<PAGE> 1
REGISTRATION NOS. 33-
33-
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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>
TRANSAMERICA DELAWARE, L.P. TRANSAMERICA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER) (EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION)
94-3208365 94-0932740
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
C/O CHRISTOPHER M. MCLAIN, ESQ. CHRISTOPHER M. MCLAIN, ESQ.
TRANSAMERICA CORPORATION TRANSAMERICA CORPORATION
600 MONTGOMERY STREET 600 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111 SAN FRANCISCO, CALIFORNIA 94111
(415) 983-4000 (415) 983-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S
PRINCIPAL EXECUTIVE OFFICES AND AGENT FOR SERVICE) PRINCIPAL EXECUTIVE OFFICES AND AGENT FOR SERVICE)
</TABLE>
------------------------
COPY OF CORRESPONDENCE TO:
<TABLE>
<S> <C>
DANIEL A. NEFF, ESQ. PETER H. DARROW, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ CLEARY, GOTTLIEB, STEEN & HAMILTON
51 WEST 52ND STREET ONE LIBERTY PLAZA
NEW YORK, NEW YORK 10019 NEW YORK, NEW YORK 10006
(212) 403-1000 (212) 225-2000
</TABLE>
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of the Registration Statement.
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 offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM
OFFERING PRICE PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) UNIT(1)(2)(3) PRICE(1)(2)(3) REGISTRATION FEE(1)
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Transamerica Delaware, L.P.
Preferred Securities.....................
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Transamerica Corporation
Junior Subordinated Debentures...........
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Transamerica Corporation Guarantee with
respect to Transamerica Delaware, L.P.
Preferred Securities(4)..................
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Total.................................. $425,000,000 100% $425,000,000 $ 146,552
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</TABLE>
(1) There are being registered hereunder such presently indeterminate number of
Preferred Securities of Transamerica Delaware, L.P. with an aggregate
initial offering price not to exceed $425,000,000, plus an indeterminate
principal amount of Junior Subordinated Debentures of Transamerica
Corporation with an aggregate principal amount not to exceed $425,000,000 as
may be distributed upon a dissolution of Transamerica Delaware, L.P. and the
distribution of the assets of Transamerica Delaware, L.P., which would
include such Junior Subordinated Debentures for which no separate
consideration will be received. Pursuant to Rule 457(o) under the Securities
Act of 1933, which permits the registration fee to be calculated on the
basis of the maximum offering price of all the securities listed, the table
does not specify by each class information as to the amount to be
registered, proposed maximum offering price per unit or proposed maximum
aggregate offering price.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Exclusive of accrued interest and dividends, if any.
(4) No separate consideration will be received for the Transamerica Corporation
Guarantee. Pursuant to Rule 457(n) no separate fee is payable in respect of
the Transamerica Corporation Guarantee.
------------------------
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
EXPLANATORY NOTE
This Registration Statement contains two forms of Prospectus Supplement to
the Prospectus included herein: the first form is to be used in connection with
an offering by Transamerica Delaware, L.P. of fixed rate Cumulative Monthly
Income Preferred Securities, and the second form is to be used in connection
with an offering by Transamerica Delaware, L.P. of adjustable rate Cumulative
Monthly Income Preferred Securities.
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING 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 SUPPLEMENT SHALL NOT CONSTITUTE AN OFFER
TO SELL OR THE SOLICITATION OF AN 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 AUGUST 11, 1994
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED AUGUST , 1994
[ ] PREFERRED SECURITIES
TRANSAMERICA DELAWARE
% CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES,
[LOGO] SERIES A ("MIPS"*)
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
TRANSAMERICA CORPORATION
---------------------
The % Cumulative Monthly Income Preferred Securities, Series A (the
"Series A Preferred Securities"), representing the limited partner interests
offered hereby are being issued by Transamerica Delaware, L.P., a limited
partnership formed under the laws of the State of Delaware ("Transamerica
Delaware"). Transamerica Corporation, a Delaware corporation ("Transamerica"),
is the sole general partner in Transamerica Delaware. Transamerica Delaware
exists for the sole purpose of issuing its partnership interests and investing
the proceeds thereof in debt securities of Transamerica. The limited partner
interests represented by the Series A Preferred Securities will have a
preference with respect to cash distributions and amounts payable on liquidation
over the general partner's interest in Transamerica Delaware.
(Continued on next page)
---------------------
SEE "INVESTMENT CONSIDERATIONS" FOR CERTAIN INFORMATION RELEVANT TO AN
INVESTMENT IN THE SERIES A PREFERRED SECURITIES, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS ON THE SERIES A PREFERRED
SECURITIES AND SERIES A JUNIOR SUBORDINATED DEBENTURES MAY BE DEFERRED AND THE
RELATED FEDERAL INCOME TAX CONSEQUENCES.
---------------------
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 SUPPLEMENT OR
THE PROSPECTUS TO WHICH IT RELATES. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------------
<TABLE>
<CAPTION>
PROCEEDS TO
INITIAL PUBLIC UNDERWRITING TRANSAMERICA
OFFERING PRICE COMMISSION(1) DELAWARE(2)(3)
--------------- --------------- ---------------
<S> <C> <C> <C>
Per Series A Preferred Security..................... $ (2) $
Total............................................... $ (2) $
</TABLE>
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(1) Transamerica Delaware and Transamerica have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting".
(2) In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will ultimately be invested in Series A Junior Subordinated
Debentures, the Underwriting Agreement provides that Transamerica will pay
to the Underwriters, as compensation ("Underwriters' Compensation") for
their arranging the investment therein of such proceeds, $ per Series
A Preferred Security; provided, that such compensation will be $ per
Series A Preferred Security sold to certain institutions. Accordingly, the
maximum aggregate amount of Underwriters' Compensation will be $ ,
but the actual amount of Underwriters' Compensation will be less than such
amount to the extent that Series A Preferred Securities are sold to such
institutions. See "Underwriting".
(3) Expenses of the offering, which are payable by Transamerica, are estimated
to be $ .
---------------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of the Series A Preferred Securities will be made only in
book-entry form through the facilities of The Depository Trust Company on or
about , 1994.
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* An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
GOLDMAN, SACHS & CO.
---------------------
The date of this Prospectus Supplement is , 1994.
<PAGE> 4
(Continued from front cover)
Cash distributions on the Series A Preferred Securities will be cumulative
from the date of original issuance at an annual rate of % of the
liquidation preference of $25 per Series A Preferred Security, and will be
payable monthly in arrears on the last day of each calendar month of each year,
commencing , 1994 ("dividends"), if and to the extent determined to
be payable ("declared") by Transamerica in its capacity as general partner of
Transamerica Delaware (the "General Partner"). The payment of dividends (if and
to the extent declared) and payments on liquidation of Transamerica Delaware and
the redemption of Series A Preferred Securities, as set forth below, are
guaranteed by Transamerica to the extent described herein and in the
accompanying Prospectus (the "Guarantee"). See "Description of the Guarantee" in
the accompanying Prospectus. The proceeds of the offering of the Series A
Preferred Securities will be used to purchase from Transamerica its %
Junior Subordinated Deferrable Interest Debentures, Series A, Due 2024 (the
"Series A Junior Subordinated Debentures"). If Transamerica fails to make
interest payments on the Series A Junior Subordinated Debentures, it is expected
that Transamerica Delaware will not declare or pay dividends on the Series A
Preferred Securities. The Guarantee does not cover payment of dividends by
Transamerica Delaware unless and until declared.
The Series A Preferred Securities are redeemable at the option of
Transamerica Delaware, in whole or in part, from time to time, on or after
, 1999, at $25 per Series A Preferred Security plus accrued and
unpaid dividends thereon to the date fixed for redemption (the "Redemption
Price"). See "Description of the Series A Preferred Securities -- Optional
Redemption".
In addition, upon the occurrence of certain special events arising from a
change in law or a change in legal interpretation or other specified
circumstances, the Series A Preferred Securities are redeemable in whole at the
Redemption Price at the option of Transamerica as the General Partner, or the
General Partner may dissolve Transamerica Delaware and cause to be distributed
to the holders of the Series A Preferred Securities, on a pro rata basis, the
Series A Junior Subordinated Debentures in lieu of any cash distribution. If the
Series A Junior Subordinated Debentures are distributed to the holders of the
Series A Preferred Securities, Transamerica will use its best efforts to have
the Series A Junior Subordinated Debentures listed on the New York Stock
Exchange or on such other exchange as the Series A Preferred Securities are then
listed. The obligations of Transamerica under the Series A Junior Subordinated
Debentures are subordinate and junior in right of payment to Senior Indebtedness
(as defined in the accompanying Prospectus) of Transamerica. At June 30, 1994,
Senior Indebtedness of Transamerica (on an unconsolidated basis) aggregated
approximately $800 million. Because Transamerica is a holding company, the
Series A Junior Subordinated Debentures are also effectively subordinated to all
existing and future liabilities, including trade payables, of Transamerica's
subsidiaries, except to the extent Transamerica is a creditor of the
subsidiaries recognized as such. See "Description of the Series A Preferred
Securities -- Special Event Redemption or Distribution" and "Description of the
Series A Junior Subordinated Debentures".
In the event of the dissolution of Transamerica Delaware, the holders of
the Series A Preferred Securities will be entitled to receive for each Series A
Preferred Security a liquidation preference of $25 plus accrued and unpaid
dividends thereon to the date of payment, subject to certain limitations,
unless, in connection with such dissolution, Series A Junior Subordinated
Debentures are distributed to the holders of the Series A Preferred Securities.
See "Description of the Series A Preferred Securities -- Liquidation
Distribution Upon Dissolution".
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange.
S-2
<PAGE> 5
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
------------------------
FOR NORTH CAROLINA PURCHASERS: THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE COMMISSIONER OF INSURANCE FOR THE STATE OF NORTH CAROLINA,
NOR HAS THE COMMISSIONER OF INSURANCE RULED UPON THE ACCURACY OR ADEQUACY OF
THIS DOCUMENT.
------------------------
S-3
<PAGE> 6
TRANSAMERICA DELAWARE
Transamerica Delaware is a limited partnership which was formed under the
Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") on
August 9, 1994. The initial partners in Transamerica Delaware are Transamerica,
as general partner, and Transamerica LP Holdings Corp., a Delaware corporation
and a wholly-owned subsidiary of Transamerica ("Transamerica Holdings"), as
limited partner. Upon the issuance of the Series A Preferred Securities, which
securities represent limited partner interests in Transamerica Delaware,
Transamerica Holdings will remain as a limited partner, but will have no
interest in the profits and dividends or in the assets of Transamerica Delaware.
The General Partner will agree to contribute capital to the extent required to
maintain its capital at an amount equal to at least 3% of the total capital
contributions to Transamerica Delaware. Transamerica and Transamerica Holdings
entered into a limited partnership agreement dated as of , 1994. Such
limited partnership agreement will be amended and restated in its entirety (as
so amended and restated, the "Limited Partnership Agreement") substantially in
the form filed as an exhibit to the Registration Statement of which this
Prospectus Supplement and the accompanying Prospectus form a part.
Transamerica Delaware is managed by the General Partner and exists for the
sole purpose of issuing its partnership interests and investing the proceeds
thereof in junior subordinated debentures of Transamerica ("Junior Subordinated
Debentures"). The rights of the holders of the Series A Preferred Securities,
including economic rights, rights to information and voting rights, are set
forth in the Limited Partnership Agreement and the Partnership Act. See
"Description of the Series A Preferred Securities".
The business address of Transamerica Delaware is c/o Transamerica
Corporation, 600 Montgomery Street, San Francisco, California 94111, telephone
number (415) 983-4000.
TRANSAMERICA CORPORATION
Transamerica Corporation is a diversified financial services company, whose
core businesses include consumer lending, commercial lending, leasing, real
estate services, life insurance and asset management. Transamerica was
incorporated in Delaware in 1928. At June 30, 1994, Transamerica had
consolidated assets of $39.0 billion and total shareholders' equity of $3.1
billion. For the year ended December 31, 1993, Transamerica had revenues of $4.8
billion and net income of $377 million.
Because Transamerica is a holding company, the Series A Junior Subordinated
Debentures are effectively subordinated to all existing and future liabilities,
including trade payables, of Transamerica's subsidiaries, except to the extent
Transamerica is a creditor of the subsidiaries recognized as such.
The principal executive offices of Transamerica are located at 600
Montgomery Street, San Francisco, California 94111. Transamerica's telephone
number is (415) 983-4000.
S-4
<PAGE> 7
INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities should carefully
review the information contained elsewhere in this Prospectus Supplement and in
the accompanying Prospectus and should particularly consider the following
matters:
SUBORDINATION OF GUARANTEE AND SERIES A JUNIOR SUBORDINATED
DEBENTURES. Transamerica's obligations under the Guarantee are subordinate and
junior in right of payment to all other liabilities of Transamerica except those
made pari passu by their terms. The obligations of Transamerica under the Series
A Junior Subordinated Debentures described under "Description of the Series A
Junior Subordinated Debentures" are subordinate and junior in right of payment
to Senior Indebtedness of Transamerica. At June 30, 1994, Senior Indebtedness of
Transamerica (on an unconsolidated basis) aggregated approximately $800 million.
Because Transamerica is a holding company, the Series A Junior Subordinated
Debentures are also effectively subordinated to all existing and future
liabilities, including trade payables, of Transamerica's subsidiaries, except to
the extent Transamerica is a creditor of the subsidiaries recognized as such. At
June 30, 1994, Transamerica's subsidiaries had outstanding $8.0 billion of
indebtedness, $23.4 billion of life insurance policy liabilities and
approximately $3.7 billion of other liabilities. There are no terms in the
Series A Preferred Securities, the Series A Junior Subordinated Debentures or
the Guarantee that limit Transamerica's ability to incur additional
indebtedness, including indebtedness that ranks senior to the Series A Junior
Subordinated Debentures and the Guarantee. See "Description of the
Guarantee -- Status of the Guarantee" and "Description of the Junior
Subordinated Debentures -- Subordination" in the accompanying Prospectus.
OPTION TO EXTEND INTEREST PAYMENT PERIOD. Transamerica has the right under
the Indenture (as defined herein) to extend the interest payment period from
time to time on the Series A Junior Subordinated Debentures to a period not
exceeding 60 consecutive months, and, as a consequence, monthly dividends on the
Series A Preferred Securities would be deferred (but would continue to accrue
with interest thereon) by Transamerica Delaware during any such extended
interest payment period. In the event that Transamerica exercises this right,
Transamerica may not during such period declare or pay dividends on, or purchase
or acquire, any of its common stock. Prior to the termination of any such
extension period, Transamerica may further extend the interest payment period,
provided that such extension period together with all such previous and further
extensions thereof may not exceed 60 consecutive months. Upon the termination of
any extension period and the payment of all amounts then due, Transamerica may
select a new extension period, subject to the above requirements. See
"Description of the Series A Preferred Securities -- Dividends" and "Description
of the Series A Junior Subordinated Debentures -- Option to Extend Interest
Payment Period".
Should an extended interest payment period occur, Transamerica Delaware
will continue to accrue income for United States federal income tax purposes
which will be allocated, but not distributed by way of cash dividends, to
holders of record of Series A Preferred Securities. As a result, such a holder
will include such interest in such holder's gross income for United States
federal income tax purposes in advance of the receipt of cash, and will not
receive the cash from Transamerica Delaware related to such income if such a
holder disposes of his or her Series A Preferred Securities prior to the record
date for payment of dividends. See "United States Taxation -- Potential
Extension of Interest Payment Period".
SPECIAL EVENT REDEMPTION OR DISTRIBUTION. Upon the occurrence of a Special
Event (as defined herein), the General Partner shall elect to either (i) redeem
the Series A Preferred Securities in whole or (ii) dissolve Transamerica
Delaware and cause Series A Junior Subordinated Debentures to be distributed to
the holders of the Series A Preferred Securities in connection with the
liquidation of Transamerica Delaware. In the case of a Tax Event (as defined
herein), however, the General Partner may also elect to cause the Series A
Preferred Securities to remain outstanding.
S-5
<PAGE> 8
See "Description of the Series A Preferred Securities -- Special Event
Redemption or Distribution" and "Description of the Series A Junior Subordinated
Debentures -- General".
Under current United States federal income tax law and interpretation, such
a distribution would not be a taxable event to holders of the Series A Preferred
Securities. Under a change in law, a change in legal interpretation or the other
circumstances giving rise to a Special Event, however, the dissolution could be
a taxable event to holders of the Series A Preferred Securities. See "United
States Taxation -- Receipt of Series A Junior Subordinated Debentures Upon
Liquidation of Transamerica Delaware".
S-6
<PAGE> 9
SUMMARY CONSOLIDATED FINANCIAL DATA
This summary is qualified in its entirety by the detailed information and
financial statements included in the documents incorporated by reference herein,
including that for interim periods. The information furnished for the six months
ended June 30, 1994 and 1993 reflects all adjustments and accruals which are, in
the opinion of the management of Transamerica, necessary for a fair statement of
the results for such periods. The results of operations in the interim
statements are not necessarily indicative of the results that may be expected
for the full year. See "Incorporation of Certain Documents by Reference" in the
accompanying Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
--------------------------------------------------------- ---------------------
1989 1990 1991 1992 1993 1993 1994
--------- --------- --------- --------- --------- --------- ---------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues.............................. $ 4,476.1 $ 4,097.7 $ 4,175.2 $ 4,550.9 $ 4,813.3 $ 2,362.5 $ 2,598.4
Net income:
Income from continuing operations... 251.3 190.5 5.7 334.0 447.5 210.3 209.4
Income (loss) from discontinued
operations........................ 80.9 75.8 79.1 (90.8) (47.0) 5.4 (0.7)
Extraordinary loss on early
extinguishment of debt............ (23.1)
Cumulative effect of change in
accounting for post employment
benefits other than pensions...... (34.7)
--------- --------- --------- --------- --------- --------- ---------
Net income............................ $ 332.2 $ 266.3 $ 50.1 $ 243.2 $ 377.4 $ 215.7 $ 208.7
========= ========= ========= ========= ========= ========= =========
Earnings per common share
Net Income:
Income from continuing
operations...................... $ 3.11 $ 2.30 $ (0.08) $ 4.00 $ 5.40 $ 2.50 $ 2.63
Income (loss) from discontinued
operations...................... 1.07 0.99 1.03 (1.17) (0.60) 0.07 (0.01)
Extraordinary loss on early
extinguishment of debt.......... (0.29)
Cumulative effect of change in
accounting for post employment
benefits other than pensions.... (0.45)
--------- --------- --------- --------- --------- --------- ---------
Net income........................ $ 4.18 $ 3.29 $ 0.50 $ 2.83 $ 4.51 $ 2.57 $ 2.62
========= ========= ========= ========= ========= ========= =========
Average number of common shares
outstanding......................... 75.5 76.2 76.7 78.1 78.5 79.3 75.0
Balance sheet data (at period end):
Total assets.......................... $27,357.1 $29,260.9 $31,133.6 $33,290.9 $36,050.5 $35,101.6 $38,956.5
Notes and loans payable:
Short-term and current portion of
long-term debt.................... 1,038.2 869.1 715.4 1,062.6 2,023.0 1,277.6 1,647.0
Long-term debt...................... 6,897.2 6,602.5 6,975.6 6,510.5 5,681.0 6,293.1 7,111.3
Shareholders' equity(1)............... 2,928.7 3,016.7 3,025.8 3,300.1 3,363.5 3,415.9 3,106.1
Book value per common share........... $ 35.63 $ 36.56 $ 36.28 $ 36.31 $ 38.46 $ 38.02 $ 38.09
</TABLE>
- ---------------
(1) In the first quarter of 1994 Transamerica adopted Statement of Financial
Accounting Standards No. 115, Accounting for Certain Investments in Debt
and Equity Securities, which resulted in all of Transamerica's investments
in debt securities being reported at fair value. As of June 30, 1994 the
unrealized loss included in shareholders' equity as a result of adopting
this new accounting standard was $14.9 million. There is no effect on the
income statement from the adoption of this new accounting standard, and
prior periods have not been restated.
S-7
<PAGE> 10
CAPITALIZATION OF TRANSAMERICA
The following table sets forth the consolidated short-term obligations and
capitalization of Transamerica as of June 30, 1994, and as adjusted to reflect
the application of the estimated net proceeds from the sale of the Series A
Preferred Securities. See "Use of Proceeds".
<TABLE>
<CAPTION>
JUNE 30, 1994
-------------------------
ACTUAL AS ADJUSTED
--------- -----------
<S> <C> <C>
(IN MILLIONS)
Short-term obligations, including current maturities............... $ 1,647.0 $
Long-term debt (1)................................................. 7,111.3
Life insurance policy liabilities.................................. 23,410.3
Other liabilities.................................................. 3,681.9
Minority interest in equity of subsidiaries........................
Shareholders' equity:
Preferred stock, par value $100 per share; 1,200,000 shares
authorized;
8.5% Preferred Stock, Series D ($500 liquidation preference)
400,000 shares issued....................................... 200.0
Dutch Auction Rate Transferable Securities
Preferred Stock ("DARTS"), Series A-1
750 shares issued........................................... 75.0
DARTS, Series B-1
750 shares issued........................................... 75.0
DARTS, Series C-1
750 shares issued........................................... 75.0
Common stock, par value $1.00 per share; 150,000,000 shares
authorized; 70,393,675 shares outstanding, after deducting
9,344,787 shares in treasury.................................. 70.4
Additional paid-in capital....................................... 152.1
Retained earnings................................................ 2,421.8
Net unrealized gain from investments marked to fair value........ 72.7
Foreign currency translation adjustments......................... (35.9)
--------- -----------
Total shareholders' equity............................... 3,106.1
--------- -----------
Total capitalization (excluding life insurance policy
liabilities, other liabilities and short-term
obligations)........................................... $10,217.4 $
========= ==========
</TABLE>
- ---------------
(1) Senior Indebtedness of Transamerica, for purposes of the subordination
provisions of the Series A Junior Subordinated Debentures, includes only
indebtedness of Transamerica on an unconsolidated basis. As of June 30,
1994, such Senior Indebtedness aggregated approximately $800 million.
Because Transamerica is a holding company, the Series A Junior Subordinated
Debentures are also effectively subordinated to all other long-term debt
and short-term obligations set forth in the above table, as well as other
liabilities of Transamerica's subsidiaries.
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities will be
invested in the Series A Junior Subordinated Debentures issued pursuant to the
Indenture described herein, and ultimately will be used by Transamerica for
general corporate purposes which may include the repayment or repurchase of its
securities.
S-8
<PAGE> 11
DESCRIPTION OF THE SERIES A PREFERRED SECURITIES
GENERAL
All of the partnership interests in Transamerica Delaware, other than the
Series A Preferred Securities offered hereby, are owned directly or indirectly
by Transamerica. The Limited Partnership Agreement authorizes and creates the
Series A Preferred Securities, which represent limited partner interests in
Transamerica Delaware (the "Preferred Securities"). Preferred Securities may be
issued from time to time in one or more series as described in the accompanying
Prospectus. The limited partner interests represented by the Series A Preferred
Securities will have a preference with respect to dividends and amounts payable
on redemption or liquidation over the General Partner's interest in Transamerica
Delaware. The Limited Partnership Agreement does not permit the issuance of any
Preferred Securities ranking, as to participation in profits and dividends and
in the assets of Transamerica Delaware, senior or junior to the Series A
Preferred Securities or the incurrence of any indebtedness by Transamerica
Delaware. The summary of certain terms and provisions of the Series A Preferred
Securities set forth below does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the Limited Partnership Agreement
and the Partnership Act.
DIVIDENDS
The dividends payable on each Series A Preferred Security will be fixed at
a rate per annum of % of the stated liquidation preference of $25 per
Preferred Security. Dividends in arrears for more than one month will bear
interest thereon at the rate per annum of % thereof. The term "dividends" as
used herein includes any such interest payable unless otherwise stated. The
amount of dividends payable for any period will be computed on the basis of a
360-day year of twelve 30-day months.
Dividends on the Series A Preferred Securities will be cumulative, will
accrue from the date of initial issuance and will be payable monthly in arrears,
on the last day of each calendar month of each year, commencing ,
1994, when, as and if determined to be so payable by Transamerica, as the
General Partner, except as otherwise described below. Transamerica has the right
under the Indenture (as hereinafter defined) to extend the interest payment
period from time to time on the Series A Junior Subordinated Debentures to a
period not exceeding 60 consecutive months, and, as a consequence, monthly
dividends on the Series A Preferred Securities would be deferred (but would
continue to accrue with interest thereon) by Transamerica Delaware during any
such extended interest payment period. In the event that Transamerica exercises
this right, Transamerica may not declare or pay dividends on, or purchase or
acquire, any of its common stock during such extension period. Prior to the
termination of any such extension period, Transamerica may further extend the
interest payment period, provided that such extension period together with all
such previous and further extensions thereof may not exceed 60 consecutive
months. Upon the termination of any extension period and the payment of all
amounts then due, Transamerica may select a new extension period, subject to the
above requirements. See "Description of the Series A Junior Subordinated
Debentures -- Interest" and "-- Option to Extend Interest Payment Period".
It is anticipated that Transamerica Delaware's earnings available for
distribution to the holders of the Series A Preferred Securities will be limited
to payments under the Series A Junior Subordinated Debentures in which
Transamerica Delaware will invest the proceeds from the issuance and sale of the
Series A Preferred Securities and the General Partnership Payment. See
"Description of the Series A Junior Subordinated Debentures". If Transamerica
fails to make interest payments on the Series A Junior Subordinated Debentures,
it is expected that Transamerica Delaware will not declare or pay dividends on
the Series A Preferred Securities. The payment of dividends (if and to the
extent declared) is guaranteed by Transamerica as and to the extent set forth
under "Description of the Guarantee" in the accompanying Prospectus. The
Guarantee does not cover payment of dividends by Transamerica Delaware unless
and until declared.
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Dividends on the Series A Preferred Securities will be payable to the
holders thereof as they appear on the books and records of Transamerica Delaware
on the relevant record dates, which, as long as the Series A Preferred
Securities remain in book-entry-only form, will be one Business Day (as defined
below) prior to the relevant payment dates. Subject to any applicable laws and
regulations and the provisions of the Limited Partnership Agreement, each such
payment will be made as described under "Book-Entry-Only Issuance -- The
Depository Trust Company" below. In the event the Series A Preferred Securities
shall not continue to remain in book-entry-only form, the General Partner shall
have the right to select relevant record dates which shall be more than one
Business Day prior to the relevant payment dates. In the event that any date on
which dividends are payable on the Series A Preferred Securities is not a
Business Day, then payment of the dividend 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. A "Business Day" shall mean any day other than a day on
which banking institutions in The City of New York are authorized or required by
law to close.
CERTAIN RESTRICTIONS ON TRANSAMERICA DELAWARE
If dividends have not been paid in full on the Series A Preferred
Securities, Transamerica Delaware shall not:
(i) declare, pay, or set aside for payment, any dividends on any other
series of Preferred Securities, unless the amounts of any dividends
declared and paid on any other series of Preferred Securities and on the
Series A Preferred Securities are on a pro rata basis on the dates such
dividends are paid on such other series of Preferred Securities, so that
(x) the aggregate amount of dividends paid on the Series A
Preferred Securities bears to the aggregate amount of dividends paid on
such other series of Preferred Securities the same ratio as
(y) the aggregate of all accrued and unpaid dividends in respect of
the Series A Preferred Securities bears to the aggregate of all accrued
and unpaid dividends in respect of such other series of Preferred
Securities; or
(ii) redeem, purchase or otherwise acquire any other Preferred
Securities;
until, in each case, such time as all accrued and unpaid dividends on the Series
A Preferred Securities shall have been paid in full for all dividend periods
terminating on or prior to, in the case of clause (i), such payment and, in the
case of clause (ii), the date of such redemption, purchase or acquisition.
As of the date of this Prospectus Supplement, there are no series of
Preferred Securities outstanding.
OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable, at the option of
Transamerica Delaware, in whole or in part, from time to time, on or after
, 1999, upon not less than 30 nor more than 60 days' notice, at the
Redemption Price. If Transamerica Delaware redeems Series A Preferred Securities
in accordance with the terms thereof, the Series A Junior Subordinated
Debentures will become due and payable in a principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred Securities so
redeemed, together with any accrued and unpaid interest on such principal amount
of Series A Junior Subordinated Debentures. See "Description of Series A Junior
Subordinated Debentures -- Mandatory Prepayment". In the event that fewer than
all the outstanding Series A Preferred Securities are to be so redeemed, the
Series A Preferred Securities to be redeemed will be selected as described under
"Book-Entry-Only Issuance -- The Depository
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Trust Company" below. If a partial redemption would result in the delisting of
the Series A Preferred Securities, Transamerica Delaware may only redeem the
Series A Preferred Securities in whole.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
If a Tax Event or an Investment Company Event (each as defined below, and
each a "Special Event") shall occur and be continuing, the General Partner shall
elect to either (i) redeem the Series A Preferred Securities in whole (and not
in part), upon not less than 30 or more than 60 days' notice at the Redemption
Price within 90 days following the occurrence of such Special Event; provided,
that, if and as long as at the time there is available to the General Partner
the opportunity to eliminate, within such 90-day period, the Special Event by
taking some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable such measure, which has no adverse effect
on Transamerica Delaware or Transamerica, the General Partner will pursue such
measure in lieu of redemption, or (ii) dissolve Transamerica Delaware and, after
satisfaction of creditors as required by the Partnership Act, cause Series A
Junior Subordinated Debentures to be distributed to the holders of the Series A
Preferred Securities in liquidation of Transamerica Delaware, within 90 days
following the occurrence of such Special Event. In the case of a Tax Event, the
General Partner also may elect to cause the Series A Preferred Securities to
remain outstanding.
"Tax Event" means that Transamerica shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that on or after the date of this Prospectus Supplement, as a result of
(a) any amendment to, or change (including any announced 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 effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after the date of this Prospectus Supplement, there is more than an
insubstantial risk that (i) Transamerica Delaware is subject to federal income
tax with respect to interest accrued or received on the Series A Junior
Subordinated Debentures, (ii) Transamerica Delaware is subject to more than a de
minimis amount of taxes, duties or other governmental charges, or (iii) interest
payable by Transamerica to Transamerica Delaware on the Series A Junior
Subordinated Debentures will not be deductible by Transamerica for federal
income tax purposes.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that Transamerica Delaware is or will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), which Change in
1940 Act Law becomes effective on or after the date of this Prospectus
Supplement; provided that no Investment Company Event shall be deemed to have
occurred if the General Partner obtains a written opinion of nationally
recognized independent counsel to the Partnership experienced in practice under
the 1940 Act to the effect that the General Partner has successfully issued an
additional or supplemental irrevocable and unconditional guarantee or taken such
other actions as may be necessary so that, in the opinion of such counsel,
notwithstanding such Change in 1940 Act Law, Transamerica Delaware is not
required to be registered as an "investment company" within the meaning of the
1940 Act. In case of any uncertainty regarding an Investment Company Event, the
good faith determination of the General Partner (based on the advice of counsel)
shall be conclusive.
After the date fixed for any distribution of Series A Junior Subordinated
Debentures, upon dissolution of Transamerica Delaware, (i) the Series A
Preferred Securities will no longer be
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deemed to be outstanding, (ii) The Depository Trust Company (the "Depository" or
"DTC") or its nominee, as the record holder of the Series A Preferred
Securities, will receive a registered global certificate or certificates
representing the Series A Junior Subordinated Debentures to be delivered upon
such distribution and (iii) any certificates representing Series A Preferred
Securities not held by DTC or its nominee will be deemed to represent Series A
Junior Subordinated Debentures having a principal amount equal to the stated
liquidation preference of such Series A Preferred Securities, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
dividends on such Series A Preferred Securities until such certificates are
presented to Transamerica or its agent for transfer or reissuance.
MANDATORY REDEMPTION
Upon the repayment of the Series A Junior Subordinated Debentures, whether
at maturity or upon redemption, repurchase or otherwise, the proceeds from such
repayment will be applied to redeem the Series A Preferred Securities, in whole,
upon not less than 30 nor more than 60 days' notice, at the Redemption Price.
REDEMPTION PROCEDURES
Transamerica Delaware may not redeem fewer than all the outstanding Series
A Preferred Securities unless all accrued and unpaid dividends have been paid on
all Series A Preferred Securities for all monthly dividend periods terminating
on or prior to the date of redemption.
If Transamerica Delaware gives a notice of redemption in respect of Series
A Preferred Securities (which notice will be irrevocable), then, by 12:00 noon,
New York City time, on the redemption date, Transamerica Delaware will
irrevocably deposit with DTC funds sufficient to pay the applicable Redemption
Price and will give DTC irrevocable instructions and authority to pay the
Redemption Price to the holders of the Series A Preferred Securities. See
"Book-Entry-Only Issuance -- The Depository Trust Company". If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of holders of such Series A Preferred
Securities so called for redemption will cease, except the right of the holders
of such Series A Preferred Securities to receive the Redemption Price, but
without interest on such Redemption Price. In the event that any date fixed for
redemption of Series A Preferred Securities is not a Business Day, then payment
of the Redemption Price 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 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. In the event that payment of the Redemption Price in respect of
Series A Preferred Securities is improperly withheld or refused and not paid
either by Transamerica Delaware or by Transamerica pursuant to the Guarantee
described under "Description of the Guarantee" in the accompanying Prospectus,
dividends on such Series A Preferred 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 Redemption Price.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), Transamerica or its subsidiaries may at
any time and from time to time purchase outstanding Series A Preferred
Securities by tender, in the open market or by private agreement. If
Transamerica Delaware purchases any Series A Preferred Securities, the Series A
Junior Subordinated Debentures may be repaid in a principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred Securities so
purchased, together with any accrued and unpaid interest on such principal
amount of Series A Junior Subordinated Debentures. See "Description of Series A
Junior Subordinated Debentures -- Mandatory Prepayment".
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LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary dissolution, winding-up or
termination of Transamerica Delaware, the holders of the Series A Preferred
Securities at the time will be entitled to receive out of the assets of
Transamerica Delaware available for distribution to partners after satisfaction
of liabilities of creditors as required by the Partnership Act, before any
distribution of assets is made to the General Partner, but together with the
holders of every other series of Preferred Securities outstanding, an amount
equal to, in the case of holders of Series A Preferred Securities, the aggregate
of the stated liquidation preference of $25 per Series A Preferred Security plus
accrued and unpaid dividends thereon to the date of payment (such amount being
the "Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, Series A Junior Subordinated Debentures in an
aggregate principal amount equal to the stated liquidation preference of such
Series A Preferred Securities, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid dividends on such Series A Preferred
Securities, shall be distributed on a pro rata basis to the holders of the
Series A Preferred Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because Transamerica Delaware has insufficient assets available to
pay in full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on any other series of Preferred Securities, then the
amounts payable directly by Transamerica Delaware on the Series A Preferred
Securities and on such other series of Preferred Securities shall be paid in
cash or in kind on a pro rata basis, so that
(x) the aggregate amount paid in respect of the Liquidation
Distribution bears to the aggregate amount paid as liquidation
distributions on the other series of Preferred Securities the same ratio as
(y) the aggregate Liquidation Distribution bears to the aggregate
maximum liquidation distributions on the other series of Preferred
Securities.
Pursuant to the Limited Partnership Agreement, Transamerica Delaware shall
be dissolved and its affairs shall be wound up: (i) on December 31, 2093, the
expiration of the term of Transamerica Delaware, (ii) upon the bankruptcy of the
General Partner, (iii) upon the assignment by the General Partner of its entire
interest in Transamerica Delaware when the assignee is not admitted to
Transamerica Delaware as a general partner of Transamerica Delaware in
accordance with the Limited Partnership Agreement, or the filing of a
certificate of dissolution or its equivalent with respect to the General
Partner, or the revocation of the General Partner's charter and the expiration
of 90 days after the date of notice to the General Partner of revocation without
a reinstatement of its charter, or any other event occurs which causes the
General Partner to cease to be a general partner of Transamerica Delaware under
the Partnership Act, unless the business of Transamerica Delaware is continued
in accordance with the Partnership Act, (iv) in accordance with the provisions
of the Series A Preferred Securities, (v) upon the entry of a decree of judicial
dissolution or (vi) upon the written consent of all partners of Transamerica
Delaware.
MERGER, CONSOLIDATION OR AMALGAMATION OF TRANSAMERICA DELAWARE
Transamerica Delaware 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 body, except as
described below. Transamerica Delaware may, without the consent of the holders
of the Series A Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by a limited partnership, limited liability company or
trust organized as such under the laws of any state of the United States of
America; provided that (i) such successor entity either (x) expressly assumes
all of the obligations of Transamerica Delaware under the Series A Preferred
Securities or (y) substitutes for the Series A Preferred Securities other
securities having substantially the same terms as the Series A Preferred
Securities (the "Successor Securities") so long as the Successor Securities
rank, with respect to participation in the profits and dividends, and
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in the assets, of the successor entity, at least as high as the Series A
Preferred Securities rank with respect to participation in the profits and
dividends, and in the assets, of Transamerica Delaware, (ii) Transamerica
expressly acknowledges such successor entity as the holder of the Series A
Junior Subordinated Debentures, (iii) the Series A Preferred Securities or any
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Series A Preferred Securities are then listed, (iv)
such merger, consolidation, amalgamation or replacement does not cause the
Series A 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
Series A Preferred Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the holders'
interest in the new entity), (vi) such successor entity has a purpose
substantially identical to that of Transamerica Delaware, (vii) prior to such
merger, consolidation, amalgamation or replacement, Transamerica has received an
opinion of nationally recognized independent counsel to Transamerica Delaware
experienced in such matters to the effect that (x) such successor entity will be
treated as a partnership for federal income tax purposes, (y) following such
merger, consolidation, amalgamation or replacement, Transamerica and such
successor entity will be in compliance with the 1940 Act without registering
thereunder as an investment company and (z) such merger, consolidation,
amalgamation or replacement will not adversely affect the limited liability of
the holders of the Series A Preferred Securities and (viii) Transamerica
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee.
VOTING RIGHTS
Except as provided below and under "Description of the
Guarantee -- Amendments and Assignment" in the accompanying Prospectus and as
otherwise required by law and the Limited Partnership Agreement, the holders of
the Series A Preferred Securities will have no voting rights.
If (i) arrearages on dividends on the Series A Preferred Securities shall
exist for 18 consecutive monthly dividend periods; (ii) an Event of Default (as
defined in the Indenture) occurs and is continuing on the Series A Junior
Subordinated Debentures; or (iii) Transamerica is in default on any of its
payment obligations under the Guarantee (as described under "Description of the
Guarantee -- Certain Covenants of Transamerica" in the accompanying Prospectus),
then the holders of the Series A Preferred Securities, together with the holders
of any other series of Preferred Securities having the right to vote for the
appointment of a special representative of Transamerica Delaware and the limited
partners (a "Special Representative") in such event, acting as a single class,
will be entitled by the vote of a majority in aggregate liquidation preference
of such holders to appoint and authorize a Special Representative to enforce
Transamerica Delaware's creditor rights under the Series A Junior Subordinated
Debentures, to enforce the rights of the holders of the Series A Preferred
Securities under the Guarantee and to enforce the rights of the holders of the
Series A Preferred Securities to receive dividends (if and to the extent
declared) on the Series A Preferred Securities. The Special Representative shall
not be admitted as a partner in Transamerica Delaware or otherwise be deemed to
be a partner in Transamerica Delaware and shall have no liability for the debts,
obligations or liabilities of Transamerica Delaware. Not later than 30 days
after such right to appoint a Special Representative arises, the General Partner
will convene a meeting for the purpose of appointing a Special Representative.
If the General Partner fails to convene such meeting within such 30-day period,
the holders of 10% in liquidation preference of the outstanding Preferred
Securities will be entitled to convene such meeting. The provisions of the
Limited Partnership Agreement relating to the convening and conduct of the
meetings of the partners will apply with respect to any such meeting. Any
Special Representative so appointed shall cease to be a Special Representative
of Transamerica Delaware and the limited partners if Transamerica Delaware (or
Transamerica pursuant to the Guarantee) shall have paid in full all accrued and
unpaid dividends on the Preferred Securities or such default or breach, as the
case
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may be, shall have been cured, and Transamerica, in its capacity as the General
Partner, shall continue the business of Transamerica Delaware without
dissolution. Notwithstanding the appointment of any such Special Representative,
Transamerica shall continue as General Partner and shall retain all rights under
the Indenture, including the right to extend the interest payment period from
time to time to a period not exceeding 60 consecutive months as provided under
"Description of the Series A Junior Subordinated Debentures -- Option to Extend
Interest Payment Period".
If any proposed amendment to the Limited Partnership Agreement provides
for, or the General Partner otherwise proposes to effect, (i) any action which
would adversely affect the powers, preferences or special rights of the Series A
Preferred Securities, whether by way of amendment to the Limited Partnership
Agreement or otherwise (including, without limitation, the authorization or
issuance of any limited partner interests in Transamerica Delaware ranking, as
to participation in the profits or dividends or in the assets of Transamerica
Delaware, senior to the Series A Preferred Securities), or (ii) the dissolution,
winding-up or termination of Transamerica Delaware, other than (x) in connection
with the distribution of Series A Junior Subordinated Debentures upon the
occurrence of a Special Event or (y) as described under "Merger, Consolidation
or Amalgamation of Transamerica Delaware" above, then the holders of outstanding
Series A Preferred Securities will be entitled to vote on such amendment or
proposal of the General Partner (but not on any other amendment or proposal) as
a class with all other holders of series of Preferred Securities similarly
affected, and such amendment or proposal shall not be effective except with the
approval of the holders of 66 2/3% in liquidation preference of such outstanding
Preferred Securities having a right to vote on the matter; provided, however,
that no such approval shall be required if the dissolution, winding-up or
termination of Transamerica Delaware is proposed or initiated upon the
initiation of proceedings, or after proceedings have been initiated, for the
dissolution, winding-up, liquidation or termination of Transamerica.
The rights attached to the Series A Preferred Securities will be deemed not
to be adversely affected by the creation or issue of, and no vote will be
required for the creation or issue of, any further limited partner interests of
Transamerica Delaware ranking pari passu with the Series A Preferred Securities
with regard to participation in the profits or dividends or in the assets of
Transamerica Delaware. Holders of Series A Preferred Securities have no
preemptive rights.
So long as any Series A Junior Subordinated Debentures are held by
Transamerica Delaware, the General Partner shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or executing any trust or power conferred on the Trustee with respect to such
series, (ii) waive any past default which is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Series A Junior Subordinated Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of at least 66 2/3% in liquidation
preference of all series of Preferred Securities affected thereby, acting as a
single class; provided, however, that where a consent under the Indenture would
require the consent of each holder affected thereby, no such consent shall be
given by the General Partner without the prior consent of each holder of all
series of Preferred Securities affected thereby. The General Partner shall not
revoke any action previously authorized or approved by a vote of any series of
Preferred Securities. The General Partner shall notify all holders of the Series
A Preferred Securities of any notice of default received from the Trustee with
respect to the Series A Junior Subordinated Debentures.
Any required approval of holders of Series A 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 partners in Transamerica Delaware or
pursuant to written consent. Transamerica Delaware will cause a notice of any
meeting at which holders of Series A 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 Series A Preferred 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
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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 Series A Preferred Securities will be
required for Transamerica Delaware to redeem and cancel Series A Preferred
Securities in accordance with the Limited Partnership Agreement.
Notwithstanding that holders of Series A Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Series A Preferred Securities and any other series of Preferred Securities that
are entitled to vote or consent with such Series A Preferred Securities as a
single class at such time that are owned by Transamerica or any entity owned
more than 50% by Transamerica, either directly or indirectly, 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.
Holders of the Series A Preferred Securities will have no rights to remove
or replace the General Partner.
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as securities depository for the Series A Preferred
Securities. The Series A Preferred Securities will be issued only as fully
registered securities registered in the name of Cede & Co. (DTC's nominee). One
or more fully registered global Series A Preferred Security certificates will be
issued, representing in the aggregate the total number of Series A Preferred
Securities, and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc. (the "New York
Stock Exchange"), the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Securities and
Exchange Commission.
Purchases of Series A Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a credit for the
Series A Preferred Securities on DTC's records. The ownership interest of each
actual purchaser of each Series A Preferred Security ("Beneficial Owner") is in
turn to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased Series A Preferred Securities. Transfers of ownership interests in the
Series A Preferred Securities are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in Series A
Preferred Securities, except in the event that use of the book-entry system for
the Series A Preferred Securities is discontinued.
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DTC has no knowledge of the actual Beneficial Owners of the Series A
Preferred Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Series A Preferred Securities are credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Series A Preferred Securities are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such series to
be redeemed.
Although voting with respect to the Series A Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor Cede & Co.
will itself consent or vote with respect to Series A Preferred Securities. Under
its usual procedures, DTC would mail an Omnibus Proxy to Transamerica Delaware
as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to whose accounts
the Series A Preferred Securities are credited on the record date (identified in
a listing attached to the Omnibus Proxy).
Dividend payments on the Series A Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Participant and not of DTC, Transamerica Delaware or Transamerica, subject
to any statutory or regulatory requirements as may be in effect from time to
time. Payment of dividends to DTC is the responsibility of Transamerica
Delaware, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to Transamerica Delaware. Under such circumstances, in the event that a
successor securities depository is not obtained, Series A Preferred Security
certificates are required to be printed and delivered. Additionally,
Transamerica Delaware (with the consent of Transamerica) may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor depository). In that event, certificates for the Series A Preferred
Securities will be printed and delivered. In each of the above circumstances,
the General Partner will appoint a paying agent with respect to the Series A
Preferred Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Transamerica Delaware believes to be
reliable, but Transamerica Delaware takes no responsibility for the accuracy
thereof.
REGISTRAR AND TRANSFER AGENT
In the event the book-entry system for the Series A Preferred Securities is
discontinued, it is anticipated that The First National Bank of Chicago, or one
of its affiliates, will act as registrar and transfer agent for the Series A
Preferred Securities.
Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of Transamerica Delaware, but upon payment (with
the giving of such indemnity as Transamerica Delaware or Transamerica may
require) in respect of any tax or other government charges which may be imposed
in relation to it.
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Transamerica Delaware will not be required to register or cause to be
registered the transfer of Series A Preferred Securities after such Series A
Preferred Securities have been called for redemption.
MISCELLANEOUS
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange.
The General Partner is authorized and directed to conduct its affairs and
to operate Transamerica Delaware in such a way that Transamerica Delaware will
not be deemed to be an "investment company" required to be registered under the
1940 Act or taxed as a corporation for federal income tax purposes and so that
the Series A Junior Subordinated Debentures will be treated as indebtedness of
Transamerica for federal income tax purposes. In this connection, the General
Partner is authorized to take any action, not inconsistent with applicable law,
the certificate of limited partnership of Transamerica Delaware or the Limited
Partnership Agreement, that the General Partner determines in its discretion to
be necessary or desirable for such purposes, as long as such action does not
adversely affect the interests of the holders of the Series A Preferred
Securities.
