<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 1998
REGISTRATION NOS. 333-
333- -01
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
TRANSAMERICA CORPORATION TRANSAMERICA CAPITAL III
(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)
6199 6719
(PRIMARY STANDARD INDUSTRIAL (PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER) CLASSIFICATION CODE NUMBER)
94-0932740 94-3286471
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
TRANSAMERICA PYRAMID
600 MONTGOMERY STREET
SAN FRANCISCO, CA 94111
(415) 983-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF EACH
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
SHIRLEY H. BUCCIERI
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
TRANSAMERICA CORPORATION
TRANSAMERICA PYRAMID
600 MONTGOMERY STREET
SAN FRANCISCO, CA 94111
(415) 983-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
GEOFFREY P. LEONARD
ORRICK, HERRINGTON & SUTCLIFFE LLP
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CA 94111
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of the Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
7 5/8% Capital Securities of Transamerica
Capital III............................. $190,000,000 100% $190,000,000 $56,050
7 5/8% Junior Subordinated Debentures of
Transamerica Corporation(2)............. -- -- -- --
Transamerica Corporation Guarantee with
respect to Capital Securities(3)........ -- -- -- --
Total(4).................................. $190,000,000(5) 100% $190,000,000(5) $56,050
=================================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(a) of the Securities Act of 1933 solely for
the purpose of computing the registration fee.
(2) The Junior Subordinated Debentures were originally purchased by Transamerica
Capital III with the proceeds of the sale of the Capital Securities by
Transamerica Capital III. No separate consideration will be received for the
Junior Subordinated Debentures distributed upon any liquidation of
Transamerica Capital III.
(3) No separate consideration will be received for the Guarantee.
(4) This Registration Statement is deemed to cover: the Junior Subordinated
Debentures; the rights of holders of the Junior Subordinated Debentures
under the Indenture; the rights of holders of the Capital Securities under
the Declaration of Trust; the rights of holders of the Capital Securities
under the Guarantee; and certain backup undertakings as described herein.
(5) Such amount represents the aggregate liquidation amount of the Capital
Securities to be exchanged hereunder and the principal amount of the Junior
Subordinated Debentures that may be distributed to holders of the Capital
Securities upon any liquidation of Transamerica Capital III.
------------------------
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.
================================================================================
<PAGE> 2
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 MARCH 31, 1998
PROSPECTUS
$190,000,000
TRANSAMERICA CAPITAL III
OFFER TO EXCHANGE ITS 7 5/8% CAPITAL TRUST PASS-THROUGH SECURITIES WHICH HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 FOR ANY AND ALL OF ITS
OUTSTANDING 7 5/8% CAPITAL TRUST PASS-THROUGH SECURITIES (LIQUIDATION AMOUNT
$1,000 PER CAPITAL SECURITY) FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED
HEREIN, BY TRANSAMERICA CORPORATION
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1998, UNLESS EXTENDED.
Transamerica Capital III (the "Trust"), a statutory business trust created
under the laws of the State of Delaware, together with Transamerica Corporation,
a Delaware corporation ("Transamerica"), as sponsor of the Trust, hereby offers
upon the terms and subject to the conditions set forth in this Prospectus (as
the same may be amended or supplemented from time to time, the "Prospectus") and
in the accompanying Letter of Transmittal (which together constitute the
"Exchange Offer"), to exchange up to $190,000,000 aggregate liquidation amount
of its 7 5/8% Capital Trust Pass-through Securities (the "New Capital
Securities") which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a Registration Statement (as defined
herein) of which this Prospectus constitutes a part, for a like liquidation
amount of its outstanding 7 5/8% Capital Trust Pass-through Securities (the "Old
Capital Securities"), of which $190,000,000 aggregate liquidation amount is
outstanding. Pursuant to the Exchange Offer, Transamerica is also exchanging all
of its outstanding 7 5/8% Junior Subordinated Deferrable Interest Debentures due
2037 (the "Old Subordinated Debt Securities"), of which $195,877,000 aggregate
principal amount is outstanding, for a like aggregate principal amount of its
7 5/8% Junior Subordinated Deferrable Interest Debentures due 2037 (the "New
Subordinated Debt Securities"), which New Subordinated Debt Securities also have
been registered under the Securities Act. The Old Capital Securities and the Old
Subordinated Debt Securities are collectively referred to herein as the "Old
Securities" and the New Capital Securities and the New Subordinated Debt
Securities are collectively referred to herein as the "New Securities."
