (as defined
in the Indenture). In addition, the Holders of at least 25% in
aggregate liquidation amount of [Preferred] Securities
Outstanding shall be entitled, to the fullest extent permitted
by applicable law, to institute any other proceeding in the
event the Debenture Trustee or the Property Trustee fails to
do so in accordance with the terms of the Indenture.
If an Event of Default shall have occurred and be continuing,
the Holders of a majority in liquidation amount of the
[Preferred] Securities, voting as a class at a meeting of
Holders of [Preferred] Securities, shall have the exclusive
right to remove the Property Trustee.
In addition to any other rights of the Holders provided herein
or in the Declaration, if the Property Trustee fails to
enforce its rights, as holder of the Debentures, under the
Indenture, any Holder of [Preferred] Securities may, to the
fullest extent permitted by applicable law, institute a legal
proceeding directly against the Sponsor, to enforce the rights
of the Property Trustee, as holder of the Debentures, under
the Indenture, without first instituting any legal proceeding
against the Property Trustee or any other Person.
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<PAGE> 62
Any approval or direction of Holders of [Preferred] Securities
may be given at a separate meeting of Holders of [Preferred]
Securities convened for such purpose, at a meeting of all of
the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any
meeting at which Holders of [Preferred] Securities are
entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed
to each Holder of record of [Preferred] Securities. Each such
notice will include a statement setting forth the following
information: (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the [Preferred]
Securities will be required for the Trust to redeem and cancel
[Preferred] Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of [Preferred] Securities are
entitled to vote or consent under any of the circumstances
described above, any of the [Preferred] Securities that are
owned by the Sponsor or any Affiliate of the Sponsor shall not
be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
VI VOTING RIGHTS - COMMON SECURITIES.
----------------------------------
6.01 Except as provided in this Annex I, in the Business Trust Act
and as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
6.02 The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to
appoint, remove or replace any Trustee.
6.03 Subject to Section 2.06 of the Declaration and only after the
Event of Default with respect to the [Preferred] Securities
has been cured, waived, or otherwise eliminated and subject to
the requirements of the second to last sentence of this
paragraph, the Holders of the Majority in liquidation amount
of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any
proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property
Trustee under the Declaration, including (i) directing the
time, method, place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect
to the Debentures, (ii) waiving any past default and its
consequences that is waivable under Section 5.13 of the
Indenture, (iii) exercising any right to rescind or annul a
declaration that the principal of all the Debentures shall be
due and payable; or (iv) consenting
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<PAGE> 63
to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required;
PROVIDED THAT, where a consent or action under the Indenture
would require the consent or act of the Holders of greater
than a majority in principal amount of Debentures affected
thereby (a "Super Majority"), the Property Trustee may only
give such consent or take such action at the direction of the
Holders of at least the proportion in liquidation amount of
the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of
the [Preferred] Securities, except by a subsequent vote of the
Holders of the [Preferred] Securities. Other than with respect
to directing the time, method and place of conducting any
remedy available to the Property Trustee or the Debenture
Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the
Holders of the Common Securities under this paragraph unless
the Property Trustee has obtained an opinion of tax counsel to
the effect that, as a result of such action the Trust will not
fail to be classified as a grantor trust for United States
federal income tax purposes. If the Property Trustee fails to
enforce its rights, as holder of the Debentures, under the
Indenture, any Holder of Common Securities may, institute a
legal proceeding directly against the Sponsor, to enforce the
Property Trustee's rights, as holder of the Debentures, under
the Indenture, without first instituting any legal proceeding
against the Property Trustee or any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders
of Securities in the Trust or pursuant to written consent. The
Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is
to be taken, to be mailed to each Holder of record of Common
Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders
are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common
Securities or to distribute the Debentures in accordance with
the Declaration and the terms of the Securities.
VII AMENDMENTS TO DECLARATION AND INDENTURE.
----------------------------------------
7.01 In addition to any requirements under Section 12.01 of the
Declaration, if any proposed amendment to the Declaration
provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities, whether by
way of amendment to
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<PAGE> 64
the Declaration or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as
described in Section 8.01 of the Declaration, then the Holders
of outstanding Securities as a class, will be entitled to vote
on such amendment or proposal (but not on any other amendment
or proposal) and such amendment or proposal shall not be
effective except (a) with the approval of the Holders of at
least 66-2/3% in liquidation amount of the Securities, voting
together as a single class and (ii) upon receipt by the
Regular Trustees of an opinion of counsel to the effect that
such amendment or the exercise of any power granted to the
Regular Trustees in accordance with such amendment will not
affect the Trust's status as a grantor trust for United States
federal income tax purposes or the Trust's exemption from the
status of an "investment company" under the Investment Company
Act; PROVIDED, HOWEVER, if any amendment or proposal referred
to in clause (i) above would adversely affect only the
[Preferred] Securities or only the Common Securities, then
only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not
be effective except with the approval of 66-2/3% in
liquidation amount of such class of Securities.
7.02 In the event the consent of the Property Trustee as the holder
of the Debentures is required under the Indenture with respect
to any amendment, modification or termination of the Indenture
or the Debentures, the Property Trustee shall request the
direction of the Holders of the Securities with respect to
such amendment, modification or termination and shall vote
with respect to such amendment, modification or termination as
directed by a Majority in liquidation amount of the Securities
voting together as a single class; PROVIDED, HOWEVER, that
where a consent under the Indenture would require the consent
of the holders of more than a majority of the aggregate
principal amount of the Debentures, the Property Trustee may
only give such consent at the direction of the Holders of at
least the same proportion in aggregate stated liquidation
preference of the Securities; PROVIDED, HOWEVER, that the
Property Trustee shall not take any action in
accordance with the directions of the Holders of the
Securities under this paragraph unless the Property Trustee
has obtained an opinion of tax counsel to the effect that for
the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on
account of such action.
VIII PRO RATA.
---------
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, on any distribution date or redemption date
an Event of Default under the Declaration has occurred and is continuing, in
which case no payment of any distribution on, or amount payable upon redemption
of, any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated
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<PAGE> 65
and unpaid Distributions on all outstanding [Preferred] Securities for all
Distribution periods terminating on or prior thereto, or in the case of payment
of the amount payable upon redemption of the [Preferred] Securities, the full
amount of such amount in respect of all outstanding [Preferred] Securities shall
have been made or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions on,
or the amount payable upon redemption of [Preferred] Securities then due and
payable.
IX RANKING.
--------
The [Preferred] Securities rank PARI PASSU with, and payment
thereon shall be made Pro Rata with, the Common Securities except that, where an
Event of Default occurs and is continuing under the Indenture, the rights of
Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the [Preferred] Securities.
X ACCEPTANCE OF [PREFERRED] SECURITIES GUARANTEE AND INDENTURE.
-------------------------------------------------------------
Each Holder of [Preferred] Securities and Common Securities,
by the acceptance thereof, agrees to the provisions of the [Preferred]
Securities Guarantee, respectively, including the subordination provisions
therein and to the provisions of the Indenture, including the subordination
provisions therein, and which includes, among other things, provisions relating
to certain rights of the Holders of the [Preferred] Securities all as set forth
therein.
XI NO PREEMPTIVE RIGHTS.
---------------------
The Holders of the Securities shall have no preemptive rights
to subscribe for any additional securities.
XII MISCELLANEOUS.
--------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
[Preferred] Securities Guarantee, and the Indenture to a Holder without charge
on written request to the Sponsor at its principal place of business.
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<PAGE> 66
EXHIBIT A
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT - This [Preferred] Security is a Global Certificate within the meaning
the Declaration hereinafter referred to and is registered in the name of the
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
[Preferred] Security is exchangeable for [Preferred] Securities registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Declaration and no transfer of this
[Preferred] Security (other than a transfer of this [Preferred] Security as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this [Preferred] Security Certificate is presented by
an authorized representative of the Depositary to the Trust or its agent for
registration of transfer, exchange or payment, and any [Preferred] Security
Certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein].
Certificate number Number of [Preferred] Securities
CUSIP NO.
Certificate Evidencing [Preferred] Securities
of
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
___% [Preferred] Securities
(liquidation amount $ per [Preferred] Security)
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST, a statutory
business trust formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that _______________ (the "Holder") is the registered owner of
preferred securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust designated the Nationwide Financial
Services Capital Trust II ___% [Preferred] Securities (liquidation amount
$ per Security)(the "[Preferred] Securities"). The [Preferred] Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the [Preferred] Securities
represented hereby are in all respects subject to the provisions of the Amended
and Restated Declaration of Trust of the Trust dated as of ___________, 1998, as
the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the [Preferred] Securities as set
A-1
<PAGE> 67
forth in Annex I to the Declaration. Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Preferred Securities Guarantee to the extent
provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Security Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the [Preferred]
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of _________, 199_.
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
By: ___________________________________
Name: ___________________________________
Title: Regular Trustee
By: ___________________________________
Name: ___________________________________
Title: Regular Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Preferred] Securities referred to in the
within-mentioned Declaration.
By: ___________________________________
Authorized Signatory
A-2
<PAGE> 68
[FORM OF REVERSE OF SECURITY]
Distributions payable on each [Preferred] Security will be
fixed at a rate per annum of __% (the "Coupon Rate") of the stated liquidation
amount of $ per [Preferred] Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears will bear interest thereon compounded [quarterly][semi-annually] at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds available therefor. The
amount of Distributions payable for any period will be computed for any full
[quarterly][semi-annual] Distribution period on the basis of a 360-day year of
twelve 30-day months, and for any period of less than a full calendar month the
number of days elapsed in such month.
Distributions on the [Preferred] Securities will be
cumulative, will accrue from the date of original issuance and will be payable
[quarterly][semi-annually] in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures: __________________
and ________________ of each year, commencing on ___________, 1998, except as
otherwise described below. So long as no Event of Default (or an event which
would be an Event of Default with the giving of required notice or the passage
of time) has occurred and is continuing, the Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding
[20 consecutive quarters][10 consecutive semi-annual periods] (each an
"Extension Period") and, as a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, [quarterly][semi-annual] Distributions
will continue to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded [quarterly][semi-annually] during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period so long as
no Event of Default (or an event which would be an Event of Default with the
giving of required notice or the passage of time) has occurred and is
continuing; PROVIDED THAT such Extension Period together with all such previous
and further extensions thereof may not exceed [20 consecutive quarters][10
consecutive semi-annual periods] or extend beyond the maturity (whether at the
stated maturity or by declaration of acceleration, call for redemption or
otherwise) of the Debentures under the Indenture. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
The [Preferred] Securities shall be redeemable as provided in
the Declaration.
A-3
<PAGE> 69
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this [Preferred]
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
________________________________ agent to transfer this
[Preferred] Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
-----------------------
Signature:
------------------------------
(Sign exactly as your name appears on the other side of this [Preferred]
Security Certificate)
A-4
<PAGE> 70
EXHIBIT B
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
___% Common Securities
(liquidation amount $ per Common Security)
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II, a statutory
business trust formed under the laws of the State of Delaware (the "Trust")
hereby certifies that ______________________ (the "Holder") is the registered
owner of common securities of the Trust representing common undivided beneficial
interests in the assets of the Trust designated the ___% Common Securities
(liquidation amount $ per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preference and other terms and provisions of the Common Securities
represented hereby are in all respects subject to the provisions of the Amended
and Rested Declaration of Trust of the Trust dated as of _____________ 1998, as
the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Common Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration and the Indenture to a Holder without charge upon written request to
the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
B-1
<PAGE> 71
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of _______________, 199_.
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
By: ___________________________________
Name: ___________________________________
Title: Regular Trustee
By: ___________________________________
Name: ___________________________________
Title: Regular Trustee
B-2
<PAGE> 72
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at
a rate per annum of __% (the "Coupon Rate") of the stated liquidation amount of
$ per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears will
bear interest thereon compounded [quarterly][semi-annually] at the Coupon Rate
(to the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable unless
otherwise stated.
A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Property Trustee and to the extent
the Property Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full [quarterly][semi-annual]
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period of less than a full calendar month the number of days elapsed in
such month.
Distributions on the Common Securities will be cumulative,
will accrue from the date of original issuance and will be payable
[quarterly][semi-annually] in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures: __________________
and ________________ of each year, commencing on ___________, 1998, except as
otherwise described below. So long as no Event of Default (or an event which
would be an Event of Default with the giving of required notice or the passage
of time) has occurred and is continuing, the Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding
[20 consecutive quarters][10 consecutive semi-annual periods] (each an
"Extension Period") and, as a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, [quarterly][semi-annual] Distributions
will continue to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded [quarterly][semi-annually] during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period so long as
no Event of Default (or an event which would be an Event of Default with the
giving of required notice or the passage of time) has occurred and is
continuing; PROVIDED THAT such Extension Period together with all such previous
and further extensions thereof may not exceed [20 consecutive quarters][10
consecutive semi-annual periods] or extend beyond the maturity (whether at the
stated maturity or by declaration of acceleration, call for redemption or
otherwise) of the Debentures under the Indenture. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
B-3
<PAGE> 73
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
________________________________ agent to transfer this Common
Security Certificate on the books of the Trust. The agent may substitute another
to act for him or her.
Date:
--------------------
Signature:
---------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
B-4
<PAGE> 1
Exhibit 4.12
CERTIFICATE OF TRUST OF
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
THIS CERTIFICATE OF TRUST of Nationwide Financial Services Capital
Trust III (the "Trust"), dated as of May 7, 1998, is being duly executed and
filed by the undersigned, as trustees, to form a business trust under the
Delaware Business Trust Act (12 DEL. C. ss. 3801, et seq.).
(i) Name. The name of the business trust being formed hereby is
Nationwide Financial Services Capital Trust III.
(ii) Delaware Trustee. The name and business address of the Trustee
of the Trust with a principal place of business in the State of Delaware is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, DE 19890-0001, Attn: Corporate Trust Administration.
(iii) Counterparts. This Certificate of Trust may be executed in one
or more counterparts, all of which together shall constitute one and the same
instrument.
(iv) Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Emmett R. Harmon
------------------------------
Name: Emmett R. Harmon
Title: Vice President
/s/ David A. Diamond
----------------------------------
David A. Diamond,
as Trustee
<PAGE> 1
Exhibit 4.13
DECLARATION OF TRUST
This DECLARATION OF TRUST, dated as of May 7, 1998 (this
"Declaration"), among Nationwide Financial Services, Inc., a Delaware
corporation, as "Sponsor," Wilmington Trust Company, a Delaware banking
corporation, and David A. Diamond, as Trustee (the "Trustees"). The Sponsor and
the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Nationwide Financial
Services Capital Trust III," in which name the Trustees, or the Sponsor to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 DEL. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement (including the prospectus,
prospectus supplements and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Preferred Securities of the Trust under Section 12(b) or
12(g) of the Securities Exchange Act of 1934, as amended, including any
amendments thereto; (ii) to file with the New
<PAGE> 2
York Stock Exchange or any other national stock exchange or The Nasdaq National
Market (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on any of the Exchanges; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or blue sky laws of such jurisdictions
as the Sponsor, on behalf of the Trust, may deem necessary or desirable and (iv)
to negotiate the terms of and to execute, deliver and perform on behalf of the
Trust that certain Underwriting Agreement relating to the Preferred Securities
among the Trust, the Sponsor and the several Underwriters named therein,
substantially in the form included as an exhibit to the 1933 Act Registration
Statement. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws, to be executed on behalf of the
Trust by any of the Trustees, David A. Diamond, in his capacity as Trustee of
the Trust, is hereby authorized and directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing. In connection with
all of the foregoing, the Sponsor hereby constitutes and appoints Joseph J.
Gasper, W. Sidney Druen and Mark B. Koogler, and each of them, as its true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Sponsor or in the Sponsor's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Sponsor might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
their respective substitute or substitutes, shall do or cause to be done by
virtue hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any Trustee at any time.
Any Trustee may resign upon thirty (30) days' prior notice to the Sponsor.
7. This Declaration shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
-2-
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
to be duly executed as of the day and year first above written.
NATIONWIDE FINANCIAL SERVICES, INC.,
as Sponsor
By: /s/ Mark B. Koogler
-----------------------------
Name: Mark B. Koogler
Title: Counsel
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Trustee
By: /s/ Emmett R. Harmon
-----------------------------
Name: Emmett R. Harmon
Title: Vice President
/s/ David A. Diamond
---------------------------------
David A. Diamond, not in his individual capacity
but solely as Trustee
-3-
<PAGE> 1
EXHIBIT 4.14
- --------------------------------------------------------------------------------
Form of
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
Dated as of ____________ __, _____
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I
Interpretation and Definitions
SECTION 1.01 Definitions................................................................................1
ARTICLE II
Trust Indenture Act
SECTION 2.01 Trust Indenture Acts; Application..........................................................7
SECTION 2.02 Lists of Holders of Securities.............................................................7
SECTION 2.03 Reports by the Property Trustee............................................................7
SECTION 2.04 Periodic Reports to Property Trustee.......................................................8
SECTION 2.05 Evidence of Compliance with Conditions Precedent...........................................8
SECTION 2.06 Events of Default; Waiver..................................................................8
SECTION 2.07 Event of Default; Notice...................................................................9
ARTICLE III
Organization
SECTION 3.01 Name......................................................................................10
SECTION 3.02 Office....................................................................................10
SECTION 3.03 Declaration...............................................................................10
SECTION 3.04 Authority.................................................................................10
SECTION 3.05 Title to Property of the Trust............................................................11
SECTION 3.06 Powers and Duties of the Regular Trustees.................................................11
SECTION 3.07 Prohibition of Actions by the Trust and the Trustees......................................13
SECTION 3.08 Powers and Duties of the Property Trustee.................................................14
SECTION 3.09 Certain Duties and Responsibilities of the Property Trustee...............................16
SECTION 3.10 Certain Rights of Property Trustee........................................................17
SECTION 3.11 Delaware Trustee..........................................................................19
SECTION 3.12 Execution of Documents....................................................................20
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities....................................20
SECTION 3.14 Duration of Trust.........................................................................20
SECTION 3.15 Mergers...................................................................................20
</TABLE>
B-i
<PAGE> 3
<TABLE>
<CAPTION>
ARTICLE IV
Sponsor
<S> <C>
SECTION 4.01 Sponsor's Purchase of Common Securities...................................................22
SECTION 4.02 Responsibilities of the Sponsor...........................................................22
SECTION 4.03 Guarantee of Payment of Trust Obligations.................................................22
ARTICLE V
Trustees
SECTION 5.01 Number of Trustees........................................................................23
SECTION 5.02 Delaware Trustee..........................................................................23
SECTION 5.03 Property Trustee; Eligibility.............................................................23
SECTION 5.04 Qualifications of Regular Trustees and Delaware Trustee Generally.........................24
SECTION 5.05 Initial Trustees..........................................................................24
SECTION 5.06 Appointment, Removal and Resignation of Trustees..........................................25
SECTION 5.07 Vacancies Among Trustees..................................................................26
SECTION 5.08 Effect of Vacancies.......................................................................26
SECTION 5.09 Meetings..................................................................................26
SECTION 5.10 Delegation of Power.......................................................................27
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business...............................27
ARTICLE VI
Distributions
SECTION 6.01 Distributions.............................................................................27
ARTICLE VII
Issuance of Securities
SECTION 7.01 General Provisions Regarding Securities...................................................28
SECTION 7.02 Execution and Authentication..............................................................28
SECTION 7.03 Book-Entry Preferred Securities Certificates; Definitive Preferred
Securities Certificates; Common Securities Certificate....................................29
SECTION 7.04 Registrar and Paying Agent................................................................30
SECTION 7.05 Paying Agent to Hold Money in Trust.......................................................31
SECTION 7.06 Replacement Securities. .................................................................31
SECTION 7.07 Outstanding Preferred Securities..........................................................31
SECTION 7.08 Preferred Securities in Treasury..........................................................32
SECTION 7.09 Temporary Securities......................................................................32
SECTION 7.10 Cancellation..............................................................................33
</TABLE>
B-ii
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE VIII
Termination of Trust
<S> <C>
SECTION 8.01 Termination of Trust......................................................................33
ARTICLE IX
Exchange
SECTION 9.01 General...................................................................................34
SECTION 9.02 Deemed Security Holders...................................................................34
ARTICLE X
Limitation of Liability of Holders of Securities, Trustees or Others
SECTION 10.01 Liability................................................................................35
SECTION 10.02 Exculpation..............................................................................35
SECTION 10.03 Fiduciary Duty...........................................................................35
SECTION 10.04 Indemnification..........................................................................36
SECTION 10.05 Outside Businesses.......................................................................37
ARTICLE XI
Accounting
SECTION 11.01 Fiscal Year..............................................................................37
SECTION 11.02 Certain Accounting Matters...............................................................37
SECTION 11.03 Banking..................................................................................38
SECTION 11.04 Withholding..............................................................................38
ARTICLE XII
Amendments and Meetings
SECTION 12.01 Amendments...............................................................................39
SECTION 12.02 Meetings of the Holders of Securities; Action by Written Consent.........................40
ARTICLE XIII
Representations of Delaware and Property Trustee
SECTION 13.01 Representations and Warranties of Delaware Trustee.......................................42
</TABLE>
B-iii
<PAGE> 5
<TABLE>
<CAPTION>
ARTICLE XIV
Miscellaneous
<S> <C>
SECTION 14.01 Notices..................................................................................43
SECTION 14.02 Governing Law............................................................................44
SECTION 14.03 Intention of the Parties.................................................................44
SECTION 14.04 Headings.................................................................................45
SECTION 14.05 Successors and Assigns...................................................................45
SECTION 14.06 Partial Enforceability...................................................................45
SECTION 14.07 Counterparts.............................................................................45
ANNEX I Terms of __% Preferred Securities and __% Common Securities
Exhibit A Form of Preferred Security
Exhibit B Form of Common Security
</TABLE>
B-iv
<PAGE> 6
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<S> <C>
310(a)..............................................................................................5.3(a)
310(c)........................................................................................Inapplicable
311(c)........................................................................................Inapplicable
312(a)..............................................................................................2.2(a)
312(b)..............................................................................................2.2(b)
313....................................................................................................2.3
314(a).................................................................................................2.4
314(b)........................................................................................Inapplicable
314(c).................................................................................................2.5
314(d)........................................................................................Inapplicable
314(f)........................................................................................Inapplicable
315(a)..............................................................................................3.9(b)
315(c)..............................................................................................3.9(a)
315(d)..............................................................................................3.9(a)
316(a).............................................................................................Annex I
316(c)..............................................................................................3.6(e)
</TABLE>
- ----------------
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
B-v
<PAGE> 7
AMENDED AND RESTATED DECLARATION OF TRUST
OF
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
_____________ __, 1998
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of __________ __, 1998, by the undersigned trustees
(together with all other persons from time to time duly appointed and serving as
trustees in accordance with the provisions of this Declaration, the "Trustees"),
Nationwide Financial Services, Inc., a Delaware corporation, as trust sponsor
(the "Sponsor"), and by the holders, from time to time, of the securities
representing the undivided beneficial interests in the assets of the Trust
issued pursuant to the Declaration;
WHEREAS, the Trustees and the Sponsor established a trust (the
"Trust") under the Delaware Business Trust Act (as hereinafter defined) pursuant
to a Declaration of Trust dated as of May 7, 1998 (the "Original Declaration"),
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on May 8, 1998, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain Debentures of the Debenture
Issuer (as hereinafter defined); and
WHEREAS, as of the date hereof, no interests in the Trust have
been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision of the Original
Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing the undivided beneficial interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
------------------------------
SECTION 1.01 DEFINITIONS. Unless the context otherwise
requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.01;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
<PAGE> 8
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning as when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"AFFILIATE" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"AGENT" means any registrar, Paying Agent or co-registrar.
"AUTHORIZED OFFICER" of a Person means any Person that is
authorized to bind such Person.
"BENEFICIARIES" has the meaning set forth in Section 4.03(a).
"BOOK ENTRY INTEREST" means a beneficial interest in a Global
Certificate, ownership and transfers of which all be maintained and made through
book entries by a Depositary as described in Section 7.03.
"BUSINESS DAY" means any day other than a day on which banking
institutions in New York, New York or Wilmington, Delaware are authorized or
required by law or regulation to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 ET SEQ., as it may be amended from time
to time.
"CERTIFICATE" means a certificate in global or definitive form
representing a Common Security or a Preferred Security.
"CERTIFICATE DEPOSITARY AGREEMENT" means the Agreement among
the Trust, the Depositary and the Sponsor as the same may be amended from time
to time.
"CLOSING DATE" means the First Closing Date as defined in the
Underwriting Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission.
2
<PAGE> 9
"COMMON SECURITY" means an undivided beneficial interest in
the assets of the Trust, having a liquidation amount of $ and having the rights
provided therefor in this Declaration, including the right to receive
Distributions as provided herein.
"COVERED PERSON" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"DEBENTURE ISSUER" means Nationwide Financial Services, Inc.,
as issuer of the Debentures.
"DEBENTURE TRUSTEE" means Wilmington Trust Company, as trustee
under the Indenture until a successor is appointed thereunder, and thereafter
means such successor trustee.
"DEBENTURES" means the series of Subordinated Deferrable
Interest Debentures due to be issued by the Debenture Issuer under the Indenture
________ to be held by the Property Trustee.
"DELAWARE TRUSTEE" has the meaning set forth in Section 5.02.
"DEFINITIVE PREFERRED SECURITIES" means the Preferred
Securities in definitive form issued by the Trust, a specimen certificate for
such preferred securities being attached hereto as Exhibit A.
"DEPOSITARY" means The Depository Trust Company, the initial
clearing agency.
"DISTRIBUTION" means a distribution payable to Holders of
Securities in accordance with Section 6.01.
"EVENT OF DEFAULT" in respect of the Securities means an Event
of Default (as defined in the Indenture) in respect of the Debentures or a
default by the Sponsor under the Preferred Securities Guarantee has occurred and
is continuing.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"GLOBAL CERTIFICATE" has the meaning set forth in Section
7.03(a).
"HOLDER" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"INDEMNIFIED PERSON" means (a) any Trustee; (b) any Affiliate
of any Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee or (d) any employee or agent
of the Trust or its Affiliates.
3
<PAGE> 10
"INDENTURE" means the Subordinated Indenture dated as of
_______ __, 1998, between the Debenture Issuer and Debenture Trustee, and any
indenture supplemental thereto pursuant to which the Debentures are to be
issued.
"INVESTMENT COMPANY" means an investment company as defined in
the Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"LEGAL ACTION" has the meaning set forth in Section 3.06(g).
"LIST OF HOLDERS" has the meaning set forth in Section
2.02(a).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES" means,
except as provided in the terms of the Preferred Securities and by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"OBLIGATIONS" means any costs, expenses or liabilities of the
Trust, other than obligations of the Trust to pay to Holders of any Securities
or other similar interests in the Trust the amounts due such Holders pursuant to
the terms of the Securities or such other similar interests, as the case may be.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate
has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each
officer in rendering the Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been
complied with.
4
<PAGE> 11
"PARTICIPANT" means a member of, or participant in, the
Depositary.
"PAYING AGENT" has the meaning specified in Section 7.04.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"PREFERRED SECURITIES" means a preferred security issued by
the Trust, constituting an undivided beneficial interest in the assets of the
Trust, having rights provided therefor in this Declaration, including the right
to Distributions as provided herein. The specific designation of the Preferred
Securities issued by the Trust will be determined by the Regular Trustees, as
set forth in Section 3.06.
"PREFERRED SECURITIES GUARANTEE" means the guarantee agreement
to be dated as of __________ __, 1998, of the Sponsor in respect to the
Preferred Securities.
"PREFERRED SECURITY BENEFICIAL OWNER" means, with respect to a
Book Entry interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Participant or
as an indirect participant, in each case in accordance with the rules of such
Depositary).
"PROPERTY TRUSTEE" means the Trustee meeting the eligibility
requirements set forth in Section 5.03.
"PROPERTY TRUSTEE ACCOUNT" has the meaning set forth in
Section 3.08(c).
"PROSPECTUS" has the meaning set forth in Section 3.06(b)(i).
"QUORUM" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"REGISTRAR" has the meaning set forth in Section 7.04.
"REGISTRATION STATEMENT" has the meaning set forth in Section
3.06(b)(i).
"REGULAR TRUSTEE" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"RESPONSIBLE OFFICER" means, with respect to the Property
Trustee, any vice-president, any assistant vice-president, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer in Corporate Trust Administration of the Property Trustee customarily
performing functions similar to those performed by any of the above
5
<PAGE> 12
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"SECURITIES" means the Common Securities and the Preferred
Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SPONSOR" means Nationwide Financial Services, Inc., a
Delaware corporation, or any successor entity in a merger, consolidation or
amalgamation, in its capacity as sponsor of the Trust.
"SUPER MAJORITY" has the meaning set forth in Section
2.06(a)(ii).
"10% IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
provided in the terms to the Preferred Securities or by the Trust Indenture Act,
Holders of outstanding Securities voting together as a single class or, as the
context any require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, representing 10% of
the aggregate liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"TREASURY REGULATION" means the income tax regulation,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions to succeeding regulations).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended from time to time.
"TRUST PROPERTY" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Property Trustee Account and (c) all proceeds and
rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to the
trusts of this Declaration.
"TRUSTEE" or "TRUSTEES" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving an Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement,
dated _______, 1998, among the Sponsor, the Trust and [ ], as
representatives of the several underwriters named in Schedule A attached
thereto.