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DESCRIPTION OF THE SERIES A JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of specific terms of the Series A Junior
Subordinated Debentures in which Transamerica Delaware will invest the proceeds
of the issuance and sale of (i) the Series A Preferred Securities and (ii) the
General Partner's capital contribution with respect to the Series A Preferred
Securities (the "General Partnership Payment"). This description supplements the
description of the general terms and provisions of the Junior Subordinated
Debentures set forth in the accompanying Prospectus under the caption
"Description of the Junior Subordinated Debentures". The following description
does not purport to be complete and is qualified in its entirety by reference to
the description in the accompanying Prospectus and the Indenture, dated as of
, 1994, between Transamerica and The First National Bank of Chicago, as
Trustee (the "Indenture").
Under certain circumstances involving the dissolution of Transamerica
Delaware following the occurrence of a Special Event, Series A Junior
Subordinated Debentures may be distributed to the holders of the Series A
Preferred Securities in liquidation of Transamerica Delaware. See "Description
of the Series A Preferred Securities -- Special Event Redemption or
Distribution".
GENERAL
The Series A Junior Subordinated Debentures will be issued as a series of
Junior Subordinated Debentures under the Indenture. The Series A Junior
Subordinated Debentures will be limited in aggregate principal amount to
approximately $ million, such amount being the sum of the aggregate stated
liquidation preference of the Series A Preferred Securities and the General
Partnership Payment.
The entire principal amount of the Series A Junior Subordinated Debentures
will become due and payable, together with any accrued and unpaid interest
thereon, including Additional Interest (as hereinafter defined), if any, on
, 2024.
The Series A Junior Subordinated Debentures if distributed to holders of
Series A Preferred Securities in dissolution will initially be so issued as a
Global Security (as defined below). As described herein, under certain limited
circumstances Series A Junior Subordinated Debentures may be issued in
certificated form in exchange for a Global Security. See "Book-Entry and
Settlement" below. In the event that Series A Junior Subordinated Debentures are
issued in certificated form, such Series A Junior Subordinated Debentures will
be in denominations of $25 and integral multiples thereof and may be transferred
or exchanged at the offices described below.
Payments on Series A Junior Subordinated Debentures issued as a Global
Security will be made to DTC, as the depository for the Series A Junior
Subordinated Debentures. In the event Series A Junior Subordinated Debentures
are issued in certificated form, principal and interest will be payable, the
transfer of the Series A Junior Subordinated Debentures will be registrable, and
Series A Junior Subordinated Debentures will be exchangeable for Series A Junior
Subordinated Debentures of other denominations of a like aggregate principal
amount, at the corporate trust office of the Trustee in The City of New York;
provided that payment of interest may be made at the option of Transamerica by
check mailed to the address of the persons entitled thereto.
If the Series A Junior Subordinated Debentures are distributed to the
holders of Series A Preferred Securities upon the dissolution of Transamerica
Delaware, Transamerica will use its best efforts to list the Series A Junior
Subordinated Debentures on the New York Stock Exchange or on such other exchange
as the Series A Preferred Securities are then listed.
MANDATORY PREPAYMENT
If Transamerica Delaware redeems Series A Preferred Securities in
accordance with the terms thereof, the Series A Junior Subordinated Debentures
will become due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so
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redeemed, together with any accrued and unpaid interest thereon, including
Additional Interest, if any. Any payment pursuant to this provision shall be
made prior to 12:00 noon, New York City time, on the date of such redemption or
at such other time on such earlier date as the parties thereto shall agree.
OPTIONAL REDEMPTION
If there shall be no Series A Preferred Securities outstanding,
Transamerica shall have the right to redeem the Series A Junior Subordinated
Debentures, in whole or in part, from time to time, on or after ,
1999, upon not less than 30 nor more than 60 days' notice, at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest, including Additional Interest, if any, to the redemption date. If
Transamerica or TransAmerica Delaware purchases Series A Preferred Securities by
tender, in the open market or by private agreement, Transamerica shall have the
right to redeem Series A Junior Subordinated Debentures, in an amount not to
exceed the aggregate stated liquidation preference of the Series A Preferred
Securities so purchased, together with any accrued and unpaid interest thereon,
including Additional Interest, if any, to the redemption date.
INTEREST
Each Series A Junior Subordinated Debenture will bear interest at the rate
of % per annum from the original date of issuance, payable monthly in
arrears on the last day of each calendar month of each year (each, an "Interest
Payment Date"), commencing , 1994, to the person in whose name such
Series A Junior Subordinated Debenture is registered, subject to certain
exceptions, at the close of business on the Business Day next preceding such
Interest Payment Date. In the event the Series A Junior Subordinated Debentures
shall not continue to remain in book-entry-only form, Transamerica shall have
the right to select record dates which shall be more than one Business Day prior
to the Interest Payment Date.
The amount of interest payable for any period will be computed 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 A Junior Subordinated Debentures is not a
Business Day, then payment of the 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.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Transamerica shall have the right at any time during the term of the Series
A Junior Subordinated Debentures to extend the interest payment period from time
to time to a period not exceeding 60 consecutive months (the "Extension
Period"), at the end of which Extension Period Transamerica shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Series A Junior Subordinated Debentures to the extent
permitted by applicable law); provided that, during any such Extension Period,
Transamerica shall not declare or pay any dividend on, or purchase, acquire or
make a liquidation payment with respect to, any of its common stock. Prior to
the termination of any such Extension Period, Transamerica may further extend
the interest payment period, provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 60 consecutive
months. Upon the termination of any Extension Period and the payment of all
amounts then due, Transamerica may select a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. If Transamerica Delaware shall be the sole
holder of the Series A Junior Subordinated Debentures, Transamerica shall give
Transamerica Delaware notice of its selection of such Extension Period one
Business Day prior to the earlier of (i) the date the dividends on the Series A
Preferred Securities are payable or (ii) the date Transamerica Delaware is
required to give
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notice to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Series A Preferred Securities of the record
date or the date such dividend is payable, but in any event not less than one
Business Day prior to such record date. Transamerica shall cause Transamerica
Delaware to give notice of Transamerica's selection of such Extension Period to
the holders of the Series A Preferred Securities. If Transamerica Delaware shall
not be the sole holder of the Series A Junior Subordinated Debentures,
Transamerica shall give the holders of the Series A Junior Subordinated
Debentures notice of its selection of such Extension Period ten Business Days
prior to the earlier of (i) the Interest Payment Date or (ii) the date
Transamerica is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization, or to holders of the Series A Junior
Subordinated Debentures, of the record or payment date of such related interest
payment, but in any event not less than two Business Days prior to such record
date.
ADDITIONAL INTEREST
If at any time Transamerica Delaware shall be required to pay any interest
on dividends in arrears in respect of the Series A Preferred Securities pursuant
to the terms thereof, then Transamerica will pay as interest to Transamerica
Delaware as the holder of the Series A Junior Subordinated Debentures
("Additional Interest") an amount equal to such interest on dividends in
arrears.
SET-OFF
Notwithstanding anything to the contrary in the Indenture, Transamerica
shall have the right to set-off any payment it is otherwise required to make
thereunder with and to the extent Transamerica has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee.
EVENTS OF DEFAULT
In the case any Event of Default (as defined in the Indenture and as
described in the accompanying Prospectus) shall occur and be continuing,
Transamerica Delaware will have the right to declare the principal of and the
interest on the Series A Junior Subordinated Debentures (including any
Additional Interest) and any other amounts payable under the Indenture to be
forthwith due and payable and to enforce its other rights as a creditor with
respect to the Series A Junior Subordinated Debentures. See "Enforcement of
Certain Rights by Special Representative" below for a discussion of certain
rights available to holders of the Series A Preferred Securities upon the
occurrence of an Event of Default.
ENFORCEMENT OF CERTAIN RIGHTS BY SPECIAL REPRESENTATIVE
If (i) arrearages on dividends on the Series A Preferred Securities shall
exist for 18 consecutive monthly dividend periods; (ii) an Event of Default
occurs and is continuing on the Series A Junior Subordinated Debentures; or
(iii) Transamerica is in default on any of its payment obligations under the
Guarantee, under the terms of the Series A Preferred Securities, the holders of
outstanding Series A Preferred Securities will have the rights referred to under
"Description of the Series A Preferred Securities -- Voting Rights", including
the right to appoint a Special Representative, which Special Representative
shall be authorized to exercise Transamerica Delaware's right to accelerate the
principal amount of the Series A Junior Subordinated Debentures upon an Event of
Default and to enforce Transamerica Delaware's other creditor rights under the
Series A Junior Subordinated Debentures. Notwithstanding the appointment of any
such Special Representative, Transamerica shall continue as General Partner and
shall retain all rights under the Indenture, including the right to extend the
interest payment period from time to time to a period not exceeding 60
consecutive months.
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BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Series A Preferred Securities in connection
with the dissolution of Transamerica Delaware as a result of the occurrence of a
Special Event, the Series A Junior Subordinated Debentures will be issued in the
form of one or more global certificates (each, a "Global Security") registered
in the name of the nominee of DTC. Except under the limited circumstances
described below, Series A Junior Subordinated Debentures represented by the
Global Security will not be exchangeable for, and will not otherwise be issuable
as, Series A Junior Subordinated Debentures in definitive form. The Global
Securities described above may not be transferred except by DTC to a nominee of
DTC or by a nominee of DTC to DTC or another nominee of DTC or to a successor
depository or its nominee.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Series A Junior
Subordinated Debentures in definitive form and will not be considered the
Holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Series A Junior Subordinated
Debentures shall be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of DTC or its nominee or to
a successor depository or its nominee. Accordingly, each beneficial owner must
rely on the procedures of DTC and, if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest, to
exercise any rights of a Holder under the Indenture.
The Depository. DTC will act as security depository for the Series A
Junior Subordinated Debentures. For a description of DTC and the specific terms
of the depository arrangements, see "Description of the Series A Preferred
Securities -- Book-Entry-Only Issuance -- The Depository Trust Company". As of
the date of this Prospectus Supplement, the description therein of DTC's
book-entry system and DTC's practices as they relate to purchases, transfers,
notices and payments with respect to the Series A Preferred Securities apply in
all material respects to any debt obligations represented by one or more Global
Securities held by DTC.
Neither Transamerica, the Trustee, any paying agent nor any other agent of
Transamerica or 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 a Global Security for such Series A Junior Subordinated
Debentures or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Discontinuance of the Depository's Services. A Global Security shall be
exchangeable for Series A Junior Subordinated Debentures registered in the names
of persons other than DTC or its nominee only if (i) DTC notifies Transamerica
that it is unwilling or unable to continue as a depository for such Global
Security and no successor depository shall have been appointed, or if any time
DTC ceases to be a clearing agency registered under the Exchange Act at a time
when DTC is required to be so registered to act as such depository, (ii)
Transamerica in its sole discretion determines that such Global Security shall
be so exchangeable or (iii) there shall have occurred an Event of Default with
respect to such Series A Junior Subordinated Debentures. Any Global Security
that is exchangeable pursuant to the preceding sentence shall be exchangeable
for Series A Junior Subordinated Debentures registered in such names as the
Depository shall direct. It is expected that such instructions will be based
upon directions received by the Depository from its Participants with respect to
ownership of beneficial interests in such Global Security.
MISCELLANEOUS
For restrictions on certain actions of the General Partner with respect to
Series A Junior Subordinated Debentures held by Transamerica Delaware, see
"Description of the Series A Preferred Securities -- Voting Rights".
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RELATIONSHIP BETWEEN THE SERIES A PREFERRED SECURITIES, THE
SERIES A JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
As long as payments of interest and other payments are made when due on the
Series A Junior Subordinated Debentures, such payments will be sufficient to
cover dividends (if and to the extent declared) and other payments due on the
Series A Preferred Securities primarily because (i) the aggregate principal
amount of Series A Junior Subordinated Debentures will be equal to the sum of
the aggregate stated liquidation preference of the Series A Preferred Securities
and the General Partnership Payment; (ii) the interest rate and interest and
other payment dates on the Series A Junior Subordinated Debentures will match
the dividend rate and dividend and other payment dates for the Series A
Preferred Securities; (iii) the Limited Partnership Agreement provides that
Transamerica, as General Partner, shall pay for all, and Transamerica Delaware
shall not be obligated to pay, directly or indirectly, for any, costs and
expenses of Transamerica Delaware, including any income taxes, duties and other
governmental charges, and all costs and expenses with respect thereto, to which
Transamerica Delaware may become subject except for United States withholding
taxes; and (iv) the Limited Partnership Agreement further provides that the
General Partner shall not cause or permit Transamerica Delaware to, among other
things, engage in any activity that is not consistent with the limited purposes
of Transamerica Delaware.
Payments of dividends (if and to the extent declared) and other payments
due on the Series A Preferred Securities are guaranteed by Transamerica to the
extent set forth under "Description of the Guarantee" in the accompanying
Prospectus. If Transamerica fails to make interest payments on the Series A
Junior Subordinated Debentures purchased by Transamerica Delaware, it is
expected that Transamerica Delaware will not declare or pay dividends on the
Series A Preferred Securities. The Guarantee does not cover payment of dividends
by Transamerica Delaware unless and until declared.
If Transamerica fails to make interest or other payments on the Series A
Junior Subordinated Debentures when due, the Limited Partnership Agreement
provides a mechanism whereby the holders of the Series A Preferred Securities
may enforce the rights of Transamerica Delaware under the Series A Junior
Subordinated Debentures through the appointment of a Special Representative. The
Limited Partnership Agreement also provides, and Transamerica, under the
Guarantee, acknowledges, that a Special Representative may be appointed to
enforce the Guarantee if Transamerica is in default on any of its payment
obligations under the Guarantee. In addition, if the General Partner or the
Special Representative fails to enforce the Guarantee, a holder of a Series A
Preferred Security may institute a legal proceeding directly against
Transamerica to enforce its rights under the Guarantee without first instituting
a legal proceeding against Transamerica Delaware or any other person or entity.
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UNITED STATES TAXATION
GENERAL
This section is a summary of certain United States federal income tax
considerations that may be relevant to prospective purchasers of Series A
Preferred Securities and represents the opinion of Wachtell, Lipton, Rosen &
Katz, special counsel to Transamerica and Transamerica Delaware, insofar as it
relates to matters of law and legal conclusions. This section is based upon
current provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), existing and proposed regulations thereunder and current administrative
rulings and court decisions, all of which are subject to change. Subsequent
changes may cause tax consequences to vary substantially from the consequences
described below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Series A
Preferred Securities. Moreover, the discussion generally focuses on holders of
Series A Preferred Securities who are individual citizens or residents of the
United States and who hold the Series A Preferred Securities as capital assets.
This discussion has only limited application to corporations, estates, trusts or
non-resident aliens. Accordingly, each prospective purchaser of Series A
Preferred Securities should consult, and should depend on, the purchaser's own
tax advisor in analyzing the federal, state, local and foreign tax consequences
of the purchase, ownership or disposition of Series A Preferred Securities.
OPINION OF COUNSEL
In the opinion of Wachtell, Lipton, Rosen & Katz, (i) Transamerica Delaware
will be a partnership for federal income tax purposes; and (ii) the Series A
Junior Subordinated Debentures will be classified as indebtedness of
Transamerica. Several recent pronouncements of the IRS, however, evidence
increasing concern by the IRS over arrangements similar in some respects to
those involving Transamerica Delaware, the Series A Preferred Securities, and
the Series A Junior Subordinated Debentures. While these pronouncements are not
considered to apply to the arrangements described herein, it is possible that
future pronouncements or other developments could adversely affect such
arrangements. It should be noted in this connection that Transamerica has the
right to redeem the Series A Preferred Securities or dissolve Transamerica
Delaware upon the occurrence of a "Tax Event" as defined under the caption
"Description of the Series A Preferred Securities -- Special Event Redemption or
Distribution".
INCOME FROM SERIES A PREFERRED SECURITIES
Each holder of Series A Preferred Securities (a "Preferred Securityholder")
will be required to include in gross income the Preferred Securityholder's
distributive share of the net income of Transamerica Delaware. Such income
should not exceed the dividends received on such Series A Preferred Securities,
except in limited circumstances as described below under "Potential Extension of
Interest Payment Period". No portion of such income will be eligible for the
dividends received deduction.
Transamerica Delaware does not currently intend to make an election under
Section 754 of the Code. As a result, a subsequent purchaser of Series A
Preferred Securities in the secondary market will not be permitted or required
to adjust the tax basis in its allocable share of Transamerica Delaware's assets
so as to reflect any difference between its purchase price for the Preferred
Securities and the underlying tax basis of Transamerica Delaware in its assets.
As a result, a holder of a Preferred Security may be allocated a larger or
smaller amount of Transamerica Delaware's income than would otherwise be
appropriate based upon such holder's purchase price for the Preferred Security.
Under Section 708 of the Code, Transamerica Delaware will be deemed to
terminate for federal income tax purposes if 50% or more of the capital and
profits interest in Transamerica Delaware are
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sold or exchanged within a 12-month period. If such a termination occurs, there
will be a closing of Transamerica Delaware's taxable year for all partners and
Transamerica Delaware will be considered to distribute its assets to the
partners, who would then be treated as recontributing those assets to a new
partnership. Those assets might have a basis higher or lower than their basis in
the hands of Transamerica Delaware prior to termination, which might alter the
tax consequences to holders.
DISPOSITION OF SERIES A PREFERRED SECURITIES
Gain or loss will be recognized on a sale of Series A Preferred Securities,
including a redemption for cash, equal to the difference between the amount
realized and the Preferred Securityholder's tax basis for the Series A Preferred
Securities sold. Gain or loss recognized by a Preferred Securityholder on the
sale or exchange of a Series A Preferred Security held for more than one year
generally will be taxable as long-term capital gain or loss.
RECEIPT OF SERIES A JUNIOR SUBORDINATED DEBENTURES
UPON LIQUIDATION OF TRANSAMERICA DELAWARE
Under certain circumstances, as described under the caption "Description of
the Series A Preferred Securities -- Special Event Redemption or Distribution",
Series A Junior Subordinated Debentures may be distributed to the holders of the
Series A Preferred Securities in liquidation of Transamerica Delaware. Under
current United States federal income tax law, such a distribution would be
treated as a non-taxable exchange to each holder of Series A Preferred
Securities and would result in the holder of Series A Preferred Securities
receiving an aggregate tax basis in the Series A Junior Subordinated Debentures
equal to such holder's aggregate tax basis in its Series A Preferred Securities.
A holder's holding period in the Series A Junior Subordinated Debentures so
received in liquidation of Transamerica Delaware would include the period for
which the Series A Preferred Securities were held by such holder. As a result,
in certain circumstances the Series A Junior Subordinated Debentures received in
liquidation might bear "market discount", "amortizable bond premium", or
"acquisition premium" which might alter the tax treatment of such Debentures in
the hands of the holder as compared with the consequences of holding Series A
Preferred Securities. Under a change in law, a change in legal interpretation or
the other circumstances giving rise to a Special Event, however, the dissolution
could be a taxable event to holders of the Series A Preferred Securities.
TRANSAMERICA DELAWARE INFORMATION RETURNS AND AUDIT PROCEDURES
Transamerica, as the General Partner in Transamerica Delaware, will furnish
each Series A Preferred Securityholder with a Schedule K-1 each year setting
forth such Series A Preferred Securityholder's allocable share of income for the
prior calendar year. Transamerica is required to furnish such Schedule K-1 as
soon as practicable following the end of the year, but in any event prior to
March 31.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to Transamerica Delaware (a) the name, address and
taxpayer identification number of the beneficial owner and the nominee; (b)
information as to whether the beneficial owner is (i) a person that is not a
United States person, (ii) a foreign government, an international organization
or any wholly-owned agency or instrumentality of either of the foregoing, or
(iii) a tax-exempt entity; (c) the amount and description of Series A Preferred
Securities held, acquired or transferred for the beneficial owner; and (d)
certain information including the dates of acquisitions and transfers, means of
acquisitions and transfers, and acquisition cost for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on Series A Preferred Securities they
acquire, hold or transfer for their own accounts. A penalty of $50 per failure
(up to a maximum of $100,000 per calendar year) is imposed by the Code for
failure to report such information to Transamerica Delaware. The nominee is
required to supply the beneficial
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owners of the Series A Preferred Securities with the information furnished to
Transamerica Delaware.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD
Under the Indenture, Transamerica has the right to extend from time to time
the interest payment period on the Series A Junior Subordinated Debentures to a
period not exceeding 60 consecutive months. In the event that the interest
payment period is extended, Transamerica Delaware will continue to accrue income
equal to the amount of the interest payment due at the end of the Extension
Period, on an economic basis over the length of the Extension Period.
Accrued income will be allocated, but not distributed, to holders of record
on the Business Day preceding the last day of each calendar month. As a result,
holders of record during an Extension Period will include interest in their
gross income in advance of the receipt of cash, and any such holders who dispose
of Series A Preferred Securities prior to the record date for the payment of
dividends following such Extension Period will include interest in their gross
income but will not receive any cash related thereto from Transamerica Delaware.
The tax basis of a Series A Preferred Security will be increased by the amount
of any interest that is included in income without a receipt of cash, and will
be decreased again when and if such cash is subsequently received from
Transamerica Delaware.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
holder who or which is (i) a nonresident alien individual or (ii) a foreign
corporation, partnership or estate or trust, in either case not subject to
United States federal income tax on a net income basis in respect of a Series A
Preferred Security.
Under current United States federal income tax law, subject to the
discussion below with respect to backup withholding:
(i) payments by Transamerica Delaware or any of its paying agents to
any holder of a Series A Preferred Security who or which is a United States
Alien Holder should not be subject to United States federal withholding tax
provided that (a) the beneficial owner of the Series A Preferred Security
does not actually or constructively own 10%, or more of the total combined
voting power of all classes of capital stock of Transamerica entitled to
vote, (b) the beneficial owner of the Series A Preferred Security is not a
controlled foreign corporation that is related to Transamerica through
stock ownership and (c) either (x) the beneficial owner of the Series A
Preferred Security certifies to Transamerica Delaware or its agent, under
penalties of perjury, that it is a United States Alien Holder and provides
its name and address or (y) the holder of the Series A Preferred Security
is a securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or
business (a "financial institution"), and such holder certifies to
Transamerica Delaware or its agent under penalties of perjury that such
statement has been received from the beneficial owner by it or by a
financial institution between it and the beneficial owner and furnishes
Transamerica Delaware or its agent with a copy thereof; and
(ii) a United States Alien Holder of a Series A Preferred Security
generally will not be subject to United States federal withholding tax on
any gain realized on the sale or exchange of a Series A Preferred Security
unless such holder is present in the United States for 183 days or more in
the taxable year of sale and either has a "tax home" in the United States
or certain other requirements are met.
In the event that the Series A Preferred Securities were characterized as
stock or other equity of Transamerica, payments to a holder characterized as
dividends could be subject to a 30% withholding tax or such lesser amount as may
be provided under an applicable treaty.
S-26
<PAGE> 29
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate United States holders of the proceeds of the sale of Series A
Preferred Securities within the United States and "backup withholding" at a rate
of 31% will apply to such payments if the United States holder fails to provide
an accurate taxpayer identification number.
Payments of the proceeds from the sale by a United States Alien Holder of
Series A Preferred Securities made to or through a foreign office of a broker
generally will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments. Payments of the proceeds from the sale of Series A Preferred
Securities to or through the United States office of a broker is subject to
information reporting and backup withholding unless the holder or beneficial
owner certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding.
S-27
<PAGE> 30
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement,
Transamerica Delaware has agreed to sell to each of the Underwriters named
below, and each of the Underwriters, for whom Goldman, Sachs & Co.
and , are acting as Representatives, has severally agreed to
purchase from Transamerica Delaware, the respective number of Series A Preferred
Securities set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITER SECURITIES
----------------------------------------------------------------- ---------
<S> <C>
Goldman, Sachs & Co..............................................
---------
Total..................................................
=========
</TABLE>
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $ per Series A Preferred
Security. The Underwriters may allow, and such dealers may reallow, a concession
not in excess of $ per Series A Preferred Security to certain brokers
and dealers. After the Series A Preferred Securities are released for sale to
the public, the offering price and other selling terms may from time to time be
varied by the Representatives.
In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will ultimately be used to purchase the Series A Junior Subordinated
Debentures, the Underwriting Agreement provides that Transamerica will pay as
compensation ("Underwriters' Compensation"), for the Underwriters' arranging the
investment therein of such proceeds, an amount in
funds of $ per Series A Preferred Security ($ per Series A
Preferred Security sold to certain institutions) for the accounts of the several
Underwriters.
Transamerica and Transamerica Delaware have agreed, during the period
beginning from the date of the Underwriting Agreement and continuing to and
including the earlier of (i) the date, after the closing date, on which the
distribution of the Series A Preferred Securities ceases, as determined by the
Underwriters, or (ii) 90 days after the closing date, not to offer, sell,
contract to sell, or otherwise dispose of any Series A Preferred Securities, any
limited partner interests of Transamerica Delaware, or any preferred stock or
any other securities of Transamerica Delaware or Transamerica which are
substantially similar to the Series A Preferred Securities including the
Guarantee, or any securities convertible into or exchangeable for Series A
Preferred Securities, limited partner interests, preferred stock or such
substantially similar securities of either Transamerica Delaware or
Transamerica, without the prior written consent of the Underwriters.
Prior to this offering, there has been no public market for the Series A
Preferred Securities. In order to meet one of the requirements for listing the
Series A Preferred Securities on the New York Stock Exchange, the Underwriters
will undertake to sell lots of 100 or more Series A Preferred Securities to a
minimum of 400 beneficial holders.
Transamerica Delaware and Transamerica have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
Certain of the Underwriters engage in transactions with, and from time to
time have performed services for, Transamerica and its subsidiaries in the
ordinary course of business.
S-28
<PAGE> 31
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Series A
Preferred Securities, the validity of the Limited Partnership Agreement and the
formation of Transamerica Delaware are being passed upon by Richards, Layton &
Finger, P.A., special Delaware counsel to Transamerica and Transamerica
Delaware. The validity of the Indenture, the Guarantee and the Series A Junior
Subordinated Debentures will be passed upon on behalf of Transamerica Delaware
and Transamerica by Christopher M. McLain, Senior Vice President and General
Counsel of Transamerica, and on behalf of the Underwriters by Cleary, Gottlieb,
Steen & Hamilton, counsel to the Underwriters. Statements as to United States
taxation in the Prospectus Supplement in the second paragraph under the caption
"Investment Considerations -- Special Event Redemption or Distribution", and
under the caption "United States Taxation", have been passed upon for
Transamerica and Transamerica Delaware by Wachtell, Lipton, Rosen & Katz,
special tax counsel to Transamerica and Transamerica Delaware, and are stated
herein on their authority.
S-29
<PAGE> 32
- ----------------------------------------------------------
- ----------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OTHER THAN THE SECURITIES DESCRIBED IN THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR
THE PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
---------------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Transamerica Delaware.................... S-4
Transamerica Corporation................. S-4
Investment Considerations................ S-5
Summary Consolidated Financial Data...... S-7
Capitalization of Transamerica........... S-8
Use of Proceeds.......................... S-8
Description of the Series A Preferred
Securities............................. S-9
Description of the Series A Junior
Subordinated Debentures................ S-19
Relationship between the Series A
Preferred Securities, the Series A
Junior Subordinated Debentures and the
Guarantee.............................. S-23
United States Taxation................... S-24
Underwriting............................. S-28
Legal Matters............................ S-29
PROSPECTUS
Available Information.................... 2
Incorporation of Certain Documents by
Reference.............................. 3
Transamerica Delaware.................... 3
Transamerica Corporation................. 3
Consolidated Ratios of Earnings to Fixed
Charges and Earnings to Combined Fixed
Charges and Preferred Stock Dividends
of Transamerica Corporation............ 4
Use of Proceeds.......................... 4
Description of the Preferred
Securities............................. 5
Description of the Guarantee............. 6
Description of the Junior Subordinated
Debentures............................. 8
Plan of Distribution..................... 13
Experts.................................. 14
Legal Opinions........................... 14
</TABLE>
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
PREFERRED SECURITIES
TRANSAMERICA DELAWARE
% CUMULATIVE MONTHLY INCOME
PREFERRED SECURITIES, SERIES A
GUARANTEED TO THE EXTENT
SET FORTH HEREIN BY
TRANSAMERICA CORPORATION
------------------
[LOGO]
------------------
GOLDMAN, SACHS & CO.
REPRESENTATIVES OF THE UNDERWRITERS
----------------------------------------------------------
----------------------------------------------------------
<PAGE> 33
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING 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 SUPPLEMENT SHALL NOT CONSTITUTE AN OFFER
TO SELL OR THE SOLICITATION OF AN 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 AUGUST 11, 1994
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED AUGUST , 1994
[ ] PREFERRED SECURITIES
TRANSAMERICA DELAWARE
CUMULATIVE ADJUSTABLE RATE MONTHLY INCOME PREFERRED SECURITIES,
SERIES A ("MIPS"*)
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
[LOGO] GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
TRANSAMERICA CORPORATION
---------------------
The Cumulative Adjustable Rate Monthly Income Preferred Securities, Series
A (the "Series A Preferred Securities"), representing the limited partner
interests offered hereby are being issued by Transamerica Delaware, L.P., a
limited partnership formed under the laws of the State of Delaware
("Transamerica Delaware"). Transamerica Corporation, a Delaware corporation
("Transamerica"), is the sole general partner in Transamerica Delaware.
Transamerica Delaware exists for the sole purpose of issuing its partnership
interests and investing the proceeds thereof in debt securities of Transamerica.
The limited partner interests represented by the Series A Preferred Securities
will have a preference with respect to cash distributions and amounts payable on
liquidation over the general partner's interest in Transamerica Delaware.
(Continued on next page)
---------------------
SEE "INVESTMENT CONSIDERATIONS" FOR CERTAIN INFORMATION RELEVANT TO AN
INVESTMENT IN THE SERIES A PREFERRED SECURITIES, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS ON THE SERIES A PREFERRED
SECURITIES AND SERIES A JUNIOR SUBORDINATED DEBENTURES MAY BE DEFERRED AND THE
RELATED FEDERAL INCOME TAX CONSEQUENCES.
---------------------
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 SUPPLEMENT OR
THE PROSPECTUS TO WHICH IT RELATES. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
---------------------
<TABLE>
<CAPTION>
PROCEEDS TO
INITIAL PUBLIC UNDERWRITING TRANSAMERICA
OFFERING PRICE COMMISSION(1) DELAWARE(2)(3)
-------------- ------------- --------------
<S> <C> <C> <C>
Per Series A Preferred Security....................... $ (2) $
Total................................................. $ (2) $
</TABLE>
- ---------------
(1) Transamerica Delaware and Transamerica have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting".
(2) In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will ultimately be invested in Series A Junior Subordinated
Debentures, the Underwriting Agreement provides that Transamerica will pay
to the Underwriters, as compensation ("Underwriters' Compensation") for
their arranging the investment therein of such proceeds, $ per Series
A Preferred Security; provided, that such compensation will be $ per
Series A Preferred Security sold to certain institutions. Accordingly, the
maximum aggregate amount of Underwriters' Compensation will be $ ,
but the actual amount of Underwriters' Compensation will be less than such
amount to the extent that Series A Preferred Securities are sold to such
institutions. See "Underwriting".
(3) Expenses of the offering, which are payable by Transamerica, are estimated
to be $ .
---------------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of the Series A Preferred Securities will be made only in
book-entry form through the facilities of The Depository Trust Company on or
about , 1994.
- ---------------
* An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
GOLDMAN, SACHS & CO.
---------------------
The date of this Prospectus Supplement is , 1994.
<PAGE> 34
(Continued from front cover)
Cash distributions on the Series A Preferred Securities will be cumulative
from the date of original issuance and will be payable monthly in arrears on the
last day of each calendar month of each year, commencing , 1994
("dividends"), if and to the extent determined to be payable ("declared") by
Transamerica in its capacity as general partner of Transamerica Delaware (the
"General Partner"). The dividend rate will be adjusted quarterly. The rate for
the initial period from the date of initial issuance to , 1994 will
be % per annum, which is equivalent to $ per Series A Preferred
Security per annum. Thereafter, dividends on the Series A Preferred Securities
will be payable at the "Applicable Rate" from time to time in effect. The
Applicable Rate for any quarter will be equal to % of the highest of the
"Treasury Bill Rate", the "Ten Year Constant Maturity Rate" and the "Thirty Year
Constant Maturity Rate" (each as defined herein) determined in advance of such
quarter, but not less than % per annum nor greater than % per annum.
See "Description of the Series A Preferred Securities -- Dividends".
The payment of dividends (if and to the extent declared) and payments on
liquidation of Transamerica Delaware and the redemption of Series A Preferred
Securities, as set forth below, are guaranteed by Transamerica to the extent
described herein and in the accompanying Prospectus (the "Guarantee"). See
"Description of the Guarantee" in the accompanying Prospectus. The proceeds of
the offering of the Series A Preferred Securities will be used to purchase from
Transamerica its Adjustable Rate Junior Subordinated Deferrable Interest
Debentures, Series A, Due 2024 (the "Series A Junior Subordinated Debentures").
If Transamerica fails to make interest payments on the Series A Junior
Subordinated Debentures, it is expected that Transamerica Delaware will not
declare or pay dividends on the Series A Preferred Securities. The Guarantee
does not cover payment of dividends by Transamerica Delaware unless and until
declared.
The Series A Preferred Securities are redeemable at the option of
Transamerica Delaware, in whole or in part, from time to time, on or after
, 1999, at $25 per Series A Preferred Security plus accrued and
unpaid dividends thereon to the date fixed for redemption (the "Redemption
Price"). See "Description of the Series A Preferred Securities -- Optional
Redemption".
In addition, upon the occurrence of certain special events arising from a
change in law or a change in legal interpretation or other specified
circumstances, the Series A Preferred Securities are redeemable in whole at the
Redemption Price at the option of Transamerica as the General Partner, or the
General Partner may dissolve Transamerica Delaware and cause to be distributed
to the holders of the Series A Preferred Securities, on a pro rata basis, the
Series A Junior Subordinated Debentures in lieu of any cash distribution. If the
Series A Junior Subordinated Debentures are distributed to the holders of the
Series A Preferred Securities, Transamerica will use its best efforts to have
the Series A Junior Subordinated Debentures listed on the New York Stock
Exchange or on such other exchange as the Series A Preferred Securities are then
listed. The obligations of Transamerica under the Series A Junior Subordinated
Debentures are subordinate and junior in right of payment to Senior Indebtedness
(as defined in the accompanying Prospectus) of Transamerica. At June 30, 1994,
Senior Indebtedness of Transamerica (on an unconsolidated basis) aggregated
approximately $800 million. Because Transamerica is a holding company, the
Series A Junior Subordinated Debentures are also effectively subordinated to all
existing and future liabilities, including trade payables, of Transamerica's
subsidiaries, except to the extent Transamerica is a creditor of the
subsidiaries recognized as such. See "Description of the Series A Preferred
Securities -- Special Event Redemption or Distribution" and "Description of the
Series A Junior Subordinated Debentures".
In the event of the dissolution of Transamerica Delaware, the holders of
the Series A Preferred Securities will be entitled to receive for each Series A
Preferred Security a liquidation preference of $25 plus accrued and unpaid
dividends thereon to the date of payment, subject to certain limitations,
unless, in connection with such dissolution, Series A Junior Subordinated
Debentures are distributed to the holders of the Series A Preferred Securities.
See "Description of the Series A Preferred Securities -- Liquidation
Distribution Upon Dissolution".
---------------------
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange.
S-2
<PAGE> 35
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
------------------------
FOR NORTH CAROLINA PURCHASERS: THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE COMMISSIONER OF INSURANCE FOR THE STATE OF NORTH CAROLINA,
NOR HAS THE COMMISSIONER OF INSURANCE RULED UPON THE ACCURACY OR ADEQUACY OF
THIS DOCUMENT.
------------------------
S-3
<PAGE> 36
TRANSAMERICA DELAWARE
Transamerica Delaware is a limited partnership which was formed under the
Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") on
August 9, 1994. The initial partners in Transamerica Delaware are Transamerica,
as general partner, and Transamerica LP Holdings Corp., a Delaware corporation
and a wholly-owned subsidiary of Transamerica ("Transamerica Holdings"), as
limited partner. Upon the issuance of the Series A Preferred Securities, which
securities represent limited partner interests in Transamerica Delaware,
Transamerica Holdings will remain as a limited partner, but will have no
interest in the profits and dividends or in the assets of Transamerica Delaware.
The General Partner will agree to contribute capital to the extent required to
maintain its capital at an amount equal to at least 3% of the total capital
contributions to Transamerica Delaware. Transamerica and Transamerica Holdings
entered into a limited partnership agreement dated as of , 1994. Such
limited partnership agreement will be amended and restated in its entirety (as
so amended and restated, the "Limited Partnership Agreement") substantially in
the form filed as an exhibit to the Registration Statement of which this
Prospectus Supplement and the accompanying Prospectus form a part.
Transamerica Delaware is managed by the General Partner and exists for the
sole purpose of issuing its partnership interests and investing the proceeds
thereof in junior subordinated debentures of Transamerica ("Junior Subordinated
Debentures"). The rights of the holders of the Series A Preferred Securities,
including economic rights, rights to information and voting rights, are set
forth in the Limited Partnership Agreement and the Partnership Act. See
"Description of the Series A Preferred Securities".
The business address of Transamerica Delaware is c/o Transamerica
Corporation, 600 Montgomery Street, San Francisco, California 94111, telephone
number (415) 983-4000.
TRANSAMERICA CORPORATION
Transamerica Corporation is a diversified financial services company, whose
core businesses include consumer lending, commercial lending, leasing, real
estate services, life insurance and asset management. Transamerica was
incorporated in Delaware in 1928. At June 30, 1994, Transamerica had
consolidated assets of $39.0 billion and total shareholders' equity of $3.1
billion. For the year ended December 31, 1993, Transamerica had revenues of $4.8
billion and net income of $377 million.
Because Transamerica is a holding company, the Series A Junior Subordinated
Debentures are effectively subordinated to all existing and future liabilities,
including trade payables, of Transamerica's subsidiaries, except to the extent
Transamerica is a creditor of the subsidiaries recognized as such.
The principal executive offices of Transamerica are located at 600
Montgomery Street, San Francisco, California 94111. Transamerica's telephone
number is (415) 983-4000.
S-4
<PAGE> 37
INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities should carefully
review the information contained elsewhere in this Prospectus Supplement and in
the accompanying Prospectus and should particularly consider the following
matters:
SUBORDINATION OF GUARANTEE AND SERIES A JUNIOR SUBORDINATED
DEBENTURES. Transamerica's obligations under the Guarantee are subordinate and
junior in right of payment to all other liabilities of Transamerica except those
made pari passu by their terms. The obligations of Transamerica under the Series
A Junior Subordinated Debentures described under "Description of the Series A
Junior Subordinated Debentures" are subordinate and junior in right of payment
to Senior Indebtedness of Transamerica. At June 30, 1994, Senior Indebtedness of
Transamerica (on an unconsolidated basis) aggregated approximately $800 million.
Because Transamerica is a holding company, the Series A Junior Subordinated
Debentures are also effectively subordinated to all existing and future
liabilities, including trade payables, of Transamerica's subsidiaries, except to
the extent Transamerica is a creditor of the subsidiaries recognized as such. At
June 30, 1994, Transamerica's subsidiaries had outstanding $8.0 billion of
indebtedness, $23.4 billion of life insurance policy liabilities and
approximately $3.7 billion of other liabilities. There are no terms in the
Series A Preferred Securities, the Series A Junior Subordinated Debentures or
the Guarantee that limit Transamerica's ability to incur additional
indebtedness, including indebtedness that ranks senior to the Series A Junior
Subordinated Debentures and the Guarantee. See "Description of the
Guarantee -- Status of the Guarantee" and "Description of the Junior
Subordinated Debentures -- Subordination" in the accompanying Prospectus.
OPTION TO EXTEND INTEREST PAYMENT PERIOD. Transamerica has the right under
the Indenture (as defined herein) to extend the interest payment period from
time to time on the Series A Junior Subordinated Debentures to a period not
exceeding 60 consecutive months, and, as a consequence, monthly dividends on the
Series A Preferred Securities would be deferred (but would continue to accrue
with interest thereon) by Transamerica Delaware during any such extended
interest payment period. In the event that Transamerica exercises this right,
Transamerica may not during such period declare or pay dividends on, or purchase
or acquire, any of its common stock. Prior to the termination of any such
extension period, Transamerica may further extend the interest payment period,
provided that such extension period together with all such previous and further
extensions thereof may not exceed 60 consecutive months. Upon the termination of
any extension period and the payment of all amounts then due, Transamerica may
select a new extension period, subject to the above requirements. See
"Description of the Series A Preferred Securities -- Dividends" and "Description
of the Series A Junior Subordinated Debentures -- Option to Extend Interest
Payment Period".
Should an extended interest payment period occur, Transamerica Delaware
will continue to accrue income for United States federal income tax purposes
which will be allocated, but not distributed by way of cash dividends, to
holders of record of Series A Preferred Securities. As a result, such a holder
will include such interest in such holder's gross income for United States
federal income tax purposes in advance of the receipt of cash, and will not
receive the cash from Transamerica Delaware related to such income if such a
holder disposes of his or her Series A Preferred Securities prior to the record
date for payment of dividends. See "United States Taxation -- Potential
Extension of Interest Payment Period".
SPECIAL EVENT REDEMPTION OR DISTRIBUTION. Upon the occurrence of a Special
Event (as defined herein), the General Partner shall elect to either (i) redeem
the Series A Preferred Securities in whole or (ii) dissolve Transamerica
Delaware and cause Series A Junior Subordinated Debentures to be distributed to
the holders of the Series A Preferred Securities in connection with the
liquidation of Transamerica Delaware. In the case of a Tax Event (as defined
herein), however, the General Partner may also elect to cause the Series A
Preferred Securities to remain outstanding.
S-5
<PAGE> 38
See "Description of the Series A Preferred Securities -- Special Event
Redemption or Distribution" and "Description of the Series A Junior Subordinated
Debentures -- General".
Under current United States federal income tax law and interpretation, such
a distribution would not be a taxable event to holders of the Series A Preferred
Securities. Under a change in law, a change in legal interpretation or the other
circumstances giving rise to a Special Event, however, the dissolution could be
a taxable event to holders of the Series A Preferred Securities. See "United
States Taxation -- Receipt of Series A Junior Subordinated Debentures Upon
Liquidation of Transamerica Delaware".
S-6
<PAGE> 39
SUMMARY CONSOLIDATED FINANCIAL DATA
This summary is qualified in its entirety by the detailed information and
financial statements included in the documents incorporated by reference herein,
including that for interim periods. The information furnished for the six months
ended June 30, 1994 and 1993 reflects all adjustments and accruals which are, in
the opinion of the management of Transamerica, necessary for a fair statement of
the results for such periods. The results of operations in the interim
statements are not necessarily indicative of the results that may be expected
for the full year. See "Incorporation of Certain Documents by Reference" in the
accompanying Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
--------------------------------------------------------- ---------------------
1989 1990 1991 1992 1993 1993 1994
--------- --------- --------- --------- --------- --------- ---------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues.............................. $ 4,476.1 $ 4,097.7 $ 4,175.2 $ 4,550.9 $ 4,813.3 $ 2,362.5 $ 2,598.4
Net income:
Income from continuing operations... 251.3 190.5 5.7 334.0 447.5 210.3 209.4
Income (loss) from discontinued
operations........................ 80.9 75.8 79.1 (90.8) (47.0) 5.4 (0.7)
Extraordinary loss on early
extinguishment of debt............ (23.1)
Cumulative effect of change in
accounting for post employment
benefits other than pensions...... (34.7)
--------- --------- --------- --------- --------- --------- ---------
Net income............................ $ 332.2 $ 266.3 $ 50.1 $ 243.2 $ 377.4 $ 215.7 $ 208.7
========= ========= ========= ========= ========= ========= =========
Earnings per common share
Net Income:
Income from continuing
operations...................... $ 3.11 $ 2.30 $ (0.08) $ 4.00 $ 5.40 $ 2.50 $ 2.63
Income (loss) from discontinued
operations...................... 1.07 0.99 1.03 (1.17) (0.60) 0.07 (0.01)
Extraordinary loss on early
extinguishment of debt.......... (0.29)
Cumulative effect of change in
accounting for post employment
benefits other than pensions.... (0.45)
--------- --------- --------- --------- --------- --------- ---------
Net income.......................... $ 4.18 $ 3.29 $ 0.50 $ 2.83 $ 4.51 $ 2.57 $ 2.62
========= ========= ========= ========= ========= ========= =========
Average number of common shares
outstanding......................... 75.5 76.2 76.7 78.1 78.5 79.3 75.0
Balance sheet data (at period end):
Total assets.......................... $27,357.1 $29,260.9 $31,133.6 $33,290.9 $36,050.5 $35,101.6 $38,956.5
Notes and loans payable:
Short-term and current portion of
long-term debt.................... 1,038.2 869.1 715.4 1,062.6 2,023.0 1,277.6 1,647.0
Long-term debt...................... 6,897.2 6,602.5 6,975.6 6,510.5 5,681.0 6,293.1 7,111.3
Shareholders' equity(1)............... 2,928.7 3,016.7 3,025.8 3,300.1 3,363.5 3,415.9 3,106.1
Book value per common share........... $ 35.63 $ 36.56 $ 36.28 $ 36.31 $ 38.46 $ 38.02 $ 38.09
</TABLE>
- ---------------
(1) In the first quarter of 1994 Transamerica adopted Statement of Financial
Accounting Standards No. 115, Accounting for Certain Investments in Debt
and Equity Securities, which resulted in all of Transamerica's investments
in debt securities being reported at fair value. As of June 30, 1994 the
unrealized loss included in shareholders' equity as a result of adopting
this new accounting standard was $14.9 million. There is no effect on the
income statement from the adoption of this new accounting standard, and
prior periods have not been restated.
S-7
<PAGE> 40
CAPITALIZATION OF TRANSAMERICA
The following table sets forth the consolidated short-term obligations and
capitalization of Transamerica as of June 30, 1994, and as adjusted to reflect
the application of the estimated net proceeds from the sale of the Series A
Preferred Securities. See "Use of Proceeds".
<TABLE>
<CAPTION>
JUNE 30, 1994
-------------------------
ACTUAL AS ADJUSTED
--------- -----------
<S> <C> <C>
(IN MILLIONS)
Short-term obligations, including current maturities............... $ 1,647.0 $
Long-term debt (1)................................................. 7,111.3
Life insurance policy liabilities.................................. 23,410.3
Other liabilities.................................................. 3,681.9
Minority interest in equity of subsidiaries........................
Shareholders' equity:
Preferred stock, par value $100 per share; 1,200,000 shares
authorized;
8.5% Preferred Stock, Series D ($500 liquidation preference)
400,000 shares issued....................................... 200.0
Dutch Auction Rate Transferable Securities
Preferred Stock ("DARTS"), Series A-1
750 shares issued........................................... 75.0
DARTS, Series B-1
750 shares issued........................................... 75.0
DARTS, Series C-1
750 shares issued........................................... 75.0
Common stock, par value $1.00 per share; 150,000,000 shares
authorized; 70,393,675 shares outstanding, after deducting
9,344,787 shares in treasury.................................. 70.4
Additional paid-in capital....................................... 152.1
Retained earnings................................................ 2,421.8
Net unrealized gain from investments marked to fair value........ 72.7
Foreign currency translation adjustments......................... (35.9)
--------- -----------
Total shareholders' equity............................... 3,106.1
--------- -----------
Total capitalization (excluding life insurance policy
liabilities, other liabilities and short-term
obligations)........................................... $10,217.4 $
========= ==========
</TABLE>
- ---------------
(1) Senior Indebtedness of Transamerica, for purposes of the subordination
provisions of the Series A Junior Subordinated Debentures, includes only
indebtedness of Transamerica on an unconsolidated basis. As of June 30,
1994, such Senior Indebtedness aggregated approximately $800 million.