Transamerica's guarantee with respect to the payment of distributions and other
payments on liquidation or redemption of the Old Capital Securities (the
"Guarantee") will apply to the New Capital Securities. The Guarantee has also
been registered under the Securities Act. See "Prospectus Summary," "Description
of the Capital Securities," "Description of the Subordinated Debt Securities"
and "Description of the Guarantee."
The terms of the New Capital Securities are identical in all material
respects to the respective terms of the Old Capital Securities, except that (i)
the New Capital Securities have been registered under the Securities Act and
therefore will not be subject to certain restrictions on transfer applicable to
the Old Capital Securities, (ii) the New Capital Securities will not provide for
any increase in the Distribution Rate thereon and (iii) the New Subordinated
Debt Securities will not provide for any increase in the interest rate thereon.
See "Description of the Capital Securities' and "Description of the Subordinated
Debt Securities."
(continued on next page)
SEE "RISK FACTORS" BEGINNING ON PAGE 16 OF THIS PROSPECTUS FOR CERTAIN
INFORMATION RELEVANT TO HOLDERS WHO TENDER OLD CAPITAL SECURITIES IN THE
EXCHANGE OFFER.
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 OF ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1998.
<PAGE> 3
(cover page continued)
The New Capital Securities are being offered for exchange in order to
satisfy certain obligations of Transamerica and the Trust under the Registration
Rights Agreement, dated November 14, 1997 (the "Registration Rights Agreement"),
among Transamerica, the Trust and Salomon Brothers Inc, as representative of the
Initial Purchasers (as defined herein) of the Old Capital Securities. In the
event that the Exchange Offer is consummated, any Old Capital Securities which
remain outstanding after consummation of the Exchange Offer will vote together
with the New Capital Securities issued in the Exchange Offer as a single class
for purposes of determining whether holders of the requisite percentage in
outstanding liquidation amount thereof have taken certain actions or exercised
certain rights under the Declaration (as defined herein).
The Old Capital Securities represent, and the New Capital Securities when
issued will represent, undivided beneficial interests in the assets of the
Trust. The Old Capital Securities and the New Capital Securities are
collectively referred to herein as the "Capital Securities." Transamerica owns
all of the common securities of the Trust (the "Common Securities") representing
undivided beneficial interests in the assets of the Trust. The Trust exists for
the sole purpose of issuing the Common Securities and the Capital Securities
(together, the "Trust Securities") and investing the proceeds thereof in the
Subordinated Debt Securities (as defined herein) and certain other limited
activities described herein. The Old Subordinated Debt Securities and the New
Subordinated Debt Securities are collectively referred to herein as the
"Subordinated Debt Securities."
The Old Subordinated Debt Securities and the Guarantee are, and the New
Subordinated Debt Securities when issued will be, unsecured obligations of
Transamerica and are or will be, as the case may be, subordinate and junior in
right of payment to certain other indebtedness of Transamerica, as described
herein. Upon a Declaration Event of Default (as defined herein), the holders of
the Capital Securities will have a preference over the holders of the Common
Securities with respect to payments of distributions and payments upon
redemption, liquidation and otherwise.
Holders of the Capital Securities are entitled to receive cumulative cash
distributions at an annual rate of 7 5/8% per annum of the stated liquidation
amount of $1,000 per Capital Security, accruing from the date of original
issuance of the Old Capital Securities, and (subject to extensions of
distribution payment periods described below) payable semiannually in arrears on
November 15 and May 15 of each year, commencing May 15, 1998 ("distributions").
The payment of distributions on the Capital Securities out of moneys held by the
Trust and payments on liquidation of the Trust or the redemption of the Capital
Securities, as set forth below, are guaranteed by Transamerica as provided in
the Guarantee. The Guarantee covers payments of distributions and other payments
on the Capital Securities only if and to the extent that the Trust has funds
available therefor, which funds will not be available except to the extent
Transamerica has made payments of interest or principal or other payments on the
Subordinated Debt Securities held by the Trust.