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ARTICLE II
TRUST INDENTURE ACT
-------------------
SECTION 2.01 TRUST INDENTURE ACTS; APPLICATION. (a) This
Declaration is subject to the provisions of the Trust Indenture Act that are
required to be part of this Declaration, which are incorporated by reference in
and made part of this Declaration and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purpose of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by
Sections 310 to 377, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.02 LISTS OF HOLDERS OF SECURITIES. (a) Each of the
Sponsor and the Regular Trustees on behalf of the Trust shall provide the
Property Trustee (i) within 14 days after each record date for payment of
Distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the Securities ("List of
Holders") as of such record date; PROVIDED THAT neither the Sponsor nor the
Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust, and (ii) a List of Holders at any other time,
within 30 days of receipt by the Regular Trustees on behalf of the Trust of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Property Trustee. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
its capacity as Paying Agent (if acting in such capacity); provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 311(a), 312(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03 REPORTS BY THE PROPERTY TRUSTEE. Within 60 days
after May 15 of each year, the Property Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
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SECTION 2.04 PERIODIC REPORTS TO PROPERTY TRUSTEE. Each of the
Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 2.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.06 EVENTS OF DEFAULT; WAIVER. (a) The Holders of a
Majority in liquidation preference of Preferred Securities may, by vote, on
behalf of the Holders of all of the Preferred Securities, waive any past Event
of Default in respect of the Preferred Securities and its consequences; PROVIDED
THAT, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under
the Declaration may only be waived by the vote of the Holders of at
least the proportion in liquidation amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Declaration, but
no such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of an Event of
Default with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Event of
Default with respect to the Common Securities for all purpose of this
Declaration without any further act, vote, or consent of the Holders of the
Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences; PROVIDED THAT, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived such
Event of Default under the
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Declaration as provided below in this Section 2.06(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration as provided
below in this Section 2.06(b), the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation preference of the Common Securities that
the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
PROVIDED, FURTHER, each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until the effects of all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
in accordance with the terms of the Securities. Subject to the foregoing
provisions of this Section 2.06(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.06(c) shall be in lieu
of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Securities, as permitted by the Trust Indenture Act.
SECTION 2.07 EVENT OF DEFAULT; NOTICE. (a) The Property
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Securities,
notices of all defaults with respect to the Securities actually known to the
Property Trustee, unless such defaults have been cured before the giving of such
notice (the term "defaults" for the purposes of this Section 2.07(a) being
hereby defined to be an Event of Default as defined in the Indenture not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); PROVIDED THAT, except for a default in
the payment of principal of (or premium, if any) or interest on any of the
Debentures or in the payment of any sinking fund installment established for the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Property Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Securities.
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(b) The Property Trustee shall not be deemed to have knowledge
of any default unless a Responsible Officer has actual knowledge of or has
received written notice of such default.
ARTICLE III
ORGANIZATION
------------
SECTION 3.01 NAME. The Trust is named Nationwide Financial
Services Capital Trust III, as such name may be modified from time to time by
the Regular Trustees following written notice to the Holders of Securities. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 3.02 OFFICE. The address of the principal office of
the Trust is c/o Nationwide Financial Services, Inc., One Nationwide Plaza,
Columbus, Ohio 43215, Attention: Chief Financial Officer. On ten Business Days
written notice to the Holders of Securities, the Regular Trustees may designate
another principal office.
SECTION 3.03 DECLARATION. (a) The exclusive purposes and
functions of the Trust are (i) to issue and sell Securities and use the gross
proceeds from such sale to acquire the Debentures, (ii) to maintain the status
of the Trust as a grantor trust for United States federal income tax purposes,
and (iii) except as otherwise limited herein, to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest profits derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States Federal income tax
purposes as a grantor trust.
(b) The Trust will be classified as a grantor trust for United
States federal income tax purposes under Subpart E of Subchapter J of the Code,
pursuant to which the Holders of the Preferred Securities and the Common
Securities will be the owners of the Trust for United States federal income tax
purposes, and such Holders will include directly in their gross income the
income, gain, deduction or loss of the Trust as if the Trust did not exist. By
the acceptance of this Trust, neither the Trustees, the Sponsor nor the owners
of the Preferred Securities or Common Securities will take any position for
United States federal income tax purposes which is contrary to the
classification of the Trust as a grantor trust.
SECTION 3.04 AUTHORITY. Subject to the limitations provided in
this Declaration and to the specific duties of the Property Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Property Trustee in accordance with its powers shall constitute the
act of and serve to bind the Trust. In dealing with the Trustees acting on
behalf of the Trust, no person shall be required to inquire into the authority
of the Trustees to bind the Trust. Persons dealing with the Trust are entitled
to rely conclusively on the power and authority of the Trustees as set forth in
this Declaration.
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SECTION 3.05 TITLE TO PROPERTY OF THE TRUST. Except as
provided in Section 3.08 with respect to the Debentures and the Property Trustee
Account or as otherwise provided in this Declaration, legal title to all assets
of the Trust shall be vested in the Trust. The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
SECTION 3.06 POWERS AND DUTIES OF THE REGULAR TRUSTEES. The
Regular Trustees shall have the exclusive power, duty and authority to act on
behalf of the Trust with respect to the following activities:
(a) determining the specific designation of the Preferred
Securities issued by the Trust and issuing and selling the Preferred Securities
and Common Securities in accordance with this Declaration; PROVIDED, HOWEVER,
that the Trust may issue no more than one series of Preferred Securities and no
more than one series of Common Securities; and PROVIDED, FURTHER, that there
shall be no interests in the Trust other than the Securities, and the issuance
of Securities shall be limited to simultaneous issuances of both Preferred
Securities and Common Securities on the Closing Date;
(b) in connection with the issuance and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) assist in the preparation of a prospectus (the
"Prospectus") in preliminary and final form prepared by the Sponsor, in
relation to the offering and sale of Preferred Securities and to
execute and file with the Commission, a registration statement filed on
Form S-3 prepared by the Sponsor, including any amendments thereto in
relation to the Preferred Securities (including any registration
statement filed pursuant to Rule 462) (the "Registration Statement");
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary
in order to qualify or register all or part of the Preferred Securities
in any State or foreign jurisdiction in which the Sponsor has
determined to qualify or register such Preferred Securities for sale
and to qualify this Declaration under the Trust Indenture Act;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange for listing or quotation of the Preferred Securities;
(iv) execute and deliver letters, documents, or
instruments with the Depositary relating to the Preferred Securities;
(v) execute and file with the Commission, at such time
as determined by the Sponsor, a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor relating to
the registration of the Preferred Securities under Section 12 of the
Exchange Act; and
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(vi) execute and enter into the Underwriting Agreement
and other related agreements providing for the sale of the Preferred
Securities and consummate the transactions contemplated thereby;
(c) acquiring the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; PROVIDED, HOWEVER, that the
Regular Trustees shall cause title to the Debentures to be held of record in the
name of the Property Trustee for the benefit of the Holders of the Preferred
Securities and the Holders of the Common Securities;
(d) giving the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Tax Event; PROVIDED, THAT the Regular Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any Ministerial Action in relation to a Tax Event;
(e) establishing a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) taking all action, and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the Securities (set
forth in Annex I hereto and made a part hereof);
(g) bringing or defending, paying, collecting, compromising,
arbitrating, resorting to legal action, or otherwise adjusting claims or demands
of or against the Trust ("Legal Action"), unless pursuant to Section 3.08(e),
the Property Trustee has the exclusive power to bring such Legal Action;
(h) employing or otherwise engaging employees and agents (as
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) causing the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) giving the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(k) incurring expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) acting as, or appoint another Person to act as, Registrar
and transfer agent for the Securities;
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(m) giving prompt written notice to the Holders of the
Securities of any notice received from the Sponsor of its election to defer
payments of interest on the Debentures by extending the interest payment period
under the Indenture;
(n) to the extent provided in this Declaration, terminating,
dissolving and liquidating the Trust and preparing, executing and filing the
certificate of cancellation with the Secretary of State of the State of
Delaware;
(o) taking all action that may be necessary or appropriate for
the preservation and the confirmation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the trust to effect the purposes for which the Trust was
created;
(p) taking any action, not inconsistent with this Declaration
or with applicable law, that the Regular Trustees determine in their discretion
to be necessary or desirable in carrying out the activities of the Trust as set
out in this Section 3.06, including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the
Debentures will be treated as indebtedness of the Sponsor for United
States federal income tax purposes; PROVIDED THAT such action does not
adversely affect the interests of Holders; and
(q) taking all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust; and
(r) executing all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in
this Section 3.06 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.03, and the Regular Trustees shall not take
any action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.03.
Subject to this Section 3.06, the Regular Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.08.
SECTION 3.07 PROHIBITION OF ACTIONS BY THE TRUST AND THE
TRUSTEES. (a) The Trust shall not, and the Trustees (including the Property
Trustee) shall not, engage in any activity
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other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees (including the Property Trustee) shall cause
the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to
Holders of Securities pursuant to the terms of this Declaration and of
the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as
to vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust other
than the Securities; or
(vii) other than as provided in this Declaration or Annex
I hereto, (A) direct the time, method and place of exercising any trust
or power conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is not waivable under
Section 5.13 of the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the Debentures shall be
due and payable, or (D) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent shall
be required unless the Trust shall have received an opinion of counsel
to the effect that such amendment, modification or termination will not
cause more than an insubstantial risk that for United States federal
income tax purposes the Trust will not be classified as a grantor
trust.
SECTION 3.08 POWERS AND DUTIES OF THE PROPERTY TRUSTEE. (a)
The legal title to the Debentures shall be owned by and held of record in the
name of the Property Trustee in trust for the benefit of the Holders of the
Securities. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.06. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
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(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of
and under the exclusive control of the Property Trustee on behalf of
the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trust Account and make payments to
the Holders of the Preferred Securities and Holders of the Common
Securities from the Property Trustee Account in accordance with Section
6.01. Funds in the Property Trustee Account shall be held uninvested
until disbursed in accordance with this Declaration.
(ii) engage in such unilateral activities as so directed
and as shall be necessary or appropriate to effect the redemption of
the Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities, engage
in such ministerial activities as so directed as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Securities pursuant to the terms of the Securities.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of the Securities (set forth in Annex I hereto and made a part
hereof).
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 5.06.
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default occurs and is continuing, the
Property Trustee shall, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
(h) The Property Trustee will act as initial paying agent and
registrar to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all securities and as such, shall comply
with Section 317(b) of the Trust Indenture Act. Any Paying Agent (as defined in
Section 7.04) may be removed by the Property Trustee at any time and a
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successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.08, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.06.
The Property Trustee must exercise the powers set forth in
this Section 3.08 in a manner that is consistent with the purpose and functions
of the Trust set out in Section 3.03, and the Property Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.03.
SECTION 3.09 CERTAIN DUTIES AND RESPONSIBILITIES OF THE
PROPERTY TRUSTEE. (a) The Property Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that any have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.06), the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(ii) (A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration; but in
the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Declaration;
(C) the Property Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Property Trustee, unless it shall be
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proved that the Property Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Declaration or adequate indemnity against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or sufficiency
of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee pursuant to
Section 3.06(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the Regular Trustees
or the Sponsor.
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE. (a) Subject
to the provisions of Section 3.09:
(i) the Property Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
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indebtedness or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of
such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have provided to the Property Trustee adequate security and indemnity,
which would satisfy a reasonable person in the position of the Property
Trustee, against the costs, expenses (including its attorneys' fees and
expenses) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested in writing by the Property Trustee provided, that,
nothing contained in this Section 3.10(a)(vi) shall be taken to relieve
the Property Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, security, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
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(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any such action and
no third party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request instructions from
the Holders of the Securities which instructions may only be given by
the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Property Trustee under
the terms of the Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy, right or taking such other
action until such instructions are received, and (iii) shall be
protected in acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration; and
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 DELAWARE TRUSTEE. Notwithstanding any other
provision of this Declaration other than Section 5.02, the Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Regular Trustees or the
Property Trustee described in this Declaration. Except as set forth in Section
5.02, the Delaware Trustee shall be a Trustee for the sole and limited purpose
of fulfilling the requirements to Section 3807 of the Business Trust Act.
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SECTION 3.12 EXECUTION OF DOCUMENTS. Unless otherwise
determined by the Regular Trustees, and except as otherwise required by the
Business Trust Act, any Regular Trustee is authorized to execute on behalf of
the Trust any documents that the Regular Trustees have the power and authority
to execute pursuant to Section 3.06; PROVIDED THAT, the Registration Statement
referred to in Section 3.06(b)(i), including any amendments thereto, shall be
signed by all of the Regular Trustees.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 DURATION OF TRUST. The Trust, unless terminated
pursuant to the provisions of Article VIII hereof, shall exist until
___________, 20__.
SECTION 3.15 MERGERS. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other entity or person, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the
Regular Trustees and without the consent of the Holders of Securities or the
Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or
into or be replaced by a trust organized as such under the laws of any State or
the District of Columbia; PROVIDED THAT:
(i) if the Trust in not the surviving entity, the entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Preferred
Securities (the "Successor Securities") as long as the
Successor Securities rank, with respect to participation in
the profits and distributions or in the assets of the
Successor Entity at least as high as the Preferred Securities
rank with respect to participation in the profits and
dividends or in the assets of the Trust;
(ii) the Sponsor expressly acknowledges such Successor
Entity as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities
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exchange or with any other organization on which the Preferred
Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the powers, preferences and other
special rights of the Holders of the Preferred Securities (including
any Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel (reasonably acceptable to the Property
Trustee) to the Trust experienced in such matters to the effect that:
(A) the Successor Entity will be treated as a
grantor trust for United States federal income tax purposes;
(B) following such merger, consolidation,
amalgamation or replacement, neither the Sponsor nor the
Successor Entity will be required to register as an Investment
Company; and
(C) such merger, consolidation, amalgamation or
replacement will not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect; and
(viii) the Sponsor provides a guarantee to the Holders of
the Successor Securities with respect to the Successor Entity having
substantially the same terms as the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the Common
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
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ARTICLE IV
SPONSOR
-------
SECTION 4.01 SPONSOR'S PURCHASE OF COMMON SECURITIES. On the
Closing Date the Sponsor will purchase an amount of Common Securities issued by
the Trust such that the aggregate liquidation amount of such Common Securities
purchased by the Sponsor shall at such date equal at least 3% of the total
capital of the Trust.
SECTION 4.02 RESPONSIBILITIES OF THE SPONSOR. In connection
with the issuance and sale of the Preferred Securities, the Sponsor shall have
the exclusive right and responsibility to engage in the following activities:
(a) to prepare the Prospectus and to prepare for filing by the
Trust with the Commission the Registration Statement, including any amendments
thereto;
(b) to determine the states and foreign jurisdictions in which
to take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable law of any such States and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange for listing or
quotation of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12 of the Exchange Act, including any amendments
thereto; and
(e) to negotiate the terms of and to execute and deliver an
Underwriting Agreement and other related agreements providing for the sale of
the Preferred Securities.
SECTION 4.03 GUARANTEE OF PAYMENT OF TRUST OBLIGATIONS. (a)
Subject to the terms and conditions of this Section 4.03, the Holder of Common
Securities hereby irrevocably and unconditionally guarantees to each Person to
whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
to such Beneficiaries.
(b) The agreement of the Sponsor in Section 4.03(a) is
intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice hereof.
(c) The agreement of the Sponsor set forth in Section 4.03(a)
shall terminate and be of no further force and effect upon the later of (a) the
date on which full payment has been
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made of all amounts payable to all Holders of all the Preferred Securities
(whether upon redemption, liquidation, exchange or otherwise) and (b) the date
on which there are no Beneficiaries remaining; PROVIDED, HOWEVER, that such
agreement shall continue to be effective or shall be reinstated, as the case may
be, if at any time any Holder of Preferred Securities or any Beneficiary must
restore payment of any sums paid under the Preferred Securities, under any
Obligation, under the Preferred Securities Guarantee or under this Agreement for
any reason whatsoever. Such agreement is continuing, irrevocable, unconditional
and absolute.
ARTICLE V
TRUSTEES
--------
SECTION 5.01 NUMBER OF TRUSTEES. The number of Trustees shall
initially be four (4), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities; PROVIDED THAT, if the Property Trustee
does not also act as Delaware Trustee, the number of Trustees shall be at least
five (5).
SECTION 5.02 DELAWARE TRUSTEE. If required by the Business
Trust Act, one Trustee (the "Delaware Trustee") shall be an entity which has its
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law; PROVIDED THAT, if the Property Trustee has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.03 PROPERTY TRUSTEE; ELIGIBILITY. (a) There shall at
all times be one Trustee which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the Unites States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision
or examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of conditions at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.03(a)(ii), the combined capital
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and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition
so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.03(a), the Property Trustee shall immediately
resign in the manner and with the effect as set forth in Section 5.06(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interests" within the meaning of Section 310(b) of the
Trust Indenture Act, the Property Trustee and the Holder of the Common
Securities (as if it were the obliger referred to in Section 310(b) of the
Trust Indenture Act) shall in all respects comply with the provisions of
Section 320(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 5.04 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE
TRUSTEE GENERALLY. Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
SECTION 5.05 INITIAL TRUSTEES. The initial Regular Trustees
shall be:
[NAME]
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
[NAME]
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
[NAME]
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
The initial Delaware Trustee shall be:
WILMINGTON TRUST COMPANY
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
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The initial Property Trustee shall be:
WILMINGTON TRUST COMPANY
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
SECTION 5.06 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.06(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities;
PROVIDED, HOWEVER, that if an Event of Default shall have occurred and
be continuing, the Property Trustee may be removed only by the vote of
Holders of a majority in liquidation amount of the Preferred Securities
voting as a class at a meeting of Holders of Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.06(a) until a successor Property Trustee
(the "Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) The Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.06(a) until a successor Trustee possessing
the qualifications to act as Delaware Trustee under Sections 5.02 and 5.04 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustees
and delivered to the Regular Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; PROVIDED, HOWEVER,
that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
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(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.06.
(f) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.06 within 60 days after delivery to the Sponsor and the Trust of an
instrument of resignation or removal, the Property Trustee or Delaware Trustee
resigning or being removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.07 VACANCIES AMONG TRUSTEES. If a Trustee ceases to
hold office for any reason and the number of Trustees is not reduced pursuant to
Section 5.01, or if the number of Trustees is increased pursuant to Section
5.01, a vacancy shall occur. A resolution certifying the existence of such
vacancy by a majority of the Regular Trustees shall be conclusive evidence of
the existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 5.06.
SECTION 5.08 EFFECT OF VACANCIES. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees shall occur, until
such vacancy in filled by the appointment of a Regular Trustee in accordance
with Section 5.06, the Regular Trustees in office, regardless of their number,
shall have all the powers granted to the Regular Trustees and shall discharge
all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.09 MEETINGS. Meetings of the Regular Trustees shall
be held from time to time upon the call of any Regular Trustee. Regular meetings
of the Regular Trustees may be held at a time and place fixed by resolution of
the Regular Trustees. Notice of any in-person meetings of the Regular Trustees
shall be hand delivered or otherwise delivered in writing
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(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees.
SECTION 5.10 DELEGATION OF POWER. (a) Any Regular Trustee may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 3.06, including any registration statement
or amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) the Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Property Trustee or
the Delaware Trustee, as the case may be, hereunder provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI
DISTRIBUTIONS.
--------------
SECTION 6.01 DISTRIBUTIONS. Holders shall receive
Distributions (as defined below) in accordance with the applicable terms of the
relevant Holder's Securities (set forth in Annex I and Exhibits A and B hereto
and incorporated herein by reference). Distributions shall be made on the
Preferred Securities and the Common Securities in accordance with the
preferences
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set forth in their respective terms. If and to the extent that the Sponsor makes
a payment of interest (including Compounded Interest (an defined in the
Indenture)), premium and principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a distribution (a "Distribution") of the Payment Amount to
Holders.
ARTICLE VII
Issuance of Securities
SECTION 7.01 GENERAL PROVISIONS REGARDING SECURITIES. (a) The
Regular Trustees shall on behalf of the Trust issue one class of Preferred
Securities, having such terms (the "Terms") as are set forth in Annex I and one
class of Common Securities, having such terms as are set forth in Annex I. The
Trust shall have no securities or other interests in the assets of the Trust
other than the Preferred Securities and the Common Securities. The Trust shall
issue no Securities in bearer form.
(b) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable, subject to Section 10.01 with respect to the
Common Securities.
(d) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
SECTION 7.02 EXECUTION AND AUTHENTICATION. (a) The Securities
shall be signed on behalf of the Trust by one Regular Trustee. In case any
Regular Trustee of the Trust who shall have signed any of the Securities shall
cease to be such Regular Trustee before the Securities so signed shall be
delivered by the Trust, such Securities nevertheless may be delivered as though
the person who signed such Securities had not ceased to be such Regular Trustee;
and any Securities may be signed on behalf of the Trust by such persons who, at
the actual date of execution of such Security, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee.
(b) One Regular Trustee shall sign the Preferred Securities
for the Trust by manual or facsimile signature. Unless otherwise determined by
the Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Preferred Security shall not be valid until authenticated by
the manual signature of an authorized officer of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Declaration.
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Upon a written order of the Trust signed by one Regular
Trustee, the Property Trustee shall authenticate the Preferred Securities for
original issuance. The aggregate number of Preferred Securities outstanding at
any time shall not exceed the number set forth in the Terms in Annex I hereto
except as provided in Section 7.06.
The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Preferred Securities. An authenticating
agent may authenticate Preferred Securities whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Company or an Affiliate.
SECTION 7.03 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES;
DEFINITIVE PREFERRED SECURITIES CERTIFICATES; COMMON SECURITIES CERTIFICATE. (a)
The Preferred Securities, upon original issuance, will be issued in the form of
a typewritten Preferred Securities Certificate or Certificates representing
Book-Entry Preferred Securities Certificates ("Global Certificate"), to be
delivered to the Depositary by, or on behalf of, the Trust. Such Global
Certificate or Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Holder will receive a definitive Preferred Securities Certificate
representing such Holder's interest in such Preferred Securities, except as
provided in Section 7.03(b) below. Unless and until Definitive Preferred
Securities Certificates have been issued to Holders pursuant to Section 7.03(b):
(i) the provisions of this Section 7.03(a) shall be
in full force and effect;
(ii) the Securities Registrar, the Paying Agent and the
Trustees shall be entitled to deal with the Depositary for all purposes
of this Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of principal of and Distributions
on the Book-Entry Preferred Securities and the giving of instructions
or directions to Holders of Book-Entry Preferred Securities) and shall
have no obligations to the Holders thereof;
(iii) to the extent that the provisions of this Section
7.03(a) conflict with any other provisions of this Trust Agreement, the
provisions of this Section 7.03(a) shall control; the rights of the
Holders of the Book-Entry Preferred Securities Certificates shall be
exercised only through the Depositary and shall be limited to those
established by law and agreements between such Holders and the
Depositary and/or the Depositary Participants. Pursuant to the
Certificate Depositary Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 7.03(b), the
initial Depositary will make book-entry transfers among the Depositary
Participants and receive and transmit payments on the Preferred
Securities to such Depositary Participants; and
(iv) whenever this Declaration requires or permits
actions to be taken based upon instructions or directions of Holders of
Preferred Securities Certificates evidencing a specified percentage of the
aggregate liquidation amount of the Securities, the Depositary shall be deemed
to represent such percentage only to the extent that it has received
instructions to such
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effect from Holders and/or Participants owning or representing, respectively,
such required percentage of the beneficial interest in the applicable class of
Preferred Securities Certificates and has delivered such instructions to the
Regular Trustees.
(b) If (i) the Sponsor advises the Trustees in writing that
the Depositary is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Sponsor is unable to locate a qualified successor, (ii) the Sponsor at its
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Depositary or (iii) after the occurrence of an
Event of Default, Holders of Preferred Securities Certificates representing
beneficial interests aggregating at least a Majority in liquidation amount of
the Securities advise the Depositary in writing that the continuation of a
book-entry system through the Depositary is no longer in the best interest of
the Holders of Preferred Securities Certificates, then the Depositary shall
notify all Holders of Preferred Securities Certificates and the Trustees of the
occurrence of any such event and of the availability of the Definitive Preferred
Securities Certificates to Holders requesting the same. If the Depositary elects
to discontinue its services as securities depositary with respect to the
Preferred Securities, the Regular Trustees may, in their sole discretion,
appoint a successor Depositary with respect to such Preferred Securities. Upon
surrender to the Regular Trustees of the typewritten Global Certificate or
Certificates by the Depositary, accompanied by registration instructions, the
Regular Trustees, or any one of them, shall execute the Definitive Preferred
Securities Certificates in accordance with the instructions of the Depositary.
Neither the Securities Registrar or the Trustees shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Security Holders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by the execution thereof by the Regular
Trustees or any one of them.
(c) Common Securities Certificate. A single Common Securities
Certificate representing the Common Securities shall be issued to the Sponsor, a
specimen certificate being attached hereto as Exhibit B.
SECTION 7.04 REGISTRAR AND PAYING AGENT. The Trust shall
maintain in Wilmington, Delaware (i) an office or agency where Preferred
Securities may be presented for registration of transfer or for exchange
("Registrar"), and (ii) an office or agency where Preferred Securities may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Preferred Securities and of their transfer and exchange. The Trust may
appoint the Registrar and the Paying Agent and may appoint one or more
co-registrars and one or more additional paying agents in such other locations
as it shall determine. The term "Paying Agent" includes any additional paying
agent. The Trust may change any Paying Agent, Registrar or co-registrar without
prior notice to any Holder. The Trust shall notify the Property Trustee of the
name and address of any Agent not a party to this Declaration. If the Trust
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Property Trustee shall act as such. The Trust or
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any of its Affiliates may act as Paying Agent or Registrar. The Trust shall act
as Paying Agent, Registrar and co-registrar for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar
and Paying Agent for the Preferred Securities.
SECTION 7.05 PAYING AGENT TO HOLD MONEY IN TRUST. The Trust
shall require each Paying Agent other than the Property Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or
the Property Trustee all money held by the Paying Agent for the payment of
principal or Distributions on Securities, and will notify the Property Trustee
if there are insufficient funds. While any such insufficiency continues, the
Property Trustee may require a Paying Agent to pay all money held by it to the
Property Trustee. The Trust at any time may require a Paying Agent to pay all
money held by it to the Property Trustee and to account for any money disbursed
by it. Upon payment over to the Property Trustee, the Paying Agent (if other
than the Trust or an Affiliate of the Trust) shall have no further liability for
the money. If the Trust or the Sponsor or an Affiliate of the Trust or the
Sponsor acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent.
SECTION 7.06 REPLACEMENT SECURITIES. If the Holder of a
Security claims that the Security has been mutilated, lost, destroyed or
wrongfully take nor if such Security is mutilated and is surrendered to the
Trust or in the case of the Preferred Securities to the Property Trustee, the
Trust shall issue and the Property Trustee shall authenticate a replacement
Security if the Property Trustee's and the Trust's reasonable requirements, as
the case may be, are met. If required by the Property Trustee or the Trust, such
Holder shall provide an indemnity bond sufficient in the judgment of the
Property Trustee and the Trust to protect the Trustees, the Property Trustee,
the Sponsor or any authenticating agent from any loss which any of them may
suffer if a Security is replaced. The Company may charge for its expenses in
replacing a Security.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Sponsor in its discretion
may, instead of issuing a new Security, pay such Security.
SECTION 7.07 OUTSTANDING PREFERRED SECURITIES. The Preferred
Securities outstanding at any time are all the Preferred Securities
authenticated by the Property Trustee except for those canceled by it, those
delivered to it for cancellation, and those described in this Section as not
outstanding.
If a Preferred Security is replaced, paid or purchased
pursuant to Section 7.06 hereof, it ceases to be outstanding unless the Property
Trustee receives proof satisfactory to it that the replaced, paid or purchased
Preferred Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with
the terms of this Declaration, they cease to be outstanding and interest on them
ceases to accrue.
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A Preferred Security does not cease to be outstanding because
one of the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.08 PREFERRED SECURITIES IN TREASURY. In determining
whether the Holders of the required amount of Securities have concurred in any
direction, waiver or consent, Preferred Securities owned by the Trust, the
Sponsor or an Affiliate of the Sponsor, as the case may be, shall be disregarded
and deemed not to be outstanding, except that for the purposes of determining
whether the Property Trustee shall be fully protected in relying on any such
direction, waiver or consent, only Securities which the Property Trustee knows
are so owned shall be so disregarded.
SECTION 7.09 TEMPORARY SECURITIES. (a) Until definitive
Securities are ready for delivery, the Trust may prepare and, in the case of the
Preferred Securities, the Property Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Trust considers
appropriate for temporary Securities. Without unreasonable delay, the Trust
shall prepare and, in the case of the Preferred Securities, the Property Trustee
shall authenticate definitive Securities in exchange for temporary Securities.
(b) A Global Certificate deposited with the Depositary or with
the Property Trustee as custodian for the Depositary pursuant to Section 7.03
shall be transferred to the beneficial owners thereof in the form of
certificated Preferred Securities only if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Certificate or if at any time such Depositary ceases to be a "clearing agency"
registered under the Exchange Act and a successor depositary is not appointed by
the Sponsor within 90 days of such notice, (ii) an Event of Default has occurred
and is continuing, or (iii) any of the events set forth in Section 7.03(b)
occurs and is continuing.
(c) Any Global Certificate that is transferable to the
beneficial owners thereof in the form of certificated Preferred Securities
pursuant to this Section 7.09 shall be surrendered by the Depositary to the
Property Trustee's office located in the Borough of Manhattan, City of New York,
to be so transferred, in whole or from time to time in part, without charge, and
the Property Trustee shall authenticate and deliver, upon such transfer of each
portion of such Global Certificate, an equal aggregate liquidation amount of
Securities of authorized denominations in the form of certificated Securities.
Any portion of a Global Certificate transferred pursuant to this Section shall
be any registered in such names as the Depositary shall direct.