Because Transamerica is a holding company, the Series A Junior Subordinated
Debentures are also effectively subordinated to all other long-term debt
and short-term obligations set forth in the above table, as well as other
liabilities of Transamerica's subsidiaries.
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities will be
invested in the Series A Junior Subordinated Debentures issued pursuant to the
Indenture described herein, and ultimately will be used by Transamerica for
general corporate purposes which may include the repayment or repurchase of its
securities.
S-8
<PAGE> 41
DESCRIPTION OF THE SERIES A PREFERRED SECURITIES
GENERAL
All of the partnership interests in Transamerica Delaware, other than the
Series A Preferred Securities offered hereby, are owned directly or indirectly
by Transamerica. The Limited Partnership Agreement authorizes and creates the
Series A Preferred Securities, which represent limited partner interests in
Transamerica Delaware (the "Preferred Securities"). Preferred Securities may be
issued from time to time in one or more series as described in the accompanying
Prospectus. The limited partner interests represented by the Series A Preferred
Securities will have a preference with respect to dividends and amounts payable
on redemption or liquidation over the General Partner's interest in Transamerica
Delaware. The Limited Partnership Agreement does not permit the issuance of any
Preferred Securities ranking, as to participation in profits and dividends and
in the assets of Transamerica Delaware, senior or junior to the Series A
Preferred Securities or the incurrence of any indebtedness by Transamerica
Delaware. The summary of certain terms and provisions of the Series A Preferred
Securities set forth below does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the Limited Partnership Agreement
and the Partnership Act.
DIVIDENDS
Dividends on the Series A Preferred Securities will be cumulative, will
accrue from the date of initial issuance and will be payable monthly in arrears,
on the last day of each calendar month of each year, commencing ,
1994, when, as and if determined to be so payable by Transamerica, as the
General Partner, except as otherwise described below. Dividends in arrears for
more than one month will bear interest monthly at the rate per annum equal to
the dividend rate for each month during the period of arrearage. The term
"dividends" as used herein includes any such interest payable unless otherwise
stated. The amount of dividends payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months.
The dividend rate will be adjusted quarterly. The rate for the initial
period from the date of initial issuance to , 1994 will be %
per annum, which is equivalent to $ per Series A Preferred Security per
annum. Thereafter, dividends on the Series A Preferred Securities will be
payable at the "Applicable Rate" (as defined below) from time to time in effect.
Transamerica has the right under the Indenture (as hereinafter defined) to
extend the interest payment period from time to time on the Series A Junior
Subordinated Debentures to a period not exceeding 60 consecutive months, and, as
a consequence, monthly dividends on the Series A Preferred Securities would be
deferred (but would continue to accrue with interest thereon) by Transamerica
Delaware during any such extended interest payment period. In the event that
Transamerica exercises this right, Transamerica may not declare or pay dividends
on, or purchase or acquire, any of its common stock during such extension
period. Prior to the termination of any such extension period, Transamerica may
further extend the interest payment period, provided that such extension period
together with all such previous and further extensions thereof may not exceed 60
consecutive months. Upon the termination of any extension period and the payment
of all amounts then due, Transamerica may select a new extension period, subject
to the above requirements. See "Description of the Series A Junior Subordinated
Debentures -- Interest" and "-- Option to Extend Interest Payment Period".
It is anticipated that Transamerica Delaware's earnings available for
distribution to the holders of the Series A Preferred Securities will be limited
to payments under the Series A Junior Subordinated Debentures in which
Transamerica Delaware will invest the proceeds from the issuance and sale of the
Series A Preferred Securities and the General Partnership Payment. See
"Description of the Series A Junior Subordinated Debentures". If Transamerica
fails to make interest payments on the Series A Junior Subordinated Debentures,
it is expected that Transamerica Delaware will not declare or pay dividends on
the Series A Preferred Securities. The payment of dividends (if and to the
extent declared) is guaranteed by Transamerica as and to the extent set
S-9
<PAGE> 42
forth under "Description of the Guarantee" in the accompanying Prospectus. The
Guarantee does not cover payment of dividends by Transamerica Delaware unless
and until declared.
Dividends on the Series A Preferred Securities will be payable to the
holders thereof as they appear on the books and records of Transamerica Delaware
on the relevant record dates, which, as long as the Series A Preferred
Securities remain in book-entry-only form, will be one Business Day (as defined
below) prior to the relevant payment dates. Subject to any applicable laws and
regulations and the provisions of the Limited Partnership Agreement, each such
payment will be made as described under "Book-Entry-Only Issuance -- The
Depository Trust Company" below. In the event the Series A Preferred Securities
shall not continue to remain in book-entry-only form, the General Partner shall
have the right to select relevant record dates which shall be more than one
Business Day prior to the relevant payment dates. In the event that any date on
which dividends are payable on the Series A Preferred Securities is not a
Business Day, then payment of the dividend 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. A "Business Day" shall mean any day other than a day on
which banking institutions in The City of New York are authorized or required by
law to close.
Except as provided below in this paragraph, the "Applicable Rate" for any
quarter (other than the initial period) will be equal to % of the Effective
Rate (as defined below), but not less than % per annum nor more than %
per annum. The "Effective Rate" for any quarter will be equal to the highest of
the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty Year
Constant Maturity Rate (each as defined below) for such quarter. The Applicable
Rate will be rounded to the nearest five hundredth of a percent. In the event
that Transamerica Delaware determines in good faith that for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate or the Thirty Year Constant Maturity Rate cannot be determined for any
quarter, then the Effective Rate for such quarter will be equal to the
higher of whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Thirty Year Constant Maturity Rate can be determined
for any quarter, then the Effective Rate for such quarter will be equal to
whichever such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Thirty Year Constant Maturity Rate can be determined for any
quarter, then the Effective Rate for the preceding quarter will be
continued for such quarter.
Except as described below in this paragraph, the "Treasury Bill Rate" for
each quarter will be the arithmetic average of the two most recent weekly per
annum secondary market discount rates (or the one weekly per annum secondary
market discount rate, if only one such rate is published during the relevant
Calendar Period (as defined below)) for three-month U.S. Treasury bills, as
published weekly by the Federal Reserve Board (as defined below) during the
Calendar Period immediately preceding the last ten calendar days preceding the
quarter for which the dividend rate on the Series A Preferred Securities is
being determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum secondary market discount rate during any such Calendar
Period, then the Treasury Bill Rate for such quarter will be the arithmetic
average of the two most recent weekly per annum secondary market discount rates
(or the one weekly per annum secondary market discount rate, if only one such
rate is published during the relevant Calendar Period) for three-month U.S.
Treasury bills, as published weekly during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or agency selected by
Transamerica Delaware. In the event that a per annum secondary market discount
rate for three-month U.S. Treasury bills is not published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Treasury
S-10
<PAGE> 43
Bill Rate for such quarter will be the arithmetic average of the two most recent
weekly per annum secondary market discount rates (or the one weekly per annum
secondary market discount rate, if only one such rate is published during the
relevant Calendar Period) for all of the U.S. Treasury bills then having
remaining maturities of not less than 80 nor more than 100 days, as published
during such Calendar Period by the Federal Reserve Board, or if the Federal
Reserve Board does not publish such rates, by any Federal Reserve Bank or by any
U.S. Government department or agency selected by Transamerica Delaware. In the
event that Transamerica Delaware determines in good faith that for any reason no
such U.S. Treasury bill rates are published as provided above during such
Calendar Period, then the Treasury Bill Rate for such quarter will be the
arithmetic average of the per annum secondary market discount rates based upon
the closing bids during such Calendar Period for each of the issues of
marketable non-interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days from the date of each such
quotation, as chosen and quoted daily for each Business Day in New York City (or
less frequently if daily quotations are not generally available) to Transamerica
Delaware by at least three recognized dealers in U.S. Government securities
selected by Transamerica Delaware. In the event that Transamerica Delaware
determines in good faith that for any reason Transamerica Delaware cannot
determine the Treasury Bill Rate for any quarter as provided above in this
paragraph, the Treasury Bill Rate for such quarter will be the arithmetic
average of the per annum secondary market discount rate based upon the closing
bids during such Calendar Period for each of the issues of marketable
interest-bearing U.S. Treasury securities with a remaining maturity of not less
than 80 nor more than 100 days, as chosen and quoted daily for each business day
in New York City (or less frequently if daily quotations are not generally
available) to Transamerica Delaware by at least three recognized dealers in U.S.
Government securities selected by Transamerica Delaware.
Except as described below in this paragraph, the "Ten Year Constant
Maturity Rate" for each quarter will be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (as defined below) (or the one
weekly per annum Ten Year Average Yield, if only one such yield is published
during the relevant Calendar Period), as published weekly by the Federal Reserve
Board during the Calendar Period immediately preceding the last ten calendar
days preceding the quarter for which the dividend rate on the Series A Preferred
Securities is being determined. In the event that the Federal Reserve Board does
not publish such a weekly per annum Ten Year Average Yield during such Calendar
Period, then the Ten Year Constant Maturity Rate for such quarter will be the
arithmetic average of the two most recent weekly per annum Ten Year Average
Yields (or the one weekly per annum Ten Year Average Yield, if only one such
yield is published during the relevant Calendar Period), as published weekly
during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by Transamerica Delaware. In the event
that a per annum Ten Year Average Yield is not published by the Federal Reserve
Board or by any Federal Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Ten Year Constant Maturity Rate for
such quarter will be the arithmetic average of the two most recent weekly per
annum average yields to maturity (or the one weekly per annum average yield to
maturity, if only one such yield is published during the relevant Calendar
Period) for all of the actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities (as defined below)) then having
remaining maturities of not less than eight nor more than twelve years, as
published during such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such yields, by any Federal Reserve Bank
or by any U.S. Government department or agency selected by Transamerica
Delaware. In the event that Transamerica Delaware determines in good faith that
for any reason Transamerica Delaware cannot determine the Ten Year Constant
Maturity Rate for any quarter as provided above in this paragraph, then the Ten
Year Constant Maturity Rate for such quarter will be the arithmetic average of
the per annum average yields to maturity based upon the closing bids during such
Calendar Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities) with a
final maturity date not less than eight or more than twelve years from the date
of each such quotation, as chosen and quoted daily for each Business
S-11
<PAGE> 44
Day in New York City (or less frequently if daily quotations are not generally
available) to Transamerica Delaware by at least three recognized dealers in U.S.
Government securities selected by Transamerica Delaware.
Except as described below in this paragraph, the "Thirty Year Constant
Maturity Rate" for each quarter will be the arithmetic average of the two most
recent weekly per annum Thirty Year Average Yields (as defined below) (or the
one weekly per annum Thirty Year Average Yield, if only one such yield is
published during the relevant Calendar Period), as published weekly by the
Federal Reserve Board during the Calendar Period immediately preceding the last
ten calendar days preceding the quarter for which the dividend rate on the
Series A Preferred Securities is being determined. In the event that the Federal
Reserve Board does not publish such a weekly per annum Thirty Year Average Yield
during such Calendar Period, then the Thirty Year Constant Maturity Rate for
such quarter will be the arithmetic average of the two most recent weekly per
annum Thirty Year Average Yields (or the one weekly per annum Thirty Year
Average Yield, if only one such yield is published during the relevant Calendar
Period), as published weekly during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency selected by Transamerica
Delaware. In the event that a per annum Thirty Year Average Yield is not
published by the Federal Reserve Board or by any Federal Reserve Bank or by any
U.S. Government department or agency during such Calendar Period, then the
Thirty Year Constant Maturity Rate for such quarter will be the arithmetic
average of the two most recent weekly per annum average yields to maturity (or
the one weekly per annum average yield to maturity, if only one such yield is
published during the relevant Calendar Period) for all of the actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) then having remaining maturities of not less than twenty-eight nor
more than thirty-two years, as published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board does not publish such
yields, by any Federal Reserve Bank or by any U.S. Government department or
agency selected by Transamerica Delaware. In the event that Transamerica
Delaware determines in good faith that for any reason Transamerica Delaware
cannot determine the Thirty Year Constant Maturity Rate for any quarter as
provided above in this paragraph, then the Thirty Year Constant Maturity Rate
for such quarter will be the arithmetic average of the per annum average yields
to maturity based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not less
than twenty-eight nor more than thirty-two years from the date of each such
quotation, as chosen and quoted daily for each Business Day in New York City (or
less frequently if daily quotations are not generally available) to Transamerica
Delaware by at least three recognized dealers in U.S. Government securities
selected by Transamerica Delaware.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Thirty
Year Constant Maturity Rate will each be rounded to the nearest one hundredth of
a percent.
The Applicable Rate with respect to each quarter (other than the initial
period) will be calculated as promptly as practicable by Transamerica Delaware
according to the appropriate method described above. Transamerica Delaware will
cause each Applicable Rate to be published in a newspaper of general circulation
in New York City before the commencement of the quarter to which it applies and
will cause notice of such Applicable Rate to be given to The Depository Trust
Company (the "Depository" or "DTC"), New York, New York, the securities
depository for the Series A Preferred Securities. See "Book-Entry-Only
Issuance -- The Depository Trust Company" below.
As used above, the term "Calendar Period" means a period of fourteen
calendar days; the term "Federal Reserve Board" means the Board of Governors of
the Federal Reserve System; the term "Special Securities" means securities which
can, at the option of the holder, be surrendered at face value in payment of any
federal estate tax or which provide tax benefits to the holder and are priced to
reflect such tax benefits or which were originally issued at a deep or
substantial discount; the term "Ten Year Average Yield" means the average yield
to maturity for actively traded marketable
S-12
<PAGE> 45
U.S. Treasury fixed interest rate securities adjusted to constant maturities of
ten years; and the term "Thirty Year Average Yield" means the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities adjusted to constant maturities of thirty years.
CERTAIN RESTRICTIONS ON TRANSAMERICA DELAWARE
If dividends have not been paid in full on the Series A Preferred
Securities, Transamerica Delaware shall not:
(i) declare, pay, or set aside for payment, any dividends on any other
series of Preferred Securities, unless the amounts of any dividends
declared and paid on any other series of Preferred Securities and on the
Series A Preferred Securities are on a pro rata basis on the dates such
dividends are paid on such other series of Preferred Securities, so that
(x) the aggregate amount of dividends paid on the Series A
Preferred Securities bears to the aggregate amount of dividends paid on
such other series of Preferred Securities the same ratio as
(y) the aggregate of all accrued and unpaid dividends in respect of
the Series A Preferred Securities bears to the aggregate of all accrued
and unpaid dividends in respect of such other series of Preferred
Securities; or
(ii) redeem, purchase or otherwise acquire any other Preferred
Securities;
until, in each case, such time as all accrued and unpaid dividends on the Series
A Preferred Securities shall have been paid in full for all dividend periods
terminating on or prior to, in the case of clause (i), such payment and, in the
case of clause (ii), the date of such redemption, purchase or acquisition.
As of the date of this Prospectus Supplement, there are no series of
Preferred Securities outstanding.
OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable, at the option of
Transamerica Delaware, in whole or in part, from time to time, on or after
, 1999, upon not less than 30 nor more than 60 days' notice, at the
Redemption Price. If Transamerica Delaware redeems Series A Preferred Securities
in accordance with the terms thereof, the Series A Junior Subordinated
Debentures will become due and payable in a principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred Securities so
redeemed, together with any accrued and unpaid interest on such principal amount
of Series A Junior Subordinated Debentures. See "Description of Series A Junior
Subordinated Debentures -- Mandatory Prepayment". In the event that fewer than
all the outstanding Series A Preferred Securities are to be so redeemed, the
Series A Preferred Securities to be redeemed will be selected as described under
"Book-Entry-Only Issuance -- The Depository Trust Company" below. If a partial
redemption would result in the delisting of the Series A Preferred Securities,
Transamerica Delaware may only redeem the Series A Preferred Securities in
whole.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
If a Tax Event or an Investment Company Event (each as defined below, and
each a "Special Event") shall occur and be continuing, the General Partner shall
elect to either (i) redeem the Series A Preferred Securities in whole (and not
in part), upon not less than 30 or more than 60 days' notice at the Redemption
Price within 90 days following the occurrence of such Special Event; provided,
that, if and as long as at the time there is available to the General Partner
the opportunity to eliminate, within such 90-day period, the Special Event by
taking some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable such measure, which has no adverse effect
on Transamerica Delaware or Transamerica, the General
S-13
<PAGE> 46
Partner will pursue such measure in lieu of redemption, or (ii) dissolve
Transamerica Delaware and, after satisfaction of creditors as required by the
Partnership Act, cause Series A Junior Subordinated Debentures to be distributed
to the holders of the Series A Preferred Securities in liquidation of
Transamerica Delaware, within 90 days following the occurrence of such Special
Event. In the case of a Tax Event, the General Partner also may elect to cause
the Series A Preferred Securities to remain outstanding.
"Tax Event" means that Transamerica shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that on or after the date of this Prospectus Supplement, as a result of
(a) any amendment to, or change (including any announced 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 effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after the date of this Prospectus Supplement, there is more than an
insubstantial risk that (i) Transamerica Delaware is subject to federal income
tax with respect to interest accrued or received on the Series A Junior
Subordinated Debentures, (ii) Transamerica Delaware is subject to more than a de
minimis amount of taxes, duties or other governmental charge, or (iii) interest
payable by Transamerica to Transamerica Delaware on the Series A Junior
Subordinated Debentures will not be deductible by Transamerica for federal
income tax purposes.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that Transamerica Delaware is or will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), which Change in
1940 Act Law becomes effective on or after the date of this Prospectus
Supplement; provided that no Investment Company Event shall be deemed to have
occurred if the General Partner obtains a written opinion of nationally
recognized independent counsel to the Partnership experienced in practice under
the 1940 Act to the effect that the General Partner has successfully issued an
additional or supplemental irrevocable and unconditional guarantee or taken such
other steps as may be necessary so that, in the opinion of such counsel,
notwithstanding such Change in 1940 Act Law, Transamerica Delaware is not
required to be registered as an "investment company" within the meaning of the
1940 Act. In case of any uncertainty regarding an Investment Company Event, the
good faith determination of the General Partner (based on the advice of counsel)
shall be conclusive.
After the date fixed for any distribution of Series A Junior Subordinated
Debentures, upon dissolution of Transamerica Delaware, (i) the Series A
Preferred Securities will no longer be deemed to be outstanding, (ii) DTC or its
nominee, as the record holder of the Series A Preferred Securities, will receive
a registered global certificate or certificates representing the Series A Junior
Subordinated Debentures to be delivered upon such distribution and (iii) any
certificates representing Series A Preferred Securities not held by DTC or its
nominee will be deemed to represent Series A Junior Subordinated Debentures
having a principal amount equal to the stated liquidation preference of such
Series A Preferred Securities, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid dividends on such Series A Preferred
Securities, until such certificates are presented to Transamerica or its agent
for transfer or reissuance.
S-14
<PAGE> 47
MANDATORY REDEMPTION
Upon the repayment of the Series A Junior Subordinated Debentures, whether
at maturity or upon redemption, repurchased or otherwise, the proceeds from such
repayment will be applied to redeem the Series A Preferred Securities, in whole,
upon not less than 30 nor more than 60 days' notice, at the Redemption Price.
REDEMPTION PROCEDURES
Transamerica Delaware may not redeem fewer than all the outstanding Series
A Preferred Securities unless all accrued and unpaid dividends have been paid on
all Series A Preferred Securities for all monthly dividend periods terminating
on or prior to the date of redemption.
If Transamerica Delaware gives a notice of redemption in respect of Series
A Preferred Securities (which notice will be irrevocable), then, by 12:00 noon,
New York City time, on the redemption date, Transamerica Delaware will
irrevocably deposit with DTC funds sufficient to pay the applicable Redemption
Price and will give DTC irrevocable instructions and authority to pay the
Redemption Price to the holders of the Series A Preferred Securities. See
"Book-Entry-Only Issuance -- The Depository Trust Company". If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of holders of such Series A Preferred
Securities so called for redemption will cease, except the right of the holders
of such Series A Preferred Securities to receive the Redemption Price, but
without interest on such Redemption Price. In the event that any date fixed for
redemption of Series A Preferred Securities is not a Business Day, then payment
of the Redemption Price 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 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. In the event that payment of the Redemption Price in respect of
Series A Preferred Securities is improperly withheld or refused and not paid
either by Transamerica Delaware or by Transamerica pursuant to the Guarantee
described under "Description of the Guarantee" in the accompanying Prospectus,
dividends on such Series A Preferred 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 Redemption Price.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), Transamerica or its subsidiaries may at
any time and from time to time purchase outstanding Series A Preferred
Securities by tender, in the open market or by private agreement. If
Transamerica Delaware purchases any Series A Preferred Securities, the Series A
Junior Subordinated Debentures will become due and payable in a principal amount
equal to the aggregate stated liquidation preference of the Series A Preferred
Securities so purchased, together with any accrued and unpaid interest on such
principal amount of Series A Junior Subordinated Debentures. See "Description of
Series A Junior Subordinated Debentures -- Mandatory Prepayment".
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary dissolution, winding-up or
termination of Transamerica Delaware, the holders of the Series A Preferred
Securities at the time will be entitled to receive out of the assets of
Transamerica Delaware available for distribution to partners after satisfaction
of liabilities of creditors as required by the Partnership Act, before any
distribution of assets is made to the General Partner, but together with the
holders of every other series of Preferred Securities outstanding, an amount
equal to, in the case of holders of Series A Preferred Securities, the aggregate
of the stated liquidation preference of $25 per Series A Preferred Security plus
accrued and unpaid dividends thereon to the date of payment (such amount being
the "Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, Series A
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Junior Subordinated Debentures in an aggregate principal amount equal to the
stated liquidation preference of such Series A Preferred Securities, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
dividends on such Series A Preferred Securities, shall be distributed on a pro
rata basis to the holders of the Series A Preferred Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because Transamerica Delaware has insufficient assets available to
pay in full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on any other series of Preferred Securities, then the
amounts payable directly by Transamerica Delaware on the Series A Preferred
Securities and on such other series of Preferred Securities shall be paid in
cash or in kind on a pro rata basis, so that
(x) the aggregate amount paid in respect of the Liquidation
Distribution bears to the aggregate amount paid as liquidation
distributions on the other series of Preferred Securities the same ratio as
(y) the aggregate Liquidation Distribution bears to the aggregate
maximum liquidation distributions on the other series of Preferred
Securities.
Pursuant to the Limited Partnership Agreement, Transamerica Delaware shall
be dissolved and its affairs shall be wound up: (i) on December 31, 2093, the
expiration of the term of Transamerica Delaware, (ii) upon the bankruptcy of the
General Partner, (iii) upon the assignment by the General Partner of its entire
interest in Transamerica Delaware when the assignee is not admitted to
Transamerica Delaware as a general partner of Transamerica Delaware in
accordance with the Limited Partnership Agreement, or the filing of a
certificate of dissolution or its equivalent with respect to the General
Partner, or the revocation of the General Partner's charter and the expiration
of 90 days after the date of notice to the General Partner of revocation without
a reinstatement of its charter, or any other event occurs which causes the
General Partner to cease to be a general partner of Transamerica Delaware under
the Partnership Act, unless the business of Transamerica Delaware is continued
in accordance with the Partnership Act, (iv) in accordance with the provisions
of the Series A Preferred Securities, (v) upon the entry of a decree of judicial
dissolution or (vi) upon the written consent of all partners of Transamerica
Delaware.
MERGER, CONSOLIDATION OR AMALGAMATION OF TRANSAMERICA DELAWARE
Transamerica Delaware 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 body, except as
described below. Transamerica Delaware may, without the consent of the holders
of the Series A Preferred Securities, consolidate, amalgamate, merge with or
into, or be replaced by a limited partnership, limited liability company or
trust organized as such under the laws of any state of the United States of
America; provided that (i) such successor entity either (x) expressly assumes
all of the obligations of Transamerica Delaware under the Series A Preferred
Securities or (y) substitutes for the Series A Preferred Securities other
securities having substantially the same terms as the Series A Preferred
Securities (the "Successor Securities") so long as the Successor Securities
rank, with respect to participation in the profits and dividends, and in the
assets, of the successor entity, at least as high as the Series A Preferred
Securities rank with respect to participation in the profits and dividends, and
in the assets, of Transamerica Delaware, (ii) Transamerica expressly
acknowledges such successor entity as the holder of the Series A Junior
Subordinated Debentures, (iii) the Series A Preferred Securities or any
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Series A Preferred Securities are then listed, (iv)
such merger, consolidation, amalgamation or replacement does not cause the
Series A 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
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the Series A Preferred Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the holders'
interest in the new entity), (vi) such successor entity has a purpose
substantially identical to that of Transamerica Delaware, (vii) prior to such
merger, consolidation, amalgamation or replacement, Transamerica has received an
opinion of nationally recognized independent counsel to Transamerica Delaware
experienced in such matters to the effect that (x) such successor entity will be
treated as a partnership for federal income tax purposes, (y) following such
merger, consolidation, amalgamation or replacement, Transamerica and such
successor entity will be in compliance with the 1940 Act without registering
thereunder as an investment company and (z) such merger, consolidation,
amalgamation or replacement will not adversely affect the limited liability of
the holders of the Series A Preferred Securities and (viii) Transamerica
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee.
VOTING RIGHTS
Except as provided below and under "Description of the
Guarantee -- Amendments and Assignment" in the accompanying Prospectus and as
otherwise required by law and the Limited Partnership Agreement, the holders of
the Series A Preferred Securities will have no voting rights.
If (i) arrearages on dividends on the Series A Preferred Securities shall
exist for 18 consecutive monthly dividend periods; (ii) an Event of Default (as
defined in the Indenture) occurs and is continuing on the Series A Junior
Subordinated Debentures; or (iii) Transamerica is in default on any of its
payment obligations under the Guarantee (as described under "Description of the
Guarantee -- Certain Covenants of Transamerica" in the accompanying Prospectus),
then the holders of the Series A Preferred Securities, together with the holders
of any other series of Preferred Securities having the right to vote for the
appointment of a special representative of Transamerica Delaware and the limited
partners (a "Special Representative") in such event, acting as a single class,
will be entitled by the vote of a majority in aggregate liquidation preference
of such holders to appoint and authorize a Special Representative to enforce
Transamerica Delaware's creditor rights under the Series A Junior Subordinated
Debentures, to enforce the rights of the holders of the Series A Preferred
Securities under the Guarantee and to enforce the rights of the holders of the
Series A Preferred Securities to receive dividends (if and to the extent
declared) on the Series A Preferred Securities. The Special Representative shall
not be admitted as a partner in Transamerica Delaware or otherwise be deemed to
be a partner in Transamerica Delaware and shall have no liability for the debts,
obligations or liabilities of Transamerica Delaware. Not later than 30 days
after such right to appoint a Special Representative arises, the General Partner
will convene a meeting for the purpose of appointing a Special Representative.
If the General Partner fails to convene such meeting within such 30-day period,
the holders of 10% in liquidation preference of the outstanding Preferred
Securities will be entitled to convene such meeting. The provisions of the
Limited Partnership Agreement relating to the convening and conduct of the
meetings of the partners will apply with respect to any such meeting. Any
Special Representative so appointed shall cease to be a Special Representative
of Transamerica Delaware and the limited partners if Transamerica Delaware (or
Transamerica pursuant to the Guarantee) shall have paid in full all accrued and
unpaid dividends on the Preferred Securities or such default or breach, as the
case may be, shall have been cured, and Transamerica, in its capacity as the
General Partner, shall continue the business of Transamerica Delaware without
dissolution. Notwithstanding the appointment of any such Special Representative,
Transamerica shall continue as General Partner and shall retain all rights under
the Indenture, including the right to extend the interest payment period from
time to time to a period not exceeding 60 consecutive months as provided under
"Description of the Series A Junior Subordinated Debentures -- Option to Extend
Interest Payment Period".
If any proposed amendment to the Limited Partnership Agreement provides
for, or the General Partner otherwise proposes to effect, (i) any action which
would adversely affect the powers, preferences or special rights of the Series A
Preferred Securities, whether by way of amendment to
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the Limited Partnership Agreement or otherwise (including, without limitation,
the authorization or issuance of any limited partner interests in Transamerica
Delaware ranking, as to participation in the profits or dividends or in the
assets of Transamerica Delaware, senior to the Series A Preferred Securities),
or (ii) the dissolution, winding-up or termination of Transamerica Delaware,
other than (x) in connection with the distribution of Series A Junior
Subordinated Debentures upon the occurrence of a Special Event or (y) as
described under "Merger, Consolidation or Amalgamation of Transamerica Delaware"
above, then the holders of outstanding Series A Preferred Securities will be
entitled to vote on such amendment or proposal of the General Partner (but not
on any other amendment or proposal) as a class with all other holders of series
of Preferred Securities similarly affected, and such amendment or proposal shall
not be effective except with the approval of the holders of 66 2/3% in
liquidation preference of such outstanding Preferred Securities having a right
to vote on the matter; provided, however, that no such approval shall be
required if the dissolution, winding-up or termination of Transamerica Delaware
is proposed or initiated upon the initiation of proceedings, or after
proceedings have been initiated, for the dissolution, winding-up, liquidation or
termination of Transamerica.
The rights attached to the Series A Preferred Securities will be deemed not
to be adversely affected by the creation or issue of, and no vote will be
required for the creation or issue of, any further limited partner interests of
Transamerica Delaware ranking pari passu with the Series A Preferred Securities
with regard to participation in the profits or dividends or in the assets of
Transamerica Delaware. Holders of Series A Preferred Securities have no
preemptive rights.
So long as any Series A Junior Subordinated Debentures are held by
Transamerica Delaware, the General Partner shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or executing any trust or power conferred on the Trustee with respect to such
series, (ii) waive any past default which is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Series A Junior Subordinated Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of at least 66 2/3% in liquidation
preference of all series of Preferred Securities affected thereby, acting as a
single class; provided, however, that where a consent under the Indenture would
require the consent of each holder affected thereby, no such consent shall be
given by the General Partner without the prior consent of each holder of all
series of Preferred Securities affected thereby. The General Partner shall not
revoke any action previously authorized or approved by a vote of any series of
Preferred Securities. The General Partner shall notify all holders of the Series
A Preferred Securities of any notice of default received from the Trustee with
respect to the Series A Junior Subordinated Debentures.
Any required approval of holders of Series A 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 partners in Transamerica Delaware or
pursuant to written consent. Transamerica Delaware will cause a notice of any
meeting at which holders of Series A 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 Series A Preferred 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 Series A Preferred Securities will be
required for Transamerica Delaware to redeem and cancel Series A Preferred
Securities in accordance with the Limited Partnership Agreement.
Notwithstanding that holders of Series A Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Series A Preferred Securities and any
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other series of Preferred Securities that are entitled to vote or consent with
such Series A Preferred Securities as a single class at such time that are owned
by Transamerica or any entity owned more than 50% by Transamerica, either
directly or indirectly, 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.
Holders of the Series A Preferred Securities will have no rights to remove
or replace the General Partner.
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as securities depository for the Series A Preferred
Securities. The Series A Preferred Securities will be issued only as fully
registered securities registered in the name of Cede & Co. (DTC's nominee). One
or more fully registered global Series A Preferred Security certificates will be
issued, representing in the aggregate the total number of Series A Preferred
Securities, and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc. (the "New York
Stock Exchange"), the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Securities and
Exchange Commission.
Purchases of Series A Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a credit for the
Series A Preferred Securities on DTC's records. The ownership interest of each
actual purchaser of each Series A Preferred Security ("Beneficial Owner") is in
turn to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased Series A Preferred Securities. Transfers of ownership interests in the
Series A Preferred Securities are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in Series A
Preferred Securities, except in the event that use of the book-entry system for
the Series A Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Series A
Preferred Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Series A Preferred Securities are credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
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Redemption notices shall be sent to Cede & Co. If less than all of the
Series A Preferred Securities are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such series to
be redeemed.
Although voting with respect to the Series A Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor Cede & Co.
will itself consent or vote with respect to Series A Preferred Securities. Under
its usual procedures, DTC would mail an Omnibus Proxy to Transamerica Delaware
as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to whose accounts
the Series A Preferred Securities are credited on the record date (identified in
a listing attached to the Omnibus Proxy).
Dividend payments on the Series A Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Participant and not of DTC, Transamerica Delaware or Transamerica, subject
to any statutory or regulatory requirements as may be in effect from time to
time. Payment of dividends to DTC is the responsibility of Transamerica
Delaware, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to Transamerica Delaware. Under such circumstances, in the event that a
successor securities depository is not obtained, Series A Preferred Security
certificates are required to be printed and delivered. Additionally,
Transamerica Delaware (with the consent of Transamerica) may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor depository). In that event, certificates for the Series A Preferred
Securities will be printed and delivered. In each of the above circumstances,
the General Partner will appoint a paying agent with respect to the Series A
Preferred Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Transamerica Delaware believes to be
reliable, but Transamerica Delaware takes no responsibility for the accuracy
thereof.
REGISTRAR AND TRANSFER AGENT
In the event the book-entry system for the Series A Preferred Securities is
discontinued, it is anticipated that The First National Bank of Chicago, or one
of its affiliates, will act as registrar and transfer agent for the Series A
Preferred Securities.
Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of Transamerica Delaware, but upon payment (with
the giving of such indemnity as Transamerica Delaware or Transamerica may
require) in respect of any tax or other government charges which may be imposed
in relation to it.
Transamerica Delaware will not be required to register or cause to be
registered the transfer of Series A Preferred Securities after such Series A
Preferred Securities have been called for redemption.
MISCELLANEOUS
Application has been made to list the Series A Preferred Securities on the
New York Stock Exchange.
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The General Partner is authorized and directed to conduct its affairs and
to operate Transamerica Delaware in such a way that Transamerica Delaware will
not be deemed to be an "investment company" required to be registered under the
1940 Act or taxed as a corporation for federal income tax purposes and so that
the Series A Junior Subordinated Debentures will be treated as indebtedness of
Transamerica for federal income tax purposes. In this connection, the General
Partner is authorized to take any action, not inconsistent with applicable law,
the certificate of limited partnership of Transamerica Delaware or the Limited
Partnership Agreement, that the General Partner determines in its discretion to
be necessary or desirable for such purposes, as long as such action does not
adversely affect the interests of the holders of the Series A Preferred
Securities.
DESCRIPTION OF THE SERIES A JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of specific terms of the Series A Junior
Subordinated Debentures in which Transamerica Delaware will invest the proceeds
of the issuance and sale of (i) the Series A Preferred Securities and (ii) the
General Partner's capital contribution with respect to the Series A Preferred
Securities (the "General Partnership Payment"). This description supplements the
description of the general terms and provisions of the Junior Subordinated
Debentures set forth in the accompanying Prospectus under the caption
"Description of the Junior Subordinated Debentures". The following description
does not purport to be complete and is qualified in its entirety by reference to
the description in the accompanying Prospectus and the Indenture, dated as of
, 1994, between Transamerica and The First National Bank of Chicago,
as Trustee (the "Indenture").
Under certain circumstances involving the dissolution of Transamerica
Delaware following the occurrence of a Special Event, Series A Junior
Subordinated Debentures may be distributed to the holders of the Series A
Preferred Securities in liquidation of Transamerica Delaware. See "Description
of the Series A Preferred Securities -- Special Event Redemption or
Distribution".
GENERAL
The Series A Junior Subordinated Debentures will be issued as a series of
Junior Subordinated Debentures under the Indenture. The Series A Junior
Subordinated Debentures will be limited in aggregate principal amount to
approximately $ million, such amount being the sum of the aggregate stated
liquidation preference of the Series A Preferred Securities and the General
Partnership Payment.
The entire principal amount of the Series A Junior Subordinated Debentures
will become due and payable, together with any accrued and unpaid interest
thereon, including Additional Interest (as hereinafter defined), if any, on
, 2024.
The Series A Junior Subordinated Debentures if distributed to holders of
Series A Preferred Securities in dissolution will initially be so issued as a
Global Security (as defined below). As described herein, under certain limited
circumstances Series A Junior Subordinated Debentures may be issued in
certificated form in exchange for a Global Security. See "Book-Entry and
Settlement" below. In the event that Series A Junior Subordinated Debentures are
issued in certificated form, such Series A Junior Subordinated Debentures will
be in denominations of $25 and integral multiples thereof and may be transferred
or exchanged at the offices described below.
Payments on Series A Junior Subordinated Debentures issued as a Global
Security will be made to DTC, as the depository for the Series A Junior
Subordinated Debentures. In the event Series A Junior Subordinated Debentures
are issued in certificated form, principal and interest will be payable, the
transfer of the Series A Junior Subordinated Debentures will be registrable, and
Series A Junior Subordinated Debentures will be exchangeable for Series A Junior
Subordinated Debentures of other denominations of a like aggregate principal
amount, at the corporate trust office
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of the Trustee in The City of New York; provided that payment of interest may be
made at the option of Transamerica by check mailed to the address of the persons
entitled thereto.
If the Series A Junior Subordinated Debentures are distributed to the
holders of Series A Preferred Securities upon the dissolution of Transamerica
Delaware, Transamerica will use its best efforts to list the Series A Junior
Subordinated Debentures on the New York Stock Exchange or on such other exchange
as the Series A Preferred Securities are then listed.
MANDATORY PREPAYMENT
If Transamerica Delaware redeems Series A Preferred Securities in
accordance with the terms thereof, the Series A Junior Subordinated Debentures
will become due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so redeemed,
together with any accrued and unpaid interest thereon, including Additional
Interest, if any. Any payment pursuant to this provision shall be made prior to
12:00 noon, New York City time, on the date of such redemption or at such other
time on such earlier date as the parties thereto shall agree.
OPTIONAL REDEMPTION
If there shall be no Series A Preferred Securities outstanding,
Transamerica shall have the right to redeem the Series A Junior Subordinated
Debentures, in whole or in part, from time to time, on or after ,
1999, upon not less than 30 nor more than 60 days' notice, at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest, including Additional Interest, if any, to the redemption date. If
Transamerica or Transamerica Delaware purchases Series A Preferred Securities by
tender, in the open market or by private agreement, Transamerica shall have the
right to redeem Series A Junior Subordinated Debentures, in an amount not to
exceed the aggregate stated liquidation preference of the Series A Preferred
Securities so purchased, together with any accrued and unpaid interest thereon,
including Additional Interest, if any, to the redemption date.
INTEREST
Each Series A Junior Subordinated Debenture shall bear interest at an
interest rate which will be adjusted quarterly. The rate for the initial period
from the date of initial issuance to , 1994 will be % per
annum. Thereafter, interest on the Series A Junior Subordinated Debentures will
be payable at the "Applicable Rate" in effect from time to time. The Applicable
Rate for any quarter will be equal to % of the highest of the "Treasury
Bill Rate", the "Ten Year Constant Maturity Rate" and the "Thirty Year Constant
Maturity Rate" determined in advance of such quarter; but not less than %
per annum nor greater than % per annum. The "Treasury Bill Rate", the "Ten
Year Constant Maturity Rate" and the "Thirty Year Constant Maturity Rate" with
respect to any quarter shall be determined by Transamerica Delaware in the same
manner as, and consistent with its determinations with respect to, quarters for
the purposes of dividends payable on the Series A Preferred Securities. See
"Description of the Series A Preferred Securities -- Dividends".
Such interest is payable monthly in arrears on the last day of each
calendar month of each year (each, an "Interest Payment Date"), commencing
, 1994, to the person in whose name such Series A Junior Subordinated
Debenture is registered, subject to certain exceptions, at the close of business
on the Business Day next preceding such Interest Payment Date. In the event the
Series A Junior Subordinated Debentures shall not continue to remain in
book-entry-only form, Transamerica shall have the right to select record dates
which shall be more than one Business Day prior to the Interest Payment Date.
The amount of interest payable for any period will be computed 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 A
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Junior Subordinated Debentures is not a Business Day, then payment of the
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.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Transamerica shall have the right at any time during the term of the Series
A Junior Subordinated Debentures to extend the interest payment period from time
to time to a period not exceeding 60 consecutive months (the "Extension
Period"), at the end of which Extension Period Transamerica shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Series A Junior Subordinated Debentures to the extent
permitted by applicable law); provided that, during any such Extension Period,
Transamerica shall not declare or pay any dividend on, or purchase, acquire or
make a liquidation payment with respect to, any of its common stock. Prior to
the termination of any such Extension Period, Transamerica may further extend
the interest payment period, provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 60 consecutive
months. Upon the termination of any Extension Period and the payment of all
amounts then due, Transamerica may select a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. If Transamerica Delaware shall be the sole
holder of the Series A Junior Subordinated Debentures, Transamerica shall give
Transamerica Delaware notice of its selection of such Extension Period one
Business Day prior to the earlier of (i) the date the dividends on the Series A
Preferred Securities are payable or (ii) the date Transamerica Delaware is
required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Series A Preferred Securities
of the record date or the date such dividend is payable, but in any event not
less than one Business Day prior to such record date. Transamerica shall cause
Transamerica Delaware to give notice of Transamerica's selection of such
Extension Period to the holders of the Series A Preferred Securities. If
Transamerica Delaware shall not be the sole holder of the Series A Junior
Subordinated Debentures, Transamerica shall give the holders of the Series A
Junior Subordinated Debentures notice of its selection of such Extension Period
ten Business Days prior to the earlier of (i) the Interest Payment Date or (ii)
the date Transamerica is required to give notice to the New York Stock Exchange
or other applicable self-regulatory organization, or to holders of the Series A
Junior Subordinated Debentures, of the record or payment date of such related
interest payment, but in any event not less than two Business Days prior to such
record date.
ADDITIONAL INTEREST
If at any time Transamerica Delaware shall be required to pay any interest
on dividends in arrears in respect of the Series A Preferred Securities pursuant
to the terms thereof, then Transamerica will pay as interest to Transamerica
Delaware as the holder of the Series A Junior Subordinated Debentures
("Additional Interest") an amount equal to such interest on dividends in
arrears.
SET-OFF
Notwithstanding anything to the contrary in the Indenture, Transamerica
shall have the right to set-off any payment it is otherwise required to make
thereunder with and to the extent Transamerica has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee.
EVENTS OF DEFAULT
In the case any Event of Default (as defined in the Indenture and as
described in the accompanying Prospectus) shall occur and be continuing,
Transamerica Delaware will have the
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right to declare the principal of and the interest on the Series A Junior
Subordinated Debentures (including any Additional Interest) and any other
amounts payable under the Indenture to be forthwith due and payable and to
enforce its other rights as a creditor with respect to the Series A Junior
Subordinated Debentures. See "Enforcement of Certain Rights by Special
Representative" below for a discussion of certain rights available to holders of
the Series A Preferred Securities upon the occurrence of an Event of Default.
ENFORCEMENT OF CERTAIN RIGHTS BY SPECIAL REPRESENTATIVE
If (i) arrearages on dividends on the Series A Preferred Securities shall
exist for 18 consecutive monthly dividend periods; (ii) an Event of Default
occurs and is continuing on the Series A Junior Subordinated Debentures; or
(iii) Transamerica is in default on any of its payment or other obligations
under the Guarantee, under the terms of the Series A Preferred Securities, the
holders of outstanding Series A Preferred Securities will have the rights
referred to under "Description of the Series A Preferred Securities -- Voting
Rights", including the right to appoint a Special Representative, which Special
Representative shall be authorized to exercise Transamerica Delaware's right to
accelerate the principal amount of the Series A Junior Subordinated Debentures
upon an Event of Default and to enforce Transamerica Delaware's other creditor
rights under the Series A Junior Subordinated Debentures. Notwithstanding the
appointment of any such Special Representative, Transamerica shall continue as
General Partner and shall retain all rights under the Indenture, including the
right to extend the interest payment period from time to time to a period not
exceeding 60 consecutive months.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Series A Preferred Securities in connection
with the dissolution of Transamerica Delaware as a result of the occurrence of a
Special Event, the Series A Junior Subordinated Debentures will be issued in the
form of one or more global certificates (each, a "Global Security") registered
in the name of the nominee of DTC. Except under the limited circumstances
described below, Series A Junior Subordinated Debentures represented by the
Global Security will not be exchangeable for, and will not otherwise be issuable
as, Series A Junior Subordinated Debentures in definitive form. The Global
Securities described above may not be transferred except by DTC to a nominee of
DTC or by a nominee of DTC to DTC or another nominee of DTC or to a successor
depository or its nominee.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Series A Junior
Subordinated Debentures in definitive form and will not be considered the
Holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Series A Junior Subordinated
Debentures shall be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of DTC or its nominee or to
a successor depository or its nominee. Accordingly, each beneficial owner must
rely on the procedures of DTC and, if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest, to
exercise any rights of a Holder under the Indenture.
The Depository. DTC will act as security depository for the Series A
Junior Subordinated Debentures. For a description of DTC and the specific terms
of the depository arrangements, see "Description of the Series A Preferred
Securities -- Book-Entry-Only Issuance -- The Depository Trust Company". As of
the date of this Prospectus Supplement, the description therein of DTC's
book-entry system and DTC's practices as they relate to purchases, transfers,
notices and payments with respect to the Series A Preferred Securities apply in
all material respects to any debt obligations represented by one or more Global
Securities held by DTC.
Neither Transamerica, the Trustee, any paying agent nor any other agent of
Transamerica or the Trustee will have any responsibility or liability for any
aspect of the records relating to or
S-24
<PAGE> 57
payments made on account of beneficial ownership interests in a Global Security
for such Series A Junior Subordinated Debentures or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Discontinuance of the Depository's Services. A Global Security shall be
exchangeable for Series A Junior Subordinated Debentures registered in the names
of persons other than DTC or its nominee only if (i) DTC notifies Transamerica
that it is unwilling or unable to continue as a depository for such Global
Security and no successor depository shall have been appointed, or if any time
DTC ceases to be a clearing agency registered under the Exchange Act at a time
when DTC is required to be so registered to act as such depository, (ii)
Transamerica in its sole discretion determines that such Global Security shall
be so exchangeable or (iii) there shall have occurred an Event of Default with
respect to such Series A Junior Subordinated Debentures. Any Global Security
that is exchangeable pursuant to the preceding sentence shall be exchangeable
for Series A Junior Subordinated Debentures registered in such names as the
Depository shall direct. It is expected that such instructions will be based
upon directions received by the Depository from its Participants with respect to
ownership of beneficial interests in such Global Security.
MISCELLANEOUS
For restrictions on certain actions of the General Partner with respect to
Series A Junior Subordinated Debentures held by Transamerica Delaware, see
"Description of the Series A Preferred Securities -- Voting Rights".