The Guarantee, when taken together with Transamerica's obligations under
the Subordinated Debt Securities, the Declaration, and the Indenture (as defined
herein), including its obligations to pay costs, expenses, debts and other
obligations of the Trust (other than with respect to the Trust Securities),
provides a full and unconditional guarantee on a subordinated basis by
Transamerica of amounts due on the Capital Securities. See "Risk
Factors -- Guarantee Covers Distributions and Other Payments Only to the Extent
the Trust Has Available Funds; Related Remedies." The obligations of
Transamerica under the Guarantee and the Subordinated Debt Securities are
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined herein) of Transamerica, rank pari passu with the
obligations to or rights of Transamerica's other general unsecured creditors and
are also effectively subordinate to claims of creditors of Transamerica's
subsidiaries. As of December 31, 1997, Transamerica had $404.8 million of Senior
Indebtedness (excluding indebtedness of Transamerica's subsidiaries guaranteed
by Transamerica), and the indebtedness of Transamerica's subsidiaries aggregated
$5.8 billion. There are no terms in the Subordinated Debt Securities, the
Capital Securities or the Guarantee that limit the ability of Transamerica or
its subsidiaries to incur additional indebtedness, including indebtedness that
ranks senior to the Subordinated Debt Securities and the Guarantee.
2
<PAGE> 4
(cover page continued)
The Distribution Rate and the distribution payment dates and other payment
dates for the Capital Securities will correspond to the interest rate and
interest payment dates and other payment dates on the Subordinated Debt
Securities, which are the sole assets of the Trust. As a result, if Transamerica
does not make principal or interest payments on the Subordinated Debt
Securities, the Trust will not have sufficient funds to make distributions on
the Capital Securities, and the Guarantee will not apply to distributions for
which the Trust has insufficient funds available. In such event, a holder of
Capital Securities may institute a legal proceeding directly against
Transamerica to enforce payment of such distributions to such holder. See
"Description of the Capital Securities -- Declaration Events of Default."
Transamerica has the right, subject to conditions set forth herein, to
defer payments of interest on the Subordinated Debt Securities by extending the
interest payment period on the Subordinated Debt Securities at any time and from
time to time for up to 10 consecutive semiannual periods (each such extended
interest payment period, an "Extension Period"); provided that no Extension
Period may extend beyond the maturity date of the Subordinated Debt Securities.
If interest payments are so deferred, distributions on the Capital Securities
and the Common Securities will also be deferred and Transamerica (subject to
certain exceptions set forth herein) will not be permitted to declare or pay any
such distributions with respect to Transamerica's capital stock or to make any
payment with respect to debt securities of Transamerica that rank pari passu
with or junior to the Subordinated Debt Securities. During any Extension Period,
interest will continue to accrue on the Subordinated Debt Securities (and the
amount of distributions to which holders of the Capital Securities are entitled
will accumulate) at an annual rate of 7 5/8%, compounded semiannually (to the
extent permitted by applicable law), for United States federal income tax
purposes in respect of such deferred interest. As a result, during any Extension
Period, holders of the Capital Securities will be required to include the
deferred amount in their gross income for United States federal income tax
purposes in advance of receipt of cash distributions with respect to such
deferred interest payments. There could be multiple Extension Periods of varying
lengths, each up to 10 consecutive semiannual periods, throughout the term of
the Subordinated Debt Securities. See "Description of the Subordinated Debt
Securities -- Option to Extend Interest Payment Period," "Risk Factors -- Option
to Extend Interest Payment Period For Up to Five Years and Consequent Deferral
of Distributions on Capital Securities" and "United States Federal Income
Taxation -- US Holders -- Original Issue Discount."