(d) Subject to the provisions of Section 7.09(c) and
12.02(b)(ii), the registered holder of a Global Certificate may grant proxies
and otherwise authorize any person, including Participants and persons that may
hold interests through Participants, to take any action which a holder is
entitled to take under this Declaration or the Securities.
(e) In the event of the occurrence of any of the events
specified in Section 7.09(b), the Trust will promptly make available to the
Property Trustee a reasonable supply of certificated Securities in definitive,
fully registered form without interest coupons.
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SECTION 7.10 CANCELLATION. The Trust at any time may deliver
Preferred Securities to the Property Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Property Trustee any Preferred Securities
surrendered to them for registration of transfer, redemption, exchange or
payment. The Property Trustee shall promptly cancel all Preferred Securities,
surrendered for registration of transfer, redemption, exchange, payment,
replacement or cancellation and shall dispose of cancelled Preferred Securities
as the Trust directs. The Trust may not issue new Preferred Securities to
replace Preferred Securities that it has paid or that have been delivered to the
Property Trustee for cancellation or that any holder has converted.
ARTICLE VIII
TERMINATION OF TRUST
--------------------
SECTION 8.01 TERMINATION OF TRUST. (a) The Trust shall
terminate upon the earliest to occur of the following:
(i) the bankruptcy of the Holder of the Common
Securities or the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common Securities or the
Sponsor; the filing of a certificate of cancellation with respect to
the Trust or the revocation of the charter of the Holder of the Common
Securities or the Sponsor and the expiration of 90 days after the date
of revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities or the Sponsor;
(iv) the distribution, upon the terms and subject to the
conditions set forth in Annex I, of an aggregate principal amount of
Debentures with an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate identical to the
Distribution rate of, and accrued and unpaid interest equal to accrued
and unpaid Distributions on, the Securities; provided, however, that
such distribution is conditioned on the receipt of an opinion of
independent tax counsel experienced in such matters to the effect that
the Holders of the Securities will not recognize any gain or loss for
United States federal income tax purposes as a result of the
dissolution of the Trust and such distribution of Debentures;
(v) the redemption of the Securities upon the final
maturity of the Debentures and the amounts necessary for redemption
thereof having been paid to the Holders in accordance with the terms of
the Securities;
(vi) the expiration of the term of the Trust as provided
in Section 3.14; and
(vii) the entry of an order for the dissolution of the
Trust by a court of competent jurisdiction.
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(b) In addition to the termination events set forth in Section
8.01(a), the Trust may be voluntarily terminated by the Sponsor at any time,
upon payment of the amount of cash, or distribution of the Debentures, as set
forth in Annex I.
(c) As soon as is practicable after the occurrence of an event
referred to in Section 8.01(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(d) The provisions of Section 3.09 and Article X shall
survive the termination of the Trust.
ARTICLE IX
EXCHANGE
--------
SECTION 9.01 GENERAL. (a) Where Preferred Securities are
presented to the Registrar or a co-registrar with a request to register a
transfer or to exchange them for an equal number of Preferred Securities
represented by different certificates, the Registrar shall register the transfer
or make the exchange if its reasonable requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trust shall issue
and the Property Trustee shall authenticate Preferred Securities at the
Registrar's request.
(b) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(c) Subject to this Article IX, the Sponsor and any Affiliate
may only transfer Common Securities to the Sponsor or an Affiliate of the
Sponsor; PROVIDED THAT, any such transfer is subject to the condition precedent
that the transferor obtain an opinion of counsel experienced in such matters
that such transfer would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or
the transferee would become an Investment Company.
SECTION 9.02 DEEMED SECURITY HOLDERS. The Trustees may treat
the Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust, the Property Trustee, the Registrar or a
co-Registrar shall have actual or other notice thereof.
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ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
--------------------------------------------------------------------
SECTION 10.01 LIABILITY. (a) Except as expressly set forth in
this Declaration, the Preferred Securities Guarantee and the terms of the
Securities the Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.02 EXCULPATION. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by the
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 10.03 FIDUCIARY DUTY. (a) To the extent that, at
law or in equity, an Indemnified Person has duties (including fiduciary duties)
and liabilities relating thereto to the
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Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities, the Indemnified
Person shall resolve such conflict of interest, take such action or
provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any
applicable generally accepted accounting practices or principles. In
the absence of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or any other
agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard imposed by
this Declaration or by applicable law.
SECTION 10.04 INDEMNIFICATION. (a) To the fullest extent
permitted by applicable law, the Sponsor shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by such Indemnified
Person by reason of the creation, operation or termination of the Trust or any
act or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim
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incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees and expenses) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking
by or on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.04(a). The indemnification shall survive the
termination of this Declaration.
SECTION 10.05 OUTSIDE BUSINESSES. Any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
----------
SECTION 11.01 FISCAL YEAR. The fiscal year ("Fiscal Year") of
the Trust shall be the calendar year, or such other year as is required by the
Code.
SECTION 11.02 CERTAIN ACCOUNTING MATTERS. (a) At all times
during the existence of the Trust, the Regular Trustees shall keep, or cause to
be kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal Year by a firm of independent
certified public accountants selected by the Regular Trustees.
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(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
SECTION 11.03 BANKING. The Trust shall maintain one or more
bank accounts in the name and for the sole benefit of the Trust; provided,
however, that all payments of funds in respect of the Debentures held by the
Property Trustee shall be made directly to the Property Trustee Account and no
other funds of the Trust shall be deposited in the Property Trustee Account. The
sole signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Property Trustee shall designate the signatories for
the Property Trustee Account.
SECTION 11.04 WITHHOLDING. The Trust and the Regular Trustees
shall comply with all withholding requirements under United States federal,
state and local law. The Trust shall request, and the Holders shall provide to
the Trust, such forms or certificates as are necessary to establish an exemption
from withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Regular Trustees
shall file required forms with the applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to distributions or allocations to any Holder, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to the Holder. In the event of any claimed over-withholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.
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ARTICLE XII
AMENDMENTS AND MEETINGS
-----------------------
SECTION 12.01 AMENDMENTS. (a) Except as otherwise provided in
this Declaration or by any applicable terms of the Securities, this Declaration
may only be amended by a written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee;
(a) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration (including the terms
of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the
terms of the Securities); and
(iii) to the extent the result of such amendment would be
to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a
grantor trust;
(B) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture
Act; or
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(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(b) at such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(c) This Section 12.01 shall not be amended without the
consent of all of the Holders of the Securities;
(d) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(e) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities; and
(f) notwithstanding Section 12.01(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations
of the Sponsor;
(iv) conform to any change in Rule 3a-5 under the
Investment Company Act or written change in interpretation or
application of Rule 3a-5 under the Investment Company Act by any
legislative body, court, government agency or regulatory authority
which amendment does not have a material adverse effect on the rights,
preferences or privileges of the Holders; and
(v) to modify, eliminate or add to any provisions to
such extent as shall be necessary to ensure that the Trust will be
classified for Federal income tax purposes as a grantor trust at all
times that any Securities are outstanding which amendment does not have
an adverse effect on the rights, preferences or privileges of the
Holders.
SECTION 12.02 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION
BY WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
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Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more requests in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities represented by the Certificates so specified
shall be counted for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum aggregate liquidation
amount of Securities that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having a right
to vote thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The Regular
Trustees may specify that any written ballot submitted to the Security
Holders for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular
Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of Securities
is entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the
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Preferred Securities are then listed or trading, provide otherwise, the
Regular Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at which any matter
is to be voted on by any Holders of Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF DELAWARE AND PROPERTY TRUSTEE
------------------------------------------------
SECTION 13.01 REPRESENTATIONS AND WARRANTIES OF DELAWARE
TRUSTEE. The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration and at
the Closing Date, and each Successor Delaware Trustee represents and warrants to
the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, with corporate power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration.
(b) The execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been duly
executed and delivered by the Delaware Trustee, and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or constitute a
breach of the certificate of incorporation or By-laws of the Delaware Trustee.
(d) No consent, approval or authorization of, or registration
with or notice to, any state or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this Declaration.
(e) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
(f) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration.
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<PAGE> 49
SECTION 13.02 REPRESENTATIONS AND WARRANTIES OF PROPERTY
TRUSTEE. The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) The Property Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
its state of organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of the
Declaration;
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) The execution, delivery and performance of the Declaration
by the Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(d) No consent, approval or authorization of, or registration
with or notice to, any state or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the Declaration.
ARTICLE XIV
MISCELLANEOUS
-------------
SECTION 14.01 NOTICES. All notices provided for in this
Declaration shall be in writing, duly signed by the party giving such notice,
and shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities):
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
Attention: Chief Financial Officer
43
<PAGE> 50
(b) if given to the Property Trustee, at the mailing address
set forth below (or such other address as the Property Trustee may give notice
of to the Holders of the Securities):
Wilmington Trust Company
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(c) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
Attention: Chief Financial Officer
(d) If given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give notice
to the Trust):
Wilmington Trust Company
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust or the Registrar, as applicable.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.02 GOVERNING LAW. This Declaration and the rights
of the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.
SECTION 14.03 INTENTION OF THE PARTIES. It is the intention of
the parties hereto that the Trust be classified for United States federal income
tax purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
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<PAGE> 51
SECTION 14.04 HEADINGS. Headings contained in this Declaration
are inserted for convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.05 SUCCESSORS AND ASSIGNS. Whenever in this
Declaration any of the parties hereto is named or referred to, the successors
and assigns of such party shall be deemed to be included, and all covenants and
agreements in this Declaration by the Sponsor and the Trustee shall bind and
inure to the benefit of their respective successors and assigns, whether so
expressed.
SECTION 14.06 PARTIAL ENFORCEABILITY. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.07 COUNTERPARTS. This Declaration may contain more
than one counterpart of the signature page and this Declaration may be executed
by the affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
As Trustee
------------------------
As Trustee
------------------------
45
<PAGE> 52
WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Delaware Trustee and
Property Trustee
By:
------------------------------------
Name:
Title:
NATIONWIDE FINANCIAL SERVICES, INC.
as Sponsor
By:
------------------------------------
Name:
Title:
46
<PAGE> 53
ANNEX I
TERMS OF
__% [PREFERRED] SECURITIES*
__% COMMON SECURITIES
Pursuant to Section 7.01 of the Amended and Restated
Declaration of Trust, dated as of ________ __, 1998 (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the [Preferred] Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus) (as defined in the Declaration):
I DESIGNATION AND NUMBER.
-----------------------
1.01 [Preferred] Securities." [ ] [Preferred]
Securities of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of $ million Dollars
($ ), and a liquidation amount with respect to the assets of
the Trust of $ per [Preferred] Security, are hereby
designated for the purposes of identification only as "__%
[Preferred] Securities (liquidation amount $ per [Preferred]
Security)" (the "[Preferred] Securities"). The [Preferred]
Security Certificates evidencing the [Preferred] Securities
shall be substantially in the form attached hereto as EXHIBIT
A, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange or
other organization on which the [Preferred] Securities are
listed.
1.02 "Common Securities." [number representing 3% assets]
Common Securities of the Trust with an aggregate liquidation
amount with respect to the assets of the Trust of
_____________________ Dollars ($_____________), and a
liquidation amount with respect to the assets of Trust of $
per Common Security, are hereby designated for the purposes of
identification only as "___% Common Securities (liquidation
amount $ per Common Security)" (the "Common Securities").
The Common Securities Certificates evidencing the Common
Securities shall be substantially in the form attached hereto
as EXHIBIT B, with such changes and additional thereto or
deletions therefrom as may be required by ordinary usage,
custom or practice.
* Designation to be determined by Regular Trustees.
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<PAGE> 54
II DISTRIBUTIONS.
--------------
2.01 Distributions payable on each Security will be fixed at a rate
per annum of __% (the "Coupon Rate") of the stated liquidation
amount of $_______ per Security, such rate being the rate of
interest payable on the Debentures to be held by the Property
Trustee. Distributions in arrears will bear interest thereon
compounded [quarterly][semi-annually] at the Coupon Rate (to
the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash
distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has
funds available therefor. The amount of Distributions payable
for any period will be computed for any full
[quarterly][semi-annual] Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period of
less than a full calendar month the number of days elapsed in
such month.
2.02 Distributions on the Securities will be cumulative, will
accrue from the date of original issuance and will be payable
[quarterly][semi-annually] in arrears, on the following dates,
which dates correspond to the interest payment dates on the
Debentures: __________________ and ________________ of each
year, commencing on ___________, 1998, except as otherwise
described below. So long as no Event of Default (or an event
which would be an Event of Default with the giving of required
notice or the passage of time) has occurred and is continuing,
the Sponsor has the right under the Indenture to defer
payments of interest by extending the interest payment period
from time to time on the Debentures for a period not exceeding
[20 consecutive quarters][10 consecutive semi-annual periods]
(each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such
deferral, [quarterly][semi-annual] Distributions will continue
to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded
[quarterly][semi-annually] during any such Extension Period.
Prior to the termination of any such Extension Period, the
Sponsor may further extend such Extension Period so long as no
Event of Default (or an event which would be an Event of
Default with the giving of required notice or the passage of
time) has occurred and is continuing; PROVIDED THAT such
Extension Period together with all such previous and further
extensions thereof may not exceed [20 consecutive quarters][10
consecutive semi-annual periods] or extend beyond the maturity
(whether at the stated maturity or by declaration of
acceleration, call for redemption or otherwise) of the
Debentures under the Indenture. Payments of accrued
Distributions will be payable to Holders as they appear on the
books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Sponsor may commence a new Extension Period, subject to the
above requirements.
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<PAGE> 55
2.03 Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust
on the relevant record dates. The relevant record dates shall
be the first day of the month in which the relevant payment
date falls, except as otherwise described in this Annex I to
the Declaration. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such
payment in respect to [Preferred] Securities being held in
book-entry form through The Depository Trust Company (the
"Depositary") will be made as described under the heading
"Description of the [Preferred] Securities -- Book-Entry-Only
Issuance --The Depository Trust Company" in the Prospectus.
The relevant record dates for the Common Securities shall be
the same record dates as for the [Preferred] Securities.
Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a result
of the Sponsor having failed to make payment under the
Debentures, will cease to be payable to the Person in whose
name such Securities are registered on the relevant record
date, and such distributions on Securities will instead be
payable to the Persons in whose name such Securities are
registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on
which Distributions are payable on the Securities is not a
Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day in each case
with the same force and effect as if made on such date.
2.04 In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein)
among the Holders of the Securities.
III LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
------------------------------------------
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust (including without limitation pursuant to
Section 8.01(b) of the Declaration), the Holders of the Securities on the date
of the dissolution, winding-up or termination, as the case may be, will be
entitled to receive out of the assets of the Trust available for distribution to
Holders of Securities after satisfaction of liabilities of creditors of the
Trust as provided by applicable law an amount equal to the aggregate of the
stated liquidation amount of $ per Security plus [any additional amount payable
upon redemption of the Debentures as a result of the Make-Whole Premium (defined
in the Indenture) and] accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, Debentures, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities as provided in this Paragraph 3.
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<PAGE> 56
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis in
accordance with paragraph 8.
If a termination of the Trust occurs as described in clause
(i), (ii), (iii), (vi) or (vii) of Section 8.01(a) of the Declaration, the Trust
shall be liquidated by the Regular Trustees as expeditiously as the Regular
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
holder of the [Preferred] Securities, Debentures with an aggregate principal
amount equal to the aggregate stated liquidation amount of, with an interest
rate identical to the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on, the [Preferred] Securities.
In addition to the paragraph above, at any time the Sponsor
has the right to terminate the Trust and, after satisfaction of the liabilities
of creditors of the Trust as provided by applicable law, cause Debentures with
an aggregate principal amount of, with an interest rate identical to the Coupon
Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on, the outstanding Securities, to be distributed to the Holders
of the Securities in liquidation of the Trust.
The distribution of Debentures upon any dissolution of the
Trust is conditioned upon the receipt by the Regular Trustees of an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that the holders of the securities will not recognize any gain or loss
for United States federal income tax purposes as a result of such dissolution of
the Trust and distribution of Debentures.
After the date fixed for any distribution of Debentures
(including pursuant to a Tax Event as set forth in paragraph 4(c) below: (i) the
Securities will no longer be deemed to be outstanding, (ii) the Depositary or
its nominee (or any successor Depositary or its nominee), as record Holder of
[Preferred] Securities represented by global certificates, will receive a
registered global certificate or certificates representing the Debentures to be
delivered upon such distribution and (iii) any certificates representing
Securities, except for certificates representing [Preferred] Securities held by
the Depositary or its nominee (or any successor Depositary or its nominee), will
be deemed to represent Debentures with an aggregate principal amount equal to
the aggregate stated liquidation amount of, with an interest rate identical to
the Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on, such Securities until such certificates are presented to the
Sponsor or its agent for transfer or reissuance.
If, in connection with any dissolution, winding-up or
termination of the Trust, Debentures are distributed to Holders of the
Securities as provided in this paragraph 3, the procedures set forth in
paragraph 4(e) will be applicable thereto.
4
<PAGE> 57
IV REDEMPTION AND DISTRIBUTION.
----------------------------
4.01 Upon the repayment or payment of the Debentures in whole or in
part, whether at maturity or upon redemption or otherwise, the
proceeds from such repayment or redemption shall be
simultaneously applied to redeem Securities having an
aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so repaid or redeemed at the
Redemption Price per Security of 100% of the liquidation
amount of the Security to be redeemed, [plus the Make-Whole
Premium (as defined in the Indenture), if any,] together with
accrued and unpaid Distributions thereon through the date of
the redemption, payable in cash. Holders will be given not
less than 30 nor more than 60 days' notice of such redemption.
4.02 If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the [Preferred] Securities
will be redeemed Pro Rata and the [Preferred] Securities to be
redeemed will be as described in Paragraph 4(e)(ii) below.
4.03 If, at any time, a Tax Event shall occur and be continuing,
the Trust shall, except as set forth below, be dissolved and
Debentures with an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid distributions on, the
Securities, will be distributed to the Holders of the
Securities in liquidation of such Holders' interests in the
Trust Pro Rata within 90 days following the occurrence of such
Tax Event (the "90 Day Period"); PROVIDED, HOWEVER, that such
dissolution and distribution shall be conditioned on (i) the
Regular Trustees' receipt of an opinion of nationally
recognized independent tax counsel experienced in such matters
(a "No Recognition Opinion"), which opinion may rely on
published revenue rulings of the Internal Revenue Service, to
the effect that the Holders of the Securities will not
recognize any gain or loss for United States federal income
tax purposes as a result of such dissolution and distribution
of Debentures and (ii) the Company being unable to avoid such
Tax Event within the 90 Day Period by taking some ministerial
action or pursuing some other reasonable measure that will
have no adverse effect on the Trust, the Company or the
Holders of the Trust Securities ("Ministerial Action").
If after receipt of a Dissolution Tax Opinion (as defined
below) by the Regular Trustees (i) the Company has received an
opinion (a "Redemption Tax Opinion") of nationally recognized
independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial
risk that the Company would be precluded from deducting the
interest on the Debentures for United States federal income
tax purposes, even after the Debentures were distributed to
the Holders of Securities in liquidation of such Holders'
interests in the Trust or (ii) the Regular Trustees shall have
been informed by such tax counsel that it cannot deliver a No
Recognition Opinion to the Trust, the Company shall have the
right, upon not less than 30 nor more than 60 days' notice, to
redeem the Debentures at 100% of the liquidation amount plus
accrued and unpaid interest
5
<PAGE> 58
thereon to the date fixed for redemption, in whole or in part,
for cash within 90 days following the occurrence of such Tax
Event, and, following such redemption, Securities with an
aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so redeemed shall be redeemed Pro
Rata by the Trust at the Tax Event Redemption Price (as
defined in the Indenture); PROVIDED, HOWEVER, that (i) no
Make-Whole Premium (as defined in the Indenture) shall be
payable in connection with a redemption of Debentures upon the
occurrence of a Tax Event and (ii) if at the time there is
available to the Company or the Trust the opportunity to
eliminate, within the 90 Day Period, the Tax Event by taking
some Ministerial Action, the Company or the Trust will pursue
such measure in lieu of redemption.
"Tax Event" means that the Regular Trustees shall
have obtained an opinion of nationally recognized independent
tax counsel (reasonably acceptable to the Regular Trustees)
experienced in such matters (a "Dissolution Tax Opinion") to
the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change; PROVIDED
that a Tax Event shall not occur more than 90 days before the
effective date of any such prospective change) in, the laws
(or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein
or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations by
any legislative body, court, governmental agency or regulatory
authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory
determination on or after the date of original issuance of the
[Preferred] Securities), which amendment or change is
effective or which pronouncement or decision is announced on
or after the date of original issuance of the [Preferred]
Securities, there is more than an insubstantial risk that (i)
the Trust is or will be subject to United States Federal
income tax with respect to interest received on the
Debentures, (ii) interest payable in cash to the Trust on the
Debentures is not, or will not be, deductible, in whole or in
part, by the Company for United States Federal income tax
purposes or (iii) the Trust is or will be subject to more than
a de minimis amount of other taxes, duties, assessments or
other governmental charges.
4.04 The Securities will not be redeemed unless all accrued and
unpaid Distributions have been paid on all Securities for all
[quarterly][semi-annual] Distribution periods terminating on
or before the date of redemption.
4.05 (a) Notice of any redemption of, or notice of
distribution of Debentures in exchange for the
Securities (a "Redemption/Distribution Notice") will
be given by the Trust by mail to each Holder of
Securities to be redeemed or exchanged not fewer than
30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of
a redemption, will be the date fixed for redemption
of the Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on
which notices are given pursuant to this paragraph
4(e)(i), a
6
<PAGE> 59
Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall
be addressed to the Holders of Securities at the
address of each such Holder appearing in the books
and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall
affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(b) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be
redeemed shall be redeemed Pro Rata from each Holder
of [Preferred] Securities, it being understood that,
in respect of [Preferred] Securities registered in
the name of and held of record by the Depositary (or
any successor Depositary) or any nominee, the
distribution of the proceeds of such redemption will
be made to each Depositary Participant (or Person on
whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency
or nominee.
(c) If Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice, which notice may
only be issued if the Debentures are redeemed as set
out in this paragraph 4 (which notice will be
irrevocable), then (A) with respect to [Preferred]
Securities held in book-entry form, by 12:00 noon,
New York City time, on the redemption date, provided
that the Sponsor has paid the Property Trustee a
sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the
Property Trustee will deposit irrevocably with the
Depositary (or successor Depositary) funds sufficient
to pay the amount payable on redemption with respect
to such [Preferred] Securities and will give the
Depositary irrevocable instructions and authority to
pay the amount payable on redemption to the Holders
of such [Preferred] Securities, and (B) with respect
to [Preferred] Securities issued in certificated form
and Common Securities, provided that the Sponsor has
paid the Property Trustee a sufficient amount of cash
in connection with the related redemption or maturity
of the Debentures, the Property Trustee will
irrevocably deposit with the Paying Agent funds
sufficient to pay the amount payable on redemption to
the Holders of such Securities upon surrender of
their certificates. If a Redemption/ Distribution
Notice shall have been given and funds deposited as
required, then on the date of such deposit, all
rights of Holders of such Securities so called for
redemption will cease, except the right of the
Holders of such Securities to receive the redemption
price, but without interest on such redemption price.
Neither the Regular Trustees nor the Trust shall be
required to register or cause to be registered the
transfer of any Securities that have been so called
for redemption. If any date fixed for redemption of
Securities is not a Business Day, then payment of the
amount payable on such date will be made on the
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<PAGE> 60
next succeeding day that is a Business Day (without
any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with
the same force and effect as if made on such date
fixed for redemption. If payment of the redemption
price in respect of any Securities is improperly
withheld or refused and not paid either by the Trust
or by the Sponsor as guarantor pursuant to the
[Preferred] Securities Guarantee, Distributions on
such Securities will continue to accrue at the then
applicable rate, from the original redemption date to
the date of payment, in which case the actual payment
date will be considered the date fixed for redemption
for purposes of calculating the amount payable upon
redemption (other than for purposes of calculating
any premium).
(d) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to (A) in the
case of [Preferred] Securities held in book-entry
form, the Depositary and, in the case of Securities
held in certificated form, the Holders of such
certificates and (B) in respect of the Common
Securities, the Holder thereof.
(e) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws), the Sponsor or any of its
subsidiaries may at any time and from time to time
purchase outstanding [Preferred] Securities by
tender, in the open market or by private agreement.
V VOTING RIGHTS - [PREFERRED] SECURITIES.
---------------------------------------
5.01 Except as provided in this Annex I, in the Business Trust Act
and as otherwise required by law, the Declaration and the
Indenture, the Holders of the [Preferred] Securities will have
no voting rights.
5.02 The Holders of the [Preferred] Securities shall have the
rights with respect to the enforcement of payment of
principal, premium, if any, and interest on the Debentures as
are set forth herein, in the Declaration or in the Indenture.
Subject to the requirements set forth in this paragraph, the
Holders of a majority in liquidation amount of the [Preferred]
Securities, voting separately as a class may direct the time,
method, and place of conducting any proceeding for any remedy
available to the Property Trustee, or direct the exercise of
any trust or power conferred upon the Property Trustee under
the Declaration, including the right to direct the Property
Trustee, as holder of the Debentures, to (i) direct the time,
method, place of conducting any proceeding for any remedy
available to the Debenture Trustee, or exercising any trust or
power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences
that is waivable under Section 5.13 of the Indenture or
otherwise,
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<PAGE> 61
(iii) exercising any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such
consent shall be required; provided, however, that, where a
consent under the Indenture would require the consent or act
of the Holders of greater than a majority of the Holders in
principal amount of Debentures affected thereby (a "Super
Majority"), the Property Trustee may only give such consent or
take such action at the direction of the Holders of at least
the proportion in liquidation amount of the [Preferred]
Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding. The
Property Trustee shall not, and none of the other Trustees
shall in any event, revoke any action previously authorized or
approved by a vote of the Holders of the [Preferred]
Securities, except by a subsequent vote of the Holders of the
[Preferred] Securities. Other than with respect to directing
the time, method and place of conducting any remedy available
to the Property Trustee as set forth above, the Property
Trustee shall not take any action in accordance with the
directions of the Holders of the [Preferred] Securities under
this paragraph unless the Property Trustee has obtained an
opinion of tax counsel to the effect that, as a result of such
action, the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes.
If the Property Trustee is the sole holder of the Debentures,
any Holder of the [Preferred] Securities shall have the right,
to the fullest extent permitted by applicable law, to
institute suit on behalf of the Trust for the enforcement of
the right to receive payment of the principal of and interest,
and premium, if any, on the Debentures on or after the Stated
Maturity (as defined in the Indenture) of such Debentures or,
in the case of redemption, on the Redemption Date (as defined
in the Indenture). In addition, the Holders of at least 25% in
aggregate liquidation amount of [Preferred] Securities
Outstanding shall be entitled, to the fullest extent permitted
by applicable law, to institute any other proceeding in the
event the Debenture Trustee or the Property Trustee fails to
do so in accordance with the terms of the Indenture.
If an Event of Default shall have occurred and be continuing,
the Holders of a majority in liquidation amount of the
[Preferred] Securities, voting as a class at a meeting of
Holders of [Preferred] Securities, shall have the exclusive
right to remove the Property Trustee.
In addition to any other rights of the Holders provided herein
or in the Declaration, if the Property Trustee fails to
enforce its rights, as holder of the Debentures, under the
Indenture, any Holder of [Preferred] Securities may, to the
fullest extent permitted by applicable law, institute a legal
proceeding directly against the Sponsor, to enforce the rights
of the Property Trustee, as holder of the Debentures, under
the Indenture, without first instituting any legal proceeding
against the Property Trustee or any other Person.
9
<PAGE> 62
Any approval or direction of Holders of [Preferred] Securities
may be given at a separate meeting of Holders of [Preferred]
Securities convened for such purpose, at a meeting of all of
the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any
meeting at which Holders of [Preferred] Securities are
entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed
to each Holder of record of [Preferred] Securities. Each such
notice will include a statement setting forth the following
information: (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the [Preferred]
Securities will be required for the Trust to redeem and cancel
[Preferred] Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of [Preferred] Securities are
entitled to vote or consent under any of the circumstances
described above, any of the [Preferred] Securities that are
owned by the Sponsor or any Affiliate of the Sponsor shall not
be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
VI VOTING RIGHTS - COMMON SECURITIES.
----------------------------------
6.01 Except as provided in this Annex I, in the Business Trust Act
and as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
6.02 The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to
appoint, remove or replace any Trustee.
6.03 Subject to Section 2.06 of the Declaration and only after the
Event of Default with respect to the [Preferred] Securities
has been cured, waived, or otherwise eliminated and subject to
the requirements of the second to last sentence of this
paragraph, the Holders of the Majority in liquidation amount
of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any
proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property
Trustee under the Declaration, including (i) directing the
time, method, place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect
to the Debentures, (ii) waiving any past default and its
consequences that is waivable under Section 5.13 of the
Indenture, (iii) exercising any right to rescind or annul a
declaration that the principal of all the Debentures shall be
due and payable; or (iv) consenting
10
<PAGE> 63
to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required;
PROVIDED THAT, where a consent or action under the Indenture
would require the consent or act of the Holders of greater
than a majority in principal amount of Debentures affected
thereby (a "Super Majority"), the Property Trustee may only
give such consent or take such action at the direction of the
Holders of at least the proportion in liquidation amount of
the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of
the [Preferred] Securities, except by a subsequent vote of the
Holders of the [Preferred] Securities. Other than with respect
to directing the time, method and place of conducting any
remedy available to the Property Trustee or the Debenture
Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the
Holders of the Common Securities under this paragraph unless
the Property Trustee has obtained an opinion of tax counsel to
the effect that, as a result of such action the Trust will not
fail to be classified as a grantor trust for United States
federal income tax purposes. If the Property Trustee fails to
enforce its rights, as holder of the Debentures, under the
Indenture, any Holder of Common Securities may, institute a
legal proceeding directly against the Sponsor, to enforce the
Property Trustee's rights, as holder of the Debentures, under
the Indenture, without first instituting any legal proceeding
against the Property Trustee or any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders
of Securities in the Trust or pursuant to written consent. The
Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is
to be taken, to be mailed to each Holder of record of Common
Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders
are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common
Securities or to distribute the Debentures in accordance with
the Declaration and the terms of the Securities.