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<PAGE> 58
RELATIONSHIP BETWEEN THE SERIES A PREFERRED SECURITIES,
THE SERIES A JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
As long as payments of interest and other payments are made when due on the
Series A Junior Subordinated Debentures, such payments will be sufficient to
cover dividends (if and to the extent declared) and other payments due on the
Series A Preferred Securities primarily because (i) the aggregate principal
amount of Series A Junior Subordinated Debentures will be equal to the sum of
the aggregate stated liquidation preference of the Series A Preferred Securities
and the General Partnership Payment; (ii) the interest rate and interest and
other payment dates on the Series A Junior Subordinated Debentures will match
the dividend rate and dividend and other payment dates for the Series A
Preferred Securities; (iii) the Limited Partnership Agreement provides that
Transamerica, as General Partner, shall pay for all, and Transamerica Delaware
shall not be obligated to pay, directly or indirectly, for any, costs and
expenses of Transamerica Delaware, including any income taxes, duties and other
governmental charges, and all costs and expenses with respect thereto, to which
Transamerica Delaware may become subject, except for United States withholding
taxes; and (iv) the Limited Partnership Agreement further provides that the
General Partner shall not cause or permit Transamerica Delaware to, among other
things, engage in any activity that is not consistent with the limited purposes
of Transamerica Delaware.
Payments of dividends (if and to the extent declared) and other payments
due on the Series A Preferred Securities are guaranteed by Transamerica to the
extent set forth under "Description of the Guarantee" in the accompanying
Prospectus. If Transamerica fails to make interest payments on the Series A
Junior Subordinated Debentures purchased by Transamerica Delaware, it is
expected that Transamerica Delaware will not declare or pay dividends on the
Series A Preferred Securities. The Guarantee does not cover payment of dividends
by Transamerica Delaware unless and until declared.
If Transamerica fails to make interest or other payments on the Series A
Junior Subordinated Debentures when due, the Limited Partnership Agreement
provides a mechanism whereby the holders of the Series A Preferred Securities
may enforce the rights of Transamerica Delaware under the Series A Junior
Subordinated Debentures through the appointment of a Special Representative. The
Limited Partnership Agreement also provides, and Transamerica, under the
Guarantee, acknowledges, that a Special Representative may be appointed to
enforce the Guarantee if Transamerica is in default on any of its payment
obligations under the Guarantee. In addition, if the General Partner or the
Special Representative fails to enforce the Guarantee, a holder of a Series A
Preferred Security may institute a legal proceeding directly against
Transamerica to enforce its rights under the Guarantee without first instituting
a legal proceeding against Transamerica Delaware or any other person or entity.
S-26
<PAGE> 59
UNITED STATES TAXATION
GENERAL
This section is a summary of certain United States federal income tax
considerations that may be relevant to prospective purchasers of Series A
Preferred Securities and represents the opinion of Wachtell, Lipton, Rosen &
Katz, special counsel to Transamerica and Transamerica Delaware, insofar as it
relates to matters of law and legal conclusions. This section is based upon
current provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), existing and proposed regulations thereunder and current administrative
rulings and court decisions, all of which are subject to change. Subsequent
changes may cause tax consequences to vary substantially from the consequences
described below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Series A
Preferred Securities. Moreover, the discussion generally focuses on holders of
Series A Preferred Securities who are individual citizens or residents of the
United States and who hold the Series A Preferred Securities as capital assets.
This discussion has only limited application to corporations, estates, trusts or
non-resident aliens. Accordingly, each prospective purchaser of Series A
Preferred Securities should consult, and should depend on, the purchasers' own
tax advisor in analyzing the federal, state, local and foreign tax consequences
of the purchase, ownership or disposition of Series A Preferred Securities.
OPINION OF COUNSEL
In the opinion of Wachtell, Lipton, Rosen & Katz, (i) Transamerica Delaware
will be a partnership for federal income tax purposes; and (ii) the Series A
Junior Subordinated Debentures will be classified as indebtedness of
Transamerica. Several recent pronouncements of the IRS, however, evidence
increasing concern by the IRS over arrangements similar to some respects to
those involving Transamerica Delaware, the Series A Preferred Securities, and
the Series A Junior Subordinated Debentures. While these pronouncements are not
considered to apply to the arrangements described herein, it is possible that
future pronouncements or other developments could adversely affect such
arrangements. It should be noted in this connection that Transamerica has the
right to redeem the Series A Preferred Securities or dissolve Transamerica
Delaware upon the occurrence of a "Tax Event" as defined under the caption
"Description of the Series A Preferred Securities -- Special Event Redemption or
Distribution".
INCOME FROM SERIES A PREFERRED SECURITIES
Each holder of Series A Preferred Securities (a "Preferred Securityholder")
will be required to include in gross income the Preferred Securityholder's
distributive share of the net income of Transamerica Delaware. Such income
should not exceed the dividends received on such Series A Preferred Securities,
except in limited circumstances as described below under "Potential Extension of
Interest Payment Period". No portion of such income will be eligible for the
dividends received deduction.
Transamerica Delaware does not currently intend to make an election under
Section 754 of the Code. As a result, a subsequent purchaser of Series A
Preferred Securities in the secondary market will not be permitted or required
to adjust the tax basis in its allocable share of Transamerica Delaware's assets
so as to reflect any difference between its purchase price for the Preferred
Securities and the underlying tax basis of Transamerica Delaware in its assets.
As a result, a holder of a Preferred Security may be allocated a larger or
smaller amount of Transamerica Delaware's income than would otherwise be
appropriate based upon such holder's purchase price for the Preferred Security.
Under Section 708 of the Code, Transamerica Delaware will be deemed to
terminate for federal income tax purposes if 50% or more of the capital and
profits interest in Transamerica Delaware are
S-27
<PAGE> 60
sold or exchanged within a 12-month period. If such a termination occurs, there
will be a closing of Transamerica Delaware's taxable year for all partners and
Transamerica Delaware will be considered to distribute its assets to the
partners, who would then be treated as recontributing those assets to a new
partnership. Those assets might have a basis higher or lower than their basis in
the hands of Transamerica Delaware prior to termination, which might alter the
tax consequences to holders.
DISPOSITION OF SERIES A PREFERRED SECURITIES
Gain or loss will be recognized on a sale of Series A Preferred Securities,
including a redemption for cash, equal to the difference between the amount
realized and the Preferred Securityholder's tax basis for the Series A Preferred
Securities sold. Gain or loss recognized by a Preferred Securityholder on the
sale or exchange of a Series A Preferred Security held for more than one year
generally will be taxable as long-term capital gain or loss.
RECEIPT OF SERIES A JUNIOR SUBORDINATED DEBENTURES
UPON LIQUIDATION OF TRANSAMERICA DELAWARE
Under certain circumstances, as described under the caption "Description of
the Series A Preferred Securities -- Special Event Redemption or Distribution",
Series A Junior Subordinated Debentures may be distributed to the holders of the
Series A Preferred Securities in liquidation of Transamerica Delaware. Under
current United States federal income tax law, such a distribution would be
treated as a non-taxable exchange to each holder of Series A Preferred
Securities and would result in the holder of Series A Preferred Securities
receiving an aggregate tax basis in the Series A Junior Subordinated Debentures
equal to such holder's aggregate tax basis in its Series A Preferred Securities.
A holder's holding period in the Series A Junior Subordinated Debentures so
received in liquidation of Transamerica Delaware would include the period for
which the Series A Preferred Securities were held by such holder. As a result,
in certain circumstances the Series A Junior Subordinated Debentures received in
liquidation might bear "market discount", "amortizable bond premium", or
"acquisition premium" which might alter the tax treatment of such Debentures in
the hands of the holder as compared with the consequences of holding Series A
Preferred Securities. Under a change in law, a change in legal interpretation or
the other circumstances giving rise to a Special Event, however, the dissolution
could be a taxable event to holders of the Series A Preferred Securities.
TRANSAMERICA DELAWARE INFORMATION RETURNS AND AUDIT PROCEDURES
Transamerica, as the General Partner in Transamerica Delaware, will furnish
each Series A Preferred Securityholder with a Schedule K-1 each year setting
forth such Series A Preferred Securityholder's allocable share of income for the
prior calendar year. Transamerica is required to furnish such Schedule K-1 as
soon as practicable following the end of the year, but in any event prior to
March 31.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to Transamerica Delaware (a) the name, address and
taxpayer identification number of the beneficial owner and the nominee; (b)
information as to whether the beneficial owner is (i) a person that is not a
United States person, (ii) a foreign government, an international organization
or any wholly-owned agency or instrumentality of either of the foregoing, or
(iii) a tax-exempt entity; (c) the amount and description of Series A Preferred
Securities held, acquired or transferred for the beneficial owner; and (d)
certain information including the dates of acquisitions and transfers, means of
acquisitions and transfers, and acquisition cost for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on Series A Preferred Securities they
acquire, hold or transfer for their own accounts. A penalty of $50 per failure
(up to a maximum of $100,000 per calendar year) is imposed by the Code for
failure to report such information to Transamerica Delaware. The nominee is
required to supply the
S-28
<PAGE> 61
beneficial owners of the Series A Preferred Securities with the information
furnished to Transamerica Delaware.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD
Under the Indenture, Transamerica has the right to extend from time to time
the interest payment period on the Series A Junior Subordinated Debentures to a
period not exceeding 60 consecutive months. In the event that the interest
payment period is extended, Transamerica Delaware will continue to accrue income
[equal to the amount of the interest payment due at the end of the Extension
Period,] on an economic basis over the length of the Extension Period.
Accrued income will be allocated, but not distributed, to holders of record
on the Business Day preceding the last day of each calendar month. As a result,
holders of record during an Extension Period will include interest in their
gross income in advance of the receipt of cash, and any such holders who dispose
of Series A Preferred Securities prior to the record date for the payment of
dividends following such Extension Period will include interest in their gross
income but will not receive any cash related thereto from Transamerica Delaware.
The tax basis of a Series A Preferred Security will be increased by the amount
of any interest that is included in income without a receipt of cash, and will
be decreased again when and if such cash is subsequently received from
Transamerica Delaware.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
holder who or which is (i) a nonresident alien individual or (ii) a foreign
corporation, partnership or estate or trust, in either case not subject to
United States federal income tax on a net income basis in respect of a Series A
Preferred Security.
Under current United States federal income tax law, subject to the
discussion below with respect to backup withholding:
(i) payments by Transamerica Delaware or any of its paying agents to
any holder of a Series A Preferred Security who or which is a United States
Alien Holder should not be subject to United States federal withholding tax
provided that (a) the beneficial owner of the Series A Preferred Security
does not actually or constructively own 10%, or more of the total combined
voting power of all classes of capital stock of Transamerica entitled to
vote, (b) the beneficial owner of the Series A Preferred Security is not a
controlled foreign corporation that is related to Transamerica through
stock ownership and (c) either (x) the beneficial owner of the Series A
Preferred Security certifies to Transamerica Delaware or its agent, under
penalties of perjury, that it is a United States Alien Holder and provides
its name and address or (y) the holder of the Series A Preferred Security
is a securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or
business (a "financial institution"), and such holder certifies to
Transamerica Delaware or its agent under penalties of perjury that such
statement has been received from the beneficial owner by it or by a
financial institution between it and the beneficial owner and furnishes
Transamerica Delaware or its agent with a copy thereof; and
(ii) a United States Alien Holder of a Series A Preferred Security
generally will not be subject to United States federal withholding tax on
any gain realized on the sale or exchange of a Series A Preferred Security
unless such holder is present in the United States for 183 days or more in
the taxable year of sale and either has a "tax home" in the United States
or certain other requirements are met.
In the event that the Series A Preferred Securities were characterized as
stock or other equity of Transamerica, payments to a holder characterized as
dividends could be subject to a 30% withholding tax or such lesser amount as may
be provided under an applicable treaty.
S-29
<PAGE> 62
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate United States holders of the proceeds of the sale of Series A
Preferred Securities within the United States and "backup withholding" at a rate
of 31% will apply to such payments if the United States holder fails to provide
an accurate taxpayer identification number.
Payments of the proceeds from the sale by a United States Alien Holder of
Series A Preferred Securities made to or through a foreign office of a broker
generally will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments. Payments of the proceeds from the sale of Series A Preferred
Securities to or through the United States office of a broker is subject to
information reporting and backup withholding unless the holder or beneficial
owner certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding.
S-30
<PAGE> 63
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement,
Transamerica Delaware has agreed to sell to each of the Underwriters named
below, and each of the Underwriters, for whom Goldman, Sachs & Co. and
, are acting as Representatives, has severally agreed to
purchase from Transamerica Delaware, the respective number of Series A Preferred
Securities set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITER SECURITIES
----------------------------------------------------------------- -----------
<S> <C>
Goldman, Sachs & Co..............................................
-----------
Total..................................................
=========
</TABLE>
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $ per Series A Preferred
Security. The Underwriters may allow, and such dealers may reallow, a concession
not in excess of $ per Series A Preferred Security to certain brokers
and dealers. After the Series A Preferred Securities are released for sale to
the public, the offering price and other selling terms may from time to time be
varied by the Representatives.
In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will ultimately be used to purchase the Series A Junior Subordinated
Debentures, the Underwriting Agreement provides that Transamerica will pay as
compensation ("Underwriters' Compensation"), for the Underwriters' arranging the
investment therein of such proceeds, an amount in funds of $
per Series A Preferred Security ($ per Series A Preferred Security sold
to certain institutions) for the accounts of the several Underwriters.
Transamerica and Transamerica Delaware have agreed, during the period
beginning from the date of the Underwriting Agreement and continuing to and
including the earlier of (i) the date, after the closing date, on which the
distribution of the Series A Preferred Securities ceases, as determined by the
Underwriters, or (ii) 90 days after the closing date, not to offer, sell,
contract to sell, or otherwise dispose of any Series A Preferred Securities, any
limited partner interests of Transamerica Delaware, or any preferred stock or
any other securities of Transamerica Delaware or Transamerica which are
substantially similar to the Series A Preferred Securities including the
Guarantee, or any securities convertible into or exchangeable for Series A
Preferred Securities, limited partner interests, preferred stock or such
substantially similar securities of either Transamerica Delaware or
Transamerica, without the prior written consent of the Underwriters.
Prior to this offering, there has been no public market for the Series A
Preferred Securities. In order to meet one of the requirements for listing the
Series A Preferred Securities on the New York Stock Exchange, the Underwriters
will undertake to sell lots of 100 or more Series A Preferred Securities to a
minimum of 400 beneficial holders.
Transamerica Delaware and Transamerica have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
Certain of the Underwriters engage in transactions with, and from time to
time have performed services for, Transamerica and its subsidiaries in the
ordinary course of business.
S-31
<PAGE> 64
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Series A
Preferred Securities, the validity of the Limited Partnership Agreement and the
formation of Transamerica Delaware are being passed upon by Richards, Layton &
Finger, P.A., special Delaware counsel to Transamerica and Transamerica
Delaware. The validity of the Indenture, the Guarantee and the Series A Junior
Subordinated Debentures will be passed upon on behalf of Transamerica Delaware
and Transamerica by Christopher M. McLain, Senior Vice President and General
Counsel of Transamerica, and on behalf of the Underwriters by Cleary, Gottlieb,
Steen & Hamilton, counsel to the Underwriters. Statements as to United States
taxation in the Prospectus Supplement in the second paragraph under the caption
"Investment Considerations -- Special Event Redemption or Distribution", and
under the caption "United States Taxation", have been passed upon for
Transamerica and Transamerica Delaware by Wachtell, Lipton, Rosen & Katz,
special tax counsel to Transamerica and Transamerica Delaware, and are stated
herein on their authority.
S-32
<PAGE> 65
- ----------------------------------------------------------
- ----------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY ANY SECURITIES OTHER THAN THE SECURITIES DESCRIBED IN THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR
THE PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
---------------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Transamerica Delaware.................... S-4
Transamerica Corporation................. S-4
Investment Considerations................ S-5
Summary Consolidated Financial Data...... S-7
Capitalization of Transamerica........... S-8
Use of Proceeds.......................... S-8
Description of the Series A Preferred
Securities............................. S-9
Description of the Series A Junior
Subordinated Debentures................ S-21
Relationship between the Series A
Preferred Securities, the Series A
Junior Subordinated Debentures and the
Guarantee.............................. S-26
United States Taxation................... S-27
Underwriting............................. S-31
Legal Matters............................ S-32
PROSPECTUS
Available Information.................... 2
Incorporation of Certain Documents by
Reference.............................. 3
Transamerica Delaware.................... 3
Transamerica Corporation................. 3
Consolidated Ratios of Earnings to Fixed
Charges and Earnings to Combined Fixed
Charges and Preferred Stock Dividends
of Transamerica Corporation............ 4
Use of Proceeds.......................... 4
Description of the Preferred
Securities............................. 5
Description of the Guarantee............. 6
Description of the Junior Subordinated
Debentures............................. 8
Plan of Distribution..................... 13
Experts.................................. 14
Legal Opinions........................... 14
</TABLE>
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
PREFERRED SECURITIES
TRANSAMERICA DELAWARE
CUMULATIVE ADJUSTABLE RATE
MONTHLY INCOME PREFERRED
SECURITIES, SERIES A
GUARANTEED TO THE EXTENT
SET FORTH HEREIN BY
TRANSAMERICA CORPORATION
------------------
[LOGO]
------------------
GOLDMAN, SACHS & CO.
REPRESENTATIVES OF THE UNDERWRITERS
----------------------------------------------------------
----------------------------------------------------------
<PAGE> 66
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING 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 AN 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 AUGUST 11, 1994
PROSPECTUS
$425,000,000
TRANSAMERICA CORPORATION
JUNIOR SUBORDINATED DEBENTURES
TRANSAMERICA DELAWARE
PREFERRED SECURITIES
------------------------
Transamerica Delaware, L.P. ("Transamerica Delaware"), a Delaware special
purpose limited partnership in which Transamerica Corporation, a Delaware
corporation ("Transamerica"), is the general partner, may offer, from time to
time, its preferred securities, representing limited partner interests (the
"Preferred Securities"), in one or more series. The payment of periodic cash
distributions ("dividends") with respect to Preferred Securities of any series
(if and to the extent determined to be payable ("declared") by Transamerica, in
its capacity as general partner in Transamerica Delaware) and payments on
liquidation or redemption with respect to the Preferred Securities are
guaranteed by Transamerica to the extent described herein (the "Guarantee").
Transamerica's obligations under the Guarantee are subordinate and junior in
right of payment to all other liabilities of Transamerica (except those made
pari passu by their terms) and senior to all capital stock issued by
Transamerica. Junior subordinated debentures of Transamerica ("Junior
Subordinated Debentures") also may be issued and sold from time to time in one
or more series by Transamerica to Transamerica Delaware in connection with the
investment of the proceeds from the offering of Preferred Securities. The Junior
Subordinated Debentures when issued will be unsecured and subordinate and junior
in right of payment to Senior Indebtedness (as defined herein) of Transamerica.
The Junior Subordinated Debentures subsequently may be distributed pro rata to
holders of Preferred Securities in connection with the dissolution of
Transamerica Delaware upon the occurrence of certain events as may be described
in an accompanying Prospectus Supplement (the "Prospectus Supplement").
Specific terms of the particular Preferred Securities and Junior
Subordinated Debentures of any series in respect of which this Prospectus is
being delivered (the "Offered Securities") will be set forth in the accompanying
Prospectus Supplement with respect to such series, which will describe, without
limitation and where applicable, the following: (i) in the case of Preferred
Securities, the specific designation, number of Preferred Securities, dividend
rate (or the method of determining such rate), dates on which dividends will be
payable, liquidation preference, voting rights, any redemption provisions, terms
for any conversion or exchange into other securities, the initial public
offering price, any listing on a securities exchange, and any other rights,
preferences, privileges, limitations and restrictions, and (ii) in the case of
Junior Subordinated Debentures, the specific designation, aggregate principal
amount, denomination, maturity, premium, if any, interest rate (or the method of
determining such rate), if any, dates on which premium, if any, and interest, if
any, will be payable, any redemption provisions, any sinking fund provisions,
the initial public offering price, any listing on a securities exchange and any
other terms.
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
initial public offering price of all Offered Securities shall not exceed
$425,000,000.
The Prospectus Supplement relating to any series of Offered Securities will
contain information concerning certain United States federal income tax
considerations, if applicable to the Offered Securities.
------------------------
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 Offered Securities will be sold directly, through agents, underwriters
or dealers as designated from time to time, or through a combination of such
methods. If agents or any dealers or underwriters are involved in the sale of
the Offered Securities in respect of which this Prospectus is being delivered,
the names of such agents, dealers or underwriters and any applicable commissions
or discounts will be set forth in or may be calculated from the Prospectus
Supplement with respect to such Offered Securities.
The date of this Prospectus is , 1994.
<PAGE> 67
AVAILABLE INFORMATION
Transamerica is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, as well as at the following Regional Offices:
7 World Trade Center, New York, New York 10048; and 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street at prescribed rates and
can be inspected at the New York and Pacific Stock Exchanges on which certain
securities of Transamerica are listed.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") filed by Transamerica Delaware and
Transamerica with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"). Reference is made to the Registration Statement for
further information with respect to Transamerica, Transamerica Delaware and the
securities offered hereby. Statements contained or incorporated by reference
herein concerning the provisions of documents are necessarily summaries of such
documents, and each statement is qualified in its entirety by reference to the
Registration Statement.
No separate financial statements of Transamerica Delaware have been
included herein. Transamerica and Transamerica Delaware do not consider that
such financial statements would be material to holders of Preferred Securities
because Transamerica Delaware is a newly formed 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 as set forth below. Further,
Transamerica believes that financial statements of Transamerica Delaware are not
material to the holders of the Preferred Securities since the Preferred
Securities have been structured to provide a guarantee by Transamerica of the
Preferred Securities on the terms described herein, and an agreement by
Transamerica, as general partner of Transamerica Delaware, to pay costs and
expenses of Transamerica Delaware, such that the holders of the Preferred
Securities with respect to the payment of dividends and amounts upon redemption
dissolution, liquidation and winding-up are at least in the same position
vis-a-vis the assets of Transamerica as they would be if they were preferred
stockholders of Transamerica. See "Transamerica Delaware" and "Description of
Securities Offered -- Preferred Securities", "-- Description of the Guarantee",
"-- Description of the Subordinated Debentures" and "Effect of Obligations under
the Series A Junior Subordinated Debenture and the Guarantee." Transamerica
Delaware is a limited partnership formed under the laws of the State of
Delaware. Transamerica is the sole general partner in Transamerica Delaware and,
as of the date hereof, directly or indirectly beneficially owns all of
Transamerica Delaware's partnership interests.
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<PAGE> 68
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Transamerica's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 and its Quarterly Reports on Form 10-Q for the periods ended
March 31, 1994 and June 30, 1994, as filed with the Commission pursuant to the
Exchange Act, are incorporated herein by reference. All documents filed by
Transamerica pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange 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 into this Prospectus and to be a part hereof from the date of filing
such documents. Any statement contained herein or in a document all or a portion
of which is 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.
Transamerica hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, including any beneficial owner, a copy of any or all
of the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents unless such
exhibits are specifically incorporated by reference into the information that
the Prospectus incorporates. Requests for such copies should be directed to
Transamerica Corporation, Corporate Secretary's Office, 600 Montgomery Street,
San Francisco, California 94111, telephone (415) 983-4000.
TRANSAMERICA DELAWARE
Transamerica Delaware is a limited partnership formed under the laws of the
State of Delaware. Transamerica Delaware exists for the sole purpose of issuing
its partnership interests and investing the net proceeds thereof in Junior
Subordinated Debentures. All of its partnership interests, as of the date
hereof, are beneficially owned, directly or indirectly, by Transamerica.
Transamerica is the sole general partner in Transamerica Delaware (the "General
Partner"). Transamerica LP Holdings Corp., a Delaware corporation and
wholly-owned subsidiary of Transamerica ("Transamerica Holdings"), is, as of the
date hereof, the sole limited partner in Transamerica Delaware. Upon the
issuance of Preferred Securities, which securities represent limited partner
interests in Transamerica Delaware, Transamerica Holdings will remain as a
limited partner, but will have no interest in the profits and dividends or in
the assets of Transamerica Delaware. Transamerica Delaware has a term of
approximately 99 years, unless earlier dissolved. Transamerica Delaware's
registered office in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801, telephone: (302) 658-7581. All of Transamerica Delaware's
business and affairs will be conducted by Transamerica, as the sole general
partner. The business address of Transamerica Delaware is c/o Transamerica
Corporation, 600 Montgomery Street, San Francisco, California 94111, telephone
(415) 983-4000.
TRANSAMERICA CORPORATION
Transamerica Corporation is a diversified financial services company, whose
core businesses include consumer lending, commercial lending, leasing, real
estate services, life insurance and asset management. Transamerica was
incorporated in Delaware in 1928. At June 30, 1994, Transamerica had
consolidated assets of $39.0 billion and total shareholders' equity of $3.1
billion. For the year ended December 31, 1993, Transamerica had revenues of $4.8
billion and net income of $377 million.
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<PAGE> 69
Because Transamerica is a holding company, the Junior Subordinated
Debentures are effectively subordinated to all existing and future liabilities,
including trade payables, of Transamerica's subsidiaries, except to the extent
Transamerica is a creditor of the subsidiaries recognized as such.
The principal executive offices of Transamerica are located at 600
Montgomery Street, San Francisco, California 94111. Transamerica's telephone
number is (415) 983-4000.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS OF TRANSAMERICA
The following table sets forth the consolidated ratios of earnings to fixed
charges and earnings to combined fixed charges and preferred stock dividends for
the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, -------------------
-------------------------------- JUNE 30, JUNE 30,
1989 1990 1991 1992 1993 1993 1994
---- ---- ---- ---- ---- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to fixed charges
(unaudited)................................................ 1.45 1.37 1.06 1.90 2.09 2.20 2.19
Consolidated ratio of earnings to combined fixed charges and
preferred stock dividends (unaudited)...................... 1.43 1.34 1.04 1.83 2.00 2.11 2.11
</TABLE>
The consolidated ratios of earnings to fixed charges were computed by
dividing earnings before fixed charges and income taxes by the fixed charges.
The consolidated ratios of earnings to combined fixed charges and preferred
stock dividends were computed by dividing earnings before fixed charges,
preferred stock dividends and income taxes by the fixed charges and preferred
stock dividends. For computation of such ratios, earnings consist of income from
continuing operations, to which has been added fixed charges and income taxes of
Transamerica and its subsidiaries. Fixed charges consist of consolidated
interest and debt expense and one-third of consolidated rent expense, which
approximates the interest factor. Excluding the effects of a $130 million
special after tax charge recorded in the fourth quarter of 1991 by the
commercial lending operation to exit the rent-to-own finance business, reduce
lending to certain asset based lending lines, accelerate disposal of repossessed
assets and liquidate receivables remaining from previously sold businesses, the
consolidated ratio of earnings to fixed charges and ratio of earnings to
combined fixed charges and preferred stock dividends would have been 1.35 and
1.33 for 1991.
USE OF PROCEEDS
Transamerica Delaware will invest all proceeds received from the sale of
Preferred Securities in Junior Subordinated Debentures. Unless otherwise
specified in the Prospectus Supplement, the net proceeds to be received by
Transamerica from the sale of Junior Subordinated Debentures will be used for
general corporate purposes which may include the repayment or repurchase of its
securities.
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<PAGE> 70
DESCRIPTION OF THE PREFERRED SECURITIES
Transamerica Delaware may issue, from time to time, Preferred Securities,
in one or more series, having terms described in the Prospectus Supplement
relating thereto. The limited partnership agreement of Transamerica Delaware
will be amended and restated (as so amended and restated, the "Limited
Partnership Agreement") to authorize the establishment of one or more series of
Preferred Securities, having such terms, including dividends, redemption,
voting, liquidation rights and such other preferred, deferred or other special
rights or such restrictions as shall be set forth therein or otherwise
established by the General Partner pursuant thereto. Reference is made to the
Prospectus Supplement relating to the Preferred Securities of a particular
series for specific terms, including (i) the distinctive designation of such
series which shall distinguish it from other series; (ii) the number of
Preferred Securities included in such series, which number may be increased or
decreased from time to time unless otherwise provided by the General Partner in
creating the series; (iii) the annual dividend rate (or method of determining
such rate) for Preferred Securities of such series and the date or dates upon
which such dividends shall be payable, provided, however, dividends on any
series of Preferred Securities shall be payable on a monthly basis to holders of
such series of Preferred Securities as of a record date in each month during
which such series of Preferred Securities are outstanding, if and to the extent
declared by the General Partner; (iv) whether dividends on Preferred Securities
of such series shall be cumulative, and, in the case of Preferred Securities of
any series having cumulative dividend rights, the date or dates or method of
determining the date or dates from which dividends on Preferred Securities of
such series shall be cumulative; (v) the amount or amounts which shall be paid
out of the assets of Transamerica Delaware to the holders of Preferred
Securities of such series upon voluntary or involuntary dissolution, winding-up
or termination of Transamerica Delaware; (vi) the price or prices at which, the
period or periods within which, and the terms and conditions upon which,
Preferred Securities of such series may be redeemed or purchased, in whole or in
part, at the option of Transamerica Delaware or the General Partner; (vii) the
obligation, if any, of Transamerica Delaware to purchase or redeem Preferred
Securities of such series and the price or prices at which, the period or
periods within which, and the terms and conditions upon which, Preferred
Securities of such series shall be purchased or redeemed, in whole or in part,
pursuant to such obligation; (viii) the voting rights, if any, of Preferred
Securities of such series 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 of one or more
series, or of both, as a condition to specified action or amendments to the
Limited Partnership Agreement; and (ix) any other relative rights, preferences,
privileges, limitations or restrictions of Preferred Securities of the series
not inconsistent with the Limited Partnership Agreement or with applicable law.
All Preferred Securities offered hereby will be guaranteed by Transamerica to
the extent set forth below under "Description of the Guarantee". Any applicable
federal income tax considerations applicable to any offering of Preferred
Securities will be described in the Prospectus Supplement relating thereto.
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<PAGE> 71
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which
will be executed and delivered by Transamerica for the benefit of the holders
from time to time of Preferred Securities. The summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the Guarantee, which is filed as an exhibit to
the Registration Statement of which this Prospectus forms a part.
GENERAL
Pursuant to the Guarantee, Transamerica will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full, to the
holders of the Preferred Securities of each series, the Guarantee Payments (as
defined below) (without duplication of amounts theretofore paid by Transamerica
Delaware), as and when due, regardless of any defense, right of set-off or
counterclaim which Transamerica Delaware may have or assert. The following
payments with respect to any series of Preferred Securities to the extent not
paid by Transamerica Delaware (the "Guarantee Payments") will be subject to the
Guarantee (without duplication): (i) any accrued and unpaid dividends that have
theretofore been declared on the Preferred Securities of such series, (ii) the
redemption price, including all accrued and unpaid dividends (the "Redemption
Price"), with respect to any Preferred Securities called for redemption by
Transamerica Delaware and (iii) upon a liquidation of Transamerica Delaware, the
lesser of (a) the aggregate of the liquidation preference and all accrued and
unpaid dividends on the Preferred Securities of such series to the date of
payment and (b) the amount of assets of Transamerica Delaware remaining
available for distribution to holders of Preferred Securities of such series in
liquidation of Transamerica Delaware, payable in kind. Transamerica's obligation
to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by Transamerica to the holders of Preferred Securities or by causing
Transamerica Delaware to pay such amounts to such holders.
If Transamerica fails to make interest payments on the Junior Subordinated
Debentures purchased by Transamerica Delaware, it is expected that Transamerica
Delaware will not declare or pay dividends on the Preferred Securities. The
Guarantee does not cover payment of dividends by Transamerica Delaware unless
and until declared.
CERTAIN COVENANTS OF TRANSAMERICA
In the Guarantee, Transamerica will covenant that, so long as any Preferred
Securities remain outstanding, Transamerica will not declare or pay any dividend
on, or purchase, acquire or make a liquidation payment with respect to, any of
its common stock or make any guarantee payment with respect thereto if at such
time Transamerica shall be in default with respect to its payment obligations
under the Guarantee or there shall have occurred any Event of Default under the
Indenture.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no consent will be required),
the Guarantee may be amended only with the prior approval of the holders of not
less than 66 2/3% in liquidation preference of the outstanding Preferred
Securities. The manner of obtaining any such approval of holders of the
Preferred Securities of each series will be as set forth in an accompanying
Prospectus Supplement. All guarantees and agreements contained in the Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
Transamerica and shall inure to the benefit of the holders of the Preferred
Securities then outstanding.
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<PAGE> 72
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect as to
the Preferred Securities of any series upon full payment of the Redemption Price
of all Preferred Securities of such series, and will terminate completely upon
full payment of the amounts payable in accordance with the Limited Partnership
Agreement upon liquidation of Transamerica Delaware. The Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
holder of Preferred Securities of any series must restore payment of any sums
paid under such series of Preferred Securities or the Guarantee.
STATUS OF THE GUARANTEE
Transamerica's obligations under the Guarantee to make the Guarantee
Payments will constitute an unsecured obligation of Transamerica and will rank
(i) subordinate and junior in right of payment to all other liabilities of
Transamerica except those made pari passu by their terms, and (ii) senior to all
capital stock now or hereafter issued by Transamerica and to any guarantee now
or hereafter entered into by Transamerica in respect of any of its capital
stock. The Limited Partnership Agreement provides that each holder of Preferred
Securities by acceptance thereof agrees to the subordination provisions and
other terms of the Guarantee.
The Guarantee will constitute a guarantee of payment and not of collection.
The Guarantee will be deposited with the General Partner to be held for the
benefit of the holders of each series of the Preferred Securities. In the event
of the appointment of a Special Representative to, among other things, enforce
the Guarantee, the Special Representative may take possession of the Guarantee
for such purpose. If no Special Representative has been appointed to enforce the
Guarantee, the General Partner has the right to enforce the Guarantee on behalf
of the holders of each series of the Preferred Securities. The holders of not
less than a majority in aggregate liquidation preference of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available in respect of the Guarantee, including the
giving of directions to the General Partner or the Special Representative, as
the case may be. If the General Partner or the Special Representative fails to
enforce the Guarantee as above provided, any holder of Preferred Securities may
institute a legal proceeding directly against Transamerica to enforce its rights
under the Guarantee, without first instituting a legal proceeding against
Transamerica Delaware or any other person or entity. The Guarantee will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by Transamerica Delaware).
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
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<PAGE> 73
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Junior Subordinated Debentures may be issued from time to time in one or
more series under an Indenture, dated as of (the "Indenture"),
between Transamerica and The First National Bank of Chicago, as Trustee (the
"Trustee"). The following summary does not purport to be complete and is subject
in all respects to the provisions of, and is qualified in its entirety by
reference to, the Indenture, which is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. Whenever particular provisions
or defined terms in the Indenture are referred to herein, such provisions or
defined terms are incorporated by reference herein. Section and Article
references used herein are references to provisions of the Indenture unless
otherwise noted.
GENERAL
The Junior Subordinated Debentures will be unsecured, subordinated
obligations of Transamerica. The Indenture does not limit the aggregate
principal amount of Junior Subordinated Debentures which may be issued
thereunder and provides that the Junior Subordinated Debentures may be issued
thereunder from time to time in one or more series.
The Junior Subordinated Debentures are issuable in one or more series
pursuant to an indenture supplemental to the Indenture or a resolution of
Transamerica's Board of Directors or a special committee thereof (each, a
"Supplemental Indenture") (Section 2.01). The aggregate principal amount of
Junior Subordinated Debentures relating to Preferred Securities of any series
will be set forth in the Prospectus Supplement for such series and will be equal
to the sum of the aggregate liquidation preference of the Preferred Securities
for such series and the General Partner's capital contribution with respect to
the Preferred Securities for such series. Junior Subordinated Debentures
relating to Preferred Securities of any series subsequently may be distributed
pro rata to holders of Preferred Securities of such series in connection with
the dissolution of Transamerica Delaware upon the occurrence of certain events
described in the Prospectus Supplement relating to the Preferred Securities of
such series.
Reference is made to the Prospectus Supplement which will accompany this
Prospectus for the following terms of the series of Junior Subordinated
Debentures being offered thereby: (i) the specific title of such Junior
Subordinated Debentures; (ii) any limit on the aggregate principal amount of
such Junior Subordinated Debentures; (iii) the date or dates on which the
principal of such Junior Subordinated Debentures is payable; (iv) the rate or
rates at which such Junior Subordinated Debentures will bear interest or the
method of determination of such rate or rates; (v) the date or dates from which
such interest shall accrue, the interest payment dates on which such interest
will be payable or the manner of determination of such interest payment dates
and the record dates for the determination of holders to whom interest is
payable on any such interest payment dates; (vi) the right, if any, to extend
the interest payment periods and the duration of such extension; (vii) the
period or periods within which, the price or prices at which and the terms and
conditions upon which, such Junior Subordinated Debentures may be redeemed, in
whole or in part, at the option of Transamerica; (viii) the obligation, if any,
of Transamerica to redeem or purchase such Junior Subordinated Debentures
pursuant to any sinking fund or analogous provisions or at the option of the
holder thereof and the period or periods within which, the price or prices at
which, and the terms and conditions upon which, such Junior Subordinated
Debentures shall be redeemed or purchased, in whole or part, pursuant to such
obligation; (ix) the form of such Junior Subordinated Debentures; (x) if other
than denominations of $25 or any integral multiple thereof, the denominations in
which such Junior Subordinated Debentures shall be issuable; (xi) any and all
other terms with respect to such series; and (xii) whether such Junior
Subordinated Debentures are issuable as a global security, and in such case, the
identity of the depository. (Section 2.01).
The Indenture does not contain any provisions that afford holders of Junior
Subordinated Debentures protection in the event of a highly leveraged
transaction involving Transamerica.
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<PAGE> 74
SUBORDINATION
The Indenture provides that the Junior Subordinated Debentures are
subordinate and junior in right of payment to all Senior Indebtedness (as
defined below) of Transamerica as provided in the Indenture. No payment of
principal of (including redemption and sinking fund payments), premium, if any,
or interest on, the Junior Subordinated Debentures may be made if any Senior
Indebtedness is not paid when due or if the maturity of any Senior Indebtedness
has been accelerated because of a default. Upon any distribution of assets of
Transamerica to creditors upon any dissolution, winding-up, liquidation or
reorganization, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all principal of, premium, if any, and
interest due on, all Senior Indebtedness must be paid in full before the holders
of the Junior Subordinated Debentures are entitled to receive or retain any
payment. The rights of the holders of the Junior Subordinated Debentures will be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions applicable to Senior Indebtedness until all amounts
owing on the Junior Subordinated Debentures are paid in full. (Sections 14.01 to
14.04).
The term "Senior Indebtedness" shall mean the principal of, premium, if
any, interest on and any other payment due pursuant to any of the following,
whether outstanding at the date of execution of the Indenture or thereafter
incurred, created or assumed:
(a) all indebtedness of Transamerica evidenced by notes, debentures,
bonds or other securities sold by Transamerica for money or other
obligations for money borrowed;
(b) all indebtedness of others of the kinds described in the preceding
clause (a) assumed by or guaranteed in any manner by Transamerica or in
effect guaranteed by Transamerica; and
(c) all renewals, extensions or refundings of indebtedness of the
kinds described in any of the preceding clauses (a) and (b);
unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is pari passu
with the Junior Subordinated Debentures. Such Senior Indebtedness shall continue
to be Senior Indebtedness and entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness. (Section 1.01).
The Indenture does not limit the aggregate amount of Senior Indebtedness
which may be issued. As of June 30, 1994, Senior Indebtedness of Transamerica
(on an unconsolidated basis) aggregated approximately $800 million all of which
is unsecured. Because Transamerica is a holding company, the Junior
Subordinated Debentures are also effectively subordinated to all existing and
future liabilities, including trade payables, of Transamerica's subsidiaries,
except to the extent Transamerica is a creditor of the subsidiaries recognized
as such.
CERTAIN COVENANTS OF TRANSAMERICA
Pursuant to the Indenture, Transamerica will covenant that it will not
declare or pay any dividend on, or purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock, if at such time
(i) there shall have occurred any event that would constitute an Event of
Default under the Indenture, (ii) Transamerica shall be in default with respect
to its payment of any obligations under the Guarantee or (iii) Transamerica
shall have given notice of its selection of an extended interest payment period
as provided in the Indenture and such period, or any extension thereof, shall be
continuing. (Section 4.06). Transamerica will also covenant (i) to remain the
sole general partner of Transamerica Delaware and maintain 100% ownership of the
general partner interests thereof; provided that any permitted successor of
Transamerica under the Indenture may succeed to Transamerica's duties as General
Partner, (ii) to contribute capital to the extent required to maintain its
capital at an amount equal to at least 3% of the total capital contributions to
Transamerica Delaware, (iii) not to voluntarily dissolve, wind-up or terminate
Transamerica Dela-
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<PAGE> 75
ware, except in connection with the distribution of Junior Subordinated
Debentures to the holders of Preferred Securities in liquidation of Transamerica
Delaware and in connection with certain mergers, consolidations or amalgamations
permitted by the Limited Partnership Agreement, (iv) to timely perform all of
its duties as the general partner in Transamerica Delaware and (v) to use its
reasonable efforts to cause Transamerica Delaware to remain a limited
partnership and otherwise continue to be treated as a partnership for United
States federal income tax purposes. (Section 4.07).
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Junior Subordinated Debentures of each series will be issued in registered
form and in either certificated form or will be represented by one or more
global securities. If not represented by one or more global securities, Junior
Subordinated Debentures may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) or exchange, at the office of
the Debenture Registrar or at the office of any transfer agent designated by
Transamerica for such purpose with respect to any series of Junior Subordinated
Debentures and referred to in an applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges as
described in the Indenture. Such transfer or exchange will be effected upon the
Debenture Registrar or such transfer agent, as the case may be, being satisfied
with the documents of title and identity of the person making the request.
Transamerica has appointed the Trustee as Debenture Registrar with respect to
the Junior Subordinated Debentures. (Section 2.05). If a Prospectus Supplement
refers to any transfer agents (in addition to the Debenture Registrar) initially
designated by Transamerica with respect to any series of Junior Subordinated
Debentures, Transamerica may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that Transamerica will be required to maintain a
transfer agent in each Place of Payment for such series. (Section 4.02).
Transamerica may at any time designate additional transfer agents with respect
to any series of Junior Subordinated Debentures.
In the event of any redemption in part, Transamerica shall not be required
to (i) issue, register the transfer of or exchange any Junior Subordinated
Debenture during a period beginning at the opening of business 15 days before
any selection for redemption of Junior Subordinated Debentures of like tenor and
of the series of which such Junior Subordinated Debenture is a part, and ending
at the close of business on the earliest date in which the relevant notice of
redemption is deemed to have been given to all holders of Junior Subordinated
Debentures of like tenor and of such series to be redeemed and (ii) register the
transfer of or exchange any Junior Subordinated Debentures so selected for
redemption, in whole or in part, except the unredeemed portion of any Junior
Subordinated Debenture being redeemed in part. (Section 2.05).
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and premium (if any) on any Junior Subordinated Debenture will
be made only against surrender to the Paying Agent of such Junior Subordinated
Debenture. Unless otherwise indicated in an applicable Prospectus Supplement,
principal of and any premium and interest, if any, on Junior Subordinated
Debentures will be payable, subject to any applicable laws and regulations, at
the office of such Paying Agent or Paying Agents as Transamerica may designate
from time to time, except that at the option of Transamerica payment of any
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Debenture Register with respect to
such Junior Subordinated Debentures. (Section 4.03). Unless otherwise indicated
in an applicable Prospectus Supplement, payment of interest on a Junior
Subordinated Debenture on any Interest Payment Date will be made to the person
in whose name such Junior Subordinated Debenture (or Predecessor Security) is
registered at the close of business on the Regular Record Date for such interest
payment. (Section 2.03).
10
<PAGE> 76
Transamerica will act as Paying Agent with respect to the Junior
Subordinated Debentures. Transamerica may at any time designate additional
Paying Agents or rescind the designation of any Paying Agents or approve a
change in the office through which any Paying Agent acts, except that
Transamerica will be required to maintain a Paying Agent in each Place of
Payment for each series of the Junior Subordinated Debentures. (Sections 4.02
and 4.03).
All moneys paid by Transamerica to a Paying Agent for the payment of the
principal of or premium or interest, if any, on any Junior Subordinated
Debenture of any series which remain unclaimed at the end of two years after
such principal, premium, if any, or interest shall have become due and payable
will be repaid to Transamerica and the holder of such Junior Subordinated
Debenture will thereafter look only to Transamerica for payment thereof.
(Section 11.05).
GLOBAL DEBENTURES
If any Junior Subordinated Debentures of a series are represented by one or
more global securities, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in any such
Global Debenture may exchange such interests for Junior Subordinated Debentures
of such series and of like tenor and principal amount in any authorized form and
denomination. Principal of and any premium and interest on a Global Debenture
will be payable in the manner described in the applicable Prospectus Supplement.
(Section 2.11).
The specific terms of the depository arrangement with respect to any
portion of a series of Junior Subordinated Debentures to be represented by a
Global Debenture will be described in the applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting Transamerica and the Trustee,
with the consent of the holders of not less than a majority in principal amount
of the Junior Subordinated Debentures of each series which are affected by the
modification, to modify the Indenture or any supplemental indenture affecting
that series or the rights of the holders of that series of Junior Subordinated
Debentures; provided, that no such modification may, without the consent of the
holder of each outstanding Junior Subordinated Debenture affected thereby, (i)
extend the fixed maturity of any Junior Subordinated 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 Junior Subordinated Debenture
so affected or (ii) reduce the percentage of Junior Subordinated Debentures, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Junior Subordinated Debenture then
outstanding and affected thereby. (Section 9.02).
In addition, Transamerica and the Trustee may execute, without the consent
of any holder of Junior Subordinated Debentures, any supplemental indenture for
certain other usual purposes including the creation of any new series of Junior
Subordinated Debentures. (Sections 2.01, 9.01 and 10.01).
EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events, which has occurred and is continuing, constitutes an "Event of Default"
with respect to each series of Junior Subordinated Debentures:
(a) failure for 10 days to pay interest on the Junior Subordinated
Debentures of that series when due; provided that a valid extension of the
interest payment period by Transamerica shall not constitute a default in
the payment of interest for this purpose; or
11
<PAGE> 77
(b) failure to pay principal or premium, if any, on the Junior
Subordinated Debentures of that series when due whether at maturity, upon
redemption, by declaration or otherwise, or to make any required sinking
fund payment with respect to that series; or
(c) failure to observe or perform any other covenant (other than those
specifically relating to another series) contained in the Indenture for 90
days after written notice to Transamerica from the Trustee or the holders
of at least 25% in principal amount of the outstanding Junior Subordinated
Debentures of that series; or
(d) the dissolution, winding-up or termination of Transamerica
Delaware, except in connection with the distribution of Junior Subordinated
Debentures to the holders of Preferred Securities in liquidation of
Transamerica Delaware and in connection with certain mergers,
consolidations or amalgamations permitted by the Limited Partnership
Agreement; or
(e) certain events in bankruptcy, insolvency or reorganization of
Transamerica. (Section 6.01).