The Subordinated Debt Securities will mature on November 15, 2037. The
Subordinated Debt Securities are redeemable by Transamerica, in whole or in
part, at par, together with accrued and unpaid interest thereon to the date of
redemption, at any time upon the occurrence of a Tax Event (as defined herein)
and receipt of a Redemption Tax Opinion (as defined herein), but are not
otherwise redeemable at the option of Transamerica prior to maturity. If
Transamerica redeems the Subordinated Debt Securities upon the occurrence of a
Tax Event, or upon the maturity of the Subordinated Debt Securities, the Trust
must redeem on a pro rata basis Trust Securities having an aggregate stated
liquidation amount equal to the aggregate principal amount of the Subordinated
Debt Securities so redeemed or matured, at a redemption price (the "Redemption
Price") equal to $1,000 per Trust Security plus accrued and unpaid distributions
on such Trust Security to the date fixed for redemption or maturity. See
"Description of the Capital Securities -- Redemption." The Trust Securities will
be redeemed upon maturity of the Subordinated Debt Securities, whereupon the
Trust will be dissolved.
Transamerica, as holder of all the outstanding Common Securities, has the
right at any time to dissolve the Trust (including, without limitation, upon the
occurrence of a Tax Event under certain circumstances) and, after satisfaction
of liabilities to creditors of the Trust (to the extent not satisfied by
Transamerica), cause the Subordinated Debt Securities to be distributed to the
holders of the Capital Securities and the Common Securities of the Trust on a
pro rata basis in accordance with the aggregate stated liquidation amount
thereof, in liquidation of the Trust.
In the event of the involuntary or voluntary liquidation, dissolution,
winding up or termination of the Trust, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied by Transamerica), the
holders of the Capital Securities generally will be entitled to receive for each
Capital Security a liquidation amount of $1,000 plus accrued and unpaid
distributions thereon to the date of payment, unless, in connection
3
<PAGE> 5
(cover page continued)
with such dissolution, the Subordinated Debt Securities are distributed to the
holders of the Trust Securities as would be required in certain circumstances.
See "Description of the Capital Securities -- Liquidation Distribution Upon
Dissolution" and "Description of the Subordinated Debt Securities."
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission"), as set forth in no-action letters issued to third
parties, Transamerica and the Trust believe that the New Capital Securities
issued pursuant to the Exchange Offer may be offered for resale, resold or
otherwise transferred by holders thereof (other than any holder that is an
"affiliate" of Transamerica or the Trust as defined under Rule 405 of the
Securities Act) without compliance with the registration and prospectus delivery
requirements of the Securities Act; provided that such New Capital Securities
are acquired in the ordinary course of such holders' business and such holders
are not engaged in, and do not intend to engage in, a distribution of such New
Capital Securities and have no arrangement or understanding with any person to
participate in the distribution of such New Capital Securities. However, the
staff of the Commission has not considered and will not consider the Exchange
Offer in the context of a no-action letter, and there can be no assurance that
the staff of the Commission would make a similar determination with respect to
the Exchange Offer as in such other circumstances. By tendering the Old Capital
Securities in exchange for New Capital Securities, each holder other than a
broker-dealer, will represent to Transamerica and the Trust that: (i) it is not
an affiliate of Transamerica or the Trust (as defined under Rule 405 of the
Securities Act); (ii) any New Capital Securities to be received by it were
acquired in the ordinary course of its business; and (iii) it is not engaged in,
and does not intend to engage in, a distribution of the New Capital Securities
and has no arrangement or understanding with any person to participate in a
distribution (within the meaning of the Securities Act) of the New Capital
Securities.
Each broker-dealer that receives New Capital Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of New Capital Securities received in exchange for
Old Capital Securities where such Old Capital Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. Transamerica and the Trust have agreed that, starting on the date on
which the Exchange Offer is consummated and ending on the close of business 180
days after such date, they will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
In that regard, each Participating Broker-Dealer (as defined herein) who
surrenders Old Capital Securities pursuant to the Exchange Offer will be deemed
to have agreed, by execution of the Letter of Transmittal, that, upon receipt of
notice from Transamerica or the Trust of the occurrence of any event or the
discovery of any fact which makes any statement contained or incorporated by
reference in this Prospectus untrue in any material respect or which causes this
Prospectus to omit to state a material fact necessary in order to make the
statements contained or incorporated by reference herein in the light of the
circumstances under which they were made, not misleading, or of the occurrence
of certain other events specified in the Registration Rights Agreement, such
Participating Broker-Dealer will suspend the sale of New Capital Securities
pursuant to this Prospectus until Transamerica or the Trust has amended or
supplemented this Prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented Prospectus to such Participating
Broker-Dealer, or Transamerica or the Trust has given notice that the sale of
the New Capital Securities may be resumed, as the case may be.