VII AMENDMENTS TO DECLARATION AND INDENTURE.
----------------------------------------
7.01 In addition to any requirements under Section 12.01 of the
Declaration, if any proposed amendment to the Declaration
provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities, whether by
way of amendment to
11
<PAGE> 64
the Declaration or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as
described in Section 8.01 of the Declaration, then the Holders
of outstanding Securities as a class, will be entitled to vote
on such amendment or proposal (but not on any other amendment
or proposal) and such amendment or proposal shall not be
effective except (a) with the approval of the Holders of at
least 66-2/3% in liquidation amount of the Securities, voting
together as a single class and (ii) upon receipt by the
Regular Trustees of an opinion of counsel to the effect that
such amendment or the exercise of any power granted to the
Regular Trustees in accordance with such amendment will not
affect the Trust's status as a grantor trust for United States
federal income tax purposes or the Trust's exemption from the
status of an "investment company" under the Investment Company
Act; PROVIDED, HOWEVER, if any amendment or proposal referred
to in clause (i) above would adversely affect only the
[Preferred] Securities or only the Common Securities, then
only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not
be effective except with the approval of 66-2/3% in
liquidation amount of such class of Securities.
7.02 In the event the consent of the Property Trustee as the holder
of the Debentures is required under the Indenture with respect
to any amendment, modification or termination of the Indenture
or the Debentures, the Property Trustee shall request the
direction of the Holders of the Securities with respect to
such amendment, modification or termination and shall vote
with respect to such amendment, modification or termination as
directed by a Majority in liquidation amount of the Securities
voting together as a single class; PROVIDED, HOWEVER, that
where a consent under the Indenture would require the consent
of the holders of more than a majority of the aggregate
principal amount of the Debentures, the Property Trustee may
only give such consent at the direction of the Holders of at
least the same proportion in aggregate stated liquidation
preference of the Securities; PROVIDED, HOWEVER, that the
Property Trustee shall not take any action in accordance with
the directions of the Holders of the Securities under this
paragraph unless the Property Trustee has obtained an opinion
of tax counsel to the effect that for the purposes of United
States federal income tax the Trust will not be classified as
other than a grantor trust on account of such action.
VIII PRO RATA.
---------
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, on any distribution date or redemption date
an Event of Default under the Declaration has occurred and is continuing, in
which case no payment of any distribution on, or amount payable upon redemption
of, any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated
12
<PAGE> 65
and unpaid Distributions on all outstanding [Preferred] Securities for all
Distribution periods terminating on or prior thereto, or in the case of payment
of the amount payable upon redemption of the [Preferred] Securities, the full
amount of such amount in respect of all outstanding [Preferred] Securities shall
have been made or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions on,
or the amount payable upon redemption of [Preferred] Securities then due and
payable.
IX RANKING.
--------
The [Preferred] Securities rank PARI PASSU with, and payment
thereon shall be made Pro Rata with, the Common Securities except that, where an
Event of Default occurs and is continuing under the Indenture, the rights of
Holders of the Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the [Preferred] Securities.
X ACCEPTANCE OF [PREFERRED] SECURITIES GUARANTEE AND INDENTURE.
-------------------------------------------------------------
Each Holder of [Preferred] Securities and Common Securities,
by the acceptance thereof, agrees to the provisions of the [Preferred]
Securities Guarantee, respectively, including the subordination provisions
therein and to the provisions of the Indenture, including the subordination
provisions therein, and which includes, among other things, provisions relating
to certain rights of the Holders of the [Preferred] Securities all as set forth
therein.
XI NO PREEMPTIVE RIGHTS.
---------------------
The Holders of the Securities shall have no preemptive rights
to subscribe for any additional securities.
XII MISCELLANEOUS.
--------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
[Preferred] Securities Guarantee, and the Indenture to a Holder without charge
on written request to the Sponsor at its principal place of business.
13
<PAGE> 66
EXHIBIT A
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT - This [Preferred] Security is a Global Certificate within the meaning
the Declaration hereinafter referred to and is registered in the name of the
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
[Preferred] Security is exchangeable for [Preferred] Securities registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Declaration and no transfer of this
[Preferred] Security (other than a transfer of this [Preferred] Security as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this [Preferred] Security Certificate is presented by
an authorized representative of the Depositary to the Trust or its agent for
registration of transfer, exchange or payment, and any [Preferred] Security
Certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein].
Certificate number Number of [Preferred] Securities
CUSIP NO.
Certificate Evidencing [Preferred] Securities
of
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
___% [Preferred] Securities
(liquidation amount $ per [Preferred] Security)
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST, a statutory
business trust formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that _______________ (the "Holder") is the registered owner of
preferred securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust designated the Nationwide Financial
Services Capital Trust III ___% [Preferred] Securities (liquidation amount $
per Security)(the "[Preferred] Securities"). The [Preferred] Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the [Preferred] Securities
represented hereby are in all respects subject to the provisions of the Amended
and Restated Declaration of Trust of the Trust dated as of ___________, 1998, as
the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the [Preferred] Securities as set
A-1
<PAGE> 67
forth in Annex I to the Declaration. Capitalized terms used herein but not
defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Preferred Securities Guarantee to the extent
provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Security Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the [Preferred]
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of _________, 199_.
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
By: ___________________________________
Name: ___________________________________
Title: Regular Trustee
By: ___________________________________
Name: ___________________________________
Title: Regular Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Preferred] Securities referred to in the
within-mentioned Declaration.
By: ___________________________________
Authorized Signatory
A-2
<PAGE> 68
[FORM OF REVERSE OF SECURITY]
Distributions payable on each [Preferred] Security will be
fixed at a rate per annum of __% (the "Coupon Rate") of the stated liquidation
amount of $ per [Preferred] Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears will bear interest thereon compounded [quarterly][semi-annually] at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has funds available therefor. The
amount of Distributions payable for any period will be computed for any full
[quarterly][semi-annual] Distribution period on the basis of a 360-day year of
twelve 30-day months, and for any period of less than a full calendar month the
number of days elapsed in such month.
Distributions on the [Preferred] Securities will be
cumulative, will accrue from the date of original issuance and will be payable
[quarterly][semi-annually] in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures: __________________
and ________________ of each year, commencing on ___________, 1998, except as
otherwise described below. So long as no Event of Default (or an event which
would be an Event of Default with the giving of required notice or the passage
of time) has occurred and is continuing, the Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding
[20 consecutive quarters][10 consecutive semi-annual periods] (each an
"Extension Period") and, as a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, [quarterly][semi-annual] Distributions
will continue to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded [quarterly][semi-annually] during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period so long as
no Event of Default (or an event which would be an Event of Default with the
giving of required notice or the passage of time) has occurred and is
continuing; PROVIDED THAT such Extension Period together with all such previous
and further extensions thereof may not exceed [20 consecutive quarters][10
consecutive semi-annual periods] or extend beyond the maturity (whether at the
stated maturity or by declaration of acceleration, call for redemption or
otherwise) of the Debentures under the Indenture. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
The [Preferred] Securities shall be redeemable as provided in
the Declaration.
A-3
<PAGE> 69
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this [Preferred]
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
________________________________ agent to transfer this
[Preferred] Security Certificate on the books of the Trust. The agent may
substitute another to act for him or her.
Date: __________________
Signature: _________________________
(Sign exactly as your name appears on the other side of this [Preferred]
Security Certificate)
A-4
<PAGE> 70
EXHIBIT B
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
___% Common Securities
(liquidation amount $________ per Common Security)
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III, a statutory
business trust formed under the laws of the State of Delaware (the "Trust")
hereby certifies that ______________________ (the "Holder") is the registered
owner of common securities of the Trust representing common undivided beneficial
interests in the assets of the Trust designated the ___% Common Securities
(liquidation amount $ per Common Security) (the "Common Securities").
The Common Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights, privileges,
restrictions, preference and other terms and provisions of the Common Securities
represented hereby are in all respects subject to the provisions of the Amended
and Rested Declaration of Trust of the Trust dated as of _____________ 1998, as
the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Common Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration and the Indenture to a Holder without charge upon written request to
the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
B-1
<PAGE> 71
IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of _______________, 199_.
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
By: ___________________________________
Name: ___________________________________
Title: Regular Trustee
By: ___________________________________
Name: ___________________________________
Title: Regular Trustee
B-2
<PAGE> 72
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at
a rate per annum of __% (the "Coupon Rate") of the stated liquidation amount of
$ per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears will
bear interest thereon compounded [quarterly][semi-annually] at the Coupon Rate
(to the extent permitted by applicable law). The term "Distributions" as used
herein includes such cash distributions and any such interest payable unless
otherwise stated.
A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Property Trustee and to the extent
the Property Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full [quarterly][semi-annual]
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period of less than a full calendar month the number of days elapsed in
such month.
Distributions on the Common Securities will be cumulative,
will accrue from the date of original issuance and will be payable
[quarterly][semi-annually] in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures: __________________
and ________________ of each year, commencing on ___________, 1998, except as
otherwise described below. So long as no Event of Default (or an event which
would be an Event of Default with the giving of required notice or the passage
of time) has occurred and is continuing, the Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding
[20 consecutive quarters][10 consecutive semi-annual periods] (each an
"Extension Period") and, as a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, [quarterly][semi-annual] Distributions
will continue to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded [quarterly][semi-annually] during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further extend such Extension Period so long as
no Event of Default (or an event which would be an Event of Default with the
giving of required notice or the passage of time) has occurred and is
continuing; PROVIDED THAT such Extension Period together with all such previous
and further extensions thereof may not exceed [20 consecutive quarters][10
consecutive semi-annual periods] or extend beyond the maturity (whether at the
stated maturity or by declaration of acceleration, call for redemption or
otherwise) of the Debentures under the Indenture. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
B-3
<PAGE> 73
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
________________________________ agent to transfer this Common
Security Certificate on the books of the Trust. The agent may substitute another
to act for him or her.
Date: __________________
Signature: _________________________
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate)
B-4
<PAGE> 1
EXHIBIT 4.16
================================================================================
Form of
Guarantee Agreement
between
NATIONWIDE FINANCIAL SERVICES, INC.
(as Guarantor)
and
WILMINGTON TRUST COMPANY
(as Preferred Guarantee Trustee)
of
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
Dated as of
________________,____
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions and Interpretation.............................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application...........................................4
SECTION 2.02. List of Holders............................................................4
SECTION 2.03. Reports by the Preferred Guarantee Trustee.................................5
SECTION 2.04. Periodic Reports to Preferred Guarantee Trustee............................5
SECTION 2.05. Evidence of Compliance with Conditions Precedent...........................5
SECTION 2.06. Events of Default; Waiver..................................................5
SECTION 2.07. Event of Default; Notice...................................................5
SECTION 2.08. Conflicting Interests......................................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
PREFERRED GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Preferred Guarantee Trustee.......................6
SECTION 3.02. Certain Rights of Preferred Guarantee Trustee..............................8
SECTION 3.03. Not Responsible for Recitals or Issuance of Guarantee......................9
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.01. Preferred Guarantee Trustee; Eligibility..................................10
SECTION 4.02. Appointment, Removal and Resignation of the Preferred Guarantee
Trustee.........................................................................10
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee.................................................................11
SECTION 5.02. Waiver of Notice and Demand...............................................11
SECTION 5.03. Obligations Not Affected..................................................12
SECTION 5.04. Rights of Holders.........................................................12
SECTION 5.05. Guarantee of Payment......................................................13
SECTION 5.06. Subrogation...............................................................13
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 5.07. Independent Obligations...................................................13
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. Limitations of Transactions...............................................13
SECTION 6.02. Ranking...................................................................14
ARTICLE VII
TERMINATION
SECTION 7.01. Termination...............................................................14
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Exculpation...............................................................14
SECTION 8.02. Indemnification...........................................................15
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Successors and Assigns....................................................15
SECTION 9.02. Amendments................................................................16
SECTION 9.03. Notices...................................................................16
SECTION 9.04. Benefit...................................................................17
SECTION 9.05. Governing Law.............................................................17
</TABLE>
-ii-
<PAGE> 4
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee of
1939, as amended Agreement
- ---------------- ---------
310(a)............................................... 4.01(a)
310(b)............................................... 4.01(c), 2.08
310(c)............................................... Inapplicable
311(a)............................................... 2.02(b)
311(b)............................................... 2.02(b)
311(c)............................................... Inapplicable
312(a)............................................... 2.02(a)
312(b)............................................... 2.02(b)
313.................................................. 2.03
314(a)............................................... 2.04
314(b)............................................... Inapplicable
314(c)............................................... 2.05
314(d)............................................... Inapplicable
314(e)............................................... 1.01, 2.05, 3.02
314(f)............................................... 2.01, 3.02
315(a)............................................... 3.01(d)
315(b)............................................... 2.07
315(c)............................................... 3.01
315(d)............................................... 3.01(d)
316(a)............................................... 1.01, 2.06, 5.04
316(b)............................................... 5.03
316(c)............................................... 8.02
317(a)............................................... Inapplicable
317(b)............................................... Inapplicable
318(a)............................................... 2.01(b)
318(b)............................................... 2.01
318(c)............................................... 2.01(a)
- ------------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
-iii-
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of __________, ____, is executed and delivered by Nationwide Financial
Services, Inc., a Delaware corporation (the "Guarantor"), to Wilmington Trust
Company, as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of Nationwide Financial Services Capital Trust II, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of __________, ____ among the Trustees named therein,
the Guarantor, as Sponsor, and the Holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing
$___________ aggregate liquidation amount of its ___% [Trust Originated
Preferred] [Capital] Securities (liquidation amount of $[ ] per preferred
security) (the "Preferred Securities") representing undivided beneficial
interests in the assets of the Issuer and having the terms set forth in the
Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the sale by the Issuer of its
Common Securities, will be used to purchase the Debentures (as defined in the
Declaration) of the Guarantor which will be deposited with Wilmington Trust
Company, as Property Trustee under the Declaration, as Trust Property (as
defined in the Declaration);
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an event of default (as
defined in the Indenture) has occurred and is continuing, the Guarantee Payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders from time to time of the Preferred
Securities.
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions and Interpretation. In this Preferred
Securities Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.01;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or
"this Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred
Securities Guarantee unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee unless
otherwise defined in this Preferred Securities Guarantee or unless the
context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Common Securities" means the common securities representing undivided
beneficial interests in the assets of the Issuer and having the rights provided
therefor in the Declaration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" shall have the meaning specified in Section 2.06
(a).
"Guarantee Payments" means the following payments, without duplication,
with respect to the Preferred Securities, to the extent not paid or made by or
on behalf of the Issuer pursuant to the Declaration or by the Guarantor pursuant
to the Indenture: (i) any accumulated and unpaid Distributions required to be
paid on the Preferred Securities, to the extent the Issuer shall have
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funds available therefor, (ii) the redemption price (the "Redemption Price") and
all accrued and unpaid Distributions to the date of redemption to the extent the
Issuer shall have funds available therefor, and (iii) upon a voluntary or
involuntary dissolution and liquidation of the Issuer (other than in connection
with a Distribution of Debentures to Holders of such Preferred Securities or the
redemption of all such Preferred Securities), the lesser of (a) the aggregate of
the liquidation amount of $[ ] per Preferred Security plus all accrued and
unpaid Distributions on the Preferred Securities to the date of payment, to the
extent the Issuer shall have funds available therefor and (b) the amount of
assets of the Issuer remaining available for Distribution to Holders of
Preferred Securities upon a dissolution and liquidation of the Issuer (in either
case, the "Liquidation Distribution"). If an event of default under the
Indenture has occurred and is continuing, the rights of holders of the Common
Securities to receive payments under the Common Securities Guarantee are
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments.
"Holder" means a Person in whose name a Preferred Security is
registered in the Securities Register; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Preferred Guarantee Trustee or any Affiliate of the
Guarantor or the Preferred Guarantee Trustee.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of _________,
1998, as amended or supplemented from time to time, between Nationwide Financial
Services, Inc. and Wilmington Trust Company, as trustee thereunder.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in liquidation amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holders of more
than 50% of the aggregate liquidation amount of all then outstanding Preferred
Securities issued by the Issuer.
"Officers' Certificate" means a certificate signed by the Chairman, the
President, or any Senior or Executive Vice President and the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Guarantor.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Guarantee Trustee" means Wilmington Trust Company, as
trustee hereunder, until a Successor Preferred Guarantee Trustee (as defined
below) has been appointed and has
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accepted such appointment pursuant to the terms of this Preferred Securities
Guarantee and thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any Vice President, any Assistant Vice President, any Trust Officer or
Assistant Trust Officer or any other officer of Corporate Trust Administration
of the Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Senior Indebtedness" means Senior Indebtedness as defined in the
Indenture.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939, as so amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If, and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.02. List of Holders.
(a) The Guarantor shall provide the Preferred Guarantee Trustee (i)
within 14 days after each record date for the payment of Distributions (as
defined in the Declaration), a list, in such form as the Preferred Guarantee
Trustee may reasonably require, of the names and addresses of the Holders of the
Preferred Securities ("List of Holders") as of a date; PROVIDED that the
Guarantor shall not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Preferred Guarantee Trustee by the Guarantor, and (ii) at any other time,
within 30 days of receipt by the Guarantor of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is
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given to the Preferred Guarantee Trustee. The Preferred Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.03. Reports by the Preferred Guarantee Trustee. Within 60
days after May 15 of each year, the Preferred Guarantee Trustee shall provide to
the Holders such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Preferred Guarantee Trustee. The
Guarantor shall provide to the Preferred Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form and
manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Preferred Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Preferred Securities Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.06. Events of Default; Waiver.
(a) An Event of Default means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee;
provided, that except with respect to a default resulting from a failure to pay
any Guarantee Payment, the Guarantor shall have received notice of such default
and shall not have cured such default within 60 days after receipt of such
notice.
(b) The Holders of a Majority in liquidation amount of the Preferred
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Preferred Securities Guarantee, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.
SECTION 2.07. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default actually known to the
Preferred Guarantee Trustee, unless such defaults have been
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cured before the giving of such notice, provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Preferred Guarantee Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Preferred Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or a Responsible Officer charged with the
administration of the Declaration shall have obtained written notice, of such
Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration shall be deemed to
be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
PREFERRED GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee for the benefit of the Holders, and the Preferred Guarantee
Trustee shall not transfer this Preferred Securities Guarantee to any Person
except a Holder exercising his or her rights pursuant to Section 5.04(iv) or to
a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee Trustee
upon acceptance by such Successor Preferred Guarantee Trustee of its appointment
hereunder and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities Guarantee
for the benefit of the Holders.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Preferred Securities Guarantee, and no implied covenants shall be read into
this Preferred Securities Guarantee against the Preferred Guarantee Trustee. In
case an Event of Default has occurred and is continuing (and has not been cured
or waived pursuant to Section 2.06), the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use in the conduct of his or her own affairs.
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(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates
or opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee
shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Preferred
Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a Majority in
liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if
the Preferred Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Preferred Securities
Guarantee or reasonable indemnity against such risk or liability is not
reasonably assured to it.
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SECTION 3.02. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The Preferred Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any request, direction, order, demand or act of the
Guarantor contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate unless otherwise
prescribed herein.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request
from the Preferred Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) the Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof);
(v) The Preferred Guarantee Trustee may consult with legal
counsel of its choice or other experts, and the advice of such experts
within the scope of such expert's area of expertise or Opinion of
Counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this
Preferred Securities Guarantee from any court of competent
jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Preferred
Guarantee Trustee such reasonable indemnity as would satisfy a
reasonable person in the position of the Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses)
and liabilities that might be incurred by it in complying with such
request or direction; provided that, nothing contained in this Section
3.02(a)(v) shall be taken to relieve the Preferred Guarantee Trustee,
upon the occurrence of an Event of
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Default, of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee or its
agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the authority
of the Preferred Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Preferred Securities
Guarantee, both of which shall be conclusively evidenced by the
Preferred Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Preferred Guarantee
Trustee (A) may request instructions from the Holders, (B) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(xi) The Preferred Guarantee Trustee shall not be liable for
any action taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon
it by the Subordinated Indenture.
(b) No provision of this Preferred Securities Guarantee shall be deemed
to impose any duty or obligation on the Preferred Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Preferred Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Preferred Guarantee Trustee shall be construed to be a duty to act in
accordance with such power and authority.
SECTION 3.03. Not Responsible for Recitals or Issuance of Guarantee.
The Recitals contained in this Preferred Securities Guarantee shall be taken as
the statements of the Guarantor,
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and the Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Preferred Guarantee Trustee makes no representations as to the
validity or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.01. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least fifty million U.S. dollars ($50,000,000), and shall be a
corporation meeting the requirements of Section 310(a) of the Trust
Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act. In determining whether the Preferred Guarantee Trustee has a "conflicting
interest" within the meaning of Section 310(b)(1) of the Trust Indenture Act,
the provisions contained in the proviso to Section 310(b)(1) of the Trust
Indenture Act and the Preferred Guarantee Trustee's Statement of Eligibility on
Form T-1 shall be deemed incorporated herein.
SECTION 4.02. Appointment, Removal and Resignation of the Preferred
Guarantee Trustee.
(a) Subject to Section 4.02(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed until a new,
eligible Preferred Guarantee Trustee has been appointed (a "Successor Preferred
Guarantee Trustee") and has accepted such appointment and assumed the applicable
obligations hereunder by written
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instrument executed by such Successor Preferred Guarantee Trustee and delivered
to the Guarantor.
(c) The Preferred Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Preferred Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a Successor
Preferred Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Preferred Guarantee
Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
registration of the Preferred Guarantee Trustee pursuant to this Section 4.02,
the Guarantor shall pay to the Preferred Guarantee Trustee all amounts accrued
and owing to the Preferred Guarantee Trustee on the date of such termination,
removal or registration.
(g) The Preferred Guarantee Trustee may engage in any merger,
conversation, consolidation or sale of all or substantially all of its corporate
trust business, provided that the Successor Preferred Guarantee Trustee shall be
otherwise qualified and eligible under this Capital Securities Guarantee
Agreement.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders of the Outstanding Preferred Securities the
Guarantee Payments (without duplication of amounts theretofore paid by or on
behalf of the Issuer pursuant to the Declaration or by the Guarantor pursuant to
the Indenture), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of the Preferred Securities Guarantee and of any liability
to which it applies or may
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apply, presentment, demand for payment, any right to require a proceeding first
against the Preferred Guarantee Trustee, the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from an Extension Period on the Debentures as so
provided in the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or detect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) to the extent permitted by law, any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Preferred Securities Guarantee will be deposited with the
Preferred Guarantee Trustee to be held
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<PAGE> 17
for the benefit of the Holders; (ii) the Preferred Guarantee Trustee has the
right to enforce this Preferred Securities Guarantee on behalf of the Holders;
(iii) the Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Preferred Securities Guarantee or exercise or direct the
exercise of any trust or power conferred upon the Preferred Guarantee Trustee
under this Preferred Securities Guarantee; and (iv) any Holder may institute a
legal proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Preferred Guarantee Trustee, the Issuer or any other Person.
SECTION 5.05. Guarantee of Payment. This Preferred Securities Guarantee
creates a guarantee of payment and not of collection (i.e., the guaranteed party
may institute a legal proceeding directly against the Guarantor to enforce its
rights under the Preferred Securities Guarantee without first instituting a
legal proceeding against any other person or entity). This Preferred Securities
Guarantee will not be discharged except by payment of the Guarantee Payments in
full to the extent not previously paid or upon Distribution to the Holders of
the Preferred Securities of the corresponding series of Debentures as provided
in the Declaration.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Preferred Securities Guarantee and shall
have the right to waive payment by the Issuer pursuant to Section 5.01;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Preferred Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive, of Section 5.03
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. Limitations of Transactions. So long as any Preferred
Securities remain outstanding, if there shall have occurred an Event of Default,
an event that, with the giving of notice or the lapse of time or both, would
constitute an Event of Default under the Indenture or an exercise by the
Guarantor of its right to defer payment of interest as provided in the Indenture
and such deferral period, or any extension thereof, shall be continuing, then
(a) the Guarantor
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<PAGE> 18
shall not declare or pay any dividend on, or make any distribution with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock (other than stock dividends paid by the Guarantor which
stock dividends consist of the stock of the same class as that on which the
dividend is being paid), (b) the Guarantor shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Guarantor which rank pari passu with or junior to
the Debentures and (c) shall not make any guarantee payments with respect to the
foregoing (other than pursuant to this Preferred Securities Guarantee).
SECTION 6.02. Ranking. This Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor, except any liabilities that may be made pari passu or junior
expressly by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock or preferred security of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Preferred Securities Guarantee shall
terminate and be of no further force and effect upon full payment of the
Redemption Price or Liquidation Distribution for the Preferred Securities or
upon Distribution of the Debentures to the Holders of the Preferred Securities.
This Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of the Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Preferred Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
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<PAGE> 19
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.02. Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Preferred Securities Guarantee,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Guarantor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Guarantor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 8.02(a).
(c) The obligation to indemnify as set forth in this Section 8.02 shall
survive the termination of the Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Successors and Assigns. All guarantees and agreements
contained in this Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. The Guarantor may not consolidate with or merge with or into, or
sell, convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to, any Person unless permitted under Article Eight of the
Indenture. In connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article Eight of the Indenture the Person
formed by or surviving such consolidation or merger or to which such sale,
conveyance, transfer or lease shall
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<PAGE> 20
have been made, if other than the Guarantor, shall expressly assume all of the
obligations of the Guarantor hereunder and under the Declaration.
SECTION 9.02. Amendments. Except with respect to any changes which do
not adversely affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Preferred Securities
Guarantee may only be amended with the prior approval of the Holders of a
Majority in liquidation amount of the Preferred Securities (excluding any
Preferred Securities held by the Guarantor or an Affiliate thereof). The
provisions of Article VI of the Declaration concerning meetings of the Holders
shall apply to the giving of such approval.
SECTION 9.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing and delivered,
telecopied or mailed by first class mail, postage prepaid, as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders:
Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
(b) if given to the Issuer, in care of the Preferred Guarantee
Trustee, at the Issuer's (and the Preferred Guarantee Trustee's)
address set forth below or such other address as the Preferred
Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
Nationwide Financial Services Capital Trust II
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
with a copy to:
Wilmington Trust Company
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth in the
Securities Register.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address
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<PAGE> 21
of which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
SECTION 9.04. Benefit. This Preferred Securities Guarantee is solely
for the benefit of the Holders and is not separately transferable from the
Preferred Securities.
SECTION 9.05. Governing Law. THIS PREFERRED SECURITIES GUARANTEE SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
NATIONWIDE FINANCIAL SERVICES
CAPITAL TRUST II
as Guarantor
By:
-----------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
as Preferred Guarantee Trustee
By:
-----------------------------------
Name:
Title:
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<PAGE> 1
EXHIBIT 4.17
- --------------------------------------------------------------------------------
Form of
Guarantee Agreement
between
NATIONWIDE FINANCIAL SERVICES, INC.