The holders of a majority in aggregate outstanding principal amount of any
series of the Junior Subordinated Debentures have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for that series. (Section 6.06). The Trustee or the holders of not less
than 25% in aggregate outstanding principal amount of any particular series of
the Junior Subordinated Debentures may declare the principal due and payable
immediately upon an Event of Default with respect to such series, but the
holders of a majority in aggregate outstanding principal amount of such series
may annul such declaration and waive the default with respect to such series if
the default has been cured and a sum sufficient to pay all matured installments
of interest and principal otherwise than by acceleration and any premium has
been deposited with the Trustee. (Sections 6.01 and 6.06).
The holders of a majority in aggregate outstanding principal amount of any
series of the Junior Subordinated Debentures affected thereby may, on behalf of
the holders of all the Junior Subordinated Debentures of such series, waive any
past default, except a default in the payment of principal, premium, if any, or
interest (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal otherwise than by acceleration
and any premium has been deposited with the Trustee) or a call for redemption of
Subordinated Debentures of such series. (Section 6.06). Transamerica is required
to file annually with the Trustee a certificate as to whether or not
Transamerica is in compliance with all the conditions and covenants under the
Indenture. (Section 5.03(d)).
CONSOLIDATION, MERGER AND SALE
The Indenture does not contain any covenant which restricts Transamerica's
ability to merge or consolidate with or into any other corporation, sell or
convey all or substantially all of its assets to any person, firm or corporation
or otherwise engage in restructuring transactions. (Section 10.01).
DEFEASANCE AND DISCHARGE
Under the terms of the Indenture, Transamerica will be discharged from any
and all obligations in respect of the Junior Subordinated Debentures of any
series (except in each case for certain obligations to register the transfer or
exchange of Junior Subordinated Debentures, replace stolen, lost or mutilated
Junior Subordinated Debentures, maintain paying agencies and hold moneys for
payment in trust) if Transamerica deposits with the Trustee, in trust, moneys or
Government Obligations, in an amount sufficient to pay all the principal of, and
interest on, the Junior Subordinated Debentures of such series on the dates such
payments are due in accordance with the terms of such Junior Subordinated
Debentures. (Sections 11.01 and 11.02).
12
<PAGE> 78
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by,
and construed in accordance with, the laws of the State of New York. (Section
13.05).
INFORMATION CONCERNING THE TRUSTEE
The Trustee, prior to default, undertakes to perform only such duties as
are specifically set forth in the Indenture and, after default, shall exercise
the same degree of care as a prudent individual would exercise in the conduct of
his or her own affairs. (Section 7.01). Subject to such provision, the Trustee
is under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Junior Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby. (Section 7.02). The Trustee is not
required to expand or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Trustee reasonably believes
that repayment or adequate indemnity is not reasonably assured to it. (Section
7.01).
Transamerica has a credit relationship with the Trustee. The Trustee also
serves as transfer agent and registrar for Transamerica's common stock and 8.5%
Series D Preferred Stock. In addition, the Trustee serves as trustee for
asset-backed certificates issued by one of Transamerica's subsidiaries.
MISCELLANEOUS
Transamerica will have the right at all times to assign any of its rights
or obligations under the Indenture to a direct or indirect wholly-owned
subsidiary of Transamerica; provided, that, in the event of any such assignment,
Transamerica will remain liable for all such obligations. Transamerica Delaware
may not assign any of its rights under the Indenture without the prior written
consent of Transamerica. Subject to the foregoing, the Indenture will be binding
upon and inure to the benefit of the parties thereto and their respective
successors and assigns. The Indenture provides that it may not otherwise be
assigned by the parties thereto. (Section 13.11).
PLAN OF DISTRIBUTION
Transamerica Delaware may sell any series of Preferred Securities being
offered hereby in one or more of the following ways from time to time: (i) to
underwriters for resale to the public or to institutional investors; (ii)
directly to institutional investors; or (iii) through agents to the public or to
institutional investors. The Prospectus Supplement with respect to each series
of Offered Securities will set forth the terms of the offering of such Offered
Securities, including the name or names of any underwriters or agents, the
purchase price of such Offered Securities and the proceeds to Transamerica
Delaware from such sale, any underwriting discounts or agency fees and other
items constituting underwriters' or agents' compensation, any initial public
offering price, any discounts or concessions allowed or reallowed or paid to
dealers and any securities exchanges on which such Offered Securities may be
listed.
If underwriters participate in the sale, such Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the obligations of
the underwriters to purchase any series of Offered Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all of such series of Offered Securities, if any are purchased. In the event of
a default of one or more of the underwriters involving not more than one-
eleventh of the aggregate number or aggregate principal amount of Offered
Securities offered for sale, the non-defaulting underwriters would be required
to purchase the Offered Securities agreed
13
<PAGE> 79
to be purchased by such defaulting underwriter or underwriters. In the event of
a default in excess of one-eleventh of the aggregate number or aggregate
principal amount of Offered Securities, then Transamerica Delaware may, at its
option, sell to the non-defaulting underwriters, and the non-defaulting
underwriters may, at their option, purchase, all of the Offered Securities which
such underwriters had committed to purchase.
Underwriters and agents may be entitled under agreements entered into with
Transamerica and/or Transamerica Delaware to indemnification by Transamerica
and/or Transamerica Delaware against certain civil liabilities, including
liabilities under the Securities Act of 1933, or to contribution with respect to
payments which the underwriters or agents may be required to make in respect
thereof. Underwriters and agents may be customers of, engage in transactions
with, or perform services for Transamerica in the ordinary course of business.
Each series of Offered Securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom Offered
Securities are sold by Transamerica Delaware for public offering and sale may
make a market in such Offered Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. The Offered Securities may or may not be listed on a national securities
exchange.
EXPERTS
The consolidated financial statements of Transamerica Corporation appearing
in Transamerica Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference, which is based in part on the report of Coopers & Lybrand,
independent auditors for Sedgwick Group plc. The financial statements referred
to above are included in reliance upon such reports given upon the authority of
such firms as experts in accounting and auditing.
LEGAL OPINIONS
Certain legal matters in connection with the Offered Securities will be
passed upon for Transamerica and Transamerica Delaware by Christopher M. McLain,
Senior Vice President and General Counsel of Transamerica, and for the
purchasers or underwriters by Cleary, Gottlieb, Steen & Hamilton, New York, New
York. Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon by Richards, Layton & Finger, P.A., Wilmington,
Delaware, as special Delaware counsel for Transamerica and Transamerica
Delaware. As of August , 1994, Mr. McLain was the beneficial owner of 990
shares of Transamerica common stock.
14
<PAGE> 80
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
An itemized statement of the estimated amount of the expenses, other than
underwriting discounts and commissions, incurred and to be incurred by
Transamerica Corporation in connection with the issuance and distribution of the
securities registered pursuant to this registration statement is as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee............................ $ 146,552
Printing and engraving expenses.......................................... *
Accounting fees and expenses............................................. *
Legal fees and expenses.................................................. *
Listing fees............................................................. *
Fees and expenses of Trustee............................................. *
Rating agencies' fees.................................................... *
Blue sky fees and expenses, and legal fees............................... *
Miscellaneous............................................................ *
TOTAL.......................................................... $ *
---------
</TABLE>
--------------------
* To be provided by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Transamerica Corporation (the "Company") is a Delaware corporation. The
Company's Bylaws provide, in effect, that, to the extent and under the
circumstances permitted by Section 145 of the General Corporation Law of the
State of Delaware, the Company shall indemnify any person who was or is a party
or is threatened to be made a party to any action, suit or proceeding of the
type described in that section by reason of the fact that he or she is or was a
director or officer of the Company.
Section 145 of the General Corporation Law of Delaware 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 in certain
actions by or in the right of the corporation as described below), by reason of
the fact that he or she 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 or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner he or she 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 that his or her conduct was
unlawful. In the case of an action by or in the right of the corporation, no
indemnification shall be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine 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
such court shall deem proper. Section 145 further provides that to the extent
that such director, officer, employee or agent of a corporation has been
successful in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter herein,
II-1
<PAGE> 81
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith.
The Company's Certificate of Incorporation relieves its directors from
monetary damages to the Company or its stockholders for any breach of such
director's fiduciary duty as a director to the extent permitted by the Delaware
General Corporation Law. Under Section 102(b)(7) of the Delaware General
Corporation Law, a corporation may relieve its directors from personal liability
to such corporation or its stockholders for monetary damages for any breach of
their fiduciary duty as directors except (i) for a breach of a director's duty
of loyalty to the corporation or its stockholders, (ii) for any act or omission
not in good faith, (iii) for any intentional misconduct or knowing violation of
law, (iv) for any willful or negligent violation of certain provisions of the
Delaware General Corporation Law imposing certain requirements with respect to
stock repurchases, redemptions and payment of dividends or (v) for any
transaction from which the director derived an improper personal benefit.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DOCUMENT
------ ----------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture between Transamerica and The First National Bank of Chicago, as
Trustee.
4.2 Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Junior Subordinated Debentures and fixed rate Preferred Securities.
4.3 Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Junior Subordinated Debentures and adjustable rate Preferred
Securities.
4.4 Certificate of Limited Partnership of Transamerica Delaware.
4.5 Form of Amended and Restated Agreement of Limited Partnership of Transamerica
Delaware.
4.6 Form of Preferred Security (included in Exhibit 4.5 above).
4.7 Form of Junior Subordinated Debenture (included in Exhibit 4.2).
4.8 Form of Guarantee Agreement with respect to Preferred Securities.
5.1 Opinion of Christopher M. McLain.*
5.2 Opinion of Richards, Layton & Finger, P.A.*
8.1 Opinion of Wachtell, Lipton, Rosen & Katz.*
12.1 Computations of consolidated ratio of earnings to fixed charges and consolidated
ratio of earnings to combined fixed charges and preferred stock dividends.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Coopers & Lybrand.
23.3 Consent of Christopher M. McLain (included in Exhibit 5.1 above).
23.4 Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 8.1 above).
23.5 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2 above).
24.1 Powers of Attorney.
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
First National Bank of Chicago, as Trustee under the Indenture.
99.1 Audit Report of Coopers & Lybrand on Financial Statements of Sedgwick Group plc
for the year ended 31 December 1992.
99.2 Audit Report of Coopers & Lybrand on Financial Statements of Sedgwick Group plc
for the year ended 31 December 1993.
* To be filed by amendment.
</TABLE>
II-2
<PAGE> 82
ITEM 17. UNDERTAKING
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the 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; and
(iii) 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 the undertakings set forth in paragraph (a)(1)(i)
and (a)(1)(ii) above 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 Transamerica pursuant to Section 13 or 15(d) of
the Securities Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) 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.
(3) 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.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
TransAmerica's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrants pursuant to the provision described under Item 15 above, 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 their 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 Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 83
SIGNATURES
Pursuant to requirements of the Securities Act of 1933, Transamerica
Corporation 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 San Francisco and State of California on the
11th day of August 1994.
TRANSAMERICA CORPORATION
By /s/ Christopher M. McLain
-----------------------------------------
Christopher M. McLain
Senior Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, Transamerica
Delaware, L.P. 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 San Francisco and State of California, on the
11th day of August 1994.
TRANSAMERICA DELAWARE, L.P.
BY: TRANSAMERICA CORPORATION,
GENERAL PARTNER
By /s/ Christopher M. McLain
-----------------------------------------
Christopher M. McLain
Senior Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following directors and
officers of Transamerica Corporation in the capacities and on the dates
indicated.
<TABLE>
<S> <C>
Principal executive officer:
Date: August 11, 1994 By /s/ Frank C. Herringer
-----------------------------------------
(Frank C. Herringer)
President, Chief Executive Officer and
Director
Principal financial officer:
Date: August 11, 1994 By /s/ Edgar H. Grubb
-----------------------------------------
(Edgar H. Grubb)
Executive Vice President and Chief
Financial Officer
</TABLE>
II-4
<PAGE> 84
<TABLE>
<S> <C>
Principal accounting officer:
Date: August 11, 1994 By /s/ BURTON E. BROOME
---------------------------------------------
(Burton E. Broome)
Vice President and Controller
Directors:
Date: August 11, 1994 By
*
-----------------------------------------
(Myron DuBain)
Date: August 11, 1994 By
*
-----------------------------------------
(Samuel L. Ginn)
Date: August 11, 1994 By
*
-----------------------------------------
(James R. Harvey)
Chairman of the Board
Date: August 11, 1994 By
*
-----------------------------------------
(Gordon E. Moore)
Date: August 11, 1994 By
*
-----------------------------------------
(Raymond F. O'Brien)
Date: August 11, 1994 By
*
-----------------------------------------
(Condoleeza Rice)
Date: August 11, 1994 By
*
-----------------------------------------
(Charles R. Schwab)
Date: August 11, 1994 By
*
-----------------------------------------
(Forrest R. Shumway)
Date: August 11, 1994 By
*
-----------------------------------------
(Peter V. Ueberroth)
*By /s/ CHRISTOPHER M. MCLAIN
----------------------------------------
Christopher M. McLain
As attorney-in-fact
</TABLE>
II-5
<PAGE> 85
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE NO.
------ ---------------------------------------------------------------------------------- -----------
<S> <C> <C>
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture between Transamerica and The First National Bank of Chicago, as
Trustee.
4.2 Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Junior Subordinated Debentures and fixed rate Preferred Securities.
4.3 Form of Supplemental Indenture to Indenture to be used in connection with the
issuance of Junior Subordinated Debentures and adjustable rate Preferred
Securities.
4.4 Certificate of Limited Partnership of Transamerica Delaware.
4.5 Form of Amended and Restated Agreement of Limited Partnership of Transamerica
Delaware.
4.6 Form of Preferred Security (included in Exhibit 4.5 above).
4.7 Form of Junior Subordinated Debenture (included in Exhibit 4.2).
4.8 Form of Guarantee Agreement with respect to Preferred Securities.
5.1 Opinion of Christopher M. McLain.*
5.2 Opinion of Richards, Layton & Finger, P.A.*
8.1 Opinion of Wachtell, Lipton, Rosen & Katz.*
12.1 Computations of consolidated ratio of earnings to fixed charges and consolidated
ratio of earnings to combined fixed charges and preferred stock dividends.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Coopers & Lybrand.
23.3 Consent of Christopher M. McLain (included in Exhibit 5.1 above).
23.4 Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 8.1 above).
23.5 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2 above).
24.1 Powers of Attorney.
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The
First National Bank of Chicago, as Trustee under the Indenture.
99.1 Audit Report of Coopers & Lybrand on Financial Statement of Sedgwick Group plc for
the year ended 31 December 1992.
99.2 Audit Report of Coopers & Lybrand on Financial Statement of Sedgwick Group plc for
the year ended 31 December 1993.
* To be filed by amendment.
</TABLE>
<PAGE> 1
[WLRK Draft -- 8/10/94]
EXHIBIT 4.1
TRANSAMERICA CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
-------------
INDENTURE
Dated as of ______________ __, 1994
------------
Junior Subordinated Debentures
<PAGE> 2
CROSS-REFERENCE TABLE
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
- ------------------- ----------
310(a)........................................ 7.09
310(b)........................................ 7.08
7.10
310(c)........................................ Inapplicable
311(a)........................................ 7.13(a)
311(b)........................................ 7.13(b)
311(c)........................................ Inapplicable
312(a)........................................ 5.01
5.02(a)
312(b)........................................ 5.02(b)
312(c)........................................ 5.02(c)
313(a)........................................ 5.04(a)
313(b)........................................ 5.04(b)
313(c)........................................ 5.04(a)
5.04(b)
313(d)........................................ 5.04(c)
314(a)........................................ 5.03
314(b)........................................ Inapplicable
314(c)........................................ 13.06
314(d)........................................ Inapplicable
314(e)........................................ 13.06
314(f)........................................ Inapplicable
315(a)........................................ 7.01(a)
7.02
315(b)........................................ 6.07
315(c)........................................ 7.01
315(d)........................................ 7.01(b)
7.01(c)
315(e)........................................ 6.08
316(a)........................................ 6.06
8.04
316(b)........................................ 6.04
316(c)........................................ 8.01
317(a)........................................ 6.02
317(b)........................................ 4.04
318(a)........................................ 13.08
<PAGE> 3
TABLE OF CONTENTS*
Page
----
PARTIES.................................................. 1
RECITALS:
Purpose of Indenture..................................... 1
Compliance with legal requirements....................... 1
Purpose of and consideration for Indenture............... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Certain terms defined; other terms
defined in the Trust Indenture Act
of 1939, as amended, or by refer-
ence therein in the Securities Act
of 1933, as amended, to have the
meanings assigned therein................. 2
Affiliate................................. 2
Authenticating Agent...................... 2
Board of Directors........................ 3
Board Resolution.......................... 3
Business day.............................. 3
Certificate............................... 3
Corporate Trust Office.................... 3
Company................................... 3
Debenture or Debentures................... 3
Debentureholder........................... 4
Default................................... 4
Depository................................ 4
Event of Default.......................... 4
Global Debenture.......................... 4
Governmental Obligations.................. 4
Guarantee................................. 5
Indenture................................. 5
Interest Payment Date..................... 5
Limited Partnership Agreement............. 5
Officers' Certificate..................... 6
Opinion of Counsel........................ 6
Outstanding............................... 6
Predecessor Debenture..................... 6
Responsible Officer....................... 7
Senior Indebtedness....................... 7
Subsidiary................................ 7
Transamerica Delaware..................... 8
Trustee................................... 8
Trust Indenture Act....................... 8
- -----------------
* This Table of Contents does not constitute part of the
Indenture and should not have any bearing upon the inter-
pretation of any of its terms or provisions.
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<PAGE> 4
ARTICLE TWO
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF DEBENTURES
SECTION 2.01. Designation, terms, amount, authen-
tication and delivery of Debentures....... 8
SECTION 2.02. Form of Debentures and Trustee's
certificate............................... 10
SECTION 2.03. Date and denominations of Debentures,
and provisions for payment of prin-
cipal, premium and interest............... 10
SECTION 2.04. Execution of Debentures................... 12
SECTION 2.05. Exchange of Debentures.................... 13
(a) Registration and transfer of
Debentures........................... 13
(b) Debentures to be accompanied by
proper instruments of transfer....... 14
(c) Charges upon exchange, transfer
or registration of Debentures........ 14
(d) Restrictions on transfer or
exchange at time of redemption....... 14
SECTION 2.06. Temporary Debentures...................... 15
SECTION 2.07. Mutilated, destroyed, lost or stolen
Debentures................................ 15
SECTION 2.08. Cancellation of surrendered Debentures.... 16
SECTION 2.09. Provisions of Indenture and Debentures
for sole benefit of parties and Deben-
tureholders............................... 17
SECTION 2.10. Appointment of Authenticating Agent....... 17
SECTION 2.11. Global Debenture.......................... 18
(a) Authentication and Delivery;
Legend............................... 18
(b) Transfer of Global Debenture......... 18
(c) Issuance of Debentures in
definitive form...................... 18
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ARTICLE THREE
REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption of Debentures.................. 19
SECTION 3.02. (a) Notice of redemption................. 19
(b) Selection of Debentures in case
less than all Debentures to be
redeemed............................. 20
SECTION 3.03. (a) When Debentures called for
redemption become due and
payable.............................. 21
(b) Receipt of new Debenture upon
partial payment...................... 21
SECTION 3.04. Sinking Fund for Debentures............... 21
SECTION 3.05. Satisfaction of Sinking Fund Payments
with Debentures........................... 22
SECTION 3.06. Redemption of Debentures for Sinking
Fund...................................... 22
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of principal of (and premium,
if any) and interest on Debentures........ 22
SECTION 4.02. Maintenance of office or agency for
payment of Debentures, designation
of office or agency for payment,
registration, transfer and exchange
of Debentures............................. 23
SECTION 4.03. (a) Duties of paying agent............... 23
(b) Company as paying agent.............. 24
(c) Holding sums in trust................ 24
SECTION 4.04. Appointment to fill vacancy in
office of Trustee......................... 24
SECTION 4.05. Restriction on consolidation,
merger or sale............................ 24
SECTION 4.06. Covenants as to Transamerica Delaware..... 24
SECTION 4.07. Restriction on dividends and payments..... 25
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ARTICLE FIVE
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. Company to furnish Trustee informa-
tion as to names and addresses of
Debentureholders.......................... 25
SECTION 5.02. (a) Trustee to preserve information
as to names and addresses of
Debentureholders received by it
in capacity of paying agent.......... 26
(b) Trustee may destroy list of
Debentureholders on certain
conditions........................... 26
(c) Trustee to make information
as to names and addresses of
Debentureholders available
to "applicants" or mail com-
munications to Debenturehold-
ers in certain circumstances......... 26
(d) Procedure if Trustee elects
not to make information
available to applicants.............. 26
(e) Company and Trustee not
accountable for disclosure
of information....................... 27
SECTION 5.03. (a) Annual and other reports to
be filed by Company with
Trustee.............................. 27
(b) Additional information and
reports to be filed with
Trustee and Securities and
Exchange Commission.................. 28
(c) Summaries of information and
reports to be transmitted by
Company to Debentureholders.......... 28
(d) Annual Certificate to be fur-
nished to Trustee.................... 28
SECTION 5.04. (a) Trustee to transmit annual
report to Debentureholders........... 28
(b) Trustee to transmit certain
further reports to Debenture-
holders.............................. 29
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<PAGE> 7
(c) Copies of reports to be filed
with stock exchanges and Secu-
rities and Exchange Commission....... 30
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Events of Default defined............ 30
(b) Acceleration of maturity upon
Event of Default..................... 32
(c) Waiver of default and rescission
of declaration of maturity........... 32
(d) Restoration of former position
and rights upon curing default....... 32
SECTION 6.02. (a) Covenant of Company to pay to
Trustee whole amount due on
Debentures on default in pay-
ment of interest or principal
(and premium, if any)................ 33
(b) Trustee may recover judgment
for whole amount due on Deben-
tures on failure of Company to
pay.................................. 33
(c) Filing of proof of claim by
Trustee in bankruptcy, reorgani-
zation or receivership proceeding.... 33
(d) Rights of action and of assert-
ing claims may be enforced by
Trustee without possession of
Debentures........................... 34
SECTION 6.03. Application of moneys collected by
Trustee................................... 35
SECTION 6.04. Limitation on suits by holders of
of Debentures............................. 35
SECTION 6.05. (a) Remedies cumulative.................. 36
(b) Delay or omission in exercise
of rights not waiver of default...... 36
SECTION 6.06. Rights of holders of majority in
principal amount of Debentures to
direct Trustee and to waive defaults...... 36
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<PAGE> 8
SECTION 6.07. Trustee to give notice of defaults
known to it, but may withhold in
certain circumstances..................... 37
SECTION 6.08. Requirements of an undertaking to
pay costs in certain suits under
Indenture or against Trustee.............. 38
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. (a) Upon Event of Default occurring
and continuing, Trustee shall
exercise powers vested in it,
and use same degree of care
and skill in their exercise,
as prudent individual would
use.................................. 38
(b) Trustee not relieved from lia-
bility for negligence or willful
misconduct except as provided in
this section......................... 39
(1) Prior to Event of Default
and after the curing of
all Events of Default which
may have occurred............... 39
(i) Trustee not liable
except for performance
of duties specifically
set forth.................. 39
(ii) In absence of bad faith,
Trustee may conclusively
rely on certificates or
opinions furnished it
hereunder, subject to
duty to examine the same
if specifically required
to be furnished to it...... 39
(2) Trustee not liable for error
of judgment made in good
faith by Responsible Officer
unless Trustee negligent........ 39
(3) Trustee not liable for action
or non-action in accordance
with direction of holders of
majority in principal amount
of Debentures................... 39
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<PAGE> 9
(4) Trustee need not expend own
funds without adequate in-
demnity......................... 40
SECTION 7.02. Subject to provisions of Section 7.01:
(a) Trustee may rely on documents
believed genuine and properly
signed or presented.................. 40
(b) Sufficient evidence by certain
instruments provided for............. 40
(c) Trustee may consult with counsel
and act on advice or Opinion of
Counsel.............................. 40
(d) Trustee may require indemnity
from Debentureholders................ 40
(e) Trustee not liable for actions
in good faith believed to be
authorized........................... 41
(f) Prior to Event of Default, Trustee
not bound to investigate facts or
matters stated in certificates,
etc., unless requested in writing
by Debentureholders.................. 41
(g) Trustee may perform duties directly
or through agents or attorneys....... 41
SECTION 7.03. (a) Trustee not liable for recitals
in Indenture or in Debentures........ 41
(b) No representations by Trustee as
to validity or Indenture or of
Debentures........................... 41
(c) Trustee not accountable for use
of Debentures or proceeds............ 41
SECTION 7.04. Trustee, paying agent or Debenture
Registrar may own Debentures.............. 42
SECTION 7.05. Moneys received by Trustee to be held
in trust without interest................. 42
SECTION 7.06. (a) Trustee entitled to compensation,
reimbursement and indemnity.......... 42
(b) Obligations to Trustee to be
secured by lien prior to Deben-
tures................................ 42
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<PAGE> 10
SECTION 7.07. Right of Trustee to rely on certifi-
cate of officers of Company where no
other evidence specifically prescribed.... 43
SECTION 7.08. (a) Trustee acquiring conflicting
interest to eliminate conflict
or resign............................ 43
(b) Notice to Debentureholders in
case of failure to comply with
subsection (a)....................... 43
(c) Definition of conflicting
interest............................. 43
(d) Definition of certain terms.......... 47
(e) Calculation of percentages of
Debentures........................... 48
(f) Trustee resignation not required
under certain circumstances.......... 50
SECTION 7.09. Requirements for eligibility of
Trustee................................... 50
SECTION 7.10. (a) Resignation of Trustee and
appointment of successor............. 51
(b) Removal of Trustee by Company
or by court on Debentureholders'
application.......................... 51
(c) Removal of Trustee by holders
of majority in principal amount
of Debentures........................ 52
(d) Time when resignation or removal
of Trustee effective................. 52
(e) One Trustee for each series.......... 52
SECTION 7.11. (a) Acceptance by successor to
Trustee.............................. 52
(b) Trustee with respect to less
than all series...................... 52
(c) Company to confirm Trustee's
rights............................... 53
(d) Successor Trustee to be qualified.... 53
(e) Notice of succession................. 54
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<PAGE> 11
SECTION 7.12. Successor to Trustee by merger, con-
solidation or succession to business...... 54
SECTION 7.13. (a) Limitations on rights of Trustee
as a creditor to obtain payment
of certain claims within four
months prior to default or dur-
ing default, or to realize on
property as such creditor there-
after................................ 54
(b) Certain creditor relationships
excluded............................. 57
(c) Definition of certain terms.......... 58
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01. Evidence of action by Debenture-
holders................................... 59
SECTION 8.02. Proof of execution of instruments
and of holding of Debentures.............. 59
SECTION 8.03. Who may be deemed owners of
Debentures................................ 60
SECTION 8.04. Debentures owned by Company or
controlled or controlling companies
disregarded for certain purposes.......... 60
SECTION 8.05. Instruments executed by Debenture-
holders bind future holders............... 61
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Purposes for which supplemental
indenture may be entered into with-
out consent of Debentureholders........... 61
SECTION 9.02. Modification of Indenture with
consent of Debentureholders............... 63
SECTION 9.03. Effect of supplemental indentures......... 64
SECTION 9.04. Debentures may bear notation of
changes by supplemental indentures........ 64
SECTION 9.05. Opinion of Counsel........................ 64
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<PAGE> 12
ARTICLE TEN
CONSOLIDATION, MERGER AND SALE
SECTION 10.01. Consolidations or mergers of Company
and sales or conveyances of property
of Company permitted...................... 64
SECTION 10.02. (a) Rights and duties of successor
company.............................. 65
(b) Appropriate changes may be
made in phraseology and form
of Debentures........................ 66
(c) Company may consolidate or
merge into itself or acquire
properties of other corpora-
tions................................ 66
SECTION 10.03. Opinion of Counsel........................ 66
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01. Satisfaction and discharge of
Indenture................................. 66
SECTION 11.02. Discharge of Company's Obligations........ 67
SECTION 11.03. Application by Trustee of funds
deposited for payment of Debentures....... 67
SECTION 11.04. Repayment of moneys held by paying
agent..................................... 67
SECTION 11.05. Repayment of moneys held by Trustee....... 68
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Incorporators, stockholders, officers
and directors of Company exempt from
individual liability...................... 68
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors and assigns of Company
bound by Indenture........................ 69
SECTION 13.02. Acts of board, committee or officer
of successor company valid................ 69
SECTION 13.03. Surrender of powers by Company............ 69
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<PAGE> 13
SECTION 13.04. Required notices or demands may be
served by mail............................ 69
SECTION 13.05. Indenture and Debentures to be con-
strued in accordance with laws of
the State of New York..................... 69
SECTION 13.06. (a) Officers' Certificate and
Opinion of Counsel to be fur-
nished upon applications or
demands by Company................... 70
(b) Statements to be included in
each certificate or opinion with
respect to compliance with condi-
tion or covenant..................... 70
SECTION 13.07. Payments due on Sundays or holidays....... 70
SECTION 13.08. Provisions required by Trust Inden-
ture Act of 1939 to control............... 70
SECTION 13.09. Indenture may be executed in coun-
terparts.................................. 70
SECTION 13.10. Separability of Indenture provisions...... 71
SECTION 13.11. Assignment by Company to subsidiary....... 71
ARTICLE FOURTEEN
SUBORDINATION OF DEBENTURES
SECTION 14.01. Agreement of Subordination................ 71
SECTION 14.02. Limitations on payments to Deben-
tureholders............................... 71
SECTION 14.03. Payments in bankruptcy.................... 72
SECTION 14.04. Subrogation of Debentures................. 74
SECTION 14.05. Authorization by Debentureholders......... 75
SECTION 14.06. Notice to Trustee......................... 75
SECTION 14.07. Trustee's relation to Senior
Indebtedness.............................. 76
SECTION 14.08. Acts of holders of Senior
Indebtedness.............................. 76
ACCEPTANCE OF TRUST BY TRUSTEE........................... 77
TESTIMONIUM.............................................. 78
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<PAGE> 14
SIGNATURES AND SEALS..................................... 78
ACKNOWLEDGMENTS.......................................... 79
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<PAGE> 15
THIS INDENTURE, dated as of the_______day of__________,
1994, between Transamerica Corporation, a corporation duly
organized and existing under the laws of the State of Delaware
(hereinafter sometimes referred to as the "Company"), and The
First National Bank of Chicago, a National Banking Association
as trustee (hereinafter sometimes referred to as the "Trust-
ee"):
WHEREAS, for its lawful corporate purposes, the Com-
pany has duly authorized the execution and delivery of this
Indenture to provide for the issuance of unsecured debentures
(hereinafter referred to as the "Debentures"), in an unlimited
aggregate principal amount to be issued from time to time in
one or more series as in this Indenture provided, as registered
Debentures without coupons, to be authenticated by the certifi-
cate of the Trustee;
WHEREAS, to provide the terms and conditions upon
which the Debentures are to be authenticated, issued and deliv-
ered, the Company has duly authorized the execution of this
Indenture;
WHEREAS, the Debentures and the certificate of
authentication to be borne by the Debentures (the "Certificate
of Authentication") are to be substantially in such forms as
may be approved by the Board of Directors (as defined below) or
set forth in any indenture supplemental to this Indenture;
AND WHEREAS, all acts and things necessary to make
the Debentures issued pursuant hereto, when executed by the
Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obliga-
tions of the Company, and to constitute these presents a valid
indenture and agreement according to its terms, have been done
and performed or will be done and performed prior to the issu-
ance of such Debentures, and the execution of this Indenture
has been and the issuance hereunder of the Debentures has been
or will be prior to issuance in all respects duly authorized,
and the Company, in the exercise of the legal right and power
in it vested, executes this Indenture and proposes to make,
execute, issue and deliver the Debentures;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions
upon which the Debentures are and are to be authenticated,
issued and delivered, and in consideration of the premises, of
the purchase and acceptance of the Debentures by the holders
thereof and of the sum of one dollar ($1.00) to it duly paid by
the Trustee at the execution of these presents, the receipt
<PAGE> 16
whereof is hereby acknowledged, the Company covenants and
agrees with the Trustee, for the equal and proportionate ben-
efit (subject to the provisions of this Indenture) of the
respective holders from time to time of the Debentures, without
any discrimination, preference or priority of any one Debenture
over any other by reason of priority in the time of issue, sale
or negotiation thereof, or otherwise, except as provided here-
in, as follows:
ARTICLE ONE
Definitions
SECTION 1.01. The terms defined in this Section
(except as in this Indenture otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture, any resolution of the Board of Directors of the Com-
pany and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture
Act of 1939, as amended, or which are by reference in such Act
defined in the Securities Act of 1933, as amended (except as
herein otherwise expressly provided or unless the context oth-
erwise requires), shall have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act as
in force at the date of the execution of this instrument.
Affiliate:
The term "Affiliate" of the Company shall mean any company at
least a majority of whose outstanding voting stock shall at the
time be owned by the Company, or by one or more direct or indi-
rect subsidiaries of or by the Company and one or more direct
or indirect subsidiaries of the Company. For the purposes only
of this definition of the term "Affiliate", the term "voting
stock", as applied to the stock of any company, shall mean
stock of any class or classes having ordinary voting power for
the election of a majority of the directors of such company,
other than stock having such power only by reason of the occur-
rence of a contingency.
Authenticating Agent:
The term "Authenticating Agent" means an authenticating agent
with respect to all or any of the series of Debentures, as the
case may be, appointed with respect to all or any series of the
Debentures, as the case may be, by the Trustee pursuant to Sec-
tion 2.10.
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<PAGE> 17
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors
of the Company, or an Executive or Special Committee of such
Board.
Board Resolution:
The term "Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certifica-
tion.
Business day:
The term "business day", with respect to any series of Deben-
tures, shall mean any day other than a day on which banking
institutions in the Borough of Manhattan, the City and State of
New York, are authorized or obligated by law or executive order
to close.
Certificate:
The term "Certificate" shall mean a certificate signed by the
principal executive officer, the principal financial officer or
the principal accounting officer of the Company. The Certifi-
cate need not comply with the provisions of Section 13.06.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the office of the
Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the
date of the execution of this Indenture is located at One First
National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: Corporate Trust Services Division.
Company:
The term "Company" shall mean Transamerica Corporation, a cor-
poration duly organized and existing under the laws of the
State of Delaware, and, subject to the provisions of Article
Ten, shall also include its successors and assigns.
Debenture or Debentures:
The term "Debenture" or "Debentures" shall mean any Debenture
or Debentures, as the case may be, authenticated and delivered
under this Indenture.
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<PAGE> 18
Debentureholder:
The term "Debentureholder", "holder of Debentures", "registered
holder", or other similar term, shall mean the person or per-
sons in whose name or names a particular Debenture shall be
registered on the books of the Company kept for that purpose in
accordance with the terms of this Indenture.
Default:
The term "Default" shall mean any event, act or condition which
with notice or lapse of time, or both, would constitute an
Event of Default.
Depository:
The term "Depository" shall mean, with respect to Debentures of
any series, for which the Company shall determine that such
Debentures will be issued as a Global Debenture, The Depository
Trust Company, New York, New York, another clearing agency, or
any successor registered as a clearing agency under the Securi-
ties and Exchange Act of 1934, as amended (the "Exchange Act"),
or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section
2.01 or 2.11.
Event of Default:
The term "Event of Default" with respect to Debentures of a
particular series shall mean any event specified in Section
6.01, continued for the period of time, if any, therein desig-
nated.
Global Debenture:
The term "Global Debenture" shall mean, with respect to any
series of Debentures, a Debenture executed by the Company and
delivered by the Trustee to the Depository or pursuant to the
Depository's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depository or its
nominee.
Governmental Obligations:
The term, "Governmental Obligations" shall mean securities that
are (i) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or
(ii) obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of
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<PAGE> 19
America, the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental
Obligation held by such custodian for the account of the holder
of such depository 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 depository re-
ceipt from any amount received by the custodian in respect of
the Governmental Obligation or the specific payment of princi-
pal of or interest on the Governmental Obligation evidenced by
such depository receipt.
Guarantee:
The term "Guarantee" shall mean any guarantee that the Company
may enter into with Transamerica Delaware or other persons that
operate directly or indirectly for the benefit of holders of
limited partnership interests issued by Transamerica Delaware.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as
so amended or supplemented.
Interest Payment Date:
The term "Interest Payment Date" when used with respect to any
installment of interest on a Debenture of a particular series
shall mean the date specified in such Debenture or in a Board
Resolution or in an indenture supplemental hereto with respect
to such series as the fixed date on which an installment of
interest with respect to Debentures of that series is due and
payable.
Limited Partnership Agreement:
The term "Limited Partnership Agreement" shall mean the Amended
and Restated Limited Partnership Agreement, dated _____________,
of Transamerica Delaware.
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<PAGE> 20
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate
signed by the President or a Vice President and by the Trea-
surer or an Assistant Treasurer or the Controller or an Assis-
tant Controller or the Secretary or an Assistant Secretary of
the Company. Each such certificate shall include the state-
ments provided for in Section 13.06, if and to the extent re-
quired by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee of or counsel
for the Company. Each such opinion shall include the state-
ments provided for in Section 13.06, if and to the extent re-
quired by the provisions thereof.
Outstanding:
The term "outstanding", when used with reference to Debentures
of any series, shall, subject to the provisions of Section
8.04, mean, as of any particular time, all Debentures of that
series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Debentures theretofore can-
celed by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or which have pre-
viously been canceled; (b) Debentures or portions thereof for
the payment or redemption of which moneys or Governmental Obli-
gations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Debentures or portions
of such Debentures are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in
Article Three provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and (c)
Debentures in lieu of or in substitution for which other Deben-
tures shall have been authenticated and delivered pursuant to
the terms of Section 2.07.
Predecessor Debenture:
The term "Predecessor Debenture" of any particular Debenture
shall mean every previous Debenture evidencing all or a portion
of the same debt as that evidenced by such particular Deben-
ture; and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 2.07 in lieu of a
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<PAGE> 21
lost, destroyed or stolen Debenture shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debenture.
Responsible Officer:
The term "Responsible Officer" when used with respect to the
Trustee shall mean the chairman of the board of directors, the
president, any vice president, the secretary, the treasurer,
any trust officer, any corporate trust officer or any other
officer or assistant officer of the Trustee customarily per-
forming 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.
Senior Indebtedness:
The term "Senior Indebtedness" of the Company shall mean the
principal of, premium, if any, interest on and any other pay-
ment due pursuant to any of the following, whether outstanding
at the date of execution of this Indenture or thereafter in-
curred, created or assumed: (a) all indebtedness of the Com-
pany evidenced by notes, debentures, bonds or other securities
sold by the Company for money, (b) all indebtedness of others
of the kinds described in the preceding clause (a) assumed by
or guaranteed in any manner by the Company or in effect guaran-
teed by the Company through an agreement to purchase, contin-
gent or otherwise, and (c) all renewals, extensions or refund-
ings of indebtedness of the kinds described in any of the pre-
ceding clauses (a) and (b) unless, in the case of any particu-
lar indebtedness, renewal, extension or refunding, the instru-
ment creating or evidencing the same or the assumption or guar-
antee of the same expressly provides that such indebtedness,
renewal, extension or refunding is not superior in right of
payment to or is pari passu with the Debentures.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a
majority of whose outstanding voting stock shall at the time be
owned by the Company or by one or more Subsidiaries or by the
Company and one or more Subsidiaries. For the purposes only of
this definition of the term "Subsidiary", the term "voting
stock", as applied to the stock of any corporation, shall mean
stock of any class or classes having ordinary voting power for
the election of a majority of the directors of such corpora-
tion, other than stock having such power only by reason of the
occurrence of a contingency.
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Transamerica Delaware:
The term "Transamerica Delaware" shall mean Transamerica Dela-
ware, L.P., a Delaware limited partnership.
Trustee:
The term "Trustee" shall mean The First National Bank of
Chicago and, subject to the provisions of Article Seven, shall
also include its successors and assigns, and, if at any time
there is more than one person acting in such capacity here-
under, "Trustee" shall mean each such person. The term
"Trustee" as used with respect to a particular series of the
Debentures shall mean the trustee with respect to that series.
Trust Indenture Act:
The term "Trust Indenture Act", subject to the provisions of
Sections 9.01, 9.02, and 10.01, shall mean the Trust Indenture
Act of 1939, as amended and in effect at the date of execution
of this Indenture.
ARTICLE TWO
Issue, Description, Terms, Execution,
Registration and Exchange of Debentures
SECTION 2.01. The aggregate principal amount of
Debentures which may be authenticated and delivered under this
Indenture is unlimited.
The Debentures may be issued in one or more series up
to the aggregate principal amount of Debentures of that series
from time to time authorized by or pursuant to a Board Resolu-
tion or pursuant to one or more indentures supplemental hereto,
prior to the initial issuance of Debentures of a particular
series. Prior to the initial issuance of Debentures of any
series, there shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto:
(1) the title of the Debentures of the series (which
shall distinguish the Debentures of the series from all
other Debentures);
(2) any limit upon the aggregate principal amount of
the Debentures of that series which may be authenticated
and delivered under this Indenture (except for Debentures
authenticated and delivered upon registration of transfer
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of, or in exchange for, or in lieu of, other Debentures of
that series);
(3) the date or dates on which the principal of the
Debentures of the series is payable;
(4) the rate or rates at which the Debentures of the
series shall bear interest or the manner of calculation of
such rate or rates, if any;
(5) the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest
will be payable or the manner of determination of such
Interest Payment Dates and the record date for the deter-
mination of holders to whom interest is payable on any
such Interest Payment Dates;
(6) the right, if any, to extend the interest pay-
ment periods and the duration of such extension;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which,
Debentures of the series may be redeemed, in whole or in
part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase Debentures of the series pursuant to any sink-
ing fund or analogous provisions (including payments made
in cash in anticipation of future sinking fund obliga-
tions) or at the option of a holder thereof and the period
or periods within which, the price or prices at which, and
the terms and conditions upon which, Debentures of the
series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) the form of the Debentures of the series includ-
ing the form of the Certificate of Authentication for such
series;
(10) if other than denominations of $25 or any inte-
gral multiple thereof, the denominations in which the
Debentures of the series shall be issuable;
(11) any and all other terms with respect to such
series (which terms shall not be inconsistent with the
terms of this Indenture); and
(12) whether the Debentures are issuable as a Global
Debenture and, in such case, the identity for the Deposi-
tory for such series.
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<PAGE> 24
All Debentures of any one series shall be substan-
tially identical except as to denomination and except as may
otherwise be provided in or pursuant to any such Board Resolu-
tion or in any indentures supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an ap-
propriate record of such action shall be certified by the Sec-
retary or an Assistant Secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.02. The Debentures of any series and the
Trustee's certificate of authentication to be borne by such
Debentures shall be substantially of the tenor and purport as
set forth in one or more indentures supplemental hereto or as
provided in a Board Resolution and as set forth in an Officers'
Certificate, and may have such letters, numbers or other marks
of identification or designation and such legends or endorse-
ments printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the pro-
visions of this Indenture, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on which
Debentures of that series may be listed, or to conform to
usage.
SECTION 2.03. The Debentures shall be issuable as
registered Debentures and in the denominations of $25 or any
integral multiple thereof, subject to Section 2.01(10). The
Debentures of a particular series shall bear interest payable
on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Debentures of
any series, as well as any premium thereon in case of redemp-
tion thereof prior to maturity, shall be payable in the coin or
currency of the United States of America which at the time is
legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the Bor-
ough of Manhattan, the City and State of New York. Each Deben-
ture shall be dated the date of its authentication. Interest on
the Debentures shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The interest installment on any Debenture which is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Debentures of that series shall be
paid to the person in whose name said Debenture (or one or more
Predecessor Debentures) is registered at the close of business
on the regular record date for such interest installment. In
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<PAGE> 25
the event that any Debenture of a particular series or portion
thereof is called for redemption and the redemption date is
subsequent to a regular record date with respect to any Inter-
est Payment Date and prior to such Interest Payment Date,
interest on such Debenture will be paid upon presentation and
surrender of such Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but
is not punctually paid or duly provided for, on any Interest
Payment Date for Debentures of the same series (herein called
"Defaulted Interest") shall forthwith cease to be payable to
the registered holder on the relevant regular record date by
virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Debentures to the persons in whose names such
Debentures (or their respective Predecessor Debentures)
are registered at the close of business on a special
record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Deben-
ture and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make ar-
rangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the per-
sons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days
prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall prompt-
ly notify the Company of such special record date and, in
the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first
class postage prepaid, to each Debentureholder at his or
her address as it appears in the Debenture Register (as
hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of
such Defaulted Interest and the special record date there-
for having been mailed as aforesaid, such Defaulted Inter-
est shall be paid to the persons in whose names such
Debentures (or their respective Predecessor Debentures)
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<PAGE> 26
are registered on such special record date and shall be no
longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debentures in any other lawful manner not
inconsistent with the requirements of any securities ex-
change on which such Debentures may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or
one or more indentures supplemental hereto establishing the
terms of any series of Debentures pursuant to Section 2.01
hereof, the term "regular record date" as used in this Section
with respect to a series of Debentures with respect to any In-
terest Payment Date for such series shall mean either the fif-
teenth day of the month immediately preceding the month in
which an Interest Payment Date established for such series pur-
suant to Section 2.01 hereof shall occur, if such Interest Pay-
ment Date is the first day of a month, or the last day of the
month immediately preceding the month in which an Interest Pay-
ment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the fif-
teenth day of a month, whether or not such date is a business
day.
Subject to the foregoing provisions of this Section,
each Debenture of a series delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Deben-
ture of such series shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other
Debenture.
SECTION 2.04. The Debentures shall, subject to the
provisions of Section 2.06, be printed on steel engraved bor-
ders or fully or partially engraved, or legibly typed, as the
proper officers of the Company may determine, and shall be
signed on behalf of the Company by its President or one of its
Vice Presidents, under its corporate seal attested by its Sec-
retary or one of its Assistant Secretaries. The signature of
the President or a Vice President and/or the signature of the
Secretary or an Assistant Secretary in attestation of the cor-
porate seal, upon the Debentures, may be in the form of a fac-
simile signature of a present or any future President or Vice
President and of a present or any future Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the
Debentures and for that purpose the Company may use the fac-
simile signature of any person who shall have been a President
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<PAGE> 27
or Vice President, or of any person who shall have been a Sec-
retary or Assistant Secretary, notwithstanding the fact that at
the time the Debentures shall be authenticated and delivered or
disposed of such person shall have ceased to be the President
or a Vice President, or the Secretary or an Assistant Secre-
tary, of the Company, as the case may be. The seal of the Com-
pany may be in the form of a facsimile of the seal of the Com-
pany and may be impressed, affixed, imprinted or otherwise
reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certifi-
cate of Authentication substantially in the form established
for such Debentures, executed manually by an authorized signa-
tory of the Trustee, or by any Authenticating Agent with re-
spect to such Debentures, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating
Agent appointed by the Trustee with respect to such Debentures,
upon any Debenture executed by the Company shall be conclusive
evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Deben-
tures of any series executed by the Company to the Trustee for
authentication, together with a written order of the Company
for the authentication and delivery of such Debentures, signed
by its President or any Vice President and its Treasurer or any
Assistant Treasurer, and the Trustee in accordance with such
written order shall authenticate and deliver such Debentures.