(as Guarantor)
and
WILMINGTON TRUST COMPANY
(as Preferred Guarantee Trustee)
of
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
Dated as of
_______________,_______
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
<S> <C>
DEFINITIONS
SECTION 1.01. Definitions and Interpretation............................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application..........................................................4
SECTION 2.02. List of Holders...........................................................................4
SECTION 2.03. Reports by the Preferred Guarantee Trustee................................................5
SECTION 2.04. Periodic Reports to Preferred Guarantee Trustee...........................................5
SECTION 2.05. Evidence of Compliance with Conditions Precedent..........................................5
SECTION 2.06. Events of Default; Waiver.................................................................5
SECTION 2.07. Event of Default; Notice..................................................................5
SECTION 2.08. Conflicting Interests.....................................................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
PREFERRED GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Preferred Guarantee Trustee......................................6
SECTION 3.02. Certain Rights of Preferred Guarantee Trustee.............................................8
SECTION 3.03. Not Responsible for Recitals or Issuance of Guarantee.....................................9
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.01. Preferred Guarantee Trustee; Eligibility.................................................10
SECTION 4.02. Appointment, Removal and Resignation of the Preferred Guarantee
Trustee........................................................................................10
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee................................................................................11
SECTION 5.02. Waiver of Notice and Demand..............................................................11
SECTION 5.03. Obligations Not Affected.................................................................12
SECTION 5.04. Rights of Holders........................................................................12
SECTION 5.05. Guarantee of Payment.....................................................................13
SECTION 5.06. Subrogation..............................................................................13
</TABLE>
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<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
SECTION 5.07. Independent Obligations..................................................................13
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. Limitations of Transactions..............................................................13
SECTION 6.02. Ranking..................................................................................14
ARTICLE VII
TERMINATION
SECTION 7.01. Termination..............................................................................14
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Exculpation..............................................................................14
SECTION 8.02. Indemnification..........................................................................15
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Successors and Assigns...................................................................15
SECTION 9.02. Amendments...............................................................................16
SECTION 9.03. Notices..................................................................................16
SECTION 9.04. Benefit..................................................................................17
SECTION 9.05. Governing Law............................................................................17
</TABLE>
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<PAGE> 4
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Section of
Trust Indenture Act Guarantee of
1939, as amended Agreement
- ------------------- ---------
<S> <C>
310(a)...................................................................................... 4.01(a)
310(b)...................................................................................... 4.01(c), 2.08
310(c)...................................................................................... Inapplicable
311(a)...................................................................................... 2.02(b)
311(b)...................................................................................... 2.02(b)
311(c)...................................................................................... Inapplicable
312(a)...................................................................................... 2.02(a)
312(b)...................................................................................... 2.02(b)
313......................................................................................... 2.03
314(a)...................................................................................... 2.04
314(b)...................................................................................... Inapplicable
314(c)...................................................................................... 2.05
314(d)...................................................................................... Inapplicable
314(e)...................................................................................... 1.01, 2.05, 3.02
314(f)...................................................................................... 2.01, 3.02
315(a)...................................................................................... 3.01(d)
315(b)...................................................................................... 2.07
315(c)...................................................................................... 3.01
315(d)...................................................................................... 3.01(d)
316(a)...................................................................................... 1.01, 2.06, 5.04
316(b)...................................................................................... 5.03
316(c)...................................................................................... 8.02
317(a)...................................................................................... Inapplicable
317(b)...................................................................................... Inapplicable
318(a)...................................................................................... 2.01(b)
318(b)...................................................................................... 2.01
318(c)...................................................................................... 2.01(a)
</TABLE>
- --------------------------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
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<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated
as of __________, ____, is executed and delivered by Nationwide Financial
Services, Inc., a Delaware corporation (the "Guarantor"), to Wilmington Trust
Company, as trustee (the "Preferred Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of Nationwide Financial Services Capital Trust III, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of __________, ____ among the Trustees named therein,
the Guarantor, as Sponsor, and the Holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing
$___________ aggregate liquidation amount of its ___% [Trust Originated
Preferred] [Capital] Securities (liquidation amount of $[ ] per preferred
security) (the "Preferred Securities") representing undivided beneficial
interests in the assets of the Issuer and having the terms set forth in the
Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the sale by the Issuer of its
Common Securities, will be used to purchase the Debentures (as defined in the
Declaration) of the Guarantor which will be deposited with Wilmington Trust
Company, as Property Trustee under the Declaration, as Trust Property (as
defined in the Declaration);
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein), except that if an event of default (as
defined in the Indenture) has occurred and is continuing, the Guarantee Payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders from time to time of the Preferred
Securities.
<PAGE> 6
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions and Interpretation. In this Preferred
Securities Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.01;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or
"this Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred
Securities Guarantee unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee unless
otherwise defined in this Preferred Securities Guarantee or unless the
context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Common Securities" means the common securities representing undivided
beneficial interests in the assets of the Issuer and having the rights provided
therefor in the Declaration.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" shall have the meaning specified in Section 2.06
(a).
"Guarantee Payments" means the following payments, without duplication,
with respect to the Preferred Securities, to the extent not paid or made by or
on behalf of the Issuer pursuant to the Declaration or by the Guarantor pursuant
to the Indenture: (i) any accumulated and unpaid Distributions required to be
paid on the Preferred Securities, to the extent the Issuer shall have
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<PAGE> 7
funds available therefor, (ii) the redemption price (the "Redemption Price") and
all accrued and unpaid Distributions to the date of redemption to the extent the
Issuer shall have funds available therefor, and (iii) upon a voluntary or
involuntary dissolution and liquidation of the Issuer (other than in connection
with a Distribution of Debentures to Holders of such Preferred Securities or the
redemption of all such Preferred Securities), the lesser of (a) the aggregate of
the liquidation amount of $[ ] per Preferred Security plus all accrued and
unpaid Distributions on the Preferred Securities to the date of payment, to the
extent the Issuer shall have funds available therefor and (b) the amount of
assets of the Issuer remaining available for Distribution to Holders of
Preferred Securities upon a dissolution and liquidation of the Issuer (in either
case, the "Liquidation Distribution"). If an event of default under the
Indenture has occurred and is continuing, the rights of holders of the Common
Securities to receive payments under the Common Securities Guarantee are
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments.
"Holder" means a Person in whose name a Preferred Security is
registered in the Securities Register; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Preferred Guarantee Trustee or any Affiliate of the
Guarantor or the Preferred Guarantee Trustee.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of _________,
1998, as amended or supplemented from time to time, between Nationwide Financial
Services, Inc. and Wilmington Trust Company, as trustee thereunder.
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in liquidation amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holders of more
than 50% of the aggregate liquidation amount of all then outstanding Preferred
Securities issued by the Issuer.
"Officers' Certificate" means a certificate signed by the Chairman, the
President, or any Senior or Executive Vice President and the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Guarantor.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Guarantee Trustee" means Wilmington Trust Company, as
trustee hereunder, until a Successor Preferred Guarantee Trustee (as defined
below) has been appointed and has
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<PAGE> 8
accepted such appointment pursuant to the terms of this Preferred Securities
Guarantee and thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any Vice President, any Assistant Vice President, any Trust Officer or
Assistant Trust Officer or any other officer of Corporate Trust Administration
of the Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Senior Indebtedness" means Senior Indebtedness as defined in the
Indenture.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939, as so amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions of
the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If, and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.02. List of Holders.
(a) The Guarantor shall provide the Preferred Guarantee Trustee (i)
within 14 days after each record date for the payment of Distributions (as
defined in the Declaration), a list, in such form as the Preferred Guarantee
Trustee may reasonably require, of the names and addresses of the Holders of the
Preferred Securities ("List of Holders") as of a date; provided that the
Guarantor shall not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Preferred Guarantee Trustee by the Guarantor, and (ii) at any other time,
within 30 days of receipt by the Guarantor of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is
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<PAGE> 9
given to the Preferred Guarantee Trustee. The Preferred Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Sections 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.03. Reports by the Preferred Guarantee Trustee. Within 60
days after May 15 of each year, the Preferred Guarantee Trustee shall provide to
the Holders such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Preferred Guarantee Trustee. The
Guarantor shall provide to the Preferred Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form and
manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Preferred Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Preferred Securities Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.06. Events of Default; Waiver.
(a) An Event of Default means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee;
provided, that except with respect to a default resulting from a failure to pay
any Guarantee Payment, the Guarantor shall have received notice of such default
and shall not have cured such default within 60 days after receipt of such
notice.
(b) The Holders of a Majority in liquidation amount of the Preferred
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Preferred Securities Guarantee, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.
SECTION 2.07. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default actually known to the
Preferred Guarantee Trustee, unless such defaults have been
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<PAGE> 10
cured before the giving of such notice, provided, that, except in the case of a
default in the payment of a Guarantee Payment, the Preferred Guarantee Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Preferred Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or a Responsible Officer charged with the
administration of the Declaration shall have obtained written notice, of such
Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration shall be deemed to
be specifically described in this Preferred Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE
PREFERRED GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the Preferred
Guarantee Trustee for the benefit of the Holders, and the Preferred Guarantee
Trustee shall not transfer this Preferred Securities Guarantee to any Person
except a Holder exercising his or her rights pursuant to Section 5.04(iv) or to
a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee Trustee
upon acceptance by such Successor Preferred Guarantee Trustee of its appointment
hereunder and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities Guarantee
for the benefit of the Holders.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Preferred Securities Guarantee, and no implied covenants shall be read into
this Preferred Securities Guarantee against the Preferred Guarantee Trustee. In
case an Event of Default has occurred and is continuing (and has not been cured
or waived pursuant to Section 2.06), the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use in the conduct of his or her own affairs.
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<PAGE> 11
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such certificates
or opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee
shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Preferred
Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of
the Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a Majority in
liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers, if
the Preferred Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Preferred Securities
Guarantee or reasonable indemnity against such risk or liability is not
reasonably assured to it.
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SECTION 3.02. Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The Preferred Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any request, direction, order, demand or act of the
Guarantor contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate unless otherwise
prescribed herein.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Preferred
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request
from the Preferred Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) the Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof);
(v) The Preferred Guarantee Trustee may consult with legal
counsel of its choice or other experts, and the advice of such experts
within the scope of such expert's area of expertise or Opinion of
Counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this
Preferred Securities Guarantee from any court of competent
jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Preferred
Guarantee Trustee such reasonable indemnity as would satisfy a
reasonable person in the position of the Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses)
and liabilities that might be incurred by it in complying with such
request or direction; provided that, nothing contained in this Section
3.02(a)(v) shall be taken to relieve the Preferred Guarantee Trustee,
upon the occurrence of an Event of
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Default, of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee or its
agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the authority
of the Preferred Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Preferred Securities
Guarantee, both of which shall be conclusively evidenced by the
Preferred Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Preferred Guarantee
Trustee (A) may request instructions from the Holders, (B) may refrain
from enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(xi) The Preferred Guarantee Trustee shall not be liable for
any action taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers conferred upon
it by the Subordinated Indenture.
(b) No provision of this Preferred Securities Guarantee shall be deemed
to impose any duty or obligation on the Preferred Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Preferred Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Preferred Guarantee Trustee shall be construed to be a duty to act in
accordance with such power and authority.
SECTION 3.03. Not Responsible for Recitals or Issuance of Guarantee.
The Recitals contained in this Preferred Securities Guarantee shall be taken as
the statements of the Guarantor,
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and the Preferred Guarantee Trustee does not assume any responsibility for their
correctness. The Preferred Guarantee Trustee makes no representations as to the
validity or sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.01. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least fifty million U.S. dollars ($50,000,000), and shall be a
corporation meeting the requirements of Section 310(a) of the Trust
Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this
Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act. In determining whether the Preferred Guarantee Trustee has a "conflicting
interest" within the meaning of Section 310(b)(1) of the Trust Indenture Act,
the provisions contained in the proviso to Section 310(b)(1) of the Trust
Indenture Act and the Preferred Guarantee Trustee's Statement of Eligibility on
Form T-1 shall be deemed incorporated herein.
SECTION 4.02. Appointment, Removal and Resignation of the Preferred
Guarantee Trustee.
(a) Subject to Section 4.02(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed until a new,
eligible Preferred Guarantee Trustee has been appointed (a "Successor Preferred
Guarantee Trustee") and has accepted such appointment and assumed the applicable
obligations hereunder by written
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instrument executed by such Successor Preferred Guarantee Trustee and delivered
to the Guarantor.
(c) The Preferred Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Preferred Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a Successor
Preferred Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Preferred Guarantee
Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
registration of the Preferred Guarantee Trustee pursuant to this Section 4.02,
the Guarantor shall pay to the Preferred Guarantee Trustee all amounts accrued
and owing to the Preferred Guarantee Trustee on the date of such termination,
removal or registration.
(g) The Preferred Guarantee Trustee may engage in any merger,
conversation, consolidation or sale of all or substantially all of its corporate
trust business, provided that the Successor Preferred Guarantee Trustee shall be
otherwise qualified and eligible under this Capital Securities Guarantee
Agreement.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders of the Outstanding Preferred Securities the
Guarantee Payments (without duplication of amounts theretofore paid by or on
behalf of the Issuer pursuant to the Declaration or by the Guarantor pursuant to
the Indenture), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of the Preferred Securities Guarantee and of any
liability to which it applies or may
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apply, presentment, demand for payment, any right to require a proceeding first
against the Preferred Guarantee Trustee, the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from an Extension Period on the Debentures as so
provided in the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or detect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) to the extent permitted by law, any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Preferred Securities Guarantee will be deposited with the
Preferred Guarantee Trustee to be held
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for the benefit of the Holders; (ii) the Preferred Guarantee Trustee has the
right to enforce this Preferred Securities Guarantee on behalf of the Holders;
(iii) the Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Preferred Securities Guarantee or exercise or direct the
exercise of any trust or power conferred upon the Preferred Guarantee Trustee
under this Preferred Securities Guarantee; and (iv) any Holder may institute a
legal proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Preferred Guarantee Trustee, the Issuer or any other Person.
SECTION 5.05. Guarantee of Payment. This Preferred Securities Guarantee
creates a guarantee of payment and not of collection (i.e., the guaranteed party
may institute a legal proceeding directly against the Guarantor to enforce its
rights under the Preferred Securities Guarantee without first instituting a
legal proceeding against any other person or entity). This Preferred Securities
Guarantee will not be discharged except by payment of the Guarantee Payments in
full to the extent not previously paid or upon Distribution to the Holders of
the Preferred Securities of the corresponding series of Debentures as provided
in the Declaration.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Preferred Securities Guarantee and shall
have the right to waive payment by the Issuer pursuant to Section 5.01;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Preferred Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive, of Section 5.03
hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. Limitations of Transactions. So long as any Preferred
Securities remain outstanding, if there shall have occurred an Event of Default,
an event that, with the giving of notice or the lapse of time or both, would
constitute an Event of Default under the Indenture or an exercise by the
Guarantor of its right to defer payment of interest as provided in the Indenture
and such deferral period, or any extension thereof, shall be continuing, then
(a) the Guarantor
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<PAGE> 18
shall not declare or pay any dividend on, or make any distribution with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock (other than stock dividends paid by the Guarantor which
stock dividends consist of the stock of the same class as that on which the
dividend is being paid), (b) the Guarantor shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Guarantor which rank pari passu with or junior to
the Debentures and (c) shall not make any guarantee payments with respect to the
foregoing (other than pursuant to this Preferred Securities Guarantee).
SECTION 6.02. Ranking. This Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other liabilities of the
Guarantor, except any liabilities that may be made pari passu or junior
expressly by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock or preferred security of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Preferred Securities Guarantee shall
terminate and be of no further force and effect upon full payment of the
Redemption Price or Liquidation Distribution for the Preferred Securities or
upon Distribution of the Debentures to the Holders of the Preferred Securities.
This Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of the Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Preferred Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
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<PAGE> 19
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.02. Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Preferred Securities Guarantee,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Guarantor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Guarantor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 8.02(a).
(c) The obligation to indemnify as set forth in this Section 8.02 shall
survive the termination of the Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Successors and Assigns. All guarantees and agreements
contained in this Preferred Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding. The Guarantor may not consolidate with or merge with or into, or
sell, convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety (either in one transaction or a series of
transactions) to, any Person unless permitted under Article Eight of the
Indenture. In connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article Eight of the Indenture the Person
formed by or surviving such consolidation or merger or to which such sale,
conveyance, transfer or lease shall
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have been made, if other than the Guarantor, shall expressly assume all of the
obligations of the Guarantor hereunder and under the Declaration.
SECTION 9.02. Amendments. Except with respect to any changes which do
not adversely affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Preferred Securities
Guarantee may only be amended with the prior approval of the Holders of a
Majority in liquidation amount of the Preferred Securities (excluding any
Preferred Securities held by the Guarantor or an Affiliate thereof). The
provisions of Article VI of the Declaration concerning meetings of the Holders
shall apply to the giving of such approval.
SECTION 9.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing and delivered,
telecopied or mailed by first class mail, postage prepaid, as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Holders:
Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
(b) if given to the Issuer, in care of the Preferred Guarantee
Trustee, at the Issuer's (and the Preferred Guarantee Trustee's)
address set forth below or such other address as the Preferred
Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
Nationwide Financial Services Capital Trust III
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
with a copy to:
Wilmington Trust Company
Rodney Square North, 1100 N. Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth in the
Securities Register.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address
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of which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
SECTION 9.04. Benefit. This Preferred Securities Guarantee is solely
for the benefit of the Holders and is not separately transferable from the
Preferred Securities.
SECTION 9.05. Governing Law. THIS PREFERRED SECURITIES GUARANTEE SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
NATIONWIDE FINANCIAL SERVICES
CAPITAL TRUST III
as Guarantor
By:__________________________________
Name:
Title:
WILMINGTON TRUST COMPANY
as Preferred Guarantee Trustee
By:__________________________________
Name:
Title:
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<PAGE> 1
Exhibit 4.18
================================================================================
NATIONWIDE FINANCIAL SERVICES, INC.
and
[ ],
---------------------------------
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
---------------------------
DEPOSIT AGREEMENT
---------------------------
Dated as of [ ], 199[ ]
------------ -
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
Parties....................................................................................................1
Recitals...................................................................................................1
ARTICLE I DEFINITIONS............................................................................1
ARTICLE II FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER, REDEMPTION AND
CONVERSION OF RECEIPTS.................................................................3
SECTION 2.01. Form and Transfer of Receipts........................................................3
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect
Thereof..............................................................................4
SECTION 2.03. Redemption and Conversion of Stock...................................................5
SECTION 2.04. Register of Transfer of Receipts.....................................................7
SECTION 2.05. Combination and Split-ups of Receipts................................................7
SECTION 2.06. Surrender of Receipts and Withdrawal of Stock........................................8
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts and
Withdrawal or Deposit of Stock.......................................................9
SECTION 2.08. Lost Receipts, etc...................................................................9
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
AND THE COMPANY.......................................................................10
SECTION 3.01. Filing Proofs, Certificates and Other Information...................................10
SECTION 3.02. Payment of Taxes or Other Governmental Charges......................................10
SECTION 3.03. Withholding.........................................................................10
ARTICLE IV THE STOCK, NOTICES....................................................................11
SECTION 4.01. Cash Distributions..................................................................11
SECTION 4.02. Distributions Other Than Cash.......................................................11
SECTION 4.03. Subscription Rights, Preferences or Privileges......................................12
SECTION 4.04. Notice of Dividends, Fixing of Record Date for Holders of
Receipts............................................................................13
SECTION 4.05. Voting Rights.......................................................................13
SECTION 4.06. Changes Affecting Stock and Reclassifications, Recapitalizations,
etc.................................................................................13
</TABLE>
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<TABLE>
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<S> <C> <C>
SECTION 4.07. Reports.............................................................................14
ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY.........................................................14
SECTION 5.01. Maintenance of Offices, Agencies, Transfer Books by
the Depositary; the Registrar.......................................................14
SECTION 5.02. Prevention or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company...............................15
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company.......................................................15
SECTION 5.04. Resignation and Removal of the Depositary, Appointment
of Successor Depositary.............................................................17
SECTION 5.05. Corporate Notices and Reports.......................................................18
SECTION 5.06. Deposit of Stock by the Company.....................................................18
SECTION 5.07. Indemnification by the Company......................................................18
SECTION 5.08. Fees, Charges and Expenses..........................................................18
ARTICLE VI AMENDMENT AND TERMINATION.............................................................19
SECTION 6.01. Amendment...........................................................................19
SECTION 6.02. Termination.........................................................................19
ARTICLE VII MISCELLANEOUS.........................................................................20
SECTION 7.01. Counterparts........................................................................20
SECTION 7.02. Exclusive Benefits of Parties.......................................................20
SECTION 7.03. Invalidity of Provisions............................................................20
SECTION 7.04. Notices.............................................................................21
SECTION 7.05. Depositary's Agents.................................................................21
SECTION 7.06. Holders of Receipts Are Parties.....................................................21
SECTION 7.07. Governing Law.......................................................................21
SECTION 7.08. Headings............................................................................22
</TABLE>
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<PAGE> 4
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [________],[________], among Nationwide
Financial Services, Inc., a Delaware corporation (the "Company"), [__________],
a [________] banking corporation, as Depositary (the "Depositary"), and all
holders from time to time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of Stock (as hereinafter
defined) with the Depositary (as hereinafter defined), as agent for the
beneficial owners of the Stock, for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of the Receipts evidencing Depositary
Shares (as hereinafter defined) representing an interest in the Stock so
deposited;
NOW, THEREFORE, in consideration of the premises contained herein, it
is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
"Articles of Incorporation" shall mean the Restated Articles of
Incorporation, as amended and restated from time to time, of the Company.
"Certificate" shall mean the certificate of designations, preferences
and rights of the Stock adopted by the Board of Directors of the Company and
filed with the Secretary of State of Delaware establishing the Stock as a series
of preferred stock of the Company.
"Common Stock" shall mean the Company's Class A Common Stock, par value
$0.01 per share.
"Corporate Office" shall mean the office of the Depositary in
[__________], [______________] at which at any particular time its business in
respect of matters governed by this Deposit Agreement shall be administered,
which at the date of this Deposit Agreement is located at
[______________________].
<PAGE> 5
"Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
"Depositary Share" shall mean the rights evidenced by the Receipts
executed and delivered hereunder, including the interests in Stock granted to
holders of Receipts pursuant to the terms and conditions of the Deposit
Agreement. Each Depositary Share shall represent an interest in [insert
fractional interest] of a share of Stock deposited with the Depositary hereunder
and the same proportionate interest in any and all other property received by
the Depositary in respect of such share of Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each record holder of
a Receipt evidencing a Depositary Share or Shares is entitled, proportionately,
to all the rights, preferences and privileges of the Stock represented by such
Depositary Share or Shares, including the dividend, voting and liquidation
rights contained in the applicable Certificate, and to the benefits of all
obligations and duties of the Company in respect of the Stock under the Articles
of Incorporation (including the applicable Certificate).
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.05.
"New York Office" shall mean the facility maintained by the Depositary
in the Borough of Manhattan, The City of New York for accepting, executing and
delivering Receipts and other instruments prior to processing such instruments
at the Corporate Office, which facility at the date of this Deposit Agreement is
located at [______________________].
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form, evidencing one or more Depositary
Shares.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books maintained by or on
behalf of the Depositary for such purpose.
"Registrar" shall mean any bank or trust company appointed to register
ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's [__________________________]
Preferred Stock, $0.01 par value per shares.
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<PAGE> 6
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.02, shall execute and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at the Corporate Office, the New York Office, or such other office as
the Depositary may designate, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered temporary Receipt
or Receipts. Such exchange shall be made at the Company's expense and without
any charge thereof. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar (other than the Depositary) shall
have countersigned the Receipts by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding sentence. The Depositary shall
record on its books each Receipt executed as provided above and delivered as
hereinafter provided. Receipts bearing the facsimile signature of anyone who was
at any time a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold such office
prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be
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<PAGE> 7
required by the Depositary or required to comply with any applicable law or
regulation or with the rules and regulations of any securities exchange upon
which the Stock or the Depositary Shares may be listed or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by delivery with the same effect as
in the case of a negotiable instrument; provided, however, that the Depositary
may, notwithstanding any notice to the contrary, treat the record holder thereof
at such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to any
notice provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement,
the Company or any holder of Stock may deposit such Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a properly executed instrument of transfer in form satisfactory
to the Depositary, together with (i) all such certifications as may be required
by the Depositary in accordance with the provisions of this Deposit Agreement
and (ii) a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to or upon the written order of
the person or persons stated in such order a Receipt or Receipts for the number
of Depositary Shares representing such deposited Stock.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together with
the other documents required as above specified, and upon recordation of the
Stock so deposited on the books of the Company in the name of the Depositary or
its nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares relating to the Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Corporate Office, the New
York Office, or such other office, if any, as the Depositary may designate.
Delivery at other offices shall be at the risk and expense of the person
requesting such delivery.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
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<PAGE> 8
SECTION 2.03. REDEMPTION AND CONVERSION OF STOCK.* Whenever the Company
shall elect to redeem or be required to convert shares of Stock into shares of
Common Stock in accordance with the applicable Certificate, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption or conversion of Stock
and the simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted and of the number of such
shares of Stock held by the Depositary to be redeemed or converted. The
Depositary shall, as directed by the Company in writing, mail, first class
postage prepaid, notice of the redemption or conversion of Stock and the
proposed simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted, not less than 30 and not
more than 60 days prior to the date fixed for redemption or conversion of such
Stock and Depositary Shares, to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed or converted, at the addresses of such
holders as the same appear on the records of the Depositary; provided, that if
the effectiveness of a Merger or Consolidation (as defined in the applicable
Certificate) makes it impracticable to provide at least 30 days' notice, the
Depositary shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the same manner as
notices of redemption or conversion of Stock are required to be published
pursuant to the applicable Certificate. Notwithstanding the foregoing, neither
failure to mail or publish any such notice to one or more such holders nor any
defect in any notice shall affect the sufficiency of the proceedings for
redemption or conversion. The Company shall provide the Depositary with such
notice, and each such notice shall state: the redemption or conversion date; the
number of Depositary Shares to be redeemed or converted; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; in the case of a call
for redemption, the call price payable upon redemption; whether the Company is
exercising any option in the applicable Certificate to deliver shares of Common
Stock in lieu of any cash consideration and the method used to calculate the
number of such shares; the place or places where Receipts evidencing Depositary
Shares to be redeemed or converted are to be surrendered for redemption or
conversion; whether the Company is depositing with a bank or trust company on or
before the redemption or conversion date, the shares of Common Stock and cash,
if any, payable by the Company and the proposed date of such deposit; the amount
of accrued and unpaid dividends payable per share of Stock to be redeemed or
converted to and including such redemption or conversion date, as the case may
be, and that dividends in respect of the Stock represented by the Depositary
Shares to be redeemed or converted will cease to accrue on such redemption or
conversion date (unless the Company shall default in delivering shares of Common
Stock and cash, if any, at the time and place specified in such notice).
- -------------
* This section to be modified to discuss specific redemption or conversion
terms of the Stock, if any.
-5-
<PAGE> 9
On the date of any such redemption or conversion, the Depositary shall
surrender the certificate or certificates held by the Depositary evidencing the
number of shares of Stock to be redeemed or converted in the manner specified in
the notice of redemption or conversion of Stock provided by the Company pursuant
to the applicable Certificate. The Depositary shall, thereafter, redeem or
convert the number of Depositary Shares representing such redeemed or converted
Stock upon the surrender of Receipts evidencing such Depositary Shares in the
manner provided in the notice sent to record holders of Receipts; provided, that
the Depositary shall have received, upon surrendering such certificate or
certificates as aforesaid, a sufficient number of shares of Common Stock to
convert or redeem such number of Depositary Shares (including, in the event that
the Company elects pursuant to the applicable Certificate to exercise any option
to deliver shares of Common Stock in lieu of any cash consideration payable on
the Effective Date (as defined in the applicable Certificate) of any Merger or
Consolidation, a number of shares of Common Stock equal to such cash
consideration (as determined in the manner set forth in the applicable
Certificate)), plus any accrued and unpaid dividends payable with respect
thereto to and including the date of any such redemption or conversion and any
other cash consideration payable on the Effective Date of a Merger or
Consolidation (other than any dividends or other cash consideration payable on
the Effective Date of a Merger or Consolidation that the Company has elected to
pay in shares of Common Stock pursuant to the applicable Certificate) as
instructed and calculated by the Company. In case fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall
be selected by the Depositary by lot or on a pro rata basis.
Notice having been mailed by the Depositary as aforesaid, from and
after the redemption or conversion date (unless the Company shall have failed to
redeem or convert the shares of Stock to be redeemed or converted by it upon the
surrender of the certificate or certificates therefor by the Depositary as
described in the preceding paragraph), the Depositary Shares called for
redemption or subject to conversion shall be deemed no longer to be outstanding
and all rights of the holders of Receipts evidencing such Depositary Shares
(except the right to receive the shares of Common Stock and cash, if any,
payable upon redemption or conversion upon surrender of such Receipts) shall, to
the extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be converted into or redeemed for shares
of Common Stock at a rate equal to [insert fractional interest] of the number of
shares of Common Stock delivered, and the holders thereof shall be entitled to
[insert fractional interest] of the cash, if any, payable, in respect of the
shares of Stock pursuant to the applicable Certificate. The foregoing shall be
subject further to the terms and conditions of the applicable Certificate.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the shares of Common Stock
and all accrued and unpaid dividends to and including the date fixed for
redemption payable in respect of the Depositary Shares called
-6-
<PAGE> 10
for redemption, a new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
To the extent that Depositary Shares are converted into or redeemed for
shares of Common Stock and all of such shares of Common Stock cannot be
distributed to the record holders of Receipts converted or called for redemption
without creating fractional interests in such shares, the Depositary may, with
the consent of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of such shares of Common Stock at such place or
places and upon such terms as it may deem proper, and the net proceeds of any
such sale shall, subject to Section 3.02, be distributed or made available for
distribution to such record holders that would otherwise receive fractional
interests in such shares of Common Stock.
The Depositary shall not be required (a) to issue, transfer or exchange
any Receipts for a period beginning at the opening of business 15 days next
preceding any selection of Depositary Shares and Stock to be redeemed and ending
at the close of business on the day of the mailing of notice of redemption of
Depositary Shares or (b) to transfer or exchange for another Receipt any Receipt
evidencing Depositary Shares called or being called for redemption, in whole or
in part, or subject to conversion except as provided in the second preceding
paragraph of this Section 2.03.
SECTION 2.04. REGISTER OF TRANSFER OF RECEIPTS. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof at the
Corporate Office, the New York Office or such other office as the Depositary may
designate for such purpose, by the record holder in person or by a duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer, together with evidence of the payment of any transfer
taxes as may be required by law. Upon such surrender, the Depositary shall
execute a new Receipt or Receipts and deliver the same to or upon the order of
the person entitled thereto evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. COMBINATION AND SPLIT-UPS OF RECEIPTS. Upon surrender of
a Receipt or Receipts at the Corporate Office, the New York Office or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
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<PAGE> 11
SECTION 2.06. SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK.* Any
holder of a Receipt or Receipts may withdraw any or all of the Stock (but only
in whole shares of Stock) represented by the Depositary Shares evidenced by such
Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office, the New York Office or at such other office as the Depositary may
designate for such withdrawals. After such surrender, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the whole number of shares of
Stock and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of whole Depositary Shares representing the whole number
of shares of Stock to be withdrawn, the Depositary shall at the same time, in
addition to such whole number of shares of Stock and such money and other
property, if any, to be withdrawn, deliver to such holder, or (subject to
Section 2.04) upon his order, a new Receipt or Receipts evidencing such excess
number of whole Depositary Shares. Delivery of the Stock and such money and
other property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate,
which, if required by the Depositary, shall be properly endorsed or accompanied
by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank and that the
signature on such instrument of transfer be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program)
pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934, as amended.
The Depositary shall deliver the Stock and the money and other
property, if any, represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal, without unreasonable delay, at the office at which
such Receipts were surrendered, except that, at the request, risk and expense of
the holder surrendering such Receipt or Receipts and for the account of the
holder thereof, such delivery may be made, without unreasonable delay, at such
other place as may be designated by such holder.
- -------------
* This Section to be modified to reflect any restrictions on withdrawal of
underlying securities.
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<PAGE> 12
SECTION 2.07. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SPLIT-UP, COMBINATION, SURRENDER AND EXCHANGE OF RECEIPTS AND WITHDRAWAL OR
DEPOSIT OF STOCK. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender or exchange of any
Receipt, the delivery of any distribution thereon or the withdrawal or deposit
of Stock, the Depositary, any of the Depositary's Agents or the Company may
require any or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company shall have made
such payment, the reimbursement to it) of any tax or other governmental charge
with respect thereto (including any such tax or charge with respect to the Stock
being deposited or withdrawn or with respect to the Common Stock or other
securities or property of the Company being issued upon conversion or
redemption); (ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock or the registration of transfer, split-up, combination, surrender or
exchange of outstanding Receipts and the withdrawal of deposited Stock may be
suspended (i) during any period when the register of stockholders of the Company
is closed, (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration statement under
the Securities Act is in effect as to such shares of Stock.
SECTION 2.08. LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of such
destruction, loss or theft of such Receipt, of the authenticity thereof and of
his ownership thereof, (ii) reasonable indemnification satisfactory to the
Depositary or the payment of any charges incurred by the Depositary in obtaining
insurance in lieu of such indemnification and (iii) payment of any expense
(including fees, charges and expenses of the Depositary) in connection with such
execution and delivery.
SECTION 2.09. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the
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<PAGE> 13
Depositary. Except as prohibited by applicable law or regulation, the Depositary
is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
registration of transfer, redemption, conversion or exchange of any Receipt, the
withdrawal of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any
tax or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) any Receipt, (ii) the Depositary Shares evidenced
by such Receipt, (iii) the Stock (or fractional interest therein) or other
property represented by such Depositary Shares, or (iv) any transaction referred
to in Section 4.06, such tax (including transfer, issuance or acquisition taxes,
if any) or governmental charge shall be payable by the holder of such Receipt,
who shall pay the amount thereof to the Depositary. Until such payment is made,
registration of transfer of any Receipt or any split-up or combination thereof
or any withdrawal of the Stock or money or other property, if any, represented
by the Depositary Shares evidenced by such Receipt may be refused, any dividend
or other distribution may be withheld and any part or all of the Stock or other
property (including Common Stock received in connection with a conversion or
redemption of Stock) represented by the Depositary Shares evidenced by such
Receipt may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder of such
Receipt remaining liable for any deficiency.
SECTION 3.03. WITHHOLDING. The Depositary shall act as the tax
withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the Stock, Common Stock or
other securities or assets represented thereby (collectively, the "Securities").
The Depositary shall be responsible with respect to the Securities for the
timely (i) collection and deposit of any required withholding or backup
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withholding tax, and (ii) filing of any information returns or other documents
with federal (and other applicable) taxing authorities.
SECTION 3.04. REPRESENTATIONS AND WARRANTIES AS TO STOCK. In the case
of the initial deposit of the Stock, the Company and, in the case of subsequent
deposits thereof, each person so depositing Stock under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Stock and each
certificate therefor are valid and that the person making such deposit is duly
authorized to do so. Such representations and warranties shall survive the
deposit of the Stock and the issuance of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.04 such amounts of such sum as are, as nearly
as practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required by law to withhold and does
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary
shall receive any distribution other than cash, rights, preferences or
privileges upon the Stock, the Depositary shall, subject to Section 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Company after consultation with the
Depositary, such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any tax withholding or securities
law requirement), the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company which approval shall not be unreasonably withheld, adopt such method
as it deems
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equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.02, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.01
in the case of a distribution received in cash.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines and instructs the Depositary that it is not lawful or feasible to
make such rights, preferences or privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, in each case, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall be distributed by the Depositary to the
record holders of Receipts entitled thereto as provided by Section 4.01 in the
case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold such securities, the Company shall promptly file
a registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective or unless the offering and sale of such securities to such holders are
exempt from registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its reasonable best efforts to take such action or obtain
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such authorization, consent or permit sufficiently in advance of the expiration
of such rights, preferences or privileges to enable such holders to exercise
such rights, preferences or privileges.
SECTION 4.04. NOTICE OF DIVIDENDS, FIXING OF RECORD DATE FOR HOLDERS OF
RECEIPTS. Whenever (i) any cash dividend or other cash distribution shall become
payable, or any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or (ii) the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice or of the mandatory conversion of, or any election on the part of the
Company to call for the redemption of, any shares of Stock, the Company shall in
each such instance fix a record date (which shall be the same date as the record
date fixed by the Company with respect to the Stock) for the determination of
the holders of Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or (y) who shall be entitled to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or of
such conversion or redemption. The Company shall advise the Depositary of all
such record dates.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified record date fixed
pursuant to Section 4.04 will be entitled, subject to any applicable provision
of law, the Articles of Incorporation (including the applicable Certificate), to
instruct the Depositary as to the exercise of the voting rights pertaining to
the Stock represented by their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING STOCK AND RECLASSIFICATIONS,
RECAPITALIZATIONS, ETC. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization, merger,
amalgamation or consolidation affecting the Company or to which it is a party
(other than a Merger or Consolidation) or sale of all or substantially all of
the Company's assets, the Depositary shall treat any shares of stock or other
securities or property (including cash) that shall be received by the Depositary
in exchange for or upon
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conversion of or in respect of the Stock as new deposited property under this
Deposit Agreement, and Receipts then outstanding shall thenceforth represent the
proportionate interests of holders thereof in the new deposited property so
received in exchange for or upon conversion or in respect of such Stock. In any
such case the Depositary may, in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited property.
SECTION 4.07. REPORTS. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office, the New York Office
and at such other places as it may from time to time deem advisable during
normal business hours any reports and communications received from the Company
that are received by the Depositary as the holder of Stock.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
At the expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary, any Depositary's Agent or
the Registrar, take copies thereof and require the Depositary, any Depositary's
Agent or the Registrar to supply copies of such portions of such records as the
Company may request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER BOOKS BY THE
DEPOSITARY; THE REGISTRAR. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the New York
Office facilities for the execution and delivery, registration, registration of
transfer, surrender and exchange, split-up, combination, redemption and
conversion of Receipts and deposit and withdrawal of Stock and (ii) at the
Corporate Office and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration, registration of transfer, surrender
and exchange, split-up, combination, conversion and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times shall
be open for inspection by the record holders of Receipts; provided that any such
holder requesting to exercise such right
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shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares. The Depositary shall consult with the Company upon receipt of any
request for inspection. The Depositary may close such books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more stock
exchanges, the Depositary shall, with the approval of the Company, appoint a
Registrar for registry of such Receipts or Depositary Shares in accordance with
the requirements of such exchange or exchanges. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange or exchanges)
may be removed and a substitute registrar appointed by the Depositary upon the
request or with the approval of the Company. In addition, if the Receipts, such
Depositary Shares or such Stock are listed on one or more stock exchanges, the
Depositary will, at the request of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange,
split-up, combination, redemption or conversion of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulations.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Registrar or any Depositary's Agent, by reason of any provision, present or
future, of the Articles of Incorporation (including the applicable Certificate)
or, in the case of the Company, the Depositary, the Registrar or any
Depositary's Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any Depositary's
Agent, the Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
the Registrar or the Company incur any liability to any holder of a Receipt (i)
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement provide
shall or may be done or performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or the Registrar,
if any such exercise or failure to exercise discretion is caused by its
negligence or bad faith.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY. The Company assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the Receipts to holders
or other persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to
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perform in this Deposit Agreement. Each of the Depositary, the Depositary's
Agents and the Registrar assumes no obligation and shall be subject to no
liability under this Deposit Agreement or the Receipts to holders or other
persons, except to perform such obligations as are specifically set forth and
undertaken by it to perform in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares,
Receipts or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, any Depositary's Agent, the Registrar and the Company may each
rely and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent may own and
deal in any class of securities of the Company and its affiliates and in
Receipts or Depositary Shares. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
shall be deemed to be an "issuer" of the Stock, the Depositary Shares, the
Receipts or the Common Stock issued upon conversion or redemption of the Stock
under the federal securities laws or applicable state securities laws, it being
expressly understood and agreed that the Depositary and any Depositary's Agent
are acting only in a ministerial capacity as Depositary for the Stock; provided,
however, that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement in
its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Securities Act, the Stock,
the Depositary Shares or any instruments referred to therein or herein, or as to
the correctness of any statement made therein or herein; provided, however, that
the Depositary is responsible for its representations in this Deposit Agreement.
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The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title or
interest of the record holders of Receipts in and to the Depositary Shares
except that the Depositary hereby represents and warrants as follows: (i) the
Depositary has been duly organized and is validly existing and in good standing
under the laws of the State of [____________], with full power, authority and
legal right under such law to execute, deliver and carry out the terms of this
Deposit Agreement; (ii) this Deposit Agreement has been duly authorized,
executed and delivered by the Depositary; and (iii) this Deposit Agreement
constitutes a valid and binding obligation of the Depositary, enforceable
against the Depositary in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law). The
Depositary shall not be accountable for the use or application by the Company of
the Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY, APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by written notice via registered mail of its election to do so
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company, or an affiliate of a bank or trust
company, having its principal office in the United States of America and having
a combined capital and surplus of at least $50,000,000. If a successor
depositary shall not have been appointed in 60 days, the resigning or removed
Depositary may petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request
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of the Company, shall promptly execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all rights, title and interest in the Stock and any
moneys or property held hereunder to such successor and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor depositary shall promptly mail notice of its appointment to the record
holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the address
recorded in the Depositary's books, copies of all notices and reports (including
financial statements) required by law, by the rules of any national securities
exchange upon which the Stock, the Depositary Shares or the Receipts are listed
or by the Articles of Incorporation (including the applicable Certificate) to be
furnished by the Company to holders of Stock. Such transmission will be at the
Company's expense and the Company will provide the Depositary with such number
of copies of such documents as the Depositary may reasonably request. In
addition, the Depositary will transmit to the record holders of Receipts at the
Company's expense such other documents as may be requested by the Company.
SECTION 5.06. DEPOSIT OF STOCK BY THE COMPANY. The Company agrees with
the Depositary that neither the Company nor any company controlled by the
Company will at any time deposit any Stock if such Stock is required to be
registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.07. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable fees and expenses of counsel) that may arise out of or in connection
with its acting as Depositary, Depositary's Agent or Registrar, respectively,
under this Deposit Agreement and the Receipts, except for any liability arising
out of negligence, bad faith or willful misconduct on the part of any such
person or persons.
SECTION 5.08. FEES, CHARGES AND EXPENSES. No fees, charges and expenses
of the Depositary or any Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit Agreement. If, at
the request of a holder of a Receipt, the Depositary incurs fees, charges or
expenses for which it is not otherwise liable hereunder, such
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holder or other person will be liable for such fees, charges and expenses. All
other fees, charges and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case, reasonable fees and
expenses of counsel) incident to the performance of their respective obligations
hereunder will be paid from time to time upon consultation and agreement between
the Depositary and the Company as to the amount and nature of such fees, charges
and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable. Any amendment that shall impose or increase any
fees, taxes or charges payable by holders of Receipts (other than taxes and
other governmental charges, fees and other expenses payable by holders pursuant
to the terms hereof or of the Receipts), or that shall otherwise prejudice any
substantial existing right of holders of Receipts, shall not become effective as
to outstanding Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the record holders of outstanding Receipts.
Every holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by this Deposit Agreement as amended
thereby. In no event shall any amendment impair the right, subject to the
provisions of Sections 2.03, 2.06 and 2.07 and Article III, of any owner of any
Depositary Shares to surrender the Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the Stock and all
money and other property, if any, represented thereby, except in order to comply
with mandatory provisions of applicable law.
SECTION 6.02. TERMINATION. Whenever so directed by the Company, the
Depositary will terminate this Deposit Agreement by mailing notice of such
termination to the record holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate this Deposit Agreement if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04.
If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Depositary thereafter shall discontinue the
transfer of Receipts, shall suspend the distribution of dividends to the holders
thereof and shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit Agreement, except as
provided below and that the Depositary shall continue to collect dividends and
other
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distributions pertaining to Stock, shall sell rights, preferences or privileges
as provided in this Deposit Agreement and shall continue to deliver the Stock
and any money and other property represented by Receipts, without liability for
interest thereon, upon surrender thereof by the holders thereof. At any time
after the expiration of two years from the date of termination, the Depositary
may sell Stock then held hereunder at public or private sale, at such places and
upon such terms as it deems proper and may thereafter hold in a segregated
account the net proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest, for the benefit,
pro rata in accordance with their holdings, of the holders of Receipts that have
not heretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement except to account
for such net proceeds and money and other property. Upon the termination of this
Deposit Agreement, the Company shall be discharged from all obligations under
this Deposit Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and 5.08. In the event
this Deposit Agreement is terminated, the Company hereby agrees to use its best
efforts to list the underlying Stock on the New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed by
the Company and the Depositary in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Deposit Agreement. Copies of this Deposit Agreement
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate Office and the New York
Office and the respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.02. EXCLUSIVE BENEFITS OF PARTIES. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
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SECTION 7.04. NOTICES. Any notices to be given to the Company hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to the Company at One Nationwide
Plaza, Columbus, Ohio 43215, Attention: [ ], or at any other place to which the
Company may have transferred its principal executive office.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a duly addressed letter confirming an earlier
notice in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex or telecopier message received by it
from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may, with the
approval of the Company which approval shall not be unreasonably withheld, from
time to time appoint one or more Depositary's Agents to act in any respect for
the Depositary for the purposes of this Deposit Agreement and may vary or
terminate the appointment of such Depositary's Agents.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. Notwithstanding that
holders of Receipts have not executed and delivered this Deposit Agreement or
any counterpart thereof, the holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions, and be entitled to all of the benefits, hereof and of the
Receipts by acceptance of delivery of Receipts.
SECTION 7.07. GOVERNING LAW. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by,
-21-
<PAGE> 25
and construed in accordance with, the law of the State of New York without
giving effect to principles of conflict of laws.
SECTION 7.08. HEADINGS. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, Nationwide Financial Services, Inc. and
[_____________] have duly executed this Deposit Agreement as of the day and year
first above set forth and all holders of Receipts shall become parties hereto by
and upon acceptance by them of delivery of Receipts issued in accordance with
the terms hereof.
NATIONWIDE FINANCIAL SERVICES INC.
Attest:
By: By:
----------------------- ------------------------------
Authorized Officer
[ ]
----------------------------
Attest:
By: By:
----------------------- ------------------------------
Authorized Signatory
-22-
<PAGE> 26
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING [INSERT FRACTIONAL INTEREST] OF A SHARE OF
[_____________________________________] PREFERRED
STOCK
OF
NATIONWIDE FINANCIAL SERVICES, INC.
(Incorporated under the Laws of the State of Delaware)
No.
[_________________________________] (the "Depositary") hereby certifies
that ____________ is the registered owner of ___________ Depositary Shares (the
"Depositary Shares"), each Depositary Share representing [insert fractional
interest] of a share of [_____________________] Preferred Stock, $0.01 par value
per share (the "Stock"), of Nationwide Financial Services, Inc., a corporation
duly organized and existing under the laws of the State of Delaware (the
"Company"), and the same proportionate interest in any and all other property
received by the Depositary in respect of such shares of Stock and held by the
Depositary under the Deposit Agreement, dated as of [_______], [____] (the
"Deposit Agreement"), among the Company, the Depositary and all holders from
time to time, of Receipts. Subject to the terms of the Deposit Agreement, each
owner of a Depositary Share is entitled, proportionately, to all the rights,
preferences and privileges of the Stock represented thereby, including the
dividend, voting, liquidation and other rights contained in the Certificate of
Designations establishing the rights, preferences, privileges and limitations of
the Stock (the "Certificate"), copies of which are on file at the office of the
Depositary at which at any particular time its business in respect of matters
governed by the Deposit Agreement shall be administered, which at the time of
the execution of the Deposit Agreement is located at [____________________] (the
"Corporate Office").
A-1
<PAGE> 27
This Depositary Receipt ("Receipt") shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose
unless this Receipt shall have been executed manually or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by facsimile by
the Depositary by the signature of a duly authorized signatory and, if executed
by facsimile signature of the Depositary, shall have been countersigned manually
by such Registrar by the signature of a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE
DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE DESCRIPTION SET
FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET
FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT
ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE
DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT,
AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST
OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth for all purposes have the same effect as if set
forth at this place.
Dated:
[ ],
----------------------------
as Depositary and Registrar
By:
---------------------------
Authorized Signatory
A-2
<PAGE> 28
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
Depositary Receipts, of which this Receipt is one, are made available
upon the terms and conditions set forth in the Deposit Agreement. The Deposit
Agreement (copies of which are on file at the Corporate Office, the office
maintained by the Depositary in the Borough of Manhattan, the City of New York
which at the time of the execution of the Deposit Agreement is located at
[________________________] (the "New York Office") and at the office of any
agent of the Depositary) sets forth the rights of holders of Receipts and the
rights and duties of the Depositary. The statements made on the face and the
reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which reference
is hereby made.
The Company will furnish to any holder of this Receipt without charge,
upon request addressed to its executive office, a full statement of the
designation, relative rights, preferences and limitations of the shares of each
authorized class, and of each class of preferred stock authorized to be issued,
so far as the same may have been fixed, and a statement of the authority of the
Board of Directors of the Company to designate and fix the relative rights,
preferences and limitations of other classes.
A-3
<PAGE> 29
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto the within Receipt and all rights and interests represented by the
Depositary Shares evidenced thereby, and hereby irrevocably constitutes and
appoints his attorney, to transfer the same on the books of the within-named
Depositary, with full power of substitution in the premises.
Dated: Signature:
--------------------------------
NOTE: The signature to this assignment must
correspond with the name as written upon the
face of the Receipt in every particular,
without alteration or enlargement, or any
change whatever.
A-4
<PAGE> 1
Exhibit 5.1
[Letterhead of LeBoeuf, Lamb, Greene & MacRae, L.L.P.]
May 15, 1998
Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
Re: Nationwide Financial Services, Inc., Nationwide Financial
Services Capital Trust II and Nationwide Financial Services
Capital Trust III
Ladies and Gentlemen:
We are acting as counsel for Nationwide Financial Services,
Inc., a Delaware corporation (the "Company"), and Nationwide Financial Services
Capital Trust II and Nationwide Financial Services Capital Trust III, each a
statutory business trust formed under the laws of the State of Delaware (each a
"Trust" and, collectively, the "Trusts"), in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), of a Registration
Statement on Form S-3 (the "Registration Statement") relating to the following
securities of the Company: (i) unsecured senior debt securities (the "Senior
Debt Securities"); (ii) unsecured subordinated debt securities (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"); (iii) shares of preferred stock, par value $0.01 per
share (the "Preferred Stock"), which may be represented by depositary shares
(the "Depositary Shares") evidenced by depositary receipts (the "Receipts");
(iv) shares of Class A Common Stock, par value $0.01 per share (the "Class A
Common Stock"); and (v) guarantees (the "Guarantees") of Preferred Securities,
as described below. The Registration Statement also relates to the preferred
securities of each of the Trusts (the "Preferred Securities" and, together with
the Debt Securities, the Preferred Stock, the Depositary Shares, the Receipts,
the Class A Common Stock and the Guarantees, the "Offered Securities"). The
Offered Securities will be issued from time to time pursuant to the provisions
of Rule 415 under the Securities Act.
<PAGE> 2
Nationwide Financial Services, Inc.
May 15, 1998
Page 2
The Debt Securities may be issued in one or more series
pursuant to a Senior Indenture (as amended or supplemented, the "Senior
Indenture") or a Subordinated Indenture (as amended or supplemented, the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), each of which is to be entered into between the Company and
Wilmington Trust Company, as trustee, and the forms of which are filed as
exhibits to the Registration Statement. The Preferred Securities may be issued
by each Trust pursuant to an Amended and Restated Declaration of Trust to be
filed with the Secretary of State of the State of Delaware by the trustees of
the relevant Trusts, and the forms of which are filed as exhibits to the
Registration Statement. The Guarantees may be issued pursuant to a Preferred
Securities Guarantee Agreement (each a "Guarantee Agreement") to be entered into
between the Company and Wilmington Trust Company, as trustee, and the forms of
which are filed as exhibits to the Registration Statement.
We have examined such corporate records, certificates and
other documents as we have considered necessary for the purposes hereof. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies and the authenticity of the
originals of such latter documents. As to any facts material to our opinions, we
have, when relevant facts were not independently established, relied upon the
aforesaid records, certificates and documents.
Based upon the foregoing, and subject to the limitations,
qualifications and assumptions contained herein, we are of the opinion that:
1. Assuming that the Indentures, any Debt Securities and any
supplemental indenture to be entered into in connection with the
issuance of such Debt Securities have been duly authorized, when (i)
the Registration Statement has become effective under the Securities
Act, (ii) a supplemental indenture in respect of such Debt Securities
has been duly executed and delivered, (iii) the terms of such Debt
Securities have been duly established in accordance with the applicable
Indenture and the applicable supplemental indenture relating to such
Debt Securities so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed
by any court or governmental or regulatory body having jurisdiction
over the Company and (iv) such Debt Securities have been duly executed
and authenticated in accordance with the applicable Indenture and the
applicable supplemental indenture relating to such Debt Securities and
duly issued and delivered by the Company in the manner contemplated in
the Registration Statement and any prospectus supplement relating
thereto, such Debt Securities (including any Debt Securities duly
issued upon exchange or conversion of any shares of Preferred
<PAGE> 3
Nationwide Financial Services, Inc.
May 15, 1998
Page 3
Stock or Preferred Securities that are exchangeable or convertible into
Debt Securities) will constitute valid and binding obligations of the
Company, enforceable in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws affecting the
enforcement of creditors' rights generally and by the effect of general
principles of equity, regardless of whether considered in a proceeding
in equity or at law.
2. Assuming that a Deposit Agreement relating to the
Depositary Shares (the "Deposit Agreement") has been duly authorized,
when (i) the Registration Statement has become effective under the
Securities Act, (ii) the Deposit Agreement has been duly executed and
delivered, (iii) the terms of such Depositary Shares and of their
issuance and sale have been duly established in conformity with the
Deposit Agreement relating to such Depositary Shares so as not to
violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over the Company,
(iv) the terms of the Preferred Stock relating to such Depositary
Shares have been duly and properly authorized for issuance and articles
supplementary to the Certificate of Incorporation of the Company
classifying such Preferred Stock and setting forth the terms thereof
have been filed and accepted for record, (v) such shares of Preferred
Stock have been duly issued and paid for in the manner contemplated in
the Registration Statement and any prospectus supplement relating
thereto and (vi) the Receipts evidencing such Depositary Shares are
duly issued against the deposit of such Preferred Stock in accordance
with the Deposit Agreement, such Receipts will be validly issued and
will entitle the holders thereof to the rights specified therein and in
the Deposit Agreement.
3. When (i) the Registration Statement has become effective
under the Securities Act, (ii) the terms of a class or series of
Preferred Stock have been duly and properly authorized for issuance and
articles supplementary to the Certificate of Incorporation of the
Company classifying such shares of Preferred Stock and setting forth
the terms thereof have been filed and accepted for record and (iii)
such shares of Preferred Stock have been duly issued and paid for in
the manner contemplated in the Registration Statement and any
prospectus supplement relating thereto, such shares of Preferred Stock
will be validly issued, fully paid and nonassessable.
<PAGE> 4
Nationwide Financial Services, Inc.
May 15, 1998
Page 4
4. When (i) the Registration Statement has become effective
under the Securities Act, (ii) shares of Class A Common Stock have been
duly and properly authorized for issuance and (iii) such shares of
Class A Common Stock have been duly issued and paid for in the manner
contemplated in the Registration Statement and any prospectus
supplement relating thereto, such shares of Class A Common Stock
(including any Class A Common Stock duly issued upon exchange or
conversion of any shares of Preferred Stock that are exchangeable or
convertible into Class A Common Stock) will be validly issued, fully
paid and nonassessable.
5. Assuming that Guarantees have been duly authorized, when
(i) the Registration Statement has become effective under the
Securities Act, (ii) the applicable Guarantee Agreement has been duly
executed and delivered so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental or regulatory body
having jurisdiction over the Company and (iii) Preferred Securities
have been duly issued and delivered by the applicable Trust as
contemplated by the Registration Statement and any prospectus
supplement relating thereto, such Guarantees will constitute valid and
binding obligations of the Company enforceable in accordance with their
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
affecting the enforcement of creditors' rights generally and by the
effect of general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
Our opinions set forth herein are limited in all cases to
matters arising under the laws of the State of New York, the General Corporation
Law of the State of Delaware and the federal laws of the United States of
America.
We express no opinion as to the application of the securities
or blue sky laws of the several states to the sale of the Offered Securities.
Without limiting the generality of the foregoing, except as set forth herein, we
express no opinion in connection with the matters contemplated by the
Registration Statement, and no opinion may be implied or inferred, except as
expressly set forth herein.
<PAGE> 5
Nationwide Financial Services, Inc.
May 15, 1998
Page 5
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and the use of our name under the heading
"Legal Matters" in the Prospectus forming a part of the Registration Statement
and in any amendments or supplements to the Registration Statement and
Prospectus. In giving such consent, we do not thereby concede that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act, or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
------------------------------------------
<PAGE> 1
Exhibit 5.2
[LETTERHEAD OF RICHARDS, LAYTON & FINGER P.A.]
May 15, 1998
Nationwide Financial Services Capital Trust II
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
Re: Nationwide Financial Services Capital Trust II
----------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Nationwide
Financial Services, Inc., a Delaware corporation (the "Company"), and Nationwide
Financial Services Capital Trust II, a Delaware business trust (the "Trust"), in
connection with the matters set forth herein. At your request, this opinion is
being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated May 7, 1998
as filed with the office of the Secretary of State of the State of Delaware (the
"Secretary of State") on May 8, 1998 (the "Certificate of Trust").
(b) The Declaration of Trust of the Trust, dated as of May 7,
1998 between the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus with respect to the Trust (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
preferred undivided beneficial interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the "Preferred Securities"), filed by the
Company and the Trust with the Securities and Exchange Commission on or about
May 15, 1998;
(d) A form of Amended and Restated Declaration of Trust for
the Trust, to be entered into between the Company, the trustees of the Trust
named therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of the Trust (including
<PAGE> 2
Nationwide Financial Services Capital Trust II
May 15, 1998
Page 2
Exhibits A and B thereto) (the "Declaration of Trust"), attached as an exhibit
to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated May
15, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration of Trust.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration of Trust and the Certificate of Trust are in full force and effect
and have not been amended, (ii) except to the extent provided in paragraph 1
below, the due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a certificate for such
Preferred Security in the form prescribed by the Declaration of Trust and the
payment for such Preferred Security, in accordance with the Declaration of Trust
and the Registration Statement, and (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance with the
Declaration of Trust and the Registration Statement. We have not participated in
the preparation of the Registration Statement and assume no responsibility for
its contents.
<PAGE> 3
Nationwide Financial Services Capital Trust II
May 15, 1998
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities of the Trust will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration of
Trust.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger P.A.
<PAGE> 1
Exhibit 5.3
[LETTERHEAD OF RICHARDS, LAYTON & FINGER P.A.]
May 15, 1998
Nationwide Financial Services Capital Trust III
c/o Nationwide Financial Services, Inc.
One Nationwide Plaza
Columbus, Ohio 43215
Re: Nationwide Financial Services Capital Trust III
-----------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Nationwide
Financial Services, Inc., a Delaware corporation (the "Company"), and Nationwide
Financial Services Capital Trust III, a Delaware business trust (the "Trust"),
in connection with the matters set forth herein. At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated May 7, 1998
as filed with the office of the Secretary of State of the State of Delaware (the
"Secretary of State") on May 8, 1998 (the "Certificate of Trust").
(b) The Declaration of Trust of the Trust, dated as of May 7,
1998 between the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus with respect to the Trust (the
"Prospectus"), relating to the Preferred Securities of the Trust representing
preferred undivided beneficial interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the "Preferred Securities"), filed by the
Company and the Trust with the Securities and Exchange Commission on or about
May 15, 1998;
(d) A form of Amended and Restated Declaration of Trust for
the Trust, to be entered into between the Company, the trustees of the Trust
named therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of the Trust (including
<PAGE> 2
Nationwide Financial Services Capital Trust III
May 15, 1998
Page 2
Exhibits A and B thereto) (the "Declaration of Trust"), attached as an exhibit
to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated May
15, 1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration of Trust.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration of Trust and the Certificate of Trust are in full force and effect
and have not been amended, (ii) except to the extent provided in paragraph 1
below, the due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a certificate for such
Preferred Security in the form prescribed by the Declaration of Trust and the
payment for such Preferred Security, in accordance with the Declaration of Trust
and the Registration Statement, and (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance with the
Declaration of Trust and the Registration Statement. We have not participated in
the preparation of the Registration Statement and assume no responsibility for
its contents.
<PAGE> 3
Nationwide Financial Services Capital Trust III
May 15, 1998
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities of the Trust will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration of
Trust.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger P.A.