In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to
such Debentures, the Trustee shall be entitled to receive, and
(subject to Section 7.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the form and terms
thereof have been established in conformity with the provisions
of this Indenture.
The Trustee shall not be required to authenticate
such Debentures if the issue of such Debentures pursuant to
this Indenture will affect the Trustee's own rights, duties or
immunities under the Debentures and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be
exchanged upon presentation thereof at the office or agency of
the Company designated for such purpose in the Borough of Man-
hattan, the City and State of New York, for other Debentures of
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<PAGE> 28
such series of authorized denominations, and for a like ag-
gregate principal amount, upon payment of a sum sufficient to
cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Debentures
so surrendered for exchange, the Company shall execute, the
Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Debenture or Debentures of the
same series which the Debentureholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously
outstanding.
(b) The Company shall keep, or cause to be kept, at
its office or agency designated for such purpose in the Borough
of Manhattan, the City and State of New York, or such other
location designated by the Company a register or registers
(herein referred to as the "Debenture Register") in which, sub-
ject to such reasonable regulations as it may prescribe, the
Company shall register the Debentures and the transfers of
Debentures as in this Article provided and which at all reason-
able times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and trans-
fer of Debentures as herein provided shall be appointed as
authorized by Board Resolution (the "Debenture Registrar").
Upon surrender for transfer of any Debenture at the
office or agency of the Company designated for such purpose in
the Borough of Manhattan, the City and State of New York, the
Company shall execute, the Trustee shall authenticate and such
office or agency shall deliver in the name of the transferee or
transferees a new Debenture or Debentures of the same series as
the Debenture presented for a like aggregate principal amount.
All Debentures presented or surrendered for exchange
or registration of transfer, as provided in this Section, shall
be accompanied (if so required by the Company or the Debenture
Registrar) by a written instrument or instruments of transfer,
in form satisfactory to the Company or the Debenture Registrar,
duly executed by the registered holder or by his duly autho-
rized attorney in writing.
(c) No service charge shall be made for any exchange
or registration of transfer of Debentures, or issue of new
Debentures in case of partial redemption of any series, but the
Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other
than exchanges pursuant to Section 2.06, the second paragraph
of Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue,
exchange or register the transfer of any Debentures during a
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period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of less than all
the outstanding Debentures of the same series and ending at the
close of business on the day of such mailing, nor (ii) to reg-
ister the transfer of or exchange any Debentures of any series
or portions thereof called for redemption. The provisions of
this Section 2.05 are, with respect to any Global Debenture,
subject to Section 2.11 hereof.
SECTION 2.06. Pending the preparation of definitive
Debentures of any series, the Company may execute, and the
Trustee shall authenticate and deliver, temporary Debentures
(printed, lithographed or typewritten) of any authorized denom-
ination, and substantially in the form of the definitive Deben-
tures in lieu of which they are issued, but with such omis-
sions, insertions and variations as may be appropriate for tem-
porary Debentures, all as may be determined by the Company.
Every temporary Debenture of any series shall be executed by
the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Debentures of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Debentures of such series and thereupon any or all
temporary Debentures of such series may be surrendered in ex-
change therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose in the Bor-
ough of Manhattan, the City and State of New York, and the
Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Debentures an equal ag-
gregate principal amount of definitive Debentures of such
series, unless the Company advises the Trustee to the effect
that definitive Debentures need not be executed and furnished
until further notice from the Company. Until so exchanged, the
temporary Debentures of such series shall be entitled to the
same benefits under this Indenture as definitive Debentures of
such series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive
Debenture shall become mutilated or be destroyed, lost or sto-
len, the Company (subject to the next succeeding sentence)
shall execute, and upon its request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Debenture of
the same series bearing a number not contemporaneously out-
standing, in exchange and substitution for the mutilated Deben-
ture, or in lieu of and in substitution for the Debenture so
destroyed, lost or stolen. In every case the applicant for a
substituted Debenture shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruc-
tion, loss or theft, the applicant shall also furnish to the
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Company and to the Trustee evidence to their satisfaction of
the destruction, loss or theft of the applicant's Debenture and
of the ownership thereof. The Trustee may authenticate any
such substituted Debenture and deliver the same upon the writ-
ten request or authorization of any officer of the Company.
Upon the issuance of any substituted Debenture, the Company 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) connected therewith. In case any Debenture
which has matured or is about to mature shall become mutilated
or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Debenture, pay or authorize the payment of
the same (without surrender thereof except in the case of a
mutilated Debenture) if the applicant for such payment shall
furnish to the Company and to the Trustee such security or in-
demnity as they may require to save them harmless, and, in case
of destruction, loss or theft, evidence to the satisfaction of
the Company and the Trustee of the destruction, loss or theft
of such Debenture and of the ownership thereof.
Every Debenture issued pursuant to the provisions of
this Section in substitution for any Debenture which is muti-
lated, destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the muti-
lated, destroyed, lost or stolen Debenture shall be found at
any time, or be enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Debentures of the same series duly is-
sued hereunder. All Debentures shall be held and owned upon
the express condition that the foregoing provisions are exclu-
sive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures, and shall preclude (to
the extent lawful) any and all other rights or remedies, not-
withstanding 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 sur-
render.
SECTION 2.08. All Debentures surrendered for the
purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be canceled by it, and no
Debentures shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Inden-
ture. On request of the Company, the Trustee shall deliver to
the Company canceled Debentures held by the Trustee. In the
absence of such request the Trustee may dispose of canceled
Debentures in accordance with its standard procedures and
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<PAGE> 31
deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Debentures, however,
such acquisition shall not operate as a redemption or satisfac-
tion of the indebtedness represented by such Debentures unless
and until the same are delivered to the Trustee for cancella-
tion.
SECTION 2.09. Nothing in this Indenture or in the
Debentures, express or implied, shall give or be construed to
give to any person, firm or corporation, other than the parties
hereto and the holders of the Debentures, any legal or equi-
table right, remedy or claim under or in respect of this Inden-
ture, or under any covenant, condition or provision herein con-
tained; all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of
the Debentures.
SECTION 2.10. So long as any of the Debentures of
any series remain outstanding there may be an Authenticating
Agent for any or all such series of Debentures which the
Trustee shall have the right to appoint. Said Authenticating
Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange,
transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this Inden-
ture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Debentures by the Trustee
shall be deemed to include authentication by an Authenticating
Agent for such series except for authentication upon original
issuance or pursuant to Section 2.07 hereof. Each Authenticat-
ing Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in
which it is doing business to conduct a trust business, and
which is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by Fed-
eral or State authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these pro-
visions, it shall resign immediately.
Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time (and upon request by the
Company shall) terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the
Trustee may appoint an eligible successor Authenticating Agent
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<PAGE> 32
acceptable to the Company. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predeces-
sor hereunder as if originally named as an Authenticating Agent
pursuant hereto.
SECTION 2.11. (a) If the Company shall establish
pursuant to Section 2.01 that the Debentures of a particular
series are to be issued as a Global Debenture, then the Company
shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Debenture which (i)
shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding
Debentures of such series, (ii) shall be registered in the name
of the Depository or its nominee, (iii) shall be delivered by
the Trustee to the Depository or pursuant to the Depository's
instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section
2.11 of the Indenture, this Debenture may be transferred, in
whole but not in part, only to another nominee of the Deposi-
tory or to a successor Depository or to a nominee of such suc-
cessor Depository."
(b) Notwithstanding the provisions of Section 2.05,
the Global Debenture of a series may be transferred, in whole
but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depository for such series, or
to a successor Depository for such series selected or approved
by the Company or to a nominee of such successor Depository.
(c) If at any time the Depository for a series of
Debentures notifies the Company that it is unwilling or unable
to continue as Depository for such series or if at any time the
Depository for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable stat-
ute or regulation and a successor Depository for such series is
not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to
the Debentures of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and
deliver Debentures of such series in definitive registered form
without coupons, in authorized denominations, and in an aggre-
gate principal amount equal to the principal amount of the Glo-
bal Debenture of such series in exchange for such Global Deben-
ture. In addition, the Company may at any time determine that
the Debentures of any series shall no longer be represented by
a Global Debenture and that the provisions of this Section 2.11
shall no longer apply to the Debentures of such series. In
such event the Company will execute and subject to Section
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<PAGE> 33
2.05, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate
and deliver Debentures of such series in definitive registered
form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Debenture of such series in exchange for such Global
Debenture. Upon the exchange of the Global Debenture for such
Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be can-
celed by the Trustee. Such Debentures in definitive registered
form issued in exchange for the Global Debenture pursuant to
this Section 2.11(c) shall be registered in such names and in
such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or other-
wise, shall instruct the Trustee. The Trustee shall deliver
such Debentures to the Depository for delivery to the persons
in whose names such Debentures are so registered.
ARTICLE THREE
Redemption of Debentures and Sinking Fund Provisions
SECTION 3.01. The Company may redeem the Debentures
of any series issued hereunder on and after the dates and in
accordance with the terms established for such series pursuant
to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire
to exercise such right to redeem all or, as the case may be, a
portion of the Debentures of any series in accordance with the
right reserved so to do, it shall give notice of such redemp-
tion to holders of the Debentures of such series to be redeemed
by mailing, first class postage prepaid, a notice of such re-
demption not less than 30 days and not more than 60 days before
the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Debenture
Register. Any notice which is mailed in the manner herein pro-
vided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In
any case, failure duly to give such notice to the holder of any
Debenture of any series designated for redemption in whole or
in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other
Debentures of such series or any other series. In the case of
any redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
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<PAGE> 34
Each such notice of redemption shall specify the date
fixed for redemption and the redemption price at which Deben-
tures of that series are to be redeemed, and shall state that
payment of the redemption price of such Debentures to be re-
deemed will be made at the office or agency of the Company in
the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Debentures, that interest
accrued to the date fixed for redemption will be paid as speci-
fied in said notice, that from and after said date interest
will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Debentures of
a series are to be redeemed, the notice to the holders of
Debentures of that series to be redeemed in whole or in part
shall specify the particular Debentures to be so redeemed. In
case any Debenture is to be redeemed in part only, the notice
which relates to such Debenture shall state the portion of the
principal amount thereof to be redeemed, and shall state that
on and after the redemption date, upon surrender of such Deben-
ture, a new Debenture or Debentures of such series in principal
amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Debentures of a series are
to be redeemed, the Company shall give the Trustee at least 45
days' notice in advance of the date fixed for redemption as to
the aggregate principal amount of Debentures of the series to
be redeemed, and thereupon the Trustee shall select, by lot or
in such other manner as it shall deem appropriate and fair in
its discretion and which may provide for the selection of a
portion or portions (equal to $25 or any integral multiple
thereof) of the principal amount of such Debentures of a denom-
ination larger than $25, the Debentures to be redeemed and
shall thereafter promptly notify the Company in writing of the
numbers of the Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect,
by delivery of instructions signed on its behalf by its Presi-
dent or any Vice President, instruct the Trustee or any paying
agent to call all or any part of the Debentures of a particular
series for redemption and to give notice of redemption in the
manner set forth in this Section, such notice to be in the name
of the Company or its own name as the Trustee or such paying
agent may deem advisable. In any case in which notice of re-
demption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to,
or permit to remain with, the Trustee or such paying agent, as
the case may be, such Debenture Register, transfer books or
other records, or suitable copies or extracts therefrom, suf-
ficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of
this Section.
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SECTION 3.03. (a) If the giving of notice of re-
demption shall have been completed as above provided, the
Debentures or portions of Debentures of the series to be re-
deemed specified in such notice shall become due and payable on
the date and at the place stated in such notice at the appli-
cable redemption price, together with interest accrued to the
date fixed for redemption and interest on such Debentures or
portions of Debentures shall cease to accrue on and after the
date fixed for redemption, unless the Company shall default in
the payment of such redemption price and accrued interest with
respect to any such Debenture or portion thereof. On presenta-
tion and surrender of such Debentures on or after the date
fixed for redemption at the place of payment specified in the
notice, said Debentures shall be paid and redeemed at the ap-
plicable redemption price for such series, together with inter-
est accrued thereon to the date fixed for redemption (but if
the date fixed for redemption is an interest payment date, the
interest installment payable on such date shall be payable to
the registered holder at the close of business on the appli-
cable record date pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such se-
ries which is to be redeemed in part only, the Company shall
execute and the Trustee shall authenticate and the office or
agency where the Debenture is presented shall deliver to the
holder thereof, at the expense of the Company, a new Debenture
or Debentures of the same series, of authorized denominations
in principal amount equal to the unredeemed portion of the De-
benture so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05
and 3.06 shall be applicable to any sinking fund for the re-
tirement of Debentures of a series, except as otherwise speci-
fied as contemplated by Section 2.01 for Debentures of such
series.
The minimum amount of any sinking fund payment pro-
vided for by the terms of Debentures of any series is herein
referred to as a "mandatory sinking fund payment", and any pay-
ment in excess of such minimum amount provided for by the terms
of Debentures of any series is herein referred to as an "op-
tional sinking fund payment". If provided for by the terms of
Debentures of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section
3.05. Each sinking fund payment shall be applied to the re-
demption of Debentures of any series as provided for by the
terms of Debentures of such series.
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SECTION 3.05. The Company (i) may deliver Outstand-
ing Debentures of a series (other than any previously called
for redemption) and (ii) may apply as a credit Debentures of a
series which have been redeemed either at the election of the
Company pursuant to the terms of such Debentures or through the
application of permitted optional sinking fund payments pursu-
ant to the terms of such Debentures, in each case in satisfac-
tion of all or any part of any sinking fund payment with re-
spect to the Debentures of such series required to be made pur-
suant to the terms of such Debentures as provided for by the
terms of such series; provided that such Debentures have not
been previously so credited. Such Debentures shall be received
and credited for such purpose by the Trustee at the redemption
price specified in such Debentures for redemption through op-
eration of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each
sinking fund payment date for any series of Debentures, the
Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the por-
tion thereof, if any, which is to be satisfied by delivering
and crediting Debentures of that series pursuant to Section
3.05 and the basis for such credit and will, together with such
Officers' Certificate, deliver to the Trustee any Debentures to
be so delivered. Not less than 30 days before each such sink-
ing fund payment date the Trustee shall select the Debentures
to be redeemed upon such sinking fund payment date in the man-
ner specified in Section 3.02 and cause notice of the redemp-
tion thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Deben-
tures shall be made upon the terms and in the manner stated in
Section 3.03.
ARTICLE FOUR
Particular Covenants of the Company
The Company covenants and agrees for each series of
the Debentures as follows:
SECTION 4.01. The Company will duly and punctually
pay or cause to be paid the principal of (and premium, if any)
and interest on the Debentures of that series at the time and
place and in the manner provided herein and established with
respect to such Debentures.
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SECTION 4.02. So long as any series of the Deben-
tures remain outstanding, the Company agrees to maintain an
office or agency in the Borough of Manhattan, the City and
State of New York, with respect to each such series and at such
other location or locations as may be designated as provided in
this Section 4.02, where (i) Debentures of that series may be
presented for payment, (ii) Debentures of that series may be
presented as hereinabove authorized for registration of trans-
fer and exchange, and (iii) notices and demands to or upon the
Company in respect of the Debentures of that series and this
Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall,
by written notice signed by its President or a Vice President
and delivered to the Trustee, designate some other office or
agency for such purposes or any of them. If at any time the
Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one
or more paying agents for all or any series of the Debentures,
other than the Trustee, the Company will cause each such paying
agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of (and premium, if
any) or interest on the Debentures of that series (whether
such sums have been paid to it by the Company or by any
other obligor of such Debentures) in trust for the benefit
of the persons entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor of such
Debentures) to make any payment of the principal of (and
premium, if any) or interest on the Debentures of that
series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph
(a)(2) above, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such paying agent; and
(4) that it will perform all other duties of paying
agent as set forth in this Indenture.
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(b) If the Company shall act as its own paying agent
with respect to any series of the Debentures, it will on or
before each due date of the principal of (and premium, if any)
or interest on Debentures of that series, set aside, segregate
and hold in trust for the benefit of the persons entitled
thereto a sum sufficient to pay such principal (and premium, if
any) or interest so becoming due on Debentures of that series
until such sums shall be paid to such persons or otherwise dis-
posed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other ob-
ligor on such Debentures) to take such action. Whenever the
Company shall have one or more paying agents for any series of
Debentures, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Debentures of that
series, deposit with the paying agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the per-
sons entitled to such principal, premium or interest, and (un-
less such paying agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary not-
withstanding, (i) the agreement to hold sums in trust as pro-
vided in this Section is subject to the provisions of Section
11.05, and (ii) the Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or direct any paying agent to pay,
to the Trustee all sums held in trust by the Company or such
paying agent, such sums to be held by the Trustee upon the same
terms and conditions as those upon which such sums were held by
the Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be re-
leased from all further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to
avoid or fill a vacancy in the office of Trustee, will appoint,
in the manner provided in Section 7.10, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 4.05. The Company will not, while any of the
Debentures remain outstanding, consolidate with, or merge into,
or merge into itself, or sell or convey all or substantially
all of its property to any other company unless the provisions
of Article Ten hereof are complied with.
SECTION 4.06. The Company will not declare or pay
any dividend on, or purchase, acquire or make a distribution or
liquidation payment with respect to, any of its common stock if
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at such time (i) there shall have occurred any event that would
constitute an Event of Default under this Indenture, (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 pay-
ment period as provided in this Indenture and such period, or
any extension thereof, shall be continuing.
SECTION 4.07. The Company will (i) remain the sole
general partner of Transamerica Delaware and maintain 100% own-
ership of the general partner interests thereof; provided that
any permitted successor of the Company under the Indenture may
succeed to its duties as general partner, (ii) contribute capi-
tal to the extent required to maintain its capital at an amount
equal to at least 3% of the total capital contributions to
Transamerica Delaware, (iii) not voluntarily dissolve, wind up
or terminate Transamerica Delaware, except in connection with a
distribution of Debentures and in connection with certain merg-
ers, consolidations or amalgamations permitted by the Limited
Partnership Agreement, (iv) timely perform all of its duties as
General Partner of Transamerica Delaware and (v) use its rea-
sonable efforts to cause Transamerica Delaware to remain a lim-
ited partnership except in connection with a distribution of
Debentures and in connection with certain mergers, consolida-
tions or amalgamations permitted by the Limited Partnership
Agreement, and otherwise to continue to be treated as a part-
nership for United States federal income tax purposes except in
connection with a distribution of the Debentures.
ARTICLE FIVE
Debentureholders' Lists and Reports by the Company
and the Trustee
SECTION 5.01. The Company will furnish or cause to
be furnished to the Trustee (a) on a monthly basis on each reg-
ular record date (as defined in Section 2.03) a list, in such
form as the Trustee may reasonably require, of the names and
addresses of the holders of each series of Debentures as of
such regular record date, provided, that the Company shall not
be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company and
(b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, no such list need be furnished for any
series for which the Trustee shall be the Debenture Registrar.
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SECTION 5.02. (a) The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Debentures con-
tained in the most recent list furnished to it as provided in
Section 5.01 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture
Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it
as provided in Section 5.01 upon receipt of a new list so fur-
nished.
(c) In case three or more holders of Debentures of a
series (hereinafter referred to as "applicants") apply in writ-
ing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Debenture for a period of
at least six months preceding the date of such application, and
such application states that the applicants desire to communi-
cate with other holders of Debentures of such series or holders
of all Debentures with respect to their rights under this In-
denture or under such Debentures, and is accompanied by a copy
of the form of proxy or other communication which such appli-
cants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its
election, either:
(1) afford to such applicants access to the informa-
tion preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section
5.02; or
(2) inform such applicants as to the approximate
number of holders of Debentures of such series or of all
Debentures, as the case may be, whose names and addresses
appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection
(a) of this Section 5.02, and as to the approximate cost
of mailing to such Debentureholders the form of proxy or
other communication, if any, specified in such applica-
tion.
(d) If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each holder of
such series or of all Debentures, as the case may be, whose
name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of sub-
section (a) of this Section 5.02, a copy of the form of proxy
or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the
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material to be mailed and of payment, or provision for the pay-
ment, of the reasonable expenses of mailing, unless within five
days after such tender, the Trustee shall mail to such appli-
cants and file with the Securities and Exchange Commission (the
"Commission"), together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best in-
terests of the holders of Debentures of such series or of all
Debentures, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such
Debentureholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise, the
Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(e) Each and every holder of the Debentures, by re-
ceiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any paying
agent nor any Debenture Registrar shall be held accountable by
reason of the disclosure of any such information as to the
names and addresses of the holders of Debentures in accordance
with the provisions of subsection (b) of this Section, regard-
less 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 said sub-
section (b).
SECTION 5.03. (a) The Company covenants and agrees
to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other re-
ports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Ex-
change Act; or, if the Company is not required to file informa-
tion, documents or reports pursuant to either of such sections,
then to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic informa-
tion, documents and reports which may be required pursuant to
Section 13 of the Exchange Act, in respect of a security listed
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and registered on a national securities exchange as may be pre-
scribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with
the Trustee and the Commission, in accordance with the rules
and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect
to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by
mail, first class postage prepaid, or reputable over-night de-
livery service which provides for evidence of receipt, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the Com-
mission.
(d) The Company covenants and agrees to furnish to
the Trustee, on or before May 15 in each calendar year in which
any of the Debentures are outstanding, or on or before such
other day in each calendar year as the Company and the Trustee
may from time to time agree upon, a Certificate as to his or
her knowledge of the Company's compliance with all conditions
and covenants under this Indenture. For purposes of this sub-
section (d), such compliance shall be determined without regard
to any period of grace or requirement of notice provided under
this Indenture.
SECTION 5.04. (a) On or before July 15 in each year
in which any of the Debentures are outstanding, the Trustee
shall transmit by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report dated as of the preceding
May 15, with respect to any of the following events which may
have occurred within the previous twelve months (but if no such
event has occurred within such period no report need be trans-
mitted):
(1) any change to its eligibility under Section
7.09, and its qualifications under Section 7.08;
(2) the creation of or any material change to a re-
lationship specified in paragraphs (1) through (10) of
subsection (c) of Section 7.08;
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(3) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances sur-
rounding the making thereof) made by the Trustee (as such)
which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Debentures, on any prop-
erty or funds held or collected by it as Trustee if such
advances so remaining unpaid aggregate more than 1/2 of 1%
of the principal amount of the Debentures outstanding on
the date of such report;
(4) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the Com-
pany, or by any other obligor on the Debentures, to the
Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness
based upon a creditor relationship arising in any manner
described in paragraph (2), (3), (4), or (6) of subsection
(b) of Section 7.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the
date of such report;
(6) any release, or release and substitution, of
property subject to the lien of this Indenture (and the
consideration thereof, if any) which it has not previously
reported;
(7) any additional issue of Debentures which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the perfor-
mance of its duties under this Indenture which it has not
previously reported and which in its opinion materially
affects the Debentures or the Debentures of any series,
except any action in respect of a default, notice of which
has been or is to be withheld by it in accordance with the
provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class
postage prepaid, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, a brief report
with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surround-
ing the making thereof) made by the Trustee as such since the
date of the last report transmitted pursuant to the provisions
of subsection (a) of this Section (or if no such report has yet
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been so transmitted, since the date of execution of this Inden-
ture), for the reimbursement of which it claims or may claim a
lien or charge prior to that of the Debentures of any series on
property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this subsection if
such advances remaining unpaid at any time aggregate more than
10% of the principal amount of Debentures of such series out-
standing at such time, such report to be transmitted within 90
days after such time.
(c) A copy of each such report shall, at the time of
such transmission to Debentureholders, be filed by the Trustee
with the Company, with each stock exchange upon which any De-
bentures are listed (if so listed) and also with the Commis-
sion. The Company agrees to notify the Trustee when any Deben-
tures become listed on any stock exchange.
ARTICLE SIX
Remedies of the Trustee and Debentureholders
on Event of Default
SECTION 6.01. (a) Whenever used herein with respect
to Debentures of a particular series, "Event of Default" means
any one or more of the following events which has occurred and
is continuing:
(1) default in the payment of any installment of
interest upon any of the Debentures of that series, as and
when the same shall become due and payable, and continu-
ance of such default for a period of 10 days; provided,
however, that a valid extension of an interest payment
period by the Company in accordance with the terms of any
indenture supplemental hereto, shall not constitute a
default in the payment of interest for this purpose;
(2) default in the payment of the principal of (or
premium, if any, on) any of the Debentures of that series
as and when the same shall become due and payable whether
at maturity, upon redemption, by declaration or otherwise,
or in any payment required by any sinking or analogous
fund established with respect to that series;
(3) failure on the part of the Company duly to ob-
serve or perform any other of the covenants or agreements
on the part of the Company with respect to that series
contained in such Debentures or otherwise established with
respect to that series of Debentures pursuant to Section
2.01 hereof or contained in this Indenture (other than a
covenant or agreement which has been expressly included in
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this Indenture solely for the benefit of one or more se-
ries of Debentures other than such series) for a period of
90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating
that such notice is a "Notice of Default" hereunder, shall
have been given to the Company by the Trustee, by regis-
tered or certified mail, or to the Company and the Trustee
by the holders of at least 25% in principal amount of the
Debentures of that series at the time outstanding;
(4) a decree or order by a court having jurisdiction
in the premises shall have been entered adjudging the Com-
pany as bankrupt or insolvent, or approving as properly
filed a petition seeking liquidation or reorganization of
the Company under the Federal Bankruptcy Code or any other
similar applicable Federal or State law, and such decree
or order shall have continued unvacated and unstayed for a
period of 90 days; or an involuntary case shall be com-
menced under such Code in respect of the Company and shall
continue undismissed for a period of 90 days or an order
for relief in such case shall have been entered; or a de-
cree or order of a court having jurisdiction in the pre-
mises shall have been entered for the appointment on the
ground of insolvency or bankruptcy of a receiver or custo-
dian or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, and such decree
or order shall have remained in force unvacated and un-
stayed for a period of 90 days;
(5) the Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the
filing of a bankruptcy proceeding against it, or shall
file a petition or answer or consent seeking liquidation
or reorganization under the Federal Bankruptcy Code or any
other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall con-
sent to the appointment on the ground of insolvency or
bankruptcy of a receiver or custodian or liquidator or
trustee or assignee in bankruptcy or insolvency of it or
of its property, or shall make an assignment for the ben-
efit of creditors; or
(6) Transamerica Delaware shall have dissolved,
wound up its business or otherwise terminated its exist-
ence except in connection with the distribution of Deben-
tures to limited partners of Transamerica Delaware in liq-
uidation of their interests in Transamerica Delaware and
in connection with certain mergers, consolidations or
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amalgamations permitted by the Limited Partnership Agree-
ment.
(b) In each and every such case, unless the princi-
pal of all the Debentures of that series shall have already
become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Deben-
tures of that series then outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by such
Debentureholders), may declare the principal of all the Deben-
tures of that series to be due and payable immediately, and
upon any such declaration the same shall become and shall be
immediately due and payable, anything contained in this Inden-
ture or in the Debentures of that series or established with
respect to that series pursuant to Section 2.01 hereof to the
contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the con-
dition that if, at any time after the principal of the Deben-
tures of that series shall have been so declared due and pay-
able, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of
interest upon all the Debentures of that series and the princi-
pal of (and premium, if any, on) any and all Debentures of that
series which shall have become due otherwise than by accelera-
tion (with interest upon such principal and premium, if any,
and, to the extent that such payment is enforceable under ap-
plicable law, upon overdue installments of interest, at the
rate per annum expressed in the Debentures of that series to
the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and any and all defaults under
the Indenture, other than the nonpayment of principal on Deben-
tures of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Sec-
tion 6.06 then and in every such case the holders of a majority
in aggregate principal amount of the Debentures of that series
then outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its conse-
quences with respect to that series of Debentures; but no such
rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent
thereon.
(d) In case the Trustee shall have proceeded to en-
force any right with respect to Debentures of that series under
this Indenture and such proceedings shall have been discontin-
ued or abandoned because of such rescission or annulment or for
any other reason or shall have been determined adversely to the
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Trustee, then and in every such case the Company and the Trust-
ee shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such pro-
ceedings had been taken.
SECTION 6.02. (a) The Company covenants that (1) in
case default shall be made in the payment of any installment of
interest on any of the Debentures of a series, or any payment
required by any sinking or analogous fund established with re-
spect to that series as and when the same shall have become due
and payable, and such default shall have continued for a period
of 10 business days, or (2) in case default shall be made in
the payment of the principal of (or premium, if any, on) any of
the Debentures of a series when the same shall have become due
and payable, whether upon maturity of the Debentures of a se-
ries or upon redemption or upon declaration or otherwise, then,
upon demand of the Trustee, the Company will pay to the Trust-
ee, for the benefit of the holders of the Debentures of that
series, the whole amount that then shall have become due and
payable on all such Debentures for principal (and premium, if
any) or interest, or both, as the case may be, with interest
upon the overdue principal (and premium, if any) and (to the
extent that payment of such interest is enforceable under ap-
plicable law and without duplication of any other amounts paid
by the Company or Transamerica Delaware in respect thereof)
upon overdue installments of interest at the rate per annum
expressed in the Debentures of that series; and, in addition
thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, and the amount payable to
the Trustee under Section 7.06.
(b) In case the Company 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 proceeding to judgment or final decree, and
may enforce any such judgment or final decree against the Com-
pany or other obligor upon the Debentures of that series and
collect in the manner provided by law out of the property of
the Company or other obligor upon the Debentures of that series
wherever situated the moneys adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liqui-
dation, bankruptcy, reorganization, readjustment, arrangement,
composition or other judicial proceedings affecting the Com-
pany, any other obligor on such Debentures, or the creditors or
property of either, the Trustee shall have power to intervene
in such proceedings and take any action therein that may be
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permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in
order to have the claims of the Trustee and of the holders of
Debentures of such series allowed for the entire amount due and
payable by the Company or such other obligor under the Inden-
ture at the date of institution of such proceedings and for any
additional amount which may become due and payable by the Com-
pany or such other obligor after such date, and to collect and
receive any moneys or other property payable or deliverable on
any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and
any receiver, assignee or trustee in bankruptcy or reorganiza-
tion is hereby authorized by each of the holders of Debentures
of such series to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such
payments directly to such Debentureholders, to pay to the
Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims
under this Indenture, or under any of the terms established
with respect to Debentures of that series, may be enforced by
the Trustee without the possession of any of such Debentures,
or the production thereof at any trial or other proceeding rel-
ative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provi-
sion for payment to the Trustee of any amounts due under Sec-
tion 7.06, be for the ratable benefit of the holders of the
Debentures of such series.
In case of an Event of Default hereunder, 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 enforce-
ment of any covenant or agreement contained in the 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.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Debentureholder any plan of reorganization, ar-
rangement, adjustment or composition affecting the Debentures
of that series or the rights of any holder thereof or to autho-
rize the Trustee to vote in respect of the claim of any Deben-
tureholder in any such proceeding.
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SECTION 6.03. Any moneys collected by the Trustee
pursuant to Section 6.02 with respect to a particular series of
Debentures shall be applied in the order following, at the date
or dates fixed by the Trustee and, in case of the distribution
of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the several Debentures of that
series, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of col-
lection and of all amounts payable to the Trustee under
Section 7.06; and
SECOND: To the payment of the amounts then due and
unpaid upon Debentures of such series for principal (and
premium, if any) and interest, in respect of which or for
the benefit of which such money has been collected, rat-
ably, without preference or priority of any kind, accord-
ing to the amounts due and payable on such Debentures for
principal (and premium, if any) and interest, respec-
tively.
SECTION 6.04. No holder of any Debenture of any se-
ries shall have any right by virtue or by availing of any pro-
vision of this Indenture to institute any suit, action or pro-
ceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless such holder previ-
ously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof with respect to
Debentures of such series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less
than 25% in aggregate principal amount of the Debentures of
such series then outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding
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, suit or proceeding; it being under-
stood and intended, and being expressly covenanted by the taker
and holder of every Debenture of such series with every other
such taker and holder and the Trustee, that no one or more
holders of Debentures of such series shall have any right in
any manner whatsoever by virtue or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of
the holders of any other of such Debentures, 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
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the manner herein provided and for the equal, ratable and com-
mon benefit of all holders of Debentures of such series. For
the protection and enforcement of the provisions of this Sec-
tion, each and every Debentureholder and the Trustee shall be
entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provisions of this Inden-
ture, however, the right of any holder of any Debenture to re-
ceive payment of the principal of (and premium, if any) and
interest on such Debenture, as therein provided, on or after
the respective due dates expressed in such Debenture (or in the
case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or
affected without the consent of such holder.
SECTION 6.05. (a) All powers and remedies given by
this Article to the Trustee or to the Debentureholders shall,
to the extent permitted by law, be deemed cumulative and not
exclusive of any others thereof or of any other powers and rem-
edies available to the Trustee or the holders of the Deben-
tures, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements con-
tained in this Indenture or otherwise established with respect
to such Debentures.
(b) No delay or omission of the Trustee or of any
holder of any of the Debentures 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 default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee
or to the Debentureholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by
the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate
principal amount of the Debentures of any series at the time
outstanding, determined in accordance with Section 8.04, shall
have the right to direct the time, method and place of conduct-
ing any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with
respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this In-
denture or unduly prejudicial to the rights of holders of De-
bentures of any other series at the time outstanding determined
in accordance with Section 8.04 not parties thereto. Subject
to the provisions of Section 7.01, the Trustee shall have the
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right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would in-
volve the Trustee in personal liability. The holders of a ma-
jority in aggregate principal amount of the Debentures of any
series at the time outstanding affected thereby, determined in
accordance with Section 8.04, may on behalf of the holders of
all of the Debentures of such series waive any past default in
the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such se-
ries 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 that series as and when the same shall become
due by the terms of such Debentures otherwise than by acceleration
(unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance with
Section 6.01(c))) or a call for redemption of Debentures of
that series. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders
of the Debentures of such series 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.
SECTION 6.07. The Trustee shall, within 90 days
after the occurrence of a default with respect to a particular
series, transmit by mail, first class postage prepaid, to the
holders of Debentures of that series, as their names and ad-
dresses appear upon the Debenture Register, notice of all de-
faults with respect to that series known to the Trustee, unless
such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purposes of this Section
being hereby defined to be the events specified in subsections
(1), (2), (3), (4), (5) and (6) of Section 6.01(a), not includ-
ing any periods of grace provided for therein and irrespective
of the giving of notice provided for by subsection (3) of Sec-
tion 6.01(a)); provided, that, except in the case of default in
the payment of the principal of (or premium, if any) or inter-
est on any of the Debentures of that series or in the payment
of any sinking fund installment established with respect to
that 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 and/or Responsible
Officers, of the Trustee in good faith determine that the with-
holding of such notice is in the interests of the holders of
Debentures of that series; provided further, that in the case
of any default of the character specified in Section 6.01(a)(3)
with respect to Debentures of such series no such notice to the
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holders of the Debentures of that series shall be given until
at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of
any default, except (i) a default under subsection (a)(1) or
(a)(2) of Section 6.01 as long as the Trustee is acting as pay-
ing agent for such series of Debentures or (ii) any default as
to which the Trustee shall have received written notice or a
Responsible Officer charged with the administration of this
Indenture shall have obtained written notice.
SECTION 6.08. All parties to this Indenture agree,
and each holder of any Debentures 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 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 at-
torneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or de-
fenses 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 Debentureholder, or group of
Debentureholders, holding more than 10% in aggregate principal
amount of the outstanding Debentures of any series, or to any
suit instituted by any Debentureholder for the enforcement of
the payment of the principal of (or premium, if any) or inter-
est on any Debenture of such series, on or after the respective
due dates expressed in such Debenture or established pursuant
to this Indenture.
ARTICLE SEVEN
Concerning the Trustee
SECTION 7.01. (a) The Trustee, prior to the occur-
rence of an Event of Default with respect to Debentures of a
series and after the curing of all Events of Default with re-
spect to Debentures of that series which may have occurred,
shall undertake to perform with respect to Debentures of such
series such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants shall be read
into this Indenture against the Trustee. In case an Event of
Default with respect to Debentures of a series has occurred
(which has not been cured or waived), the Trustee shall exer-
cise with respect to Debentures of that series 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
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<PAGE> 53
man would exercise or use under the circumstances in the con-
duct of his own affairs.
(b) No provision of this Indenture shall be con-
strued to relieve the Trustee from liability for its own negli-
gent action, its own negligent failure to act, or its own will-
ful misconduct, except that:
(1) prior to the occurrence of an Event of Default
with respect to Debentures of a series and after the cur-
ing or waiving of all such Events of Default with respect
to that series which may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to Debentures of such series be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with
respect to Debentures of such series except for the
performance of such duties and obligations as are
specifically set forth in this Indenture, and no im-
plied 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 with respect to Deben-
tures of such series 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 Trustee and conforming to
the requirements of this Indenture; but in the case
of any such certificates or opinions which by any
provision hereof are specifically required to be fur-
nished 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;
(2) 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;
(3) 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 of
not less than a majority in principal amount of the Deben-
tures of any series at the time outstanding relating to
the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
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trust or power conferred upon the Trustee under this In-
denture with respect to the Debentures of that series; and
(4) None of the provisions contained in this Inden-
ture 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 is reasonable ground
for believing that the repayment of such funds or liabil-
ity is not reasonably assured to it under the terms of
this Indenture or adequate indemnity against such risk is
not reasonably assured to it.
SECTION 7.02. Except as otherwise provided in Sec-
tion 7.01:
(a) The Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, cer-
tificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, 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;
(b) Any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced
by a Board Resolution or an instrument signed in the name
of the Company by the President or any Vice President and
by the Secretary or an Assistant Secretary or the Trea-
surer or an Assistant Treasurer (unless other evidence in
respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted here-
under in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to ex-
ercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Debentureholders, pursuant to the provisions of this In-
denture, unless such Debentureholders shall have offered
to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred
therein or thereby; nothing herein contained shall, how-
ever, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series
of the Debentures (which has not been cured or waived) to
exercise with respect to Debentures of that series such of
the rights and powers vested in it by this Indenture, and
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<PAGE> 55
to use the same degree of care and skill in their exer-
cise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(e) The Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith and be-
lieved by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any in-
vestigation into the facts or matters stated in any reso-
lution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond,
security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a
majority in principal amount of the outstanding Debentures
of the particular series affected thereby (determined as
provided in Section 8.04); provided, however, 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
costs, expenses or liabilities as a condition to so pro-
ceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand; and
(g) 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 agent or attorney appointed
with due care by it hereunder.
SECTION 7.03. (a) The recitals contained herein and
in the Debentures (other than the Certificate of Authentication
on the Debentures) shall be taken as the statements of the Com-
pany, and the Trustee assumes no responsibility for the cor-
rectness of the same.
(b) The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use
or application by the Company of any of the Debentures or of
the proceeds of such Debentures, or for the use or application
of any moneys paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section
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<PAGE> 56
2.01, or for the use or application of any moneys received by
any paying agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or De-
benture Registrar, in its individual or any other capacity, may
become the owner or pledgee of Debentures with the same rights
it would have if it were not Trustee, paying agent or Debenture
Registrar.
SECTION 7.05. Subject to the provisions of Section
11.05, 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 law. The Trustee
shall be under no liability for interest on any moneys received
by it hereunder except such as it may agree with the Company to
pay thereon.
SECTION 7.06. (a) The Company 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) for all services rendered by
it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties here-
under of the Trustee, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disburse-
ments and advances incurred or made by the Trustee in accor-
dance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements
of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants
to indemnify the Trustee (and its officers, agents, directors
and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection
with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of
liability in the premises.
(b) The obligations of the Company under this Sec-
tion to compensate and indemnify the Trustee and to pay or re-
imburse the Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such ad-
ditional indebtedness shall be secured by a lien prior to that
of the Debentures upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the ben-
efit of the holders of particular Debentures.
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SECTION 7.07. Except as otherwise provided in Sec-
tion 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suf-
fering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifi-
cally 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 Officers' 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 to be
taken by it under the provisions of this Indenture upon the
faith thereof.
SECTION 7.08. (a) If the Trustee has or shall ac-
quire any conflicting interest, as defined in this Section,
with respect to the Debentures of any series and if the Default
to which such conflicting interest relates has not been cured,
duly waived or otherwise eliminated, within 90 days after as-
certaining that it has such conflicting interest, it shall ei-
ther eliminate such conflicting interest, except as otherwise
provided herein, or resign with respect to the Debentures of
that series in the manner and with the effect specified in Sec-
tion 7.10 and the Company shall promptly appoint a successor
Trustee in the manner provided herein.
(b) In the event that the Trustee shall fail to com-
ply with the provisions of subsection (a) of this Section, with
respect to the Debentures of any series the Trustee shall,
within ten days after the expiration of such 90-day period,
transmit notice of such failure by mail, first class postage
prepaid, to the Debentureholders of that series as their names
and addresses appear upon the registration books.
(c) For the purposes of this Section the Trustee
shall be deemed to have a conflicting interest with respect to
the Debentures of any series if a Default has occurred and is
continuing and:
(1) the Trustee is trustee under this Indenture with
respect to the outstanding Debentures of any series other
than that series, or is trustee under another indenture
under which any other securities, or certificates of in-
terest or participation in any other securities, of the
Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral
consists of Debentures issued under this Indenture; pro-
vided that there shall be excluded from the operation of
this paragraph the Debentures of any series other than
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that series and any other indenture or indentures under
which other securities, or certificates of interest or
participation in other securities, of the Company are out-
standing if (i) this Indenture and such other indenture or
indentures and all series of securities issuable thereun-
der are wholly unsecured and rank equally and such other
indenture or indentures (and such series) are hereafter
qualified under the Trust Indenture Act, unless the Com-
mission shall have found and declared by order pursuant to
subsection (b) of Section 305 or subsection (c) of Section
307 of the Trust Indenture Act, that differences exist
between (A) the provisions of this Indenture with respect
to Debentures of that series and with respect to one or
more other series or (B) the provisions of this Indenture
and the provisions of such other indenture or indentures
(or such series), which are so likely to involve a mate-
rial conflict of interest as to make it necessary in the
public interest or for the protection of investors to dis-
qualify the Trustee from acting as such under this Inden-
ture with respect to the Debentures of that series and
such other series or such other indenture or indentures,
or (ii) the Company shall have sustained the burden of
proving, on application to the Commission and after oppor-
tunity for hearing thereon, that the trusteeship under
this Indenture with respect to Debentures of that series
and such other series or such other indenture or inden-
tures is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to
Debentures of that series and such other series or under
such other indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or
is directly or indirectly controlled by or is under direct
or indirect common control with or an underwriter for the
Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, ap-
pointee or representative of the Company, or of an under-
writer (other than the Trustee itself) for the Company who
is currently engaged in the business of underwriting, ex-
cept that (A) one individual may be a director and/or an
executive officer of the Trustee and a director and/or an
executive officer of the Company, but may not be at the
same time an executive officer of both the Trustee and the
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Company; (B) if and so long as the number of directors of
the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer
of the Trustee and a director of the Company; and (C) the
Trustee may be designated by the Company or by an under-
writer for the Company to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent,
escrow agent, or depository, or in any other similar ca-
pacity, or, subject to the provisions of paragraph (1) of
this subsection (c), to act as trustee whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or by
any director, partner, or executive officer thereof, or
20% or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Com-
pany or by any director, partner, or executive officer
thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in de-
fault (as hereinafter in this subsection (c) defined), (A)
5% or more of the voting securities, or 10% or more of any
other class of security, of the Company, not including the
Debentures issued under this Indenture and securities is-
sued under any other indenture under which the Trustee is
also trustee, or (B) 10% or more of any class of security
of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in de-
fault (as hereinafter in this subsection (c) defined), 5%
or more of the voting securities of any person who, to the
knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is
under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in de-
fault (as hereinafter in this subsection (c) defined), 10%
or more of any class of security of any person who, to the
knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of Default upon
the Debentures of any series or any anniversary of such
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Default while such Default upon the Debentures issued un-
der this Indenture remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of 25% or more of the
voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage
of which would have constituted a conflicting interest
under paragraph (6), (7), or (8) of this subsection (c).
As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or tes-
tamentary trustee of an estate which include them, the
provisions of the preceding sentence shall not apply, for
a period of two years from the date of such acquisition,
to the extent that such securities included in such estate
do not exceed 25% of such voting securities or 25% of any
such class of security. Promptly after the dates of any
such Default upon the Debentures issued under this Inden-
ture and annually in each succeeding year that the Deben-
tures issued under this Indenture remain in Default, the
Trustee shall make a check of its holding of such securi-
ties in any of the above-mentioned capacities as of such
dates. If the Company fails to make payment in full of
principal of or interest on any of the Debentures when and
as the same becomes due and payable, and such failure con-
tinues for 30 days thereafter, the Trustee shall make a
prompt check of its holding of such securities in any of
the above-mentioned capacities as of the date of the expi-
ration of such 30-day period, and after such date, not-
withstanding the foregoing provisions of this paragraph
(9), all such securities so held by the Trustee, with sole
or joint control over such securities vested in it, shall,
but only so long as such failure shall continue, be con-
sidered as though beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this sub-
section (c); or
(10) except under the circumstances described in
paragraph (1), (3), (4), (5) or (6) of subsection (b) of
Section 7.13 the Trustee shall be or shall become a credi-
tor of the Company.
For purposes of paragraph (1) of this subsection (c),
and of Section 6.06, the term "series of securities" or "se-
ries" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such
series may vote to direct the indenture trustee, or otherwise
take action pursuant to a vote of such holders, separately from
holders of another such series; provided, that "series of secu-
rities" or "series" shall not include any series of securities
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issuable under an indenture if all such series rank equally and
are wholly unsecured.
The specification of percentages in paragraphs (5) to
(9), inclusive, of this subsection (c) shall not be construed
as indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of para-
graph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9)
of this subsection (c) only, (A) the terms "security" and "se-
curities" shall include only such securities as are generally
known as corporate securities, but shall not include any note
or other evidence of indebtedness issued to evidence an obliga-
tion to repay moneys lent to a person by one or more banks,
trust companies or banking firms, or any certificate of inter-
est or participation in any such note or evidence of indebted-
ness; (B) an obligation shall be deemed to be in "default" when
a default in payment of principal shall have continued for 30
days or more and shall not have been cured; and (C) the Trustee
shall not be deemed to be the owner or holder of (i) any secu-
rity which it holds as collateral security (as trustee or oth-
erwise) for any obligation which is not in default as defined
in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any
Default hereunder, or (iii) any security which it holds as
agent for collection, or as custodian, escrow agent or deposi-
tary, or in any similar representative capacity.
Except as above provided, the word "security" or "se-
curities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, cer-
tificate of interest or participation in any profit-sharing
agreement, collateral trust certificate, pre organization cer-
tificate or subscription, transferable share, investment con-
tract, voting trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas, or other
mineral rights, or, in general, any interest or instrument com-
monly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt
for, guarantee of, or warrant or right to subscribe to or pur-
chase, any of the foregoing.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference
to the Company shall mean every person, who, within one
year prior to the time as of which the determination is
made, has purchased from the Company with a view to, or
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has offered or sold for the Company in connection with,
the distribution of any security of the Company outstand-
ing at such time, or has participated or has had a direct
or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in ex-
cess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any member of the
board of directors of a corporation or any individual per-
forming similar functions with respect to any organization
whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization or a gov-
ernment or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust
where the interest or interests of the beneficiary or ben-
eficiaries are evidenced by a security.