<PAGE> 1
EXHIBIT 12.1
NATIONWIDE FINANCIAL SERVICES, INC. AND SUBSIDIARIES
STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(in millions of dollars)
<TABLE>
<CAPTION>
Three
Months
Ended
March 31, Year Ended December 31,
---------------------------------------------------------
1998 1997 1996 1995 1994 1993
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income from continuing
operations before federal
income tax expense and
cumulative effect of
accounting changes ............. $ 132.1 $ 407.0 $ 328.1 $ 281.2 $ 240.4 $ 275.8
Fixed charges ...................... 269.9 1,042.7 982.3 950.3 844.6 823.9
---------- ---------- ---------- ---------- ---------- ----------
$ 402.0 $ 1,449.7 $ 1,310.4 $ 1,231.5 $ 1,085.0 $ 1,099.7
========== ========== ========== ========== ========== ==========
Fixed charges:
Interest credited to policyholder
account balances ............... $ 261.9 $ 1,016.6 $ 982.3 $ 950.3 $ 844.6 $ 823.9
Interest expense on debt and
capital securities of subsidiary
trust .......................... 8.0 26.1 -- -- -- --
========== ========== ========== ========== ========== ==========
$ 269.9 $ 1,042.7 $ 982.3 $ 950.3 $ 844.6 $ 823.9
========== ========== ========== ========== ========== ==========
Ratio of earnings to fixed charges . 1.5x 1.4x 1.3x 1.3x 1.3x 1.3x
========== ========== ========== ========== ========== ==========
Ratio of earnings to fixed charges,
excluding interest credited to
policyholder account balances .... 17.5x 16.6x N/A N/A N/A N/A
========== ========== ========== ========== ========== ==========
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Nationwide Financial Services, Inc.:
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of Nationwide Financial Services Inc., Nationwide
Financial Services Capital Trust II and Nationwide Financial Services Capital
Trust III, of our reports dated January 30, 1998, with respect to the
consolidated balance sheets of Nationwide Financial Services, Inc. and
subsidiaries (collectively, the "Company") as of December 31, 1997 and 1996, and
the related consolidated statements of income, shareholders' equity and cash
flows for each of the years in the three-year period ended December 31, 1997,
and all related schedules, which reports appear in the 1997 Annual Report to
Shareholders of Nationwide Financial Services, Inc. We also consent to the
reference to our firm under the caption "Experts" in this Registration
Statement.
/s/ KPMG Peat Marwick LLP
Columbus, Ohio
May 14, 1998
<PAGE> 1
Exhibit 25.1
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |X|
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NATIONWIDE FINANCIAL SERVICES, INC.
(Exact name of obligor as specified in its charter)
Delaware 31-1486870
(State of incorporation) (I.R.S. employer identification no.)
One Nationwide Plaza
Columbus, Ohio 43215
(Address of principal executive offices) (Zip Code)
Senior Debt Securities of Nationwide Financial Services, Inc.
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 11th day
of May, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By:/s/ Emmett R. Harmon
------------------------ --------------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE> 4
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE> 5
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE> 6
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE> 7
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE> 8
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
5
<PAGE> 9
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE> 10
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
7
<PAGE> 11
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the ByLaws of the Corporation), any director or
the entire Board of Directors of the
8
<PAGE> 12
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE> 13
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
10
<PAGE> 14
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
11
<PAGE> 15
such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
12
<PAGE> 16
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
13
<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE> 19
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
2
<PAGE> 20
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE> 21
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE> 22
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
5
<PAGE> 23
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE> 24
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE> 25
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE> 26
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE> 27
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: May 11, 1998 By: /s/ Emmett R. Harmon
---------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- --------------------------------- -------------------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1997.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins..........................................236,646
Interest-bearing balances..........................................................................0
Held-to-maturity securities................................................................................331,880
Available-for-sale securities............................................................................1,258,661
Federal funds sold and securities purchased under agreements to resell......................................91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income .........................3,822,320
LESS: Allowance for loan and lease losses ..........................59,373
LESS: Allocated transfer risk reserve ...................................0
Loans and leases, net of unearned income, allowance, and reserve...........................3,762,947
Assets held in trading accounts..................................................................................0
Premises and fixed assets (including capitalized leases)...................................................129,740
Other real estate owned......................................................................................2,106
Investments in unconsolidated subsidiaries and associated companies.............................................22
Customers' liability to this bank on acceptances outstanding.....................................................0
Intangible assets............................................................................................4,905
Other assets...............................................................................................100,799
Total assets.............................................................................................5,919,206
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices......................................................................................4,034,633
Noninterest-bearing ................................................839,928
Interest-bearing .................................................3,194,705
Federal funds purchased and Securities sold under agreements to repurchase.................................575,827
Demand notes issued to the U.S. Treasury....................................................................61,290
Trading liabilities (from Schedule RC-D).........................................................................0
Other borrowed money:......................................................................................///////
With original maturity of one year or less...................................................673,000
With original maturity of more than one year..................................................43,000
Bank's liability on acceptances executed and outstanding.........................................................0
Subordinated notes and debentures................................................................................0
Other liabilities (from Schedule RC-G)......................................................................76,458
Total liabilities........................................................................................5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................................................................0
Common Stock...................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................62,118
Undivided profits and capital reserves.....................................................................385,018
Net unrealized holding gains (losses) on available-for-sale securities.......................................7,362
Total equity capital.......................................................................................454,998
Total liabilities, limited-life preferred stock, and equity capital......................................5,919,206
</TABLE>
2
<PAGE> 1
Exhibit 25.2
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |X|
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NATIONWIDE FINANCIAL SERVICES, INC.
(Exact name of obligor as specified in its charter)
Delaware 31-1486870
(State of incorporation) (I.R.S. employer identification no.)
One Nationwide Plaza
Columbus, Ohio 43215
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities of Nationwide Financial Services, Inc.
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 11th day
of May, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By:/s/ Emmett R. Harmon
------------------------ --------------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE> 4
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE> 5
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
2
<PAGE> 6
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE> 7
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
4
<PAGE> 8
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
5
<PAGE> 9
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE> 10
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
7
<PAGE> 11
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the ByLaws of the Corporation), any director or
the entire Board of Directors of the
8
<PAGE> 12
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
9
<PAGE> 13
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
10
<PAGE> 14
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
11
<PAGE> 15
such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
12
<PAGE> 16
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
13
<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE> 19
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
2
<PAGE> 20
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE> 21
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE> 22
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
5
<PAGE> 23
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE> 24
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE> 25
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE> 26
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE> 27
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: May 11, 1998 By: /s/ Emmett R. Harmon
---------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- --------------------------------- -------------------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1997.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins..........................................236,646
Interest-bearing balances..........................................................................0
Held-to-maturity securities................................................................................331,880
Available-for-sale securities............................................................................1,258,661
Federal funds sold and securities purchased under agreements to resell......................................91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income .........................3,822,320
LESS: Allowance for loan and lease losses ..........................59,373
LESS: Allocated transfer risk reserve ...................................0
Loans and leases, net of unearned income, allowance, and reserve...........................3,762,947
Assets held in trading accounts..................................................................................0
Premises and fixed assets (including capitalized leases)...................................................129,740
Other real estate owned......................................................................................2,106
Investments in unconsolidated subsidiaries and associated companies.............................................22
Customers' liability to this bank on acceptances outstanding.....................................................0
Intangible assets............................................................................................4,905
Other assets...............................................................................................100,799
Total assets.............................................................................................5,919,206
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices......................................................................................4,034,633
Noninterest-bearing ................................................839,928
Interest-bearing .................................................3,194,705
Federal funds purchased and Securities sold under agreements to repurchase.................................575,827
Demand notes issued to the U.S. Treasury....................................................................61,290
Trading liabilities (from Schedule RC-D).........................................................................0
Other borrowed money:......................................................................................///////
With original maturity of one year or less...................................................673,000
With original maturity of more than one year..................................................43,000
Bank's liability on acceptances executed and outstanding.........................................................0
Subordinated notes and debentures................................................................................0
Other liabilities (from Schedule RC-G)......................................................................76,458
Total liabilities........................................................................................5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................................................................0
Common Stock...................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................62,118
Undivided profits and capital reserves.....................................................................385,018
Net unrealized holding gains (losses) on available-for-sale securities.......................................7,362
Total equity capital.......................................................................................454,998
Total liabilities, limited-life preferred stock, and equity capital......................................5,919,206
</TABLE>
2
<PAGE> 1
Exhibit 25.3
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |X|
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NATIONWIDE FINANCIAL SERVICES, INC.
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
Delaware 31-1486870
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
One Nationwide Plaza
Columbus, Ohio 43215
(Address of principal executive offices) (Zip Code)
Preferred Securities of Nationwide Financial Services Capital Trust II
(Title of the indenture securities)
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ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 11th day
of May, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By:/s/ Emmett R. Harmon
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Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
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Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
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Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
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(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
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owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
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stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the ByLaws of the Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
12
<PAGE> 16
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
13
<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE> 19
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
2
<PAGE> 20
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE> 21
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE> 22
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
5
<PAGE> 23
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE> 24
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE> 25
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words
"Wilmington Trust Company" within the inner
circle the words "Wilmington, Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE> 26
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE> 27
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as
amended, Wilmington Trust Company hereby consents that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: May 11, 1998 By: /s/ Emmett R. Harmon
---------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- --------------------------------- -------------------------------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1997.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins..........................................236,646
Interest-bearing balances..........................................................................0
Held-to-maturity securities................................................................................331,880
Available-for-sale securities............................................................................1,258,661
Federal funds sold and securities purchased under agreements to resell......................................91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income .........................3,822,320
LESS: Allowance for loan and lease losses ..........................59,373
LESS: Allocated transfer risk reserve ...................................0
Loans and leases, net of unearned income, allowance, and reserve...........................3,762,947
Assets held in trading accounts..................................................................................0
Premises and fixed assets (including capitalized leases)...................................................129,740
Other real estate owned......................................................................................2,106
Investments in unconsolidated subsidiaries and associated companies.............................................22
Customers' liability to this bank on acceptances outstanding.....................................................0
Intangible assets............................................................................................4,905
Other assets...............................................................................................100,799
Total assets.............................................................................................5,919,206
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices......................................................................................4,034,633
Noninterest-bearing ................................................839,928
Interest-bearing .................................................3,194,705
Federal funds purchased and Securities sold under agreements to repurchase.................................575,827
Demand notes issued to the U.S. Treasury....................................................................61,290
Trading liabilities (from Schedule RC-D).........................................................................0
Other borrowed money:......................................................................................///////
With original maturity of one year or less...................................................673,000
With original maturity of more than one year..................................................43,000
Bank's liability on acceptances executed and outstanding.........................................................0
Subordinated notes and debentures................................................................................0
Other liabilities (from Schedule RC-G)......................................................................76,458
Total liabilities........................................................................................5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................................................................0
Common Stock...................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................62,118
Undivided profits and capital reserves.....................................................................385,018
Net unrealized holding gains (losses) on available-for-sale securities.......................................7,362
Total equity capital.......................................................................................454,998
Total liabilities, limited-life preferred stock, and equity capital......................................5,919,206
</TABLE>
2
<PAGE> 1
Exhibit 25.4
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) X
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NATIONWIDE FINANCIAL SERVICES, INC.
NATIONWIDE FINANCIAL SERVICES CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
Delaware 31-1486870
Delaware To Be Applied For
(State of incorporation) (I.R.S. employer identification no.)
One Nationwide Plaza
Columbus, Ohio 43215
(Address of principal executive offices) (Zip Code)
Preferred Securities of Nationwide Financial Services Capital Trust III
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 11th day
of May, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By: /s/ Emmett R. Harmon
---------------------------- ----------------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE> 4
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE> 5
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
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(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
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owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
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stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the ByLaws of the Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any one or
more of clauses (A) through (E) of paragraph 1 of the section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
12
<PAGE> 16
(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
13
<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE> 19
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
2
<PAGE> 20
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE> 21
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE> 22
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
5
<PAGE> 23
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE> 24
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE> 25
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE> 26
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE> 27
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: May 11, 1998 By: /s/ Emmett R. Harmon
-------------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings
banks with state publication requirements. It has not been approved
by any state banking authorities. Refer to your appropriate state
banking authorities for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ----------------------------------------------------------- -------------------
Name of Bank City
in the State of DELAWARE, at the close of business on December 31, 1997.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins............... 236,646
Interest-bearing balances............................................... 0
Held-to-maturity securities............................................. 331,880
Available-for-sale securities......................................... 1,258,661
Federal funds sold and securities purchased under agreements to resell... 91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income ....... 3,822,320
LESS: Allowance for loan and lease losses ........ 59,373
LESS: Allocated transfer risk reserve ............ 0
Loans and leases, net of unearned income, allowance, and
reserve ...................................................... 3,762,947
Assets held in trading accounts............................................... 0
Premises and fixed assets (including capitalized leases)................ 129,740
Other real estate owned................................................... 2,106
Investments in unconsolidated subsidiaries and associated companies.......... 22
Customers' liability to this bank on acceptances outstanding.................. 0
Intangible assets......................................................... 4,905
Other assets............................................................ 100,799
Total assets.......................................................... 5,919,206
CONTINUED ON NEXT PAGE
</TABLE>
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices................................................... 4,034,633
Noninterest-bearing ........... 839,928
Interest-bearing .............. 3,194,705
Federal funds purchased and Securities sold under agreements to
repurchase ........................................................... 575,827
Demand notes issued to the U.S. Treasury................................. 61,290
Trading liabilities (from Schedule RC-D)...................................... 0
Other borrowed money:................................................... ///////
With original maturity of one year or less........................ 673,000
With original maturity of more than one year....................... 43,000
Bank's liability on acceptances executed and outstanding...................... 0
Subordinated notes and debentures............................................. 0
Other liabilities (from Schedule RC-G)................................... 76,458
Total liabilities..................................................... 5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................. 0
Common Stock................................................................ 500
Surplus (exclude all surplus related to preferred stock)................. 62,118
Undivided profits and capital reserves.................................. 385,018
Net unrealized holding gains (losses) on available-for-sale securities.... 7,362
Total equity capital.................................................... 454,998
Total liabilities, limited-life preferred stock, and equity capital... 5,919,206
</TABLE>
2
<PAGE> 1
Exhibit 25.5
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |X|
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NATIONWIDE FINANCIAL SERVICES, INC.
(Exact name of obligor as specified in its charter)
Delaware 31-1486870
(State of incorporation) (I.R.S. employer identification no.)
One Nationwide Plaza
Columbus, Ohio 43215
(Address of principal executive offices) (Zip Code)
Guarantee of Preferred Securities of
Nationwide Financial Services Capital Trust II
by Nationwide Financial Services, Inc.
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 11th day
of May, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By: /s/ Emmett R. Harmon
----------------------- ----------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
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EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE> 4
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE> 5
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
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(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
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owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
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(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
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stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
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receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
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(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the ByLaws of the Corporation), any director or
the entire Board of Directors of the
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Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
13
<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE> 19
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
2
<PAGE> 20
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE> 21
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE> 22
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
5
<PAGE> 23
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE> 24
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE> 25
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE> 26
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE> 27
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: May 11, 1998 By: /s/ Emmett R. Harmon
--------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks
with state publication requirements. It has not been approved by any state
banking authorities. Refer to your appropriate state banking authorities
for your state publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------- ---------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1997.
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins..........................................236,646
Interest-bearing balances..........................................................................0
Held-to-maturity securities................................................................................331,880
Available-for-sale securities............................................................................1,258,661
Federal funds sold and securities purchased under agreements to resell......................................91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income .........................3,822,320
LESS: Allowance for loan and lease losses ..........................59,373
LESS: Allocated transfer risk reserve ...................................0
Loans and leases, net of unearned income, allowance, and reserve...........................3,762,947
Assets held in trading accounts..................................................................................0
Premises and fixed assets (including capitalized leases)...................................................129,740
Other real estate owned......................................................................................2,106
Investments in unconsolidated subsidiaries and associated companies.............................................22
Customers' liability to this bank on acceptances outstanding.....................................................0
Intangible assets............................................................................................4,905
Other assets...............................................................................................100,799
Total assets.............................................................................................5,919,206
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices......................................................................................4,034,633
Noninterest-bearing ................................................839,928
Interest-bearing .................................................3,194,705
Federal funds purchased and Securities sold under agreements to repurchase................................ 575,827
Demand notes issued to the U.S. Treasury....................................................................61,290
Trading liabilities (from Schedule RC-D).........................................................................0
Other borrowed money:......................................................................................///////
With original maturity of one year or less...................................................673,000
With original maturity of more than one year..................................................43,000
Bank's liability on acceptances executed and outstanding.........................................................0
Subordinated notes and debentures................................................................................0
Other liabilities (from Schedule RC-G)......................................................................76,458
Total liabilities........................................................................................5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................................................................0
Common Stock...................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................62,118
Undivided profits and capital reserves.....................................................................385,018
Net unrealized holding gains (losses) on available-for-sale securities.......................................7,362
Total equity capital.......................................................................................454,998
Total liabilities, limited-life preferred stock, and equity capital......................................5,919,206
</TABLE>
2
<PAGE> 1
Exhibit 25.6
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |X|
WILMINGTON TRUST COMPANY
(Exact name of trustee as specified in its charter)
Delaware 51-0055023
(State of incorporation) (I.R.S. employer identification no.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
(Address of principal executive offices)
Cynthia L. Corliss
Vice President and Trust Counsel
Wilmington Trust Company
Rodney Square North
Wilmington, Delaware 19890
(302) 651-8516
(Name, address and telephone number of agent for service)
NATIONWIDE FINANCIAL SERVICES, INC.
(Exact name of obligor as specified in its charter)
Delaware 31-1486870
(State of incorporation) (I.R.S. employer identification no.)
One Nationwide Plaza
Columbus, Ohio 43215
(Address of principal executive offices) (Zip Code)
Guarantee of Preferred Securities of
Nationwide Financial Services Capital Trust III
by Nationwide Financial Services, Inc.
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Federal Deposit Insurance Co. State Bank Commissioner
Five Penn Center Dover, Delaware
Suite #2901
Philadelphia, PA
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
affiliation:
Based upon an examination of the books and records of the trustee
and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
ITEM 3. LIST OF EXHIBITS.
List below all exhibits filed as part of this Statement of
Eligibility and Qualification.
A. Copy of the Charter of Wilmington Trust Company, which includes the
certificate of authority of Wilmington Trust Company to commence
business and the authorization of Wilmington Trust Company to
exercise corporate trust powers.
B. Copy of By-Laws of Wilmington Trust Company.
C. Consent of Wilmington Trust Company required by Section 321(b) of
Trust Indenture Act.
D. Copy of most recent Report of Condition of Wilmington Trust Company.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Wilmington Trust Company, a corporation organized and
existing under the laws of Delaware, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Wilmington and State of Delaware on the 11th day
of May, 1998.
WILMINGTON TRUST COMPANY
[SEAL]
Attest: /s/ Donald G. MacKelcan By: /s/ Emmett R. Harmon
----------------------- ----------------------
Assistant Secretary Name: Emmett R. Harmon
Title: Vice President
2
<PAGE> 3
EXHIBIT A
AMENDED CHARTER
Wilmington Trust Company
Wilmington, Delaware
As existing on May 9, 1987
<PAGE> 4
Amended Charter
or
Act of Incorporation
of
Wilmington Trust Company
Wilmington Trust Company, originally incorporated by an Act of the General
Assembly of the State of Delaware, entitled "An Act to Incorporate the Delaware
Guarantee and Trust Company", approved March 2, A.D. 1901, and the name of which
company was changed to "Wilmington Trust Company" by an amendment filed in the
Office of the Secretary of State on March 18, A.D. 1903, and the Charter or Act
of Incorporation of which company has been from time to time amended and changed
by merger agreements pursuant to the corporation law for state banks and trust
companies of the State of Delaware, does hereby alter and amend its Charter or
Act of Incorporation so that the same as so altered and amended shall in its
entirety read as follows:
First: - The name of this corporation is Wilmington Trust Company.
Second: - The location of its principal office in the State of Delaware is
at Rodney Square North, in the City of Wilmington, County of New Castle;
the name of its resident agent is Wilmington Trust Company whose address
is Rodney Square North, in said City. In addition to such principal
office, the said corporation maintains and operates branch offices in the
City of Newark, New Castle County, Delaware, the Town of Newport, New
Castle County, Delaware, at Claymont, New Castle County, Delaware, at
Greenville, New Castle County Delaware, and at Milford Cross Roads, New
Castle County, Delaware, and shall be empowered to open, maintain and
operate branch offices at Ninth and Shipley Streets, 418 Delaware Avenue,
2120 Market Street, and 3605 Market Street, all in the City of Wilmington,
New Castle County, Delaware, and such other branch offices or places of
business as may be authorized from time to time by the agency or agencies
of the government of the State of Delaware empowered to confer such
authority.
Third: - (a) The nature of the business and the objects and purposes
proposed to be transacted, promoted or carried on by this Corporation are
to do any or all of the things herein mentioned as fully and to the same
extent as natural persons might or could do and in any part of the world,
viz.:
(1) To sue and be sued, complain and defend in any Court of law or
equity and to make and use a common seal, and alter the seal at
pleasure, to hold, purchase, convey, mortgage or otherwise deal in
real and personal estate and property, and to appoint such officers
and agents as the business of the
<PAGE> 5
Corporation shall require, to make by-laws not inconsistent with the
Constitution or laws of the United States or of this State, to
discount bills, notes or other evidences of debt, to receive
deposits of money, or securities for money, to buy gold and silver
bullion and foreign coins, to buy and sell bills of exchange, and
generally to use, exercise and enjoy all the powers, rights,
privileges and franchises incident to a corporation which are proper
or necessary for the transaction of the business of the Corporation
hereby created.
(2) To insure titles to real and personal property, or any estate or
interests therein, and to guarantee the holder of such property,
real or personal, against any claim or claims, adverse to his
interest therein, and to prepare and give certificates of title for
any lands or premises in the State of Delaware, or elsewhere.
(3) To act as factor, agent, broker or attorney in the receipt,
collection, custody, investment and management of funds, and the
purchase, sale, management and disposal of property of all
descriptions, and to prepare and execute all papers which may be
necessary or proper in such business.
(4) To prepare and draw agreements, contracts, deeds, leases,
conveyances, mortgages, bonds and legal papers of every description,
and to carry on the business of conveyancing in all its branches.
(5) To receive upon deposit for safekeeping money, jewelry, plate,
deeds, bonds and any and all other personal property of every sort
and kind, from executors, administrators, guardians, public
officers, courts, receivers, assignees, trustees, and from all
fiduciaries, and from all other persons and individuals, and from
all corporations whether state, municipal, corporate or private, and
to rent boxes, safes, vaults and other receptacles for such
property.
(6) To act as agent or otherwise for the purpose of registering,
issuing, certificating, countersigning, transferring or underwriting
the stock, bonds or other obligations of any corporation,
association, state or municipality, and may receive and manage any
sinking fund therefor on such terms as may be agreed upon between
the two parties, and in like manner may act as Treasurer of any
corporation or municipality.
(7) To act as Trustee under any deed of trust, mortgage, bond or
other instrument issued by any state, municipality, body politic,
corporation, association or person, either alone or in conjunction
with any other person or persons, corporation or corporations.
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<PAGE> 6
(8) To guarantee the validity, performance or effect of any contract
or agreement, and the fidelity of persons holding places of
responsibility or trust; to become surety for any person, or
persons, for the faithful performance of any trust, office, duty,
contract or agreement, either by itself or in conjunction with any
other person, or persons, corporation, or corporations, or in like
manner become surety upon any bond, recognizance, obligation,
judgment, suit, order, or decree to be entered in any court of
record within the State of Delaware or elsewhere, or which may now
or hereafter be required by any law, judge, officer or court in the
State of Delaware or elsewhere.
(9) To act by any and every method of appointment as trustee,
trustee in bankruptcy, receiver, assignee, assignee in bankruptcy,
executor, administrator, guardian, bailee, or in any other trust
capacity in the receiving, holding, managing, and disposing of any
and all estates and property, real, personal or mixed, and to be
appointed as such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian
or bailee by any persons, corporations, court, officer, or
authority, in the State of Delaware or elsewhere; and whenever this
Corporation is so appointed by any person, corporation, court,
officer or authority such trustee, trustee in bankruptcy, receiver,
assignee, assignee in bankruptcy, executor, administrator, guardian,
bailee, or in any other trust capacity, it shall not be required to
give bond with surety, but its capital stock shall be taken and held
as security for the performance of the duties devolving upon it by
such appointment.
(10) And for its care, management and trouble, and the exercise of
any of its powers hereby given, or for the performance of any of the
duties which it may undertake or be called upon to perform, or for
the assumption of any responsibility the said Corporation may be
entitled to receive a proper compensation.
(11) To purchase, receive, hold and own bonds, mortgages,
debentures, shares of capital stock, and other securities,
obligations, contracts and evidences of indebtedness, of any
private, public or municipal corporation within and without the
State of Delaware, or of the Government of the United States, or of
any state, territory, colony, or possession thereof, or of any
foreign government or country; to receive, collect, receipt for, and
dispose of interest, dividends and income upon and from any of the
bonds, mortgages, debentures, notes, shares of capital stock,
securities, obligations, contracts, evidences of indebtedness and
other property held and owned by it, and to exercise in respect of
all such bonds, mortgages, debentures, notes, shares of capital
stock, securities, obligations, contracts, evidences of indebtedness
and other property, any and all the rights, powers and privileges of
individual
3
<PAGE> 7
owners thereof, including the right to vote thereon; to invest and
deal in and with any of the moneys of the Corporation upon such
securities and in such manner as it may think fit and proper, and
from time to time to vary or realize such investments; to issue
bonds and secure the same by pledges or deeds of trust or mortgages
of or upon the whole or any part of the property held or owned by
the Corporation, and to sell and pledge such bonds, as and when the
Board of Directors shall determine, and in the promotion of its said
corporate business of investment and to the extent authorized by
law, to lease, purchase, hold, sell, assign, transfer, pledge,
mortgage and convey real and personal property of any name and
nature and any estate or interest therein.
(b) In furtherance of, and not in limitation, of the powers conferred by
the laws of the State of Delaware, it is hereby expressly provided that
the said Corporation shall also have the following powers:
(1) To do any or all of the things herein set forth, to the same
extent as natural persons might or could do, and in any part of the
world.
(2) To acquire the good will, rights, property and franchises and to
undertake the whole or any part of the assets and liabilities of any
person, firm, association or corporation, and to pay for the same in
cash, stock of this Corporation, bonds or otherwise; to hold or in
any manner to dispose of the whole or any part of the property so
purchased; to conduct in any lawful manner the whole or any part of
any business so acquired, and to exercise all the powers necessary
or convenient in and about the conduct and management of such
business.
(3) To take, hold, own, deal in, mortgage or otherwise lien, and to
lease, sell, exchange, transfer, or in any manner whatever dispose
of property, real, personal or mixed, wherever situated.
(4) To enter into, make, perform and carry out contracts of every
kind with any person, firm, association or corporation, and, without
limit as to amount, to draw, make, accept, endorse, discount,
execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments.
(5) To have one or more offices, to carry on all or any of its
operations and businesses, without restriction to the same extent as
natural persons might or could do, to purchase or otherwise acquire,
to hold, own, to mortgage, sell, convey or otherwise dispose of,
real and personal property, of every class and description, in any
State, District, Territory or Colony of the United States, and in
any foreign country or place.
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<PAGE> 8
(6) It is the intention that the objects, purposes and powers
specified and clauses contained in this paragraph shall (except
where otherwise expressed in said paragraph) be nowise limited or
restricted by reference to or inference from the terms of any other
clause of this or any other paragraph in this charter, but that the
objects, purposes and powers specified in each of the clauses of
this paragraph shall be regarded as independent objects, purposes
and powers.
Fourth: - (a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is forty-one million
(41,000,000) shares, consisting of:
(1) One million (1,000,000) shares of Preferred stock, par value
$10.00 per share (hereinafter referred to as "Preferred Stock"); and
(2) Forty million (40,000,000) shares of Common Stock, par value
$1.00 per share (hereinafter referred to as "Common Stock").
(b) Shares of Preferred Stock may be issued from time to time in one or
more series as may from time to time be determined by the Board of
Directors each of said series to be distinctly designated. All shares of
any one series of Preferred Stock shall be alike in every particular,
except that there may be different dates from which dividends, if any,
thereon shall be cumulative, if made cumulative. The voting powers and the
preferences and relative, participating, optional and other special rights
of each such series, and the qualifications, limitations or restrictions
thereof, if any, may differ from those of any and all other series at any
time outstanding; and, subject to the provisions of subparagraph 1 of
Paragraph (c) of this Article Fourth, the Board of Directors of the
Corporation is hereby expressly granted authority to fix by resolution or
resolutions adopted prior to the issuance of any shares of a particular
series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including,
but without limiting the generality of the foregoing, the following:
(1) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute such series, which number may
be increased (except where otherwise provided by the Board of
Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the Board of
Directors;
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be
paid, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes, or
series of the same or other class of
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<PAGE> 9
stock and whether such dividends shall be cumulative or
non-cumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into or exchange the same for, shares of
any other class or classes or of any series of the same or any other
class or classes of stock of the Corporation and the terms and
conditions of such conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject
to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, Preferred
Stock of such series may be redeemed.
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding-up, of the Corporation.
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series; and
(7) The voting powers, if any, of the holders of such series of
Preferred Stock which may, without limiting the generality of the
foregoing include the right, voting as a series or by itself or
together with other series of Preferred Stock or all series of
Preferred Stock as a class, to elect one or more directors of the
Corporation if there shall have been a default in the payment of
dividends on any one or more series of Preferred Stock or under such
circumstances and on such conditions as the Board of Directors may
determine.