(4) The term "voting security" shall mean any secu-
rity presently entitling the owner or holder thereof to
vote in the direction or management of the affairs of a
person, or any security issued under or pursuant to any
trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of
such security are presently entitled to vote in the direc-
tion or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon
the Debentures.
(6) The term "executive officer" shall mean the
chairman of the board of directors, president, every vice
president, every assistant vice president, every trust
officer, the cashier, the secretary, and the treasurer of
a corporation, and any individual customarily performing
similar functions with respect to any organization whether
incorporated or unincorporated.
(e) The percentages of voting securities and other
securities specified in this Section shall be calculated in
accordance with the following provisions:
(1) A specified percentage of the voting securities
of the Trustee, the Company or any other person referred
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to in this Section (each of whom is referred to as a "per-
son" in this paragraph) means such amount of the outstand-
ing voting securities of such person as entitles the
holder or holders thereof to cast such specified percent-
age of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled
to cast in the direction or management of the affairs of
such person.
(2) A specified percentage of a class of securities
of a person means such percentage of the aggregate amount
of securities of the class outstanding.
(3) The term "amount", when used in regard to secu-
rities, means the principal amount if relating to evi-
dences of indebtedness, the number of shares if relating
to capital shares, and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held
by or for the account of the issuer. The following secu-
rities shall not be deemed outstanding within the meaning
of this definition:
(i) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same
class;
(ii) securities of an issuer held in a sinking
fund relating to another class of securities of the
issuer, if the obligation evidenced by such other
class of securities is not in default as to principal
or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in de-
fault as to principal or interest or otherwise; and
(iv) securities held in escrow if placed in
escrow by the issuer thereof, provided, however, that
any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof.
(5) A security shall be deemed to be of the same
class as another security if both securities confer upon
the holder or holders thereof substantially the same
rights and privileges; provided, however, that, in the
case of secured evidences of indebtedness, all of which
are issued under a single indenture, differences in the
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interest rates or maturity dates of various series thereof
shall not be deemed sufficient to constitute such series
different classes; and provided, further, that, in the
case of unsecured evidences of indebtedness, differences
in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of dif-
ferent classes, whether or not they are issued under a
single indenture.
(f) Except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any
Debentures issued under this Indenture, or in the payment of
any sinking or analogous fund installment, the Trustee shall
not be required to resign as provided by this Section 7.08 if
such Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that (i) the default under the Indenture may be cured
or waived during a reasonable period and under the procedures
described in such application and (ii) a stay of the Trustee's
duty to resign will not be inconsistent with the interests of
Debentureholders. The filing of such an application shall
automatically stay the performance of the duty to resign until
the Commission orders otherwise.
Any resignation of the Trustee shall become effective
only upon the appointment of a successor trustee and such suc-
cessor's acceptance of such an appointment.
SECTION 7.09. There shall at all times be a Trustee
with respect to the Debentures issued hereunder which shall at
all times be a corporation organized and doing business under
the laws of the United States of America or any State or Terri-
tory thereof or of the District of Columbia, or a corporation
or other person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million
dollars, and subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid super-
vising 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. The
Company may not, nor may any person directly or indirectly con-
trolling, controlled by, or under common control with the Com-
pany, serve as Trustee. 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 7.10.
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SECTION 7.10. (a) The Trustee or any successor
hereafter appointed, may at any time resign with respect to the
Debentures of one or more series by giving written notice
thereof to the Company and by transmitting notice of resigna-
tion by mail, first class postage prepaid, to the Debenture-
holders of such series, as their names and addresses appear
upon the Debenture Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor
trustee with respect to Debentures of such series by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee.
If no successor trustee shall have been so appointed 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 suc-
cessor trustee with respect to Debentures of such series, or
any Debentureholder of that series who has been a bona fide
holder of a Debenture or Debentures for at least six months
may, subject to the provisions of Section 6.08, 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.
(b) In case at any time any of the following shall
occur:
(1) the Trustee shall fail to comply with the provi-
sions of subsection (a) of Section 7.08 after written re-
quest therefor by the Company or by any Debentureholder
who has been a bona fide holder of a Debenture or Deben-
tures for at least six months; or
(2) the Trustee shall cease to be eligible in ac-
cordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Com-
pany or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver
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 Company may remove the Trustee with respect
to all Debentures and appoint a successor trustee by writ-
ten instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be
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delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Sec-
tion 6.08, unless the Trustee's duty to resign is stayed
as provided herein, any Debentureholder who has been a
bona fide holder of a Debenture or Debentures for at least
six months may, on behalf of himself and all others simi-
larly situated, petition any court of competent jurisdic-
tion for the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, re-
move the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding
may at any time remove the Trustee with respect to such series
and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee with respect to the Deben-
tures of a series pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this
Section may be appointed with respect to the Debentures of one
or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Debentures of any
particular series.
SECTION 7.11. (a) In case of the appointment here-
under of a successor trustee with respect to all Debentures,
every such successor trustee so appointed shall execute, ac-
knowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a suc-
cessor trustee with respect to the Debentures of one or more
(but not all) series, the Company, the retiring Trustee and
each successor trustee with respect to the Debentures of one or
more series shall execute and deliver an indenture supplemental
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hereto wherein each successor trustee shall accept such ap-
pointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to
vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Deben-
tures of that or those series to which the appointment of such
successor trustee relates, (2) shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Debentures of that or those series as to which
the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) 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 consti-
tute such Trustees co-trustees of the same trust, that each
such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder adminis-
tered by any other such Trustee and that no Trustee shall be
responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Deben-
tures of that or those series to which the appointment of such
successor trustee relates have no further responsibility for
the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Inden-
ture, and each such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect
to the Debentures of that or those series to which the appoint-
ment of such successor trustee relates; but, on request of the
Company or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to
the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder with
respect to the Debentures of that or those series to which the
appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the
Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor
trustee all such rights, powers and trusts referred to in para-
graph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appoint-
ment unless at the time of such acceptance such successor
trustee shall be qualified and eligible under this Article.
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(e) Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit
notice of the succession of such trustee hereunder by mail,
first class postage prepaid, to the Debentureholders, as their
names and addresses appear upon the Debenture Register. If the
Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the succes-
sor trustee shall cause such notice to be transmitted at the
expense of the Company.
SECTION 7.12. Any corporation into which the Trustee
may be merged or converted or with which it may be consoli-
dated, 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, pro-
vided such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any fur-
ther act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Debentures
shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated with
the same effect as if such successor Trustee had itself authen-
ticated such Debentures.
SECTION 7.13. (a) Subject to the provisions of sub-
section (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unse-
cured, of the Company within three months prior to a default,
as defined in subsection (c) of this Section, or subsequent to
such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special ac-
count for the benefit of the Trustee individually, the holders
of the Debentures and the holders of other indenture securities
(as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the be-
ginning of such three months' period and valid as against
the Company and its other creditors, except any such re-
duction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or
from the exercise of any right of set-off which the Trust-
ee could have exercised if a petition in bankruptcy had
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been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect
of any claim as such creditor, either as security there-
for, or in satisfaction or composition thereof, or other-
wise, after the beginning of such three months' period, or
an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or
such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee:
(A) to retain for its own account (i) payments made
on account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of
the bona fide sale of any such claim by the Trustee to a
third person, and (iii) distributions made in cash, secu-
rities, or other property in respect of claims filed
against the Company in bankruptcy or receivership or in a
case for reorganization pursuant to the Federal Bankruptcy
Code or applicable State law;
(B) to realize, for its own account, upon any prop-
erty held by it as security for any such claim, if such
property was so held prior to the beginning of such three
months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any prop-
erty held by it as security for any such claim, if such
claim was created after the beginning of such three
months' period and such property was received as security
therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three
months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in such para-
graph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such three months'
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period for property held as security at the time of such sub-
stitution shall, to the extent of the fair value of the prop-
erty released, have the same status as the property released,
and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or
for the purpose of repaying or refunding any pre-existing claim
of the Trustee as such creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account, the
funds and property held in such special account and the pro-
ceeds thereof shall be apportioned between the Trustee, the
Debentureholders and the holders of other indenture securities
in such manner that the Trustee, the Debentureholders and the
holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on
claims filed against the Company in bankruptcy or receivership
or in a case for reorganization pursuant to the Federal Bank-
ruptcy Code or applicable State law, the same percentage of
their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from
the Company of the funds and property in such special account
and before crediting to the respective claims of the Trustee,
the Debentureholders and the holders of other indenture securi-
ties dividends on claims filed against the Company in bank-
ruptcy or receivership or in a case for reorganization pursuant
to the Federal Bankruptcy Code or applicable State law, but
after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other
than from such dividends and from the funds and property so
held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or re-
ceivership or in a case for reorganization pursuant to the Fed-
eral Bankruptcy Code or applicable State law, whether such dis-
tribution is made in cash, securities, or other property, but
shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which
such bankruptcy, receivership or a case for reorganization is
pending shall have jurisdiction (i) to apportion between the
Trustee, the Debentureholders and the holders of other inden-
ture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account
and the proceeds thereof, or (ii) in lieu of such apportion-
ment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee, the Debentureholders
and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be neces-
sary to liquidate or to appraise the value of any securities or
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other property held in such special account or as security for
any such claim, or to make a specific allocation of such dis-
tributions as between the secured and unsecured portions of
such claims, or otherwise to apply the provisions of this para-
graph as a mathematical formula.
Any Trustee who has resigned or been removed after
the beginning of such three months' period shall be subject to
the provisions of this subsection (a) as though such resigna-
tion or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three months'
period, it shall be subject to the provisions of this subsec-
tion (a) if and only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account,
if such Trustee had continued as trustee, occurred after
the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of
subsection (a) of this Section a creditor relationship arising
from:
(1) the ownership or acquisition of securities is-
sued under any indenture, or any security or securities
having a maturity of one year or more at the time of ac-
quisition by the Trustee;
(2) advances authorized by a receivership or bank-
ruptcy court of competent jurisdiction, or by this Inden-
ture, for the purpose of preserving any property other
than cash which shall at any time be subject to the lien,
if any, of this Indenture or of discharging tax liens or
other prior liens or encumbrances thereon, if notice of
such advance and of the circumstances surrounding the mak-
ing thereof is given to the Debentureholders at the time
and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, sub-
scription agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as
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a result of goods or securities sold in a cash transaction
as defined in subsection (c) of this Section;
(5) the ownership of stock or of other securities of
a Company organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly
or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or nego-
tiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of self-
liquidating paper as defined in subsection (c) of this
Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to
make payment in full of the principal of (or premium, if
any) or interest upon any of the Debenture or upon the
other indenture securities when and as such principal (or
premium, if any) or interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as de-
fined in the Trust Indenture Act) outstanding under any
other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially simi-
lar to the provisions of subsection (a) of this Section,
and (C) under which a default exists at the time of the
apportionment of the funds and property held in said spe-
cial account.
(3) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any
draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufac-
ture, shipment, storage or sale of goods, wares or mer-
chandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from
the sale of the goods, wares or merchandise previously
constituting the security, provided the security is re-
ceived by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from
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the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon
any of the Debentures.
ARTICLE EIGHT
Concerning the Debentureholders
SECTION 8.01. Whenever in this Indenture it is pro-
vided that the holders of a majority or specified percentage in
aggregate principal amount of the Debentures of a particular
series may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of tak-
ing any such action the holders of such majority or specified
percentage of that series have joined therein may be evidenced
by any instrument or any number of instruments of similar tenor
executed by such holders of Debentures of that series in person
or by agent or proxy appointed in writing.
If the Company shall solicit from the Debenturehold-
ers of any series any request, demand, authorization, direc-
tion, notice, consent, waiver or other action, the Company may,
at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for such series for the determination of
Debentureholders entitled to give such request, demand, autho-
rization, direction, notice, consent, waiver or other action,
but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Debentureholders
of record at the close of business on the record date shall be
deemed to be Debentureholders for the purposes of determining
whether Debentureholders of the requisite proportion of out-
standing Debentures of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose
the outstanding Debentures of that series shall be computed as
of the record date; provided that no such authorization, agree-
ment or consent by such Debentureholders on the record date
shall be deemed effective unless it shall become effective pur-
suant to the provisions of this Indenture not later than six
months after the record date.
SECTION 8.02. Subject to the provisions of Section
7.01, proof of the execution of any instrument by a Debenture-
holder (such proof will not require notarization) or his agent
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or proxy and proof of the holding by any person of any of the
Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such
person of any instrument may be proved in any reasonable
manner acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by
the Debenture Register of such Debentures or by a certifi-
cate of the Debenture Registrar thereof.
(c) The Trustee may require such additional proof of
any matter referred to in this Section as it shall deem
necessary.
SECTION 8.03. Prior to the due presentment for reg-
istration of transfer of any Debenture, the Company, the Trust-
ee, any paying agent and any Debenture Registrar may deem and
treat the person in whose name such Debenture shall be reg-
istered upon the books of the Company as the absolute owner of
such Debenture (whether or not such Debenture shall be overdue
and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Debenture Registrar) for the pur-
pose of receiving payment of or on account of the principal of,
premium, if any, and (subject to Section 2.03) interest on such
Debenture and for all other purposes; and neither the Company
nor the Trustee nor any paying agent nor any Debenture Regis-
trar shall be affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of
the requisite aggregate principal amount of Debentures of a
particular series have concurred in any direction, consent or
waiver under this Indenture, Debentures of that series which
are owned by the Company or any other obligor on the Debentures
of that series or by any person directly or indirectly control-
ling or controlled by or under common control with the Company
or any other obligor on the Debentures of that series shall be
disregarded and deemed not to be outstanding for the purpose of
any such determination, except that for the purpose of deter-
mining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Debentures of such se-
ries which the Trustee actually knows are so owned shall be so
disregarded. Debentures so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of
this Section, if the pledgee shall establish to the satisfac-
tion of the Trustee the pledgee's right so to act with respect
to such Debentures and that the pledgee is not a person di-
rectly or indirectly controlling or controlled by or under di-
rect or indirect common control with the Company or any such
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other obligor. In case of a dispute as to such right, any deci-
sion by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
SECTION 8.05. At any time prior to (but not after)
the evidencing to the Trustee, as provided in Section 8.01, of
the taking of any action by the holders of the majority or per-
centage in aggregate principal amount of the Debentures of a
particular series specified in this Indenture in connection
with such action, any holder of a Debenture of that series
which is shown by the evidence to be included in the Debentures
the holders of which have consented to such action may, by fil-
ing written notice with the Trustee, and upon proof of holding
as provided in Section 8.02, revoke such action so far as con-
cerns such Debenture. Except as aforesaid any such action
taken by the holder of any Debenture shall be conclusive and
binding upon such holder and upon all future holders and owners
of such Debenture, and of any Debenture issued in exchange
therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard
thereto is made upon such Debenture. Any action taken by the
holders of the majority or percentage in aggregate principal
amount of the Debentures of a particular series specified in
this Indenture in connection with such action shall be conclu-
sively binding upon the Company, the Trustee and the holders of
all the Debentures of that series.
ARTICLE NINE
Supplemental Indentures
SECTION 9.01. In addition to any supplemental inden-
ture otherwise authorized by this Indenture, the Company, when
authorized by a Board Resolution, and the Trustee may from time
to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act as then in effect), without the consent
of the Debentureholders, for one or more of the following pur-
poses:
(a) to evidence the succession of another corpora-
tion to the Company, and the assumption by any such suc-
cessor of the covenants of the Company contained herein or
otherwise established with respect to the Debentures; or
(b) to add to the covenants of the Company such fur-
ther covenants, restrictions, conditions or provisions for
the protection of the holders of the Debentures of all or
any series as the Board of Directors and the Trustee shall
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consider to be for the protection of the holders of Deben-
tures of all or any series, and to make the occurrence, or
the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or
provisions a default or an Event of Default with respect
to such series permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein
set forth; provided, however, 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 de-
fault or may limit the remedies available to the Trustee
upon such default or may limit the right of the holders of
a majority in aggregate principal amount of the Debentures
of such series to waive such default; or
(c) to cure any ambiguity or to correct or supple-
ment 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 such other provisions in regard to
matters or questions arising under this Indenture as shall
not be inconsistent with the provisions of this Indenture
and shall not adversely affect the interests of the hold-
ers of the Debentures of any series; or
(d) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimina-
tion shall become effective only when there is no Deben-
ture outstanding of any series created prior to the execu-
tion of such supplemental indenture which is entitled to
the benefit of such provision.
The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture,
and to make any further appropriate agreements and stipulations
which may be therein contained, 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.
Any supplemental indenture authorized by the provi-
sions of this Section may be executed by the Company and the
Trustee without the consent of the holders of any of the Deben-
tures at the time outstanding, notwithstanding any of the pro-
visions of Section 9.02.
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SECTION 9.02. With the consent (evidenced as pro-
vided in Section 8.01) of the holders of not less than a major-
ity in aggregate principal amount of the Debentures of each
series affected by such supplemental indenture or indentures at
the time outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture
Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provi-
sions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Deben-
tures of such series under this Indenture; provided, however,
that no such supplemental indenture shall (i) extend the fixed
maturity of any Debentures of any series, or reduce the princi-
pal 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 per-
centage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent
of the holders of each Debenture then outstanding and affected
thereby.
Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supple-
mental indenture, and upon the filing with the Trustee of evi-
dence of the consent of Debentureholders required to consent
thereto as aforesaid, the Trustee shall join with the Company
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.
It shall not be necessary for the consent of the
Debentureholders of any series affected thereby under this Sec-
tion to approve the particular form of any proposed supplemen-
tal indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provi-
sions of this Section, the Trustee shall transmit by mail,
first class postage prepaid, a notice, setting forth in general
terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names
and addresses appear upon the Debenture Register. Any failure
of the Trustee to mail such notice, or any defect therein,
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shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of Sec-
tion 10.01, this Indenture shall, with respect to such series,
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 Company and the holders of Debentures of the se-
ries affected thereby shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifi-
cations 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 9.04. Debentures of any series, affected by
a supplemental indenture, authenticated and delivered after the
execution of such supplemental indenture pursuant to the provi-
sions of this Article or of Section 10.01, may bear a notation
in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be
listed, as to any matter provided for in such supplemental in-
denture. If the Company shall so determine, new Debentures of
that series so modified as to conform, in the opinion of the
Board of Directors, to any modification of this Indenture con-
tained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered in ex-
change for the Debentures of that series then outstanding.
SECTION 9.05. The Trustee, subject to the provisions
of Section 7.01, may receive an Opinion of Counsel as conclu-
sive evidence that any supplemental indenture executed pursuant
to this Article is authorized or permitted by, and conforms to,
the terms of this Article and that it is proper for the Trustee
under the provisions of this Article to join in the execution
thereof.
ARTICLE TEN
Consolidation, Merger and Sale
SECTION 10.01. Nothing contained in this Indenture
or in any of the Debentures shall prevent any consolidation or
merger of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or
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shall prevent any sale, conveyance, transfer or other disposi-
tion of the property of the Company or its successor or succes-
sors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company
or its successor or successors) authorized to acquire and oper-
ate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation, merger, sale,
conveyance, transfer or other disposition, the due and punctual
payment of the principal of (premium, if any) and interest on
all of the Debentures of all series in accordance with the
terms of each series, according to their tenor, and the due and
punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section
2.01 to be kept or performed by the Company, shall be expressly
assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act, as then in effect) sat-
isfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into
which the Company shall have been merged, or by the entity
which shall have acquired such property.
SECTION 10.02. (a) In case of any such consolida-
tion, merger, sale, conveyance, transfer or other disposition
and upon the assumption by the successor corporation, by sup-
plemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest on
all of the Debentures of all series outstanding and the due and
punctual performance of all of the covenants and conditions of
this Indenture or established with respect to each series of
the Debentures pursuant to Section 2.01 to be performed by the
Company with respect to each series, such successor corporation
shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the
first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture
and the Debentures. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in
the name of the Company or any other predecessor obligor on the
Debentures, any or all of the Debentures issuable hereunder
which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor
company, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Debentures
which previously shall have been signed and delivered by the
officers of the predecessor Company to the Trustee for authen-
tication, and any Debentures which such successor corporation
thereafter shall cause to be signed and delivered to the
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Trustee for that purpose. All the Debentures so issued shall
in all respects have the same legal rank and benefit under this
Indenture as the Debentures theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of
such Debentures had been issued at the date of the execution
hereof.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in
phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of
the Debentures shall prevent the Company from merging into it-
self or acquiring by purchase or otherwise all or any part of
the property of any other corporation (whether or not affili-
ated with the Company).
SECTION 10.03. The Trustee, subject to the provi-
sions of Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assump-
tion, comply with the provisions of this Article.
ARTICLE ELEVEN
Satisfaction and Discharge of Indenture;
Unclaimed Moneys
SECTION 11.01. If at any time: (a) the Company
shall have delivered to the Trustee for cancellation all Deben-
tures of a series theretofore authenticated (other than any
Debentures which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section
2.07) and Debentures for whose payment money or Governmental
Obligations has theretofore been deposited in trust or segre-
gated and held in trust by the Company (and thereupon repaid to
the Company or discharged from such trust, as provided in Sec-
tion 11.05); (b) all such Debentures of a particular series not
theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemp-
tion within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as
trust funds the entire amount in moneys or Governmental Obliga-
tions sufficient; or (c) a combination thereof, sufficient in
the opinion of a nationally recognized firm of independent pub-
lic accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption
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all Debentures of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums pay-
able hereunder with respect to such series by the Company, then
this Indenture shall thereupon cease to be of further effect
with respect to such series except for the provisions of Sec-
tions 2.05, 2.07, 4.02 and 7.10, which shall survive until the
date of maturity or redemption date, as the case may be, and
Sections 7.06 and 11.05 which shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at
the cost and expense of the Company, shall execute proper in-
struments acknowledging satisfaction of and discharging this
Indenture with respect to such series.
SECTION 11.02. If at any time all such Debentures of
a particular series not heretofore delivered to the Trustee for
cancellation or which have not become due and payable as de-
scribed in Section 11.01 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds moneys
or an amount of Governmental Obligations sufficient to pay at
maturity or upon redemption all such Debentures of that series
not theretofore delivered to the Trustee for cancellation, in-
cluding principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemp-
tion, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Com-
pany with respect to such series, then after the date such mon-
eys or Governmental Obligations, as the case may be, are depos-
ited with the Trustee the obligations of the Company under this
Indenture with respect to such series shall cease to be of fur-
ther effect except for the provisions of Sections 2.05, 2.07,
4.02, 7.06, 7.10 and 11.05 hereof which shall survive until
such Debentures shall mature and be paid. Thereafter, Sections
7.06 and 11.05 shall survive.
SECTION 11.03. All moneys or Governmental Obliga-
tions deposited with the Trustee pursuant to Sections 11.01 or
11.02 shall be held in trust and shall be available for payment
as due, either directly or through any paying agent (including
the Company acting as its own paying agent), to the holders of
the particular series of Debentures for the payment or redemp-
tion of which such moneys or Governmental Obligations have been
deposited with the Trustee.
SECTION 11.04. In connection with the satisfaction
and discharge of this Indenture all moneys or Governmental Ob-
ligations then held by any paying agent under the provisions of
this Indenture shall, upon demand of the Company, be paid to
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the Trustee and thereupon such paying agent shall be released
from all further liability with respect to such moneys or Gov-
ernmental Obligations.
SECTION 11.05. Any moneys or Governmental Obliga-
tions deposited with any paying agent or the Trustee, or then
held by the Company, in trust for payment of principal of or
premium or interest on the Debentures of a particular series
that are not applied but remain unclaimed by the holders of
such Debentures for at least two years after the date upon
which the principal of (and premium, if any) or interest on
such Debentures shall have respectively become due and payable,
shall be repaid to the Company on May 31 of each year or (if
then held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be re-
leased from all further liability with respect to such moneys
or Governmental Obligations, and the holder of any of the
Debentures entitled to receive such payment shall thereafter,
as an unsecured general creditor, look only to the Company for
the payment thereof.
ARTICLE TWELVE
Immunity of Incorporators, Stockholders, Officers
and Directors
SECTION 12.01. No recourse under or upon any obliga-
tion, covenant or agreement of this Indenture, or of any De-
benture, or for any claim based thereon or otherwise in respect
thereof, shall be had against any incorporator, stockholder,
officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or suc-
cessor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that
this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or
any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the De-
bentures or implied therefrom; and that any and all such per-
sonal liability of every name and nature, either at common law
or in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator, stock-
holder, officer or director as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of
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the obligations, covenants or agreements contained in this In-
denture or in any of the Debentures or implied therefrom, are
hereby expressly waived and released as a condition of, and as
a consideration for, the execution of this Indenture and the
issuance of such Debentures.
ARTICLE THIRTEEN
Miscellaneous Provisions
SECTION 13.01. All the covenants, stipulations,
promises and agreements in this Indenture contained by or on
behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provi-
sion of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company
shall and may be done and performed with like force and effect
by the corresponding board, committee or officer of any corpo-
ration that shall at the time be the lawful sole successor of
the Company.
SECTION 13.03. The Company by instrument in writing
executed by authority of two-thirds of its Board of Directors
and delivered to the Trustee may surrender any of the powers
reserved to the Company and thereupon such power so surrendered
shall terminate both as to the Company and as to any successor
corporation.
SECTION 13.04. Except as otherwise expressly pro-
vided herein 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 Debentures to or on the
Company may be given or served by being deposited first class
postage prepaid in a post-office letterbox addressed (until
another address is filed in writing by the Company with the
Trustee), as follows: Transamerica Corporation, 600 Montgomery
Street, San Francisco, California 94111, Attention: Secretary.
Any notice, election, request or demand by the Company or any
Debentureholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or
made in writing at the Corporate Trust Office of the Trustee.
SECTION 13.05. This Indenture and each Debenture
shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in
accordance with the laws of said State.
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SECTION 13.06. (a) Upon any application or demand
by the Company to the Trustee to take any action under any of
the provisions of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all condi-
tions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Coun-
sel stating that in the opinion of such counsel all such condi-
tions precedent have been complied with, except that in the
case of any such application or demand as to which the furnish-
ing 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.
(b) Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compli-
ance with a condition or covenant in this Indenture (other than
the certificate provided pursuant to Section 5.03(d) of this
Indenture) shall include (1) a statement that the person making
such certificate or opinion has read such covenant or condi-
tion; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opin-
ions contained in such certificate or opinion are based; (3) a
statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him 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.
SECTION 13.07. Except as provided pursuant to Sec-
tion 2.01 pursuant to a Board Resolution, and as set forth in
an Officers' Certificate, or established in one or more inden-
tures supplemental to the Indenture, in any case where the date
of maturity of interest or principal of any Debenture or the
date of redemption of any Debenture shall not be a business day
then payment of interest or principal (and premium, if any) may
be made on the next succeeding business day with the same force
and effect as if made on the nominal date of maturity or re-
demption, and no interest shall accrue for the period after
such nominal date.
SECTION 13.08. If and to the extent that any provi-
sion of this Indenture 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 13.09. 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.
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<PAGE> 85
SECTION 13.10. In case any one or more of the provi-
sions contained in this Indenture or in the Debentures of any
series shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this
Indenture or of such Debentures, but this Indenture and such
Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
SECTION 13.11. The Company will have the right at
all times to assign any of its rights or obligations under the
Indenture to a direct or indirect wholly owned Subsidiary of
the Company; provided that, in the event of any such assign-
ment, the Company will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respec-
tive successors and assigns. The Indenture may not otherwise
be assigned by the parties thereto.
ARTICLE FOURTEEN
Subordination of Debentures
SECTION 14.01. The Company covenants and agrees, and
each holder of Debentures issued hereunder by his acceptance
thereof likewise covenants and agrees, that all Debentures
shall be issued subject to the provisions of this Article Four-
teen; and each holder of a Debenture, whether upon original
issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment of the principal of, premium, if any, and
interest on all Debentures issued hereunder shall, to the ex-
tent and in the manner hereinafter set forth, be subordinated
and subject in right of payment to the prior payment in full of
all Senior Indebtedness, whether outstanding at the date of
this Indenture or thereafter incurred.
No provision of this Article Fourteen shall prevent
the occurrence of any default or Event of Default hereunder.
SECTION 14.02. In the event and during the continua-
tion of any default in the payment of principal, premium, in-
terest or any other payment due on any Senior Indebtedness or
in the event that the maturity of any Senior Indebtedness has
been accelerated because of a default, then, in either case, no
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<PAGE> 86
payment shall be made by the Company with respect to the prin-
cipal (including redemption and sinking fund payments) of, or
premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any holder when
such payment is prohibited by the preceding paragraph of this
Section 14.02, such payment shall be held in trust for the ben-
efit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which
any of such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that
the holders of the Senior Indebtedness (or their representative
or representatives or a trustee) notify the Trustee within 90
days of such payment of the amounts then due and owing on the
Senior Indebtedness and only the amounts specified in such no-
tice to the Trustee shall be paid to the holders of Senior In-
debtedness.
SECTION 14.03. Upon any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness shall first be paid in full, or
payment thereof provided for in money in accordance with its
terms, before any payment is made on account of the principal
(and premium, if any) or interest on the Debentures; and upon
any such dissolution or winding-up or liquidation or reorgani-
zation any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property
or securities, to which the holders of the Debenture or the
Trustee would be entitled, except for the provisions of this
Article Fourteen, shall by paid by the Company or by any re-
ceiver, trustee in bankruptcy, liquidating trustee, agent or
other person making such payment or distribution, or by the
holders of the Debentures or by the Trustee under this Inden-
ture if received by them or it, directly to the holders of
Senior Indebtedness (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative
or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Senior
Indebtedness in full, in money or money's worth, after giving
effect to any concurrent payment or distribution to or for the
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<PAGE> 87
holders of Senior Indebtedness, before any payment or distribu-
tion is made to the holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited
by the foregoing, shall be received by the Trustee or the hold-
ers of the Debentures before all Senior Indebtedness is paid in
full, or provision is made for such payment in money in ac-
cordance with its terms, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or de-
livered to the holders of Senior Indebtedness or their repre-
sentative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidenc-
ing any Senior Indebtedness may have been issued, as their re-
spective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness re-
maining unpaid to the extent necessary to pay all Senior In-
debtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness.
For purposes of this Article Fourteen, the words
"cash, property or securities" shall not be deemed to include
shares of stock of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in this
Article Fourteen with respect to the Debentures to the payment
of all Senior Indebtedness which may at the time be outstand-
ing; provided that (i) the Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorgani-
zation or readjustment, and (ii) the rights of the holders of
the Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of its prop-
erty as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for
in Article Ten hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of
this Section 14.03 if such other corporation shall, as a part
of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Ten hereof. Nothing in
Section 14.02 or in this Section 14.03 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section
7.06.
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<PAGE> 88
SECTION 14.04. Subject to the payment in full of all
Senior Indebtedness, the rights of the holders of the Deben-
tures shall be subrogated to the rights of the holders of Se-
nior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior
Indebtedness until the principal of (and premium, if any) and
interest on the Debentures shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to
the holders of the Senior Indebtedness of any cash, property or
securities to which the holders of the Debentures or the Trust-
ee would be entitled except for the provisions of this Article
Fourteen, and no payment over pursuant to the provisions of
this Article Fourteen, to or for the benefit of the holders of
Senior Indebtedness by holders of the Debentures or the Trust-
ee, shall, as between the Company, its creditors other than
holders of Senior Indebtedness, and the holders of the Deben-
tures, be deemed to be a payment by the Company to or on ac-
count of the Senior Indebtedness. It is understood that the
provisions of this Article Fourteen are and are intended solely
for the purposes of defining the relative rights of the holders
of the Debentures, on the one hand, and the holders of the Se-
nior Indebtedness on the other hand.
Nothing contained in this Article Fourteen or else-
where in this Indenture or in the Debentures is intended to or
shall impair, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the holders of the De-
bentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures the
principal of (and premium, if any) and interest on the Deben-
tures as and when the same shall become due and payable in ac-
cordance with their terms, or is intended to or shall affect
the relative rights of the holders of the Debentures and credi-
tors of the Company other than the holders of the Senior In-
debtedness, nor shall anything herein or therein prevent the
Trustee or the holder of any Debenture from exercising all rem-
edies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Ar-
ticle Fourteen of the holders of Senior Indebtedness in respect
of cash, property or securities of the Company received upon
the exercise of any such remedy.
Upon any payment or distribution of assets of the
Company referred to in this Article Fourteen, the Trustee, sub-
ject to the provisions of Section 7.01, and the holders of the
Debentures, shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such dis-
solution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bank-
ruptcy, liquidation trustee, agent or other person making such
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<PAGE> 89
payment or distribution, delivered to the Trustee or to the
holders of the Debentures, for the purposes of ascertaining the
persons entitled to participate in such distribution, the hold-
ers of the Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts perti-
nent thereto or to this Article Fourteen.
SECTION 14.05. Each holder of a Debenture by his ac-
ceptance thereof authorizes and directs the Trustee in his be-
half to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Fourteen
and appoints the Trustee his attorney-in-fact for any and all
such purposes.
SECTION 14.06. The Company shall give prompt written
notice to a Responsible Officer of the Trustee of any fact
known to the Company which would prohibit the making of any
payment of monies to or by the Trustee in respect of the Deben-
tures pursuant to the provisions of this Article Fourteen.
Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which
would prohibit the making of any payment of monies to or by the
Trustee in respect of the Debentures pursuant to the provisions
of this Article Fourteen, unless and until a Responsible Of-
ficer of the Trustee shall have received written notice thereof
at the Principal Office of the Trustee from the Company or a
holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.01, shall
be entitled in all respects to assume that no such facts exist;
provided that if the Trustee shall not have received the notice
provided for in this Section 14.06 at least two business days
prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation,
the payment of the principal of (or premium, if any) or inter-
est on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be af-
fected by any notice to the contrary which may be received by
it within two business days prior to such date.
The Trustee, subject to the provisions of Section
7.01, shall be entitled to rely on the delivery to it of a
written notice by a person representing himself to be a holder
of Senior Indebtedness (or a trustee on behalf of such holder)
to establish that such notice has been given by a holder of
Senior Indebtedness or a trustee on behalf of any such holder
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<PAGE> 90
or holders. 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 par-
ticipate in any payment or distribution pursuant to this Ar-
ticle Fourteen, 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, the ex-
tent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such person under this Article Fourteen, 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.
SECTION 14.07. The Trustee in its individual capac-
ity shall be entitled to all the rights set forth in this Arti-
cle Fourteen in respect of any Senior Indebtedness at any time
held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in
this Article Fourteen, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and, subject to the provisions of Section
7.01, the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to holders of De-
bentures, the Company or any other person money or assets to
which any holder of Senior Indebtedness shall be entitled by
virtue of this Article Fourteen or otherwise.
SECTION 14.08. No right of any present or future
holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Com-
pany or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless
of any knowledge thereof which any such holder may have or oth-
erwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness may, at
any time and from time to time, without the consent of or no-
tice to the Trustee or the holders of the Debentures, without
incurring responsibility to the holders of the Debentures and
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<PAGE> 91
without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the holders of the
Debentures to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is out-
standing; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any
other person.
The First National Bank of Chicago, as Trustee,
hereby accepts the trusts in this Indenture declared and pro-
vided, upon the terms and conditions hereinabove set forth.
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<PAGE> 92
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corpo-
rate seals to be hereunto affixed and attested, all as of the
day and year first above written.
TRANSAMERICA CORPORATION
By
---------------------------
Executive Vice President
and Chief Financial Office
Attest:
By
----------------------
Secretary
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
Attest:
By
------------------------------
By
---------------------
[Assistant Treasurer]
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<PAGE> 93
STATE OF CALIFORNIA )
ss.:
COUNTY OF SAN FRANCISCO)
On _____________ __, 1994 before me, ____________, Notary
Public, personally appeared ___________________ and
/ / personally known to me - OR -
/ / proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
- -----------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER
/ / INDIVIDUAL(S) _____________________
/ / CORPORATE OFFICER(S)____________________
/ / PARTNER(S)
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
TRANSAMERICA CORPORATION
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<PAGE> 94
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On _________________ __, 1994 before me, ____________,
Notary Public, personally appeared ___________________ and
/ / personally known to me - OR -
/ / proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed
the instrument.
Witness my hand and official seal.
- -----------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER
/ / INDIVIDUAL(S) _____________________
/ / CORPORATE OFFICER(S) / / TRUST OFFICER
/ / PARTNER(S)
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[TRUSTEE]
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<PAGE> 1
[WLRK DRAFT -- 8/10/94]
EXHIBIT 4.2
- ---------------------------------------------------------------
TRANSAMERICA CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
---------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of ---------- --, 1994
TO
INDENTURE
Dated as of ------ --, 1994
---------------------
---% Junior Subordinated Deferrable Interest Debentures,
Series A, Due 2024
- ---------------------------------------------------------------
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of the ______
day of ____________, 1994 (the "First Supplemental Indenture"),
between TRANSAMERICA CORPORATION, a corporation duly organized
and existing under the laws of the State of Delaware (herein-
after sometimes referred to as the "Company"), and THE FIRST
NATIONAL BANK OF CHICAGO, a National Banking Association, as
trustee (hereinafter sometimes referred to as the "Trustee")
under the Indenture dated as of ________ __, 1994 between the
Company and the Trustee (the "Indenture"; all terms used and
not defined herein are used as defined in the Indenture).
WHEREAS, the Company executed and delivered the In-
denture to the Trustee to provide for the future issuance of
its junior 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 de-
livered 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 ____% Junior Subor-
dinated Deferrable Interest Debentures, Series A, Due 2024
(said series being hereinafter referred to as the "Series A
Debentures"), the form and substance of such Series A Deben-
tures and the terms, provisions and conditions thereof to be
set forth as provided in the Indenture and this First Supple-
mental Indenture; and
WHEREAS, Transamerica Delaware, L.P., a Delaware lim-
ited partnership ("Transamerica Delaware"), has offered to the
public its ____% Cumulative Monthly Income Preferred Securi-
ties, Series A (the "Series A Preferred Securities"), repre-
senting limited partnership interests in Transamerica Delaware
and proposes to invest the proceeds from such offering in the
Series A Debentures; and
WHEREAS, upon the occurrence of a Special Event (as
defined in the Amended and Restated Agreement of Limited Part-
nership of Transamerica Delaware, dated __________ __, 1994
(the "Limited Partnership Agreement")), the Company may dis-
solve Transamerica Delaware and cause to be distributed to the
holders of the Series A Preferred Securities, on a pro rata
basis, Series A Debentures (a "Dissolution Event"); and
WHEREAS, the Company desires and has requested the
Trustee to join with it in the execution and delivery of this
First Supplemental Indenture, and all requirements necessary to
make this First Supplemental Indenture a valid instrument, in
accordance with its terms, and to make the Series A Debentures,
<PAGE> 3
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 A Debentures by the holders thereof,
and for the purpose of setting forth, as provided in the Inden-
ture, the form and substance of the Series A Debentures and the
terms, provisions and conditions thereof, the Company covenants
and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is hereby autho-
rized a series of Debentures designated the "____% Junior Sub-
ordinated Deferrable Interest Debentures, Series A, Due 2024",
limited in aggregate principal amount to (i) $[425 million],
plus (ii) the amount of capital contributions made by the Com-
pany from time to time as general partner of Transamerica Dela-
ware, which amount shall be as set forth in any written order
of the Company for the authentication and delivery of Series A
Debentures. The Series A Debentures shall mature and the prin-
cipal shall be due and payable together with all accrued and
unpaid interest thereon, including Additional Interest (as
hereinafter defined) on _______ __, 2024, and shall be issued
in the form of registered Series A Debentures without coupons.
SECTION 1.02. Except as provided in Section 1.03
herein, the Series A Debentures shall be issued in certificated
form. Principal and interest on the Series A Debentures issued
in certificated form will be payable, the transfer of such
Series A Debentures will be registrable and such Series A
Debentures will be exchangeable for Series A 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 regis-
ter. Notwithstanding the foregoing, so long as the holder of
the Series A Debentures is Transamerica Delaware, the payment
of the principal of and interest on (including Additional In-
terest, if any) on the Series A Debentures will be made at such
place and to such account as may be designated by Transamerica
Delaware.
-2-
<PAGE> 4
SECTION 1.03. In connection with a Dissolution
Event, the Series A Debentures in certificated form may be pre-
sented to the Trustee by Transamerica Delaware in exchange for
a Global Debenture in an aggregate principal amount equal to
all Outstanding Series A 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 Transamerica
Delaware. The Company upon any such presentation shall execute
a Global Debenture in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery
as hereinabove and in the Indenture provided. Payments on the
Series A Debentures issued as a Global Debenture will be made
to the Depository. The Depository for the Series A Debentures
shall be The Depository Trust Company, New York, New York.
SECTION 1.04. Each Series A Debenture will bear in-
terest at the rate of ____% per annum from the original date of
issuance 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 over-
due installment of interest at the same rate per annum, payable
(subject to the provisions of Article Three) monthly in arrears
on the last day of each calendar month of each year (each, an
"Interest Payment Date", commencing on ______ __, 1994), to the
person in whose name such Series A Debenture or any predecessor
Series A Debenture 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 business day next preced-
ing that Interest Payment Date. If pursuant to the provisions
of Section 2.11(c) of the Indenture the Series A Junior Subor-
dinated Debentures are no longer represented by a Global Deben-
ture, the Company may select a regular record date for such
interest installment which shall be any date not later than
fifteen days preceding an 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 A 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 regis-
tered holders of the Series A 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 require-
ments of any securities exchange on which the Series A Deben-
tures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture
hereinafter referred to.
-3-
<PAGE> 5
The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is pay-
able on the Series A 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.
If at any time when Transamerica Delaware is the
holder of the Series A Debentures, Transamerica Delaware shall
be required to pay any interest on dividends in arrears in
respect of the Series A Preferred Securities pursuant to the
terms thereof, then the Company will pay as interest (the
"Additional Interest") an amount equal to such interest on
dividends in arrears.
ARTICLE TWO
Mandatory Prepayment and Optional Redemption
of the Series A Debentures
SECTION 2.01. If Transamerica Delaware redeems the
Series A Preferred Securities in accordance with the terms
thereof, the Series A Debentures will become due and payable
in a principal amount equal to the aggregate stated liquidation
preference of the Series A Preferred Securities so redeemed,
together with all accrued and unpaid interest thereon, including
Additional Interest, if any. Any payment pursuant to this
provision shall be made prior to 12:00 noon, New York City
time, on the date of such redemption or at such earlier time
as the Company and Transamerica Delaware shall agree.
SECTION 2.02. At such time as there are no Series A
Preferred Securities remaining outstanding and subject to the
terms of Article Three of the Indenture, the Company shall have
the right to redeem the Series A Debentures, in whole or in
part, from time to time, on or after ___________, 1999, at a
redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon, includ-
ing any Additional Interest, if any, to the date of such re-
demption (the "Optional Redemption Price"). Any redemption
pursuant to this paragraph will be made upon not less than 30
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<PAGE> 6
nor more than 60 days' notice, at the Optional Redemption
Price. If the Series A Debentures are only partially redeemed
pursuant to this Section, the 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 A De-
bentures are registered as a Global Debenture, the Depository
shall determine by lot the principal amount of such Series A
Debentures held byeach Series A Debentureholder to be re-
deemed.
SECTION 2.03. If the Company or Transamerica Delaware purchases Series
A Preferred Securities by tender, in the open market or by private agreement,
the Company shall have the right to redeem Series A Debentures, in an amount
not to exceed the aggregate stated liquidation preference of the Series A
Preferred Securities so purchased, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, to the redemption
date. Any payment pursuant to this provision shall be made prior to 12:00
noon, New York City time, on the date of such repurchase, or at such earlier
time as the Company and Transamerica Delaware shall agree.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. The Company shall have the right, at
any time during the term of the Series A Debentures, from time
to time to extend the interest payment period, of such Series A
Debentures for up to 60 consecutive months (the "Extended In-
terest 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 specified for the Series A
Debentures to the extent permitted by applicable law); provided
that, during such Extended Interest Payment Period the Company
shall not declare or pay any dividend on, or purchase, acquire
or make a liquidation payment with respect to, any of
its common stock, or make any guarantee payments with respect
thereto. Prior tothe termination of any such Extended Interest
Payment Period, the Company mayfurther extend such period,
provided that such period together with all such fur-
ther extensions thereof shall not exceed 60 consecutive months.
Upon the termination of any Extended Interest Payment Period
and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may select a new
Extended Interest Payment Period, subject to the foregoing re-
quirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof.
SECTION 3.02. (a) If Transamerica Delaware is the
sole holder of the Series A Debentures at the time the Company
selects an Extended Interest Payment Period, the Company shall
give both Transamerica Delaware 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 dividends on the Series A Preferred Securities
are payable or (ii) the date Transamerica Delaware is required
to give notice of the record date or the date such dividends
are payable to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Series A Pre-
ferred Securities, but in any event not less than one business
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<PAGE> 7
day prior to such record date. The Company shall cause Trans-
america Delaware to give notice of the Company's selection of
such Extended Interest Payment Period to the holders of the
Series A Preferred Securities.
(b) If Transamerica Delaware is not the sole holder
of the Series A Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give the
holders of the Series A Debentures and the Trustee written
notice of its selection of such Extended Interest Payment
Period 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 A Debentures, but in any event not less than two busi-
ness days prior to such record date.
[(c) The month in which any notice is given pursuant
to paragraphs (a) or (b) of this Section shall constitute one
of the 60 months which comprise the maximum Extended Interest
Payment Period.]
ARTICLE FOUR
Right of Set-Off
SECTION 4.01. Notwithstanding anything to the con-
trary in the Indenture or herein, the Company shall have the
right to set-off any payment it is otherwise required to make
thereunder or hereunder with and to the extent the Company has
heretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee Agreement, dated as of
________, executed by the Company and furnished to Transamerica
Delaware for the benefit of the holders of the Series A Pre-
ferred Securities.
ARTICLE FIVE
Covenant to List on Exchange
SECTION 5.01. If the Series A Debentures are to be
issued as a Global Debenture in connection with the distribu-
tion of the Series A Debentures to the holders of the Series A
Preferred Securities upon a Dissolution Event, the Company will
use its best efforts to list such Series A Debentures on the
New York Stock Exchange or on such other exchange as the Series
A Preferred Securities are then listed and traded.
-6-
<PAGE> 8
ARTICLE SIX
Form of Series A Debenture
SECTION 6.01. The Series A 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 DEBENTURE 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 Depository or a nominee of a Depository. This Deben-
ture is exchangeable for Debentures registered in the name of a
person other than the Depository or its nominee only in the
limited circumstances described in the Indenture, and no trans-
fer of this Debenture (other than a transfer of this Debenture
as a whole by the Depository to a nominee of the Depository or
by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, 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 re-
quested 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.____________
TRANSAMERICA CORPORATION
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES A, DUE 2024
TRANSAMERICA CORPORATION, a corporation duly orga-
nized and existing under the laws of the State of Delaware
-7-
<PAGE> 9
(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 _____________, 2024, and to pay
interest on said principal sum from ___________, 1994 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, monthly (subject to deferral as set forth
herein) in arrears on the last day of each calendar month of
each year commencing ____________, 1994 at the rate of ____%
per annum plus Additional 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. In the event that any date
on which interest is payable on this Debenture is not a busi-
ness 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 suc-
ceeding calendar year, such payment shall be made on the imme-
diately 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 In-
denture, be paid to the person in whose name this Debenture (or
one or more Predecessor Debentures, as defined in said Inden-
ture) 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 business day next preceding such In-
terest Payment Date.] [IF PURSUANT TO THE PROVISIONS OF SEC-
TION 2.11(C) OF THE INDENTURE THE SERIES A JUNIOR SUBORDINATED
DEBENTURES ARE NO LONGER REPRESENTED BY A GLOBAL DEBENTURE --
which shall be the close of business on the _____ business day
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 in-
terest, 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,
-8-
<PAGE> 10
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 pay-
ment of public and private debts; provided, however, that pay-
ment 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. Notwithstanding the fore-
going, so long as the holder of this Debenture is Transamerica
Delaware, L.P. ("Transamerica Delaware"), the payment of the
principal of (and premium, if any) and interest (including
Additional Interest, if any) in this Debenture will be made at
such place and to such account as may be designated by Trans-
america Delaware.
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 pro-
visions 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 Authentica-
tion 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.
-9-
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this In-
strument to be executed.
Dated
------------------
TRANSAMERICA CORPORATION
By
---------------------------
Executive Vice President
and Chief Financial Officer
Attest:
By
----------------------
Secretary
-10-
<PAGE> 12
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Deben-
tures described in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO
- -------------------------- --------------------------
as Trustee or as Authentication Agent
By By
------------------------ ------------------------
Authorized Signatory Authorized Signatory
(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 _______ __, 1994 duly executed and delivered between
the Company and The First National Bank of Chicago, a National
Banking Association, as Trustee (herein referred to as the "Trustee"),
as supplemented by the First Supplemental Indenture dated as of
___________, 1994 between the Company and the Trustee (said
Indenture as so supplemented being hereinafter referred to as
the "Indenture"), to which Indenture and all indentures supple-
mental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immuni-
ties thereunder of the Trustee, the Company and the holders of
the Debentures. 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 In-
denture provided. This series of Debentures is limited in
aggregate principal amount as specified in said First Supple-
mental Indenture.
If Transamerica Delaware redeems its ____% Cumulative
Monthly Income Preferred Securities, Series A (the "Series A
Preferred Securities") in accordance with the terms thereof,
this Debenture will become due and payable in a principal amount
-11-
<PAGE> 13
equal to the aggregate stated liquidation preference of the
Series A Preferred Securities so redeemed, together with any
interest accrued thereon, including Additional Interest (the
"Mandatory Prepayment"). Any Mandatory Prepayment shall
be made prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company and Trans-
america Delaware shall agree. At such time as there are no
Series A Preferred Securities remaining outstanding and subject
to the terms of Article Three of the Indenture, the Company
shall have the right to redeem this Debenture at the option of
the Company, without premium or penalty, in whole or in part at
any time on or after ____________, 1999 (an "Optional Redemp-
tion"), at a redemption price equal to 100% of the principal
amount plus any accrued but unpaid interest, including any Addi-
tional Interest, if any, to the date of such redemption (the
"Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60
days' notice, at the Optional Redemption Price. If the Deben-
tures are only partially redeemed by the Company pursuant to an
Optional Redemption, the 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 Debentures are registered
as a Global Debenture, the Depository shall determine by lot the
principal amount of such Debentures held by each Debentureholder
to be redeemed. If the Company or Transamerica Delaware
purchases Series A Preferred Securities by tender, in the open
market or by private agreement, the Company shall have the right
to redeem Debentures, in an amount not to exceed the aggregate
stated liquidation preference of the Series A Preferred Securities
so purchased, together with any accrued and unpaid interest
thereon, including additional interest, if any, to the redemption
date.
In the event of redemption of this Debenture in part
only, a new Debenture or Debentures of this series for the un-
redeemed 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 Inden-
ture, 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 com-
pliance by the Company with certain conditions set forth there-
in.
The Indenture contains provisions permitting the Com-
pany and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the De-
bentures of each series affected at the time outstanding, as
defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any man-
ner or eliminating any of the provisions of the Indenture or of
any supplemental indenture or of modifying in any manner the
-12-
<PAGE> 14
rights of the Holders of the Debentures; provided, however, that
no such supplemental indenture shall (i) extend the fixed matu-
rity 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 re-
demption 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 of the holders
of each Debenture then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Debentures of all
series at the time outstanding affected thereby, 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 inter-
est 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 here-
for 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.
No reference herein to the Indenture 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 and at the rate and in the
money herein prescribed.
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 to up to 60 consecutive months (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 specified for the Debentures to the extent that
payment of such interest is enforceable under applicable law); provided
that, during such Extended Interest Payment Period the Company shall not
declare or pay any dividend on, or purchase, acquire or make a liquidation
payment with respect to, any of its common stock, or any guarantee payments
with respect thereto. 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 60 consecutive months. At the termination of any
such Extended Interest Payment Period and
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<PAGE> 15
upon the payment of all accrued and unpaid interest and any
additional amounts then due, the Company may select a new Ex-
tended Interest Payment Period.
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 satisfac-
tory to the Company or the Trustee duly executed by the regis-
tered holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Debentures of authorized denomina-
tions 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 Com-
pany 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 De-
benture Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and inter-
est due hereon and for all other purposes, and neither the Com-
pany nor the Trustee nor any paying agent nor any Debenture Reg-
istrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the prin-
cipal 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 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.
[The Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any
integral multiple thereof.] [This Global Debenture is exchange-
able for Debentures in definitive form only under certain lim-
ited circumstances set forth in the Indenture. Debentures of
-14-
<PAGE> 16
this series so issued are issuable only in registered form with-
out coupons in denominations of $25 and any integral multiple
thereof.] As provided in the Indenture and subject to certain
limitations [herein and] therein set forth, Debentures of this
series [so issued] are exchangeable for a like aggregate princi-
pal amount of Debentures of this series of a different autho-
rized 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 SEVEN
Original Issue of Series A Debentures
SECTION 7.01. Series A Debentures in the aggregate
principal amount of $__________ plus the amount of capital con-
tributions made by the Company from time to time as general
partner of Transamerica Delaware, may, upon execution of this
First Supplemental Indenture, or from time to time thereafter,
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.
ARTICLE EIGHT
Miscellaneous Provisions
SECTION 8.01. Except as otherwise expressly provided
in this First Supplemental Indenture or in the form of Series A
Debenture or otherwise clearly required by the context hereof
or thereof, all terms used herein or in said form of Series A
Debenture that are defined in the Indenture shall have the sev-
eral meanings respectively assigned to them thereby.
SECTION 8.02. The Indenture, as supplemented by this
First Supplemental Indenture, is in all respects ratified and
confirmed, and this First Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 8.03. The recitals herein contained are made
by the Company and not by the Trustee, and the Trustee assumes
-15-
<PAGE> 17
no responsibility for the correctness thereof. The Trustee
makes no representation as to the validity or sufficiency of
this First Supplemental Indenture.
SECTION 8.04. This First 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 First 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.
TRANSAMERICA CORPORATION
By
------------------------------
Executive Vice President and
Chief Financial Officer
Attest:
- -------------------------
Secretary
THE FIRST NATIONAL BANK OF
CHICAGO
as Trustee
By
------------------------------
Attest:
- -------------------------
[Assistant Treasurer]
-16-
<PAGE> 18
STATE OF CALIFORNIA )
COUNTY OF [ ] ) ss.: San Francisco,_______ __, 1994
On the _______ day __________, in the year one thou-
sand nine hundred ninety-four, before me personally came
______________ to me known, who, being by me duly sworn, did
depose and say that he resides at ____________________________;
that he is Executive Vice President and Chief Financial Officer
of TRANSAMERICA CORPORATION, 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 corpora-
tion, and that he signed his name thereto by like authority.
----------------------------
STATE OF NEW YORK )
COUNTY OF ) ss.: ____________ __, 1994
On the ______ day of _________, in the year one thou-
sand nine hundred ninety-four, before me personally came
_________________ to me known, who, being by me duly sworn, did
depose and say that (s)he resides at _________________________,
of THE FIRST NATIONAL BANK OF CHICAGO, 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 cor-
poration and that he signed his name thereto by like authority.
-------------------------
NOTARY PUBLIC
My Commission Expires
<PAGE> 1
[WLRK DRAFT -- 8/10/94]
EXHIBIT 4.3
- ---------------------------------------------------------------
TRANSAMERICA CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
----------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of ________ __, 1994
TO
INDENTURE
Dated as of _______ __, 1994
----------------
Adjustable Rate Junior Subordinated Deferrable
Interest Debentures, Series A, Due 2024
- ---------------------------------------------------------------
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of the _______
day of __________, 1994 (the "First Supplemental Indenture"),
between TRANSAMERICA CORPORATION, a corporation duly organized
and existing under the laws of the State of New York (herein-
after sometimes referred to as the "Company"), and THE FIRST
NATIONAL BANK OF CHICAGO, a National Banking Association, as
trustee (hereinafter sometimes referred to as the "Trustee")
under the Indenture dated as of _______ __, 1994 between the
Company and the Trustee (the "Indenture"; all terms used and
not defined herein are used as defined in the Indenture).
WHEREAS, the Company executed and delivered the In-
denture to the Trustee to provide for the future issuance of
its junior 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 de-
livered 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 Adjustable Rate
Junior Subordinated Deferrable Interest Debentures, Series A,
Due 2024 (said series being hereinafter referred to as the
"Series A Debentures"), the form and substance of such Series A
Debentures and the terms, provisions and conditions thereof to
be set forth as provided in the Indenture and this First Sup-
plemental Indenture; and
WHEREAS, Transamerica Delaware, L.P., a Delaware
limited partnership ("Transamerica Delaware"), has offered to
the public its Cumulative Adjustable Rate Monthly Income Pre-
ferred Securities, Series A (the "Series A Preferred Securi-
ties"), representing limited partnership interests in Trans-
america Delaware and proposes to invest the proceeds from such
offering in the Series A Debentures; and
WHEREAS, upon the occurrence of a Special Event (as
defined in the Amended and Restated Agreement of Limited Part-
nership of Transamerica Delaware, dated __________ __, 1994
(the "Limited Partnership Agreement")), the Company may dis-
solve Transamerica Delaware and cause to be distributed to the
holders of the Series A Preferred Securities, on a pro rata
basis, Series A Debentures (a "Dissolution Event"); and
WHEREAS, the Company desires and has requested the
Trustee to join with it in the execution and delivery of this
First Supplemental Indenture, and all requirements necessary to
make this First Supplemental Indenture a valid instrument, in
accordance with its terms, and to make the Series A Debentures,
<PAGE> 3
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 A Debentures by the holders thereof,
and for the purpose of setting forth, as provided in the Inden-
ture, the form and substance of the Series A Debentures and the
terms, provisions and conditions thereof, the Company covenants
and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is hereby autho-
rized a series of Debentures designated the "Adjustable Rate
Junior Subordinated Deferrable Interest Debentures, Series A,
Due 2024", limited in aggregate principal amount to (i) $[425
million], plus (ii) the amount of capital contributions made by
the Company from time to time as general partner of Trans-
america Delaware, which amount shall be as set forth in any
written order of the Company for the authentication and deliv-
ery of Series A Debentures. The Series A Debentures shall
mature and the principal shall be due and payable together with
all accrued and unpaid interest thereon, including Additional
Interest (as hereinafter defined) on __________, 2024, and
shall be issued in the form of registered Series A Debentures
without coupons.
SECTION 1.02. Except as provided in Section 1.03
herein, the Series A Debentures shall be issued in certificated
form. Principal and interest on the Series A Debentures issued
in certificated form will be payable, the transfer of such
Series A Debentures will be registrable and such Series A De-
bentures will be exchangeable for Series A 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 regis-
ter. Notwithstanding the foregoing, so long as the holder of
the Series A Debentures is Transamerica Delaware, the payment
of the principal of and interest on (including Additional In-
terest, if any) on the Series A Debentures will be made at such
place and to such account as may be designated by Transamerica
Delaware.
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<PAGE> 4
SECTION 1.03. In connection with a Dissolution
Event, the Series A Debentures in certificated form may be pre-
sented to the Trustee by Transamerica Delaware in exchange for
a Global Debenture in an aggregate principal amount equal to
all Outstanding Series A 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 Transamerica Dela-
ware. The Company upon any such presentation shall execute a
Global Debenture in such aggregate principal amount and deliver
the same to the Trustee for authentication and delivery as
hereinabove and in the Indenture provided. Payments on the
Series A Debentures issued as a Global Debenture will be made
to the Depository. The Depository for the Series A Debentures
shall be The Depository Trust Company, New York, New York.
SECTION 1.04. Each Series A Debenture shall bear
interest at a variable rate from the date it is made until
maturity. The interest rate will be adjusted quarterly. The
rate for the initial period from the original date of issuance
to _________ __, 1994 will be ___% per annum. Thereafter,
interest on the Series A Debentures will be payable at the
"Applicable Rate" (as defined below) from time to time in ef-
fect. The interest rate on any overdue principal and (to the
extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest will be
at the same rate per annum, during such overdue period. Inter-
est is payable monthly (subject to the provisions of Article
Three) in arrears on the last day of each calendar month of
each year (each, an "Interest Payment Date", commencing on
_________, 1994), to the person in whose name such Series A
Debenture or any predecessor Series A Debenture 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 business day next preceding that Interest Payment Date. If
pursuant to the provisions of Section 2.11(c) of the Indenture
the Series A Debentures are no longer represented by a Global
Debenture, the Company may select a regular record date for
such interest installment which shall be any date not later
than fifteen days preceding an 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 A 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 regis-
tered holders of the Series A 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 require-
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<PAGE> 5
ments of any securities exchange on which the Series A Deben-
tures may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture
hereinafter referred to.
The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is pay-
able on the Series A 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.
If at any time when Transamerica Delaware is the
holder of the Series A Debentures, Transamerica Delaware shall
be required to pay any interest on dividends in arrears in
respect of the Series A Preferred Securities pursuant to the
terms thereof, then the Company will pay as interest (the
"Additional Interest") an amount equal to such interest on
dividends in arrears.
Except as provided below in this paragraph, the
"Applicable Rate" for any quarter (other than the initial
period) will be equal to ____% of the Effective Rate (as de-
fined below), but not less than ____% per annum nor more than
____% per annum. The "Effective Rate" for any quarter will be
equal to the highest of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate and the Thirty Year Constant Maturity
Rate (each as defined below) for such quarter. The Treasury
Bill Rate, the Ten Year Constant Maturity Rate and the Thirty
Year Constant Maturity Rate with respect to any quarter shall
be determined by Transamerica Delaware in the same manner as,
and consistent with its determinations with respect to quarters
for the purpose of dividends payable on the Series A Preferred
Securities, as described below. The Applicable Rate will be
rounded to the nearest five hundredth of a percent. In the
event that Transamerica Delaware determines in good faith that
for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Matu-
rity Rate cannot be determined for any quarter, then the
Effective Rate for such quarter will be equal to the
higher of whichever two of such rates can be so deter-
mined;
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<PAGE> 6
(ii) only one of the Treasury Bill Rate, the Ten
Year Constant Maturity Rate or the Thirty Year Constant
Maturity Rate can be determined for any quarter, then the
Effective Rate for such quarter will be equal to whichever
such rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate or the Thirty Year Constant Matu-
rity Rate can be determined for any quarter, then the Ef-
fective Rate for the preceding quarter will be continued
for such quarter.
Except as described below in this paragraph, the
"Treasury Bill Rate" for each quarter will be the arithmetic
average of the two most recent weekly per annum secondary mar-
ket discount rates (or the one weekly per annum secondary mar-
ket discount rate, if only one such rate is published during
the relevant Calendar Period (as defined below)) for three-
month U.S. Treasury bills, as published weekly by the Federal
Reserve Board (as defined below) during the Calendar Period
immediately preceding the last ten calendar days preceding the
quarter for which the interest rate on the Series A Debentures
is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum secondary market
discount rate during any such Calendar Period, then the Trea-
sury Bill Rate for such quarter will be the arithmetic average
of the two most recent weekly per annum secondary market dis-
count rates (or the one weekly per annum secondary market dis-
count rate, if only one such rate is published during the rel-
evant Calendar Period) for three-month U.S. Treasury bills, as
published weekly during such Calendar Period by any Federal
Reserve Bank or by any U.S. Government department or agency
selected by Transamerica Delaware. In the event that a per
annum secondary market discount rate for three-month U.S. Trea-
sury bills is not published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government department
or agency during such Calendar Period, then the Treasury Bill
Rate for such quarter will be the arithmetic average of the two
most recent weekly per annum secondary market discount rates
(or the one weekly per annum secondary market discount rate, if
only one such rate is published during the relevant Calendar
Period) for all of the U.S. Treasury bills then having remain-
ing maturities of not less than 80 nor more than 100 days, as
published during such Calendar Period by the Federal Reserve
Board, or if the Federal Reserve Board does not publish such
rates, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by Transamerica Delaware. In the
event that Transamerica Delaware determines in good faith that
for any reason no such U.S. Treasury bill rates are published
as provided above during such Calendar Period, then the Trea-
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<PAGE> 7
sury Bill Rate for such quarter will be the arithmetic average
of the per annum secondary market discount rates based upon the
closing bids during such Calendar Period for each of the issues
of marketable non-interest-bearing U.S. Treasury securities
with a remaining maturity of not less than 80 nor more than 100
days from the date of each such quotation, as chosen and quoted
daily for each Business Day in New York City (or less fre-
quently if daily quotations are not generally available) to
Transamerica Delaware by at least three recognized dealers in
U.S. Government securities selected by Transamerica Delaware.
In the event that Transamerica Delaware determines in good
faith that for any reason Transamerica Delaware cannot deter-
mine the Treasury Bill Rate for any quarter as provided above
in this paragraph, the Treasury Bill Rate for such quarter will
be the arithmetic average of the per annum secondary market
discount rates based upon the closing bids during such Calendar
Period for each of the issues of marketable interest-bearing
U.S. Treasury securities with a remaining maturity of not less
than 80 nor more than 100 days, as chosen and quoted daily for
each Business Day in New York City (or less frequently if daily
quotations are not generally available) to Transamerica Dela-
ware by at least three recognized dealers in U.S. Government
securities selected by Transamerica Delaware.
Except as described below in this paragraph, the "Ten
Year Constant Maturity Rate" for each quarter will be the
arithmetic average of the two most recent weekly per annum Ten
Year Average Yields (as defined below) (or the one weekly per
annum Ten Year Average Yield, if only one such yield is pub-
lished during the relevant Calendar Period), as published
weekly by the Federal Reserve Board during the Calendar Period
immediately preceding the last ten calendar days preceding the
quarter for which the interest rate on the Series A Debentures
is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum Ten Year Average
Yield during such Calendar Period, then the Ten Year Constant
Maturity Rate for such quarter will be the arithmetic average
of the two most recent weekly per annum Ten Year Average Yields
(or the one weekly per annum Ten Year Average Yield, if only
one such yield is published during the relevant Calendar
Period), as published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government department or
agency selected by Transamerica Delaware. In the event that a
per annum Ten Year Average Yield is not published by any Fed-
eral Reserve Bank or by any U.S. Government department or
agency during such Calendar Period, then the Ten Year Constant
Maturity Rate for such quarter will be the arithmetic average
of the two most recent weekly per annum average yields to matu-
rity (or the one weekly per annum average yield to maturity, if
only one such yield is published during the relevant Calendar
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<PAGE> 8
Period) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities
(as defined below)) then having remaining maturities of not
less than eight nor more than twelve years, as published during
such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board does not publish such yields, by any Fed-
eral Reserve Bank or by any U.S. Government department or
agency selected by Transamerica Delaware. In the event that
Transamerica Delaware determines in good faith that for any
reason Transamerica Delaware cannot determine the Ten Year Con-
stant Maturity Rate for any quarter as provided above in this
paragraph, then the Ten Year Constant Maturity Rate for such
quarter will be the arithmetic average of the per annum average
yields to maturity based upon the closing bids during such Cal-
endar Period for each of the issues of actively traded market-
able U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than
eight or more than twelve years from the date of each such quo-
tation, as chosen and quoted daily for each Business Day in New
York City (or less frequently if daily quotations are not gen-
erally available) to Transamerica Delaware by at least three
recognized dealers in U.S. Government securities selected by
Transamerica Delaware.
Except as described below in this paragraph, the
"Thirty Year Constant Maturity Rate" for each quarter will be
the arithmetic average of the two most recent weekly per annum
Thirty Year Average Yields (as defined below) (or the one
weekly per annum Thirty Year Average Yield, if only one such
yield is published during the relevant Calendar Period), as
published weekly by the Federal Reserve Board during the Calen-
dar Period immediately preceding the last ten calendar days
preceding the quarter for which the interest rate on the Series
A Debentures is being determined. In the event that the Fed-
eral Reserve Board does not publish such a weekly per annum
Thirty Year Average Yield during such Calendar Period, then the
Thirty Year Constant Maturity Rate for such quarter will be the
arithmetic average of the two most recent weekly per annum
Thirty Year Average Yields (or the one weekly per annum Thirty
Year Average Yield, if only one such yield is published during
the relevant Calendar Period), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Gov-
ernment department or agency selected by Transamerica Delaware.
In the event that a per annum Thirty Year Average Yield is not
published by the Federal Reserve Board or by any Federal Re-
serve Bank or by any U.S. Government department or agency dur-
ing such Calendar Period, then the Thirty Year Constant Matu-
rity Rate for such quarter will be the arithmetic average of
the two most recent weekly per annum average yields to maturity
(or the one weekly per annum average yield to maturity, if only
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<PAGE> 9
one such yield is published during the relevant Calendar
Period) for all of the actively traded marketable U.S. Treasury
fixed interest rate securities (other than Special Securities)
then having remaining maturities of not less than twenty-eight
nor more than thirty-two years, as published during such Cal-
endar Period by the Federal Reserve Board or, if the Federal
Reserve Board does not publish such yields, by any Federal Re-
serve Bank or by any U.S. Government department or agency
selected by Transamerica Delaware. In the event that Trans-
america Delaware determines in good faith that for any reason
Transamerica Delaware cannot determine the Thirty Year Constant
Maturity Rate for any quarter as provided above in this para-
graph, then the Thirty Year Constant Maturity Rate for such
quarter will be the arithmetic average of the per annum average
yields to maturity based upon the closing bids during such Cal-
endar Period for each of the issues of actively traded market-
able U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than
twenty-eight nor more than thirty-two years from the date of
each such quotation, as chosen and quoted daily for each busi-
ness day in New York City (or less frequently if daily quota-
tions are not generally available) to Transamerica Delaware by
at least three recognized dealers in U.S. Government securities
selected by Transamerica Delaware.
The Treasury Bill Rate, the Ten Year Constant Matu-
rity Rate and the Thirty Year Constant Maturity Rate will each
be rounded to the nearest one hundredth of a percent.
The Applicable Rate with respect to each quarter
(other than the initial period) will be calculated as promptly
as practicable by Transamerica Delaware according to the appro-
priate method described above. Transamerica Delaware will
cause each Applicable Rate to be published in a newspaper of
general circulation in New York City before the commencement of
the quarter to which it applies and will cause notice of such
Applicable Rate to be given to the Depository Trust Company
("DTC"), New York, NY, the securities depository for the Series
A Debentures.
As used above, the term "Calendar Period" means a
period of fourteen calendar days; the term "Federal Reserve
Board" means the Board of Governors of the Federal Reserve Sys-
tem; the term "Special Securities" means securities which can,
at the option of the holder, be surrendered at face value in
payment of any Federal estate tax or which provide tax benefits
to the holder and are priced to reflect such tax benefits or
which were originally issued at a deep or substantial discount;
the term "Ten Year Average Yield" means the average yield to
maturity for actively traded marketable U.S. Treasury fixed
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<PAGE> 10
interest rate securities (adjusted to constant maturities of
ten years); and the term "Thirty Year Average Yield" means the
average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant
maturities of thirty years).
ARTICLE TWO
Mandatory Prepayment and Optional Redemption
of the Series A Debentures
SECTION 2.01. If Transamerica Delaware redeems the
Series A Preferred Securities in accordance with the terms
thereof, the Series A Debentures will become due and
payable in a principal amount equal to the aggregate
stated liquidation preference of the Series A Preferred
Securities so redeemed, together with all accrued
and unpaid interest thereon, including Additional In-
terest, if any. Any payment pursuant to this provision shall
be made prior to 12:00 noon, New York City time, on the
date of such redemption or at such earlier time as the
Company and Transamerica Delaware shall agree.
SECTION 2.02. At such time as there are no Series A
Preferred Securities remaining outstanding and subject to the
terms of Article Three of the Indenture, the Company shall have
the right to redeem the Series A Debentures, in whole or in
part, from time to time, on or after ___________, 1999, at a
redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon, includ-
ing any Additional Interest, if any, to the date of such re-
demption (the "Optional Redemption Price"). Any redemption
pursuant to this paragraph will be made upon not less than 30
nor more than 60 days' notice, at the Optional Redemption
Price. If the Series A Debentures are only partially redeemed
pursuant to this Section, the 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 A De-
bentures are registered as a Global Debenture, the Depository
shall determine by lot the principal amount of such Series A
Debentures held by each Series A Debentureholder to be re-
deemed.
SECTION 2.03. If the Company or Transamerica Delaware
purchases Series A Preferred Securities by tender, in the open
market or by private agreement, the Company shall have the right
to redeem Series A Debentures, in an amount not to exceed the
aggregate stated liquidation preference of the Series A Preferred
Securities so purchased, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, to the
redemption date. Any payment pursuant to this provision shall be
made prior to 12:00 noon, New York City time, on the date of such
repurchase, or at such earlier time as the Company and Transamerica
Delaware shall agree.
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<PAGE> 11
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. The Company shall have the right, at
any time during the term of the Series A Debentures, from time
to time to extend the interest payment period, of such Series A
Debentures for up to 60 consecutive months (the "Extended In-
terest 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 specified for the Series A
Debentures to the extent permitted by applicable law); provided
that, during such Extended Interest Payment Period the Company
shall not declare or pay any dividend on, or purchase, acquire
or make a liquidation payment with respect to, any of its com-
mon stock, or make any guarantee payments with respect thereto.
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 60 consecutive months. Upon the termination of any Extended
Interest Payment Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, 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) If Transamerica Delaware is the
sole holder of the Series A Debentures at the time the Company
selects an Extended Interest Payment Period, the Company shall
give both Transamerica Delaware 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 dividends on the Series A Preferred Securities
are payable or (ii) the date Transamerica Delaware is required
to give notice of the record date or the date such dividends
are payable to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Series A Pre-
ferred Securities, but in any event not less than one business
day prior to such record date. The Company shall cause Trans-
america Delaware to give notice of the Company's selection of
such Extended Interest Payment Period to the holders of the
Series A Preferred Securities.
(b) If Transamerica Delaware is not the sole holder
of the Series A Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give the
holders of the Series A Debentures and the Trustee written
notice of its selection of such Extended Interest Payment
Period 10 business days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) the date the Company
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<PAGE> 12
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 A Debentures, but in any event not less than two busi-
ness days prior to such record date.
(c) The month in which any notice is given pursuant
to paragraphs (a) or (b) of this Section shall constitute one
of the 60 months which comprise the maximum Extended Interest
Payment Period.
ARTICLE FOUR
Right of Set-Off
SECTION 4.01. Notwithstanding anything to the con-
trary in the Indenture or herein, the Company shall have the
right to set-off any payment it is otherwise required to make
thereunder or hereunder with and to the extent the Company has
heretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee Agreement, dated as of
___________, executed by the Company and furnished to Trans-
america Delaware for the benefit of the holders of the Series A
Preferred Securities.
ARTICLE FIVE
Covenant to List on Exchange
SECTION 5.01. If the Series A Debentures are to be
issued as a Global Debenture in connection with the distribu-
tion of the Series A Debentures to the holders of the Series A
Preferred Securities upon a Dissolution Event, the Company will
use its best efforts to list such Series A Debentures on the
New York Stock Exchange or on such other exchange as the Series
A Preferred Securities are then listed and traded.
ARTICLE SIX
Form of Series A Debenture
SECTION 6.01. The Series A Debentures and the Trust-
ee's Certificate of Authentication to be endorsed thereon are
to be substantially in the following forms:
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<PAGE> 13
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE 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 Depository or a nominee of a Depository. This Deben-
ture is exchangeable for Debentures registered in the name of a
person other than the Depository or its nominee only in the
limited circumstances described in the Indenture, and no trans-
fer of this Debenture (other than a transfer of this Debenture
as a whole by the Depository to a nominee of the Depository or
by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, 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 re-
quested 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. __________
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<PAGE> 14
TRANSAMERICA CORPORATION
ADJUSTABLE RATE JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE, SERIES A, DUE 2024
TRANSAMERICA CORPORATION, a corporation duly orga-
nized 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 ____________, 2024, and to pay
interest on said principal sum from ____________, 1994 to
, 1994 at the initial rate of ____% per annum and
thereafter from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, monthly (subject to deferral as
set forth herein) in arrears on the last day of each calendar
month of each year commencing __________, 1994 at the Appli-
cable Rate (as defined in the First Supplemental Indenture)
adjusted quarterly, determined by Transamerica Delaware in the
manner described in the First Supplemental Indenture, plus
Additional 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 during such overdue period. 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. 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 busi-
ness 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 regu-
lar record date for such interest installment, [which shall be
the close of business on the business day next preceding such
Interest Payment Date.] [IF PURSUANT TO THE PROVISIONS OF SEC-
TION 2.11(C) OF THE INDENTURE THE SERIES A DEBENTURES ARE NO
LONGER REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the
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<PAGE> 15
close of business on the ______ business day 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 Deben-
ture (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; 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 Deben-
ture register. Notwithstanding the foregoing, so long as the
holder of this Debenture is Transamerica Delaware, L.P. "Trans-
america Delaware"), the payment of the principal of (and pre-
mium, if any) and interest (including Additional Interest, if
any) in this Debenture will be made at such place and to such
account as may be designated by Transamerica Delaware.
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 pro-
visions 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
-14-
<PAGE> 16
obligatory for any purpose until the Certificate of Authentica-
tion 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.
IN WITNESS WHEREOF, the Company has caused this In-
strument to be executed.
Dated
----------------------
TRANSAMERICA CORPORATION
By
-----------------------------
Executive Vice President
and Chief Financial Officer
Attest:
By
------------------------
Secretary
-15-
<PAGE> 17
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Deben-
tures described in the within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO
- ---------------------------- ----------------------------
as Trustee or as Authentication Agent
By By
-------------------------- --------------------------
Authorized Signatory Authorized Signatory
(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 ________ __, 1994 duly executed and delivered
between the Company and The First National Bank of Chicago, a National
Banking Association, as Trustee (herein referred to as the "Trustee"),
as supplemented by the First Supplemental Indenture dated as of
________, 1994 between the Company and the Trustee (said Inden-
ture as so supplemented being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemen-
tal thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immuni-
ties thereunder of the Trustee, the Company and the holders of
the Debentures. 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 In-
denture provided. This series of Debentures is limited in
aggregate principal amount as specified in said First Supple-
mental Indenture.
If Transamerica Delaware redeems its Cumulative
Adjustable Rate Monthly Income Preferred Securities, Series A
(the "Series A Preferred Securities") in accordance with the
-16-
<PAGE> 18
terms thereof, this Debenture will become due and payable in a
principal amount equal to the aggregate stated liquidation
preference of the Series A Preferred Securities so redeemed,
together with any interest accrued thereon, including Addi-
tional Interest (the "Mandatory Prepayment"). Any Manda-
tory Prepayment shall be made prior to 12:00 noon, New York
time, on the date of such redemption or at such earlier time as
the Company and Transamerica Delaware shall agree. At such
time as there are no Series A Preferred Securities remaining
outstanding and subject to the terms of Article Three of the
Indenture, the Company shall have the right to redeem this
Debenture at the option of the Company, without premium or pen-
alty, in whole or in part at any time on or after __________,
1999 (an "Optional Redemption"), at a redemption price equal to
100% of the principal amount plus any accrued but unpaid inter-
est, including any Additional Interest, if any, to the date of
such redemption (the "Optional Redemption Price"). Any redemp-
tion pursuant to this paragraph will be made upon not less than
30 nor more than 60 days' notice, at the Optional Redemption
Price. If the Debentures are only partially redeemed by the
Company pursuant to an Optional Redemption, the 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
Debentures are registered as a Global Debenture, the Depository
shall determine by lot the principal amount of such Debentures
held by each Debentureholder to be redeemed. If the Company or
Transamerica Delaware purchases Series A Preferred Securities by
tender, in the open market or by private agreement, the Company
shall have the right to redeem Debentures, in an amount not to
exceed the aggregate stated liquidation preference of the Series A
Preferred Securities so purchased, together with any accrued and unpaid
interest thereon, including additional interest, if any, to the
redemption date.
In the event of redemption of this Debenture in part
only, a new Debenture or Debentures of this series for the un-
redeemed 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 Inden-
ture, shall have occurred and be continuing, the principal of
all of the Debentures may be declared, and upon such declara-
tion 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 com-
pliance by the Company with certain conditions set forth there-
in.
The Indenture contains provisions permitting the Com-
pany and the Trustee, with the consent of the Holders of not
less than a majority in aggregate principal amount of the De-
bentures of each series affected at the time outstanding, as
defined in the Indenture, 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
-17-
<PAGE> 19
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 princi-
pal 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 per-
centage of Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent
of the holders of each Debenture then outstanding and affected
thereby. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the
Debentures of all series at the time outstanding affected
thereby, 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 pursu-
ant to the Indenture with respect to such series, and its con-
sequences, 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), irrespec-
tive of whether or not any notation of such consent or waiver
is made upon this Debenture.
No reference herein to the Indenture 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 and at the rate and in the
money herein prescribed.
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 to up to 60 consecu-
tive months (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
specified for the Debentures to the extent that payment of such
interest is enforceable under applicable law); provided that,
during such Extended Interest Payment Period the Company shall
not declare or pay any dividend on, or purchase, acquire or
make a liquidation payment with respect to, any of its common
stock, or make any guarantee payments with respect thereto.
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
-18-
<PAGE> 20
with all such further extensions thereof shall not exceed 60
consecutive months. At the termination of any such Extended
Interest Payment Period and upon the payment of all accrued and
unpaid interest and any additional amounts then due, the Com-
pany may select a new Extended Interest Payment Period.
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 Bor-
ough of Manhattan, The City and State of New York accompanied
by a written instrument or instruments of transfer in form sat-
isfactory 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 transfer-
ees. 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 there-
to.
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 De-
benture 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 prin-
cipal 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, stock-
holder, 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 penalty or other-
wise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly
waived and released.
[The Debentures of this series are issuable only in
registered form without coupons in denominations of $25 and any
-19-
<PAGE> 21
integral multiple thereof.] [This Global Debenture is ex-
changeable for Debentures in definitive form only 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 $25 and any integral mul-
tiple thereof.] As provided in the Indenture and subject to
certain limitations [herein and] therein set forth, Debentures
of this series [so issued] are exchangeable for a like aggre-
gate principal amount of Debentures of this series of a differ-
ent authorized denomination, as requested by the Holder surren-
dering 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 SEVEN
Original Issue of Series A Debentures
SECTION 7.01. Series A Debentures in the aggregate
principal amount of $__________ plus the amount of capital con-
tributions made by the Company from time to time as general
partner of Transamerica Delaware, may, upon execution of this
First Supplemental Indenture, or from time to time thereafter,
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.
ARTICLE EIGHT
Miscellaneous Provisions
SECTION 8.01. Except as otherwise expressly provided
in this First Supplemental Indenture or in the form of Series A
Debenture or otherwise clearly required by th0000313616-94-000015SC 13D DANAHER CORP /DE/ JOSLYN CORP /IL/ 1994081219940812084759084540000000<PAGE>
0 <SUBMISSION>
<ACCESSION-NUMBER>0000313616-94-000015
<TYPE>SC 13D
<PUBLIC-DOCUMENT-COUNT>1
<FILING-DATE>19940812
<SUBJECT-COMPANY>
<COMPANY-DATA>
<CONFORMED-NAME>JOSLYN CORP /IL/
<CIK>0000054045
<ASSIGNED-SIC>3620
<IRS-NUMBER>363560095
<STATE-OF-INCORPORATION>IL
<FISCAL-YEAR-END>1231
</COMPANY-DATA>
<FILING-VALUES>
<FORM-TYPE>SC 13D
<ACT>34
<FILE-NUMBER>005-15605
<FILM-NUMBER>94543243
</FILING-VALUES>
<BUSINESS-ADDRESS>
<STREET1>30 S WACKER DR
<CITY>CHICAGO
<STATE>IL
<ZIP>60606
<PHONE>3124542900
</BUSINESS-ADDRESS>
<FORMER-COMPANY>
<FORMER-CONFORMED-NAME>JOSLYN MANUFACTURING & SUPPLY CO
<DATE-CHANGED>19850527
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<BUSINESS-ADDRESS>
<STREET1>1250 24TH ST NW
<STREET2>SUITE 800
<CITY>WASHINGTON
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<ZIP>20037
<PHONE>2028280850
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<MAIL-ADDRESS>
<STREET1>1250 24TH STREET NW
<STREET2>SUITE 800
<CITY>WASHINGTON
<STATE>DC
<ZIP>20037
</MAIL-ADDRESS>
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<FORMER-CONFORMED-NAME>DMG INC
<DATE-CHANGED>19850221
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<DOCUMENT>
<TYPE>SC 13D
<SEQUENCE>1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. _____)*
Joslyn Corporation
(Name of Issuer)
Common Stock, Par Value $1.25 Per Share
Common Stock Purchase Rights
(Title of Class of Securities)
481070100
(CUSIP Number)
Patrick W. Allender
Danaher Corporation Steven Ostner
1250 24th Street, N.W. Debevoise & Plimpton
Suite 800 875 Third Avenue
Washington, D.C. 20037 New York, NY 10022
(202) 828-0850 (212) 909-6000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 2, 1994
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because of
Rule 13d-1(b)(3) or (4), check the following box ___.
Check the following box if a fee is being paid with the
statement X . (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting
beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership
of five percent or less of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect
to the subject class of securities, and for any subsequent
amendment containing information which would alter disclo-
sures provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Sec-
tion 18 of the Securities Exchange Act of 1934 (the "Act")
or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the
Act (however, see the Notes).<PAGE>
CUSIP No. 481070100
1. NAME OF REPORTING PERSON
S.S OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Danaher Corporation
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ___
(b) ___
3. SEC USE ONLY
4. SOURCE OF FUNDS WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
___
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7. SOLE VOTING POWER 543,550
SHARES
BENEFICIALLY 8. SHARED VOTING POWER None
OWNED BY EACH
REPORTING 9. SOLE DISPOSITIVE POWER 543,550
PERSON
WITH 10. SHARED DISPOSITIVE POWER None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
543,550
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
___
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.6%
14. TYPE OF REPORTING PERSON
CO
<PAGE>
STATEMENT ON SCHEDULE 13D
Item 1. Security and Issuer.
This statement relates to the common stock, par
value $1.25 per share, of Joslyn Corporation, an Illinois
corporation (the "Issuer"), and certain associated common
stock purchase rights (collectively, the "Common Stock").
The principal executive office of the Issuer is located at
30 South Wacker Drive, Chicago, Illinois 60606.
Item 2. Identity and Background.
The name of the person filing this statement is
Danaher Corporation ("Danaher"), a Delaware corporation,
which has its principal office at 1250 24th Street, N.W.,
Suite 800, Washington, D.C. 20037. Danaher's principal
business is the design, manufacture and marketing of
industrial and consumer products.
Set forth in Schedule A, which is attached hereto
and incorporated by reference, are the (i) names and (ii)
present principal occupations or employments of the
executive officers and directors of Danaher and each person
who controls Danaher. Each of such persons is a citizen of
the United States of America and has a business address at
the address of Danaher.
During the last five years, neither Danaher nor,
to the best knowledge of Danaher, any of its executive
officers, directors or controlling persons has been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
During the last five years, neither Danaher nor,
to the best knowledge of Danaher, any of its executive
officers, directors or controlling persons has been a party
to a civil proceeding of a judicial or administrative body
of competent jurisdiction where the result of such
proceeding was the imposition of a judgment, decree or final
order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Consideration.
The shares of Common Stock owned by Danaher were
purchased by Danaher on the open market over the period from
May 29, 1994 through August 5, 1994 for an aggregate cash
consideration of $13,940,191 (including brokerage
commissions), using Danaher's general corporate funds.
Danaher anticipates that any future purchases of Common
Stock will be paid for out of its general corporate funds.
Item 4. Purpose of Transaction.
Danaher purchased the shares of Common Stock
reported herein as an investment. Danaher is presently
considering the acquisition of additional shares of Common
Stock (subject to market conditions and any required filings
with governmental authorities) in privately negotiated or
open-market transactions. Concurrently with the filing of
this statement, the Company is filing with the Federal Trade
Commission a notification with respect to the possible
acquisition by it of shares of Common Stock having a value
exceeding $15 million, which amount includes the value of
the shares of Common Stock reported hereby. Depending upon
Danaher's evaluation of the Issuer's business and prospects
and upon future developments, market conditions and
alternative investment opportunities and uses of funds,
Danaher may determine to increase, decrease or dispose of
its holdings of Common Stock in one or more privately
negotiated or open-market transactions or otherwise, on such
terms and at such times as Danaher considers desirable.
Other than as described above, Danaher has no
present plans or proposals that relate to or would result in
any of the actions set forth in subparagraphs (a)-(j) of the
instructions to item 4.
Item 5. Interest in Securities of the Issuer.
As of the close of business on August 12, 1994,
Danaher beneficially owned 543,550 shares of Common Stock.
Such securities in the aggregate constituted approximately
7.6% of the outstanding shares of Common Stock (based on the
number of shares outstanding as set forth in the Issuer's
Form 10-Q for the fiscal quarter ended March 31, 1994).
Danaher has the sole power to vote, or to direct the vote,
and to dispose or direct the disposition of the shares of
Common Stock owned by it.
Set forth in Schedule B hereto is a summary of all
transactions in shares of Common Stock effected by Danaher
during the past 60 days. In each case, the transaction
was effected by Danaher on the National Association of
Securities Dealers, Inc.'s National Market System through
normal brokerage transactions. Except as described above,
neither Danaher nor, to the best knowledge of Danaher, any
executive officer, director or controlling person of Danaher
owns beneficially any shares of Common Stock or has engaged
in any transactions in shares of Common Stock during the
past 60 days.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the
Issuer.
Neither Danaher nor, to the best knowledge of
Danaher, any of its executive officers, directors or
controlling persons has any contract, arrangement,
understanding or relationship with any person with respect
to any securities of the Issuer.
Item 7. Material to Be Filed as Exhibits.
None.<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
Date: August 12, 1994
DANAHER CORPORATION
By:\s\PATRICK W. ALLENDER
Name:Patrick W. Allender
Title:Sr. Vice President
<PAGE>
SCHEDULE A
NAME<PAGE>
PRINCIPAL OCCUPATION Mortimer M. Caplin
Caplin & Drysdale
One Thomas Circle, NW, Ste. 1100
Washington, DC 20005<PAGE>
Senior Member of Caplin & Drysdale, a
law firm in Washington, DC, for over
five years; Director of Fairchild
Industries, Inc., Fairchild
Corporation, Presidential Realty
Corporation, and Unigene Laboratories,
Inc.<PAGE>
Donald J. Ehrlich
Wabash National Corporation
1000 Sagamore Parkway South
Lafayette, IN 47905<PAGE>
President, Chief Executive Officer and
Director of Wabash National
Corporation, a manufacturer of truck
trailers and bimodal vehicles, for
five years; Director of Indiana
Secondary Market Corporation and NBD
Bank, N.A., Northwest.<PAGE>
Walter G. Lohr, Jr.
Hogan & Hartson
111 S. Calvert Street, Ste. 1600
Baltimore, MD 21202-6191<PAGE>
Partner of Hogan and Hartson, a law
firm in Baltimore, Maryland, since
1992; attorney in private practice
1987-1992.<PAGE>
Steven M. Rales Chairman of the Board of the Company
since 1984; Chief Executive Officer of
the Company until February 1990;
General Partner of Equity Group
Holdings, a partnership located in
Washington, DC with interests in
publicly traded securities,
manufacturing companies and media
operations since 1979; and Director of
Wabash National Corporation.
<PAGE>
Mitchell P. Rales President of the Company from 1987 to
February 1990; Executive Vice
President of the Company from January
1984 to March 1987; General Partner of
Equity Group Holdings, a general
partnership located in Washington, DC
with interests in publicly traded
securities, manufacturing companies
and media operations, since 1979; and
Director of Wabash National
Corporation.<PAGE>
George M. Sherman President and Chief Executive Officer
of the Company since February 1990;
Executive Vice President and President
of the Power Tools and Home
Improvement Group of The Black &
Decker Corporation from 1985 to 1990.
<PAGE>
A. Emmet Stephenson
Stephenson & Company
100 Garfield Street
Denver, CO 80206<PAGE>
President of Stephenson and Co., a
private investment management firm in
Denver, Colorado for more than five
years; Senior Partner of Stephenson
Merchant Banking for more than five
years.
<PAGE>
Patrick W. Allender Senior Vice President, Chief Financial
Officer and Secretary of Danaher
<PAGE>
James H. Ditkoff Vice President-Finance/Tax of Danaher
<PAGE>
C. Scott Brannan
<PAGE>
Vice President Administration and
Controller of Danaher
<PAGE>
Douglas A. Pertz
<PAGE>
Vice President and Group Executive of
Danaher<PAGE>
John P. Watson Vice President and Group Executive of
Danaher<PAGE>
W. John Weinhardt Vice President and Group Executive of
Danaher<PAGE>
SCHEDULE B
No. of Cumulative
DATE Shares Price Purchase Purchases
5-29 25,000 24.7500 618,750.00 618,750.00
6-1 10,000 24.8125 248,125.00 866,875.00
6-7 2,500 24.7500 61,875.00 928,750.00
6-8 14,000 24.8125 347,375.00 1,276,125.00
6-17 7,500 25.2500 189,375.00 1,465,500.00
6-20 10,000 25.2500 252,500.00 1,718,000.00
6-23 6,500 25.2500 164,125.00 1,882,125.00
7-1 3,000 25.3125 75,937.50 1,958,062.50
7-11 7,500 25.7500 193,125.00 2,151,187.50
7-19 5,000 25.7500 128,750.00 2,279,937.50
7-20 5,000 25.7500 128,750.00 2,408,687.50
7-21 65,000 26.1250 1,698,125.00 4,106,182.50
7-25 10,000 25.8125 258,125.00 4,364,937.50
7-26 15,000 25.8125 387,187.50 4,752,125.00
7-28 10,000 25.8125 258,125.00 5,010,250.00
8-1 8,000 25.8125 206,500.00 5,216,750.00
8-2 329,550 25.6875 8,465,315.63 13,682,065.63
8-5 10,000 25.8125 258,125.00 13,940,190.63