(c) (1) After the requirements with respect to preferential dividends on
the Preferred Stock (fixed in accordance with the provisions of section
(b) of this Article Fourth), if any, shall have been met and after the
Corporation shall have complied with all the requirements, if any, with
respect to the setting aside of sums as sinking funds or redemption or
purchase accounts (fixed in accordance with the provisions of section (b)
of this Article Fourth), and subject further to any conditions which may
be fixed in accordance with the provisions of section (b) of this Article
Fourth, then and not otherwise the holders of Common Stock shall be
entitled to receive such dividends as may be declared from time to time by
the Board of Directors.
(2) After distribution in full of the preferential amount, if any,
(fixed in accordance with the provisions of section (b) of this
Article Fourth), to be distributed to the holders of Preferred Stock
in the event of voluntary or involuntary liquidation, distribution
or sale of assets, dissolution or winding-up, of the Corporation,
the holders of the Common Stock shall be entitled to
6
<PAGE> 10
receive all of the remaining assets of the Corporation, tangible and
intangible, of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively.
(3) Except as may otherwise be required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of
Directors pursuant to section (b) of this Article Fourth, each
holder of Common Stock shall have one vote in respect of each share
of Common Stock held on all matters voted upon by the stockholders.
(d) No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or
series of stock or of other securities of the Corporation shall have any
preemptive right to purchase or subscribe for any unissued stock of any
class or series or any additional shares of any class or series to be
issued by reason of any increase of the authorized capital stock of the
Corporation of any class or series, or bonds, certificates of
indebtedness, debentures or other securities convertible into or
exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or
series of stock or securities convertible into or exchangeable for stock,
or carrying any right to purchase stock, may be issued and disposed of
pursuant to resolution of the Board of Directors to such persons, firms,
corporations or associations, whether such holders or others, and upon
such terms as may be deemed advisable by the Board of Directors in the
exercise of its sole discretion.
(e) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the relative powers, preferences and rights
of each other series of Preferred Stock shall, in each case, be as fixed
from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in section (b) of this
Article Fourth and the consent, by class or series vote or otherwise, of
the holders of such of the series of Preferred Stock as are from time to
time outstanding shall not be required for the issuance by the Board of
Directors of any other series of Preferred Stock whether or not the
powers, preferences and rights of such other series shall be fixed by the
Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them;
provided, however, that the Board of Directors may provide in the
resolution or resolutions as to any series of Preferred Stock adopted
pursuant to section (b) of this Article Fourth that the consent of the
holders of a majority (or such greater proportion as shall be therein
fixed) of the outstanding shares of such series voting thereon shall be
required for the issuance of any or all other series of Preferred Stock.
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<PAGE> 11
(f) Subject to the provisions of section (e), shares of any series of
Preferred Stock may be issued from time to time as the Board of Directors
of the Corporation shall determine and on such terms and for such
consideration as shall be fixed by the Board of Directors.
(g) Shares of Common Stock may be issued from time to time as the Board of
Directors of the Corporation shall determine and on such terms and for
such consideration as shall be fixed by the Board of Directors.
(h) The authorized amount of shares of Common Stock and of Preferred Stock
may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
Fifth: - (a) The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors. The number of directors
constituting the entire Board shall be not less than five nor more than
twenty-five as fixed from time to time by vote of a majority of the whole
Board, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office,
and provided further, that the number of directors constituting the whole
Board shall be twenty-four until otherwise fixed by a majority of the
whole Board.
(b) The Board of Directors shall be divided into three classes, as nearly
equal in number as the then total number of directors constituting the
whole Board permits, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1982, directors of the
first class shall be elected to hold office for a term expiring at the
next succeeding annual meeting, directors of the second class shall be
elected to hold office for a term expiring at the second succeeding annual
meeting and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any vacancies
in the Board of Directors for any reason, and any newly created
directorships resulting from any increase in the directors, may be filled
by the Board of Directors, acting by a majority of the directors then in
office, although less than a quorum, and any directors so chosen shall
hold office until the next annual election of directors. At such election,
the stockholders shall elect a successor to such director to hold office
until the next election of the class for which such director shall have
been chosen and until his successor shall be elected and qualified. No
decrease in the number of directors shall shorten the term of any
incumbent director.
(c) Notwithstanding any other provisions of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law, this Charter or
Act of Incorporation or the ByLaws of the Corporation), any director or
the entire Board of Directors of the
8
<PAGE> 12
Corporation may be removed at any time without cause, but only by the
affirmative vote of the holders of two-thirds or more of the outstanding
shares of capital stock of the Corporation entitled to vote generally in
the election of directors (considered for this purpose as one class) cast
at a meeting of the stockholders called for that purpose.
(d) Nominations for the election of directors may be made by the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Such nominations shall be made by notice in writing, delivered
or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than 14 days nor more than 50 days
prior to any meeting of the stockholders called for the election of
directors; provided, however, that if less than 21 days' notice of the
meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later
than the close of the seventh day following the day on which notice of the
meeting was mailed to stockholders. Notice of nominations which are
proposed by the Board of Directors shall be given by the Chairman on
behalf of the Board.
(e) Each notice under subsection (d) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupation or employment of such
nominee and (iii) the number of shares of stock of the Corporation which
are beneficially owned by each such nominee.
(f) The Chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(g) No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, and the power of stockholders to consent in writing, without a
meeting, to the taking of any action is specifically denied.
Sixth: - The Directors shall choose such officers, agent and servants as
may be provided in the By-Laws as they may from time to time find
necessary or proper.
Seventh: - The Corporation hereby created is hereby given the same powers,
rights and privileges as may be conferred upon corporations organized
under the Act entitled "An Act Providing a General Corporation Law",
approved March 10, 1899, as from time to time amended.
Eighth: - This Act shall be deemed and taken to be a private Act.
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<PAGE> 13
Ninth: - This Corporation is to have perpetual existence.
Tenth: - The Board of Directors, by resolution passed by a majority of the
whole Board, may designate any of their number to constitute an Executive
Committee, which Committee, to the extent provided in said resolution, or
in the By-Laws of the Company, shall have and may exercise all of the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it.
Eleventh: - The private property of the stockholders shall not be liable
for the payment of corporate debts to any extent whatever.
Twelfth: - The Corporation may transact business in any part of the world.
Thirteenth: - The Board of Directors of the Corporation is expressly
authorized to make, alter or repeal the By-Laws of the Corporation by a
vote of the majority of the entire Board. The stockholders may make, alter
or repeal any By-Law whether or not adopted by them, provided however,
that any such additional By-Laws, alterations or repeal may be adopted
only by the affirmative vote of the holders of two-thirds or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class).
Fourteenth: - Meetings of the Directors may be held outside of the State
of Delaware at such places as may be from time to time designated by the
Board, and the Directors may keep the books of the Company outside of the
State of Delaware at such places as may be from time to time designated by
them.
Fifteenth: - (a) In addition to any affirmative vote required by law, and
except as otherwise expressly provided in sections (b) and (c) of this
Article Fifteenth:
(A) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with or into (i) any Interested Stockholder
(as hereinafter defined) or (ii) any other corporation (whether or
not itself an Interested Stockholder), which, after such merger or
consolidation, would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Corporation or any
Subsidiary having an aggregate fair market value of $1,000,000 or
more, or
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<PAGE> 14
(C) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of related transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate fair market value of $1,000,000 or
more, or
(D) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation, or
(E) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
similar transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or indirectly
owned by any Interested Stockholder, or any Affiliate of any
Interested Stockholder,
shall require the affirmative vote of the holders of at least two-thirds of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, considered for the purpose of this
Article Fifteenth as one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that some
lesser percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "business combination" as used in this Article
Fifteenth shall mean any transaction which is referred to any
one or more of clauses (A) through (E) of paragraph 1 of the
section (a).
(b) The provisions of section (a) of this Article Fifteenth shall
not be applicable to any particular business combination and such
business combination shall require only such affirmative vote as is
required by law and any other provisions of the Charter or Act of
Incorporation of By-Laws if such business combination has been
approved by a majority of the whole Board.
(c) For the purposes of this Article Fifteenth:
(1) A "person" shall mean any individual firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean, in respect of any business
combination, any person (other than the Corporation or any Subsidiary) who
or which as of the record date for the determination of stockholders
entitled to notice of and to vote on
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such business combination, or immediately prior to the consummation of any
such transaction:
(A) is the beneficial owner, directly or indirectly, of more than
10% of the Voting Shares, or
(B) is an Affiliate of the Corporation and at any time within two
years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding voting
Shares, or
(C) is an assignee of or has otherwise succeeded in any share of
capital stock of the Corporation which were at any time within two
years prior thereto beneficially owned by any Interested
Stockholder, and such assignment or succession shall have occurred
in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
(3) A person shall be the "beneficial owner" of any Voting Shares:
(A) which such person or any of its Affiliates and Associates (as
hereafter defined) beneficially own, directly or indirectly, or
(B) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately
or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding, or
(C) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the Corporation.
(4) The outstanding Voting Shares shall include shares deemed owned
through application of paragraph (3) above but shall not include any other
Voting Shares which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise.
(5) "Affiliate" and "Associate" shall have the respective meanings given
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on December 31, 1981.
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(6) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect in
December 31, 1981) is owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the definition of Investment
Stockholder set forth in paragraph (2) of this section (c), the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(d) majority of the directors shall have the power and duty to
determine for the purposes of this Article Fifteenth on the basis of
information known to them, (1) the number of Voting Shares
beneficially owned by any person (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in paragraph (3) of section (c), or (4) whether
the assets subject to any business combination or the consideration
received for the issuance or transfer of securities by the
Corporation, or any Subsidiary has an aggregate fair market value of
$1,000,000 or more.
(e) Nothing contained in this Article Fifteenth shall be construed
to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
Sixteenth: Notwithstanding any other provision of this Charter or Act of
Incorporation or the By-Laws of the Corporation (and in addition to any
other vote that may be required by law, this Charter or Act of
Incorporation by the By-Laws), the affirmative vote of the holders of at
least two-thirds of the outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) shall be required to amend,
alter or repeal any provision of Articles Fifth, Thirteenth, Fifteenth or
Sixteenth of this Charter or Act of Incorporation.
Seventeenth: (a) a Director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except to the extent such exemption from
liability or limitation thereof is not permitted under the Delaware
General Corporation Laws as the same exists or may hereafter be amended.
(b) Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a Director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to the time of such repeal or modification."
13
<PAGE> 17
EXHIBIT B
BY-LAWS
WILMINGTON TRUST COMPANY
WILMINGTON, DELAWARE
As existing on January 16, 1997
<PAGE> 18
BY-LAWS OF WILMINGTON TRUST COMPANY
ARTICLE I
Stockholders' Meetings
Section 1. The Annual Meeting of Stockholders shall be held on the third
Thursday in April each year at the principal office at the Company or at such
other date, time, or place as may be designated by resolution by the Board of
Directors.
Section 2. Special meetings of all stockholders may be called at any time
by the Board of Directors, the Chairman of the Board or the President.
Section 3. Notice of all meetings of the stockholders shall be given by
mailing to each stockholder at least ten (10) days before said meeting, at his
last known address, a written or printed notice fixing the time and place of
such meeting.
Section 4. A majority in the amount of the capital stock of the Company
issued and outstanding on the record date, as herein determined, shall
constitute a quorum at all meetings of stockholders for the transaction of any
business, but the holders of a small number of shares may adjourn, from time to
time, without further notice, until a quorum is secured. At each annual or
special meeting of stockholders, each stockholder shall be entitled to one vote,
either in person or by proxy, for each shares of stock registered in the
stockholder's name on the books of the Company on the record date for any such
meeting as determined herein.
ARTICLE II
Directors
Section 1. The number and classification of the Board of Directors shall
be as set forth in the Charter of the Bank.
Section 2. No person who has attained the age of seventy-two (72) years
shall be nominated for election to the Board of Directors of the Company,
provided, however, that this limitation shall not apply to any person who was
serving as director of the Company on September 16, 1971.
Section 3. The class of Directors so elected shall hold office for three
years or until their successors are elected and qualified.
Section 4. The affairs and business of the Company shall be managed and
conducted by the Board of Directors.
Section 5. The Board of Directors shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its
<PAGE> 19
members, or at the call of the Chairman of the Board of Directors or the
President.
Section 6. Special meetings of the Board of Directors may be called at any
time by the Chairman of the Board of Directors or by the President, and shall be
called upon the written request of a majority of the directors.
Section 7. A majority of the directors elected and qualified shall be
necessary to constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 8. Written notice shall be sent by mail to each director of any
special meeting of the Board of Directors, and of any change in the time or
place of any regular meeting, stating the time and place of such meeting, which
shall be mailed not less than two days before the time of holding such meeting.
Section 9. In the event of the death, resignation, removal, inability to
act, or disqualification of any director, the Board of Directors, although less
than a quorum, shall have the right to elect the successor who shall hold office
for the remainder of the full term of the class of directors in which the
vacancy occurred, and until such director's successor shall have been duly
elected and qualified.
Section 10. The Board of Directors at its first meeting after its election
by the stockholders shall appoint an Executive Committee, a Trust Committee, an
Audit Committee and a Compensation Committee, and shall elect from its own
members a Chairman of the Board of Directors and a President who may be the same
person. The Board of Directors shall also elect at such meeting a Secretary and
a Treasurer, who may be the same person, may appoint at any time such other
committees and elect or appoint such other officers as it may deem advisable.
The Board of Directors may also elect at such meeting one or more Associate
Directors.
Section 11. The Board of Directors may at any time remove, with or without
cause, any member of any Committee appointed by it or any associate director or
officer elected by it and may appoint or elect his successor.
Section 12. The Board of Directors may designate an officer to be in
charge of such of the departments or division of the Company as it may deem
advisable.
ARTICLE III
Committees
Section 1. Executive Committee
(A) The Executive Committee shall be composed of not more than nine
members who shall be selected by the Board of Directors from its own members and
who
2
<PAGE> 20
shall hold office during the pleasure of the Board.
(B) The Executive Committee shall have all the powers of the Board
of Directors when it is not in session to transact all business for and in
behalf of the Company that may be brought before it.
(C) The Executive Committee shall meet at the principal office of
the Company or elsewhere in its discretion at such times to be determined by a
majority of its members, or at the call of the Chairman of the Executive
Committee or at the call of the Chairman of the Board of Directors. The majority
of its members shall be necessary to constitute a quorum for the transaction of
business. Special meetings of the Executive Committee may be held at any time
when a quorum is present.
(D) Minutes of each meeting of the Executive Committee shall be kept
and submitted to the Board of Directors at its next meeting.
(E) The Executive Committee shall advise and superintend all
investments that may be made of the funds of the Company, and shall direct the
disposal of the same, in accordance with such rules and regulations as the Board
of Directors from time to time make.
(F) In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of the Company by
its directors and officers as contemplated by these By-Laws any two available
members of the Executive Committee as constituted immediately prior to such
disaster shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Company in accordance with the
provisions of Article III of these By-Laws; and if less than three members of
the Trust Committee is constituted immediately prior to such disaster shall be
available for the transaction of its business, such Executive Committee shall
also be empowered to exercise all of the powers reserved to the Trust Committee
under Article III Section 2 hereof. In the event of the unavailability, at such
time, of a minimum of two members of such Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Company in accordance
with the foregoing provisions of this Section. This By-Law shall be subject to
implementation by Resolutions of the Board of Directors presently existing or
hereafter passed from time to time for that purpose, and any provisions of these
By-Laws (other than this Section) and any resolutions which are contrary to the
provisions of this Section or to the provisions of any such implementary
Resolutions shall be suspended during such a disaster period until it shall be
determined by any interim Executive Committee acting under this section that it
shall be to the advantage of the Company to resume the conduct and management of
its affairs and business under all of the other provisions of these By-Laws.
3
<PAGE> 21
Section 2. Trust Committee
(A) The Trust Committee shall be composed of not more than thirteen
members who shall be selected by the Board of Directors, a majority of whom
shall be members of the Board of Directors and who shall hold office during the
pleasure of the Board.
(B) The Trust Committee shall have general supervision over the
Trust Department and the investment of trust funds, in all matters, however,
being subject to the approval of the Board of Directors.
(C) The Trust Committee shall meet at the principal office of the
Company or elsewhere in its discretion at such times to be determined by a
majority of its members or at the call of its chairman. A majority of its
members shall be necessary to constitute a quorum for the transaction of
business.
(D) Minutes of each meeting of the Trust Committee shall be kept and
promptly submitted to the Board of Directors.
(E) The Trust Committee shall have the power to appoint Committees
and/or designate officers or employees of the Company to whom supervision over
the investment of trust funds may be delegated when the Trust Committee is not
in session.
Section 3. Audit Committee
(A) The Audit Committee shall be composed of five members who shall
be selected by the Board of Directors from its own members, none of whom shall
be an officer of the Company, and shall hold office at the pleasure of the
Board.
(B) The Audit Committee shall have general supervision over the
Audit Division in all matters however subject to the approval of the Board of
Directors; it shall consider all matters brought to its attention by the officer
in charge of the Audit Division, review all reports of examination of the
Company made by any governmental agency or such independent auditor employed for
that purpose, and make such recommendations to the Board of Directors with
respect thereto or with respect to any other matters pertaining to auditing the
Company as it shall deem desirable.
(C) The Audit Committee shall meet whenever and wherever the
majority of its members shall deem it to be proper for the transaction of its
business, and a majority of its Committee shall constitute a quorum.
Section 4. Compensation Committee
(A) The Compensation Committee shall be composed of not more than
4
<PAGE> 22
five (5) members who shall be selected by the Board of Directors from its own
members who are not officers of the Company and who shall hold office during the
pleasure of the Board.
(B) The Compensation Committee shall in general advise upon all
matters of policy concerning the Company brought to its attention by the
management and from time to time review the management of the Company, major
organizational matters, including salaries and employee benefits and
specifically shall administer the Executive Incentive Compensation Plan.
(C) Meetings of the Compensation Committee may be called at any time
by the Chairman of the Compensation Committee, the Chairman of the Board of
Directors, or the President of the Company.
Section 5. Associate Directors
(A) Any person who has served as a director may be elected by the
Board of Directors as an associate director, to serve during the pleasure of the
Board.
(B) An associate director shall be entitled to attend all directors
meetings and participate in the discussion of all matters brought to the Board,
with the exception that he would have no right to vote. An associate director
will be eligible for appointment to Committees of the Company, with the
exception of the Executive Committee, Audit Committee and Compensation
Committee, which must be comprised solely of active directors.
Section 6. Absence or Disqualification of Any Member of a Committee
(A) In the absence or disqualification of any member of any
Committee created under Article III of the By-Laws of this Company, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absence or disqualified member.
ARTICLE IV
Officers
Section 1. The Chairman of the Board of Directors shall preside at all
meetings of the Board and shall have such further authority and powers and shall
perform such duties as the Board of Directors may from time to time confer and
direct. He shall also exercise such powers and perform such duties as may from
time to time be agreed upon between himself and the President of the Company.
Section 2. The Vice Chairman of the Board. The Vice Chairman of the Board
of
5
<PAGE> 23
Directors shall preside at all meetings of the Board of Directors at which the
Chairman of the Board shall not be present and shall have such further authority
and powers and shall perform such duties as the Board of Directors or the
Chairman of the Board may from time to time confer and direct.
Section 3. The President shall have the powers and duties pertaining to
the office of the President conferred or imposed upon him by statute or assigned
to him by the Board of Directors in the absence of the Chairman of the Board the
President shall have the powers and duties of the Chairman of the Board.
Section 4. The Chairman of the Board of Directors or the President as
designated by the Board of Directors, shall carry into effect all legal
directions of the Executive Committee and of the Board of Directors, and shall
at all times exercise general supervision over the interest, affairs and
operations of the Company and perform all duties incident to his office.
Section 5. There may be one or more Vice Presidents, however denominated
by the Board of Directors, who may at any time perform all the duties of the
Chairman of the Board of Directors and/or the President and such other powers
and duties as may from time to time be assigned to them by the Board of
Directors, the Executive Committee, the Chairman of the Board or the President
and by the officer in charge of the department or division to which they are
assigned.
Section 6. The Secretary shall attend to the giving of notice of meetings
of the stockholders and the Board of Directors, as well as the Committees
thereof, to the keeping of accurate minutes of all such meetings and to
recording the same in the minute books of the Company. In addition to the other
notice requirements of these By-Laws and as may be practicable under the
circumstances, all such notices shall be in writing and mailed well in advance
of the scheduled date of any other meeting. He shall have custody of the
corporate seal and shall affix the same to any documents requiring such
corporate seal and to attest the same.
Section 7. The Treasurer shall have general supervision over all assets
and liabilities of the Company. He shall be custodian of and responsible for all
monies, funds and valuables of the Company and for the keeping of proper records
of the evidence of property or indebtedness and of all the transactions of the
Company. He shall have general supervision of the expenditures of the Company
and shall report to the Board of Directors at each regular meeting of the
condition of the Company, and perform such other duties as may be assigned to
him from time to time by the Board of Directors of the Executive Committee.
Section 8. There may be a Controller who shall exercise general
supervision over the internal operations of the Company, including accounting,
and shall render to the Board of Directors at appropriate times a report
relating to the general condition and internal operations of the Company.
6
<PAGE> 24
There may be one or more subordinate accounting or controller officers
however denominated, who may perform the duties of the Controller and such
duties as may be prescribed by the Controller.
Section 9. The officer designated by the Board of Directors to be in
charge of the Audit Division of the Company with such title as the Board of
Directors shall prescribe, shall report to and be directly responsible only to
the Board of Directors.
There shall be an Auditor and there may be one or more Audit Officers,
however denominated, who may perform all the duties of the Auditor and such
duties as may be prescribed by the officer in charge of the Audit Division.
Section 10. There may be one or more officers, subordinate in rank to all
Vice Presidents with such functional titles as shall be determined from time to
time by the Board of Directors, who shall ex officio hold the office Assistant
Secretary of this Company and who may perform such duties as may be prescribed
by the officer in charge of the department or division to whom they are
assigned.
Section 11. The powers and duties of all other officers of the Company
shall be those usually pertaining to their respective offices, subject to the
direction of the Board of Directors, the Executive Committee, Chairman of the
Board of Directors or the President and the officer in charge of the department
or division to which they are assigned.
ARTICLE V
Stock and Stock Certificates
Section 1. Shares of stock shall be transferrable on the books of the
Company and a transfer book shall be kept in which all transfers of stock shall
be recorded.
Section 2. Certificate of stock shall bear the signature of the President
or any Vice President, however denominated by the Board of Directors and
countersigned by the Secretary or Treasurer or an Assistant Secretary, and the
seal of the corporation shall be engraved thereon. Each certificate shall recite
that the stock represented thereby is transferrable only upon the books of the
Company by the holder thereof or his attorney, upon surrender of the certificate
properly endorsed. Any certificate of stock surrendered to the Company shall be
cancelled at the time of transfer, and before a new certificate or certificates
shall be issued in lieu thereof. Duplicate certificates of stock shall be issued
only upon giving such security as may be satisfactory to the Board of Directors
or the Executive Committee.
Section 3. The Board of Directors of the Company is authorized to fix in
advance a record date for the determination of the stockholders entitled to
notice of, and to vote at, any meeting of stockholders and any adjournment
thereof, or entitled to receive payment of
7
<PAGE> 25
any dividend, or to any allotment or rights, or to exercise any rights in
respect of any change, conversion or exchange of capital stock, or in connection
with obtaining the consent of stockholders for any purpose, which record date
shall not be more than 60 nor less than 10 days proceeding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent.
ARTICLE VI
Seal
Section 1. The corporate seal of the Company shall be in the following
form:
Between two concentric circles the words "Wilmington Trust
Company" within the inner circle the words "Wilmington,
Delaware."
ARTICLE VII
Fiscal Year
Section 1. The fiscal year of the Company shall be the calendar year.
ARTICLE VIII
Execution of Instruments of the Company
Section 1. The Chairman of the Board, the President or any Vice President,
however denominated by the Board of Directors, shall have full power and
authority to enter into, make, sign, execute, acknowledge and/or deliver and the
Secretary or any Assistant Secretary shall have full power and authority to
attest and affix the corporate seal of the Company to any and all deeds,
conveyances, assignments, releases, contracts, agreements, bonds, notes,
mortgages and all other instruments incident to the business of this Company or
in acting as executor, administrator, guardian, trustee, agent or in any other
fiduciary or representative capacity by any and every method of appointment or
by whatever person, corporation, court officer or authority in the State of
Delaware, or elsewhere, without any specific authority, ratification, approval
or confirmation by the Board of Directors or the Executive Committee, and any
and all such instruments shall have the same force and validity as though
expressly authorized by the Board of Directors and/or the Executive Committee.
8
<PAGE> 26
ARTICLE IX
Compensation of Directors and Members of Committees
Section 1. Directors and associate directors of the Company, other than
salaried officers of the Company, shall be paid such reasonable honoraria or
fees for attending meetings of the Board of Directors as the Board of Directors
may from time to time determine. Directors and associate directors who serve as
members of committees, other than salaried employees of the Company, shall be
paid such reasonable honoraria or fees for services as members of committees as
the Board of Directors shall from time to time determine and directors and
associate directors may be employed by the Company for such special services as
the Board of Directors may from time to time determine and shall be paid for
such special services so performed reasonable compensation as may be determined
by the Board of Directors.
ARTICLE X
Indemnification
Section 1. (A) The Corporation shall indemnify and hold harmless, to the
fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director, officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, fiduciary or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably
incurred by such person. The Corporation shall indemnify a person in connection
with a proceeding initiated by such person only if the proceeding was authorized
by the Board of Directors of the Corporation.
(B) The Corporation shall pay the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a Director officer in his capacity as a Director
or officer in advance of the final disposition of the proceeding shall be made
only upon receipt of an undertaking by the Director or officer to repay all
amounts advanced if it should be ultimately determined that the Director or
officer is not entitled to be indemnified under this Article or otherwise.
(C) If a claim for indemnification or payment of expenses, under
this Article X is not paid in full within ninety days after a written claim
therefor has been received by the Corporation the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification of payment of expenses
9
<PAGE> 27
under applicable law.
(D) The rights conferred on any person by this Article X shall not
be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Charter or Act of Incorporation, these
By-Laws, agreement, vote of stockholders or disinterested Directors or
otherwise.
(E) Any repeal or modification of the foregoing provisions of this
Article X shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
repeal or modification.
ARTICLE XI
Amendments to the By-Laws
Section 1. These By-Laws may be altered, amended or repealed, in whole or
in part, and any new By-Law or By-Laws adopted at any regular or special meeting
of the Board of Directors by a vote of the majority of all the members of the
Board of Directors then in office.
10
<PAGE> 28
EXHIBIT C
Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended,
Wilmington Trust Company hereby consents that reports of examinations by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
WILMINGTON TRUST COMPANY
Dated: May 11, 1998 By: /s/ Emmett R. Harmon
--------------------
Name: Emmett R. Harmon
Title: Vice President
<PAGE> 29
EXHIBIT D
NOTICE
This form is intended to assist state nonmember banks and savings banks with
state publication requirements. It has not been approved by any state banking
authorities. Refer to your appropriate state banking authorities for your state
publication requirements.
R E P O R T O F C O N D I T I O N
Consolidating domestic subsidiaries of the
WILMINGTON TRUST COMPANY of WILMINGTON
- ---------------------------------------------------------- ---------------
Name of Bank City
in the State of DELAWARE , at the close of business on December 31, 1997.
--------
<TABLE>
<CAPTION>
ASSETS
Thousands of dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coins..........................................236,646
Interest-bearing balances..........................................................................0
Held-to-maturity securities................................................................................331,880
Available-for-sale securities............................................................................1,258,661
Federal funds sold and securities purchased under agreements to resell......................................91,500
Loans and lease financing receivables:
Loans and leases, net of unearned income .........................3,822,320
LESS: Allowance for loan and lease losses ..........................59,373
LESS: Allocated transfer risk reserve ...................................0
Loans and leases, net of unearned income, allowance, and reserve...........................3,762,947
Assets held in trading accounts..................................................................................0
Premises and fixed assets (including capitalized leases)...................................................129,740
Other real estate owned......................................................................................2,106
Investments in unconsolidated subsidiaries and associated companies.............................................22
Customers' liability to this bank on acceptances outstanding.....................................................0
Intangible assets............................................................................................4,905
Other assets...............................................................................................100,799
Total assets.............................................................................................5,919,206
</TABLE>
CONTINUED ON NEXT PAGE
<PAGE> 30
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices......................................................................................4,034,633
Noninterest-bearing ................................................839,928
Interest-bearing .................................................3,194,705
Federal funds purchased and Securities sold under agreements to repurchase.................................575,827
Demand notes issued to the U.S. Treasury....................................................................61,290
Trading liabilities (from Schedule RC-D).........................................................................0
Other borrowed money:......................................................................................///////
With original maturity of one year or less...................................................673,000
With original maturity of more than one year..................................................43,000
Bank's liability on acceptances executed and outstanding.........................................................0
Subordinated notes and debentures................................................................................0
Other liabilities (from Schedule RC-G)......................................................................76,458
Total liabilities........................................................................................5,464,208
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................................................................0
Common Stock...................................................................................................500
Surplus (exclude all surplus related to preferred stock)....................................................62,118
Undivided profits and capital reserves.....................................................................385,018
Net unrealized holding gains (losses) on available-for-sale securities.......................................7,362
Total equity capital.......................................................................................454,998
Total liabilities, limited-life preferred stock, and equity capital......................................5,919,206
</TABLE>
2