Prior to the Exchange Offer, there has been only a limited secondary market
and no public market for the Old Capital Securities. The New Capital Securities
will be a new issue of securities for which there currently is no market.
Although the Initial Purchasers have informed Transamerica and the Trust that
they each currently intend to make a market in the New Capital Securities, they
are not obligated to do so, and any such market making may be discontinued at
any time without notice. Accordingly there can be no assurance as to the
development or liquidity of any market for the New Capital Securities. Neither
Transamerica nor the
4
<PAGE> 6
(cover page continued)
Trust currently intends to apply for listing of the New Capital Securities on
any securities exchange or for quotation through the National Association of
Securities Dealers Automated Quotation System.
Any Old Capital Securities not tendered and accepted in the Exchange Offer
will remain outstanding and will be entitled to all the same rights and will be
subject to the same limitations applicable thereto under the Declaration (except
for those rights which terminate upon consummation of the Exchange Offer).
Following consummation of the Exchange Offer, the holders of Old Capital
Securities will continue to be subject to all of the existing restrictions upon
transfer thereof and neither Transamerica nor the Trust will have any further
obligation to such holders (other than under certain limited circumstances) to
provide for registration under the Securities Act of the Old Capital Securities
held by them. To the extent that Old Capital Securities are tendered and
accepted in the Exchange Offer, a holder's ability to sell untendered Old
Capital Securities could be adversely affected. See "Risk
Factors -- Consequences of a Failure to Exchange Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ THIS PROSPECTUS
AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO
TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or prior to 5:00
p.m., New York City time, on , 1998 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is extended
by Transamerica and the Trust (in which case the term "Expiration Date" shall
mean the latest date and time to which the Exchange Offer is extended). Tenders
of Old Capital Securities may be withdrawn at any time on or prior to the
Expiration Date. The Exchange Offer is not conditioned upon any minimum
liquidation amount of Old Capital Securities being tendered for exchange.
However, the Exchange Offer is subject to certain events and conditions which
may be waived by Transamerica or the Trust and to the terms and provisions of
the Registration Rights Agreement. Old Capital Securities may be tendered in
whole or in part having a liquidation amount of not less than $100,000 (100 Old
Capital Securities) or any integral multiple of $1,000 liquidation amount (1 Old
Capital Security) in excess thereof. Transamerica has agreed to pay all expenses
of the Exchange Offer, except as otherwise specified herein. See "The Exchange
Offer -- Fees and Expenses." Each New Capital Security will pay cumulative
distributions from the most recent Distribution Payment Date (as defined herein)
on the Old Capital Securities surrendered in exchange for such New Capital
Securities or, if no distributions have been paid on such Old Capital
Securities, from November 14, 1997. Holders of the Old Capital Securities whose
Old Capital Securities are accepted for exchange will not receive accumulated
distributions on such Old Capital Securities for any period from and after the
last Distribution Payment Date on such Old Capital Securities prior to the
original issue date of the New Capital Securities or, if no such distributions
have been paid, will not receive any accumulated distributions on such Old
Capital Securities, and will be deemed to have waived the right to receive any
distributions on such Old Capital Securities accumulated from and after such
Distribution Payment Date or, if no such distribution has been paid or duly
provided for, from and after November 14, 1997. This Prospectus, together with
the Letter of Transmittal, is being sent to all registered holders of Old
Capital Securities as of , 1998.
Neither Transamerica nor the Trust will receive any cash proceeds from the
issuance of the New Capital Securities offered hereby. No dealer-manager is
being used in connection with the Exchange Offer. See "Plan of Distribution."
The New Capital Securities will be issued, and may be transferred, only in
blocks having a liquidation amount of not less than $100,000 (100 Capital
Securities). Any transfer, sale or other disposition of Capital Securities in a
block having a liquidation amount of less than $100,000 shall be deemed to be
void and of no legal effect whatsoever. Any such transferee shall be deemed not
to be the holder of such Capital Securities for any purpose, including but not
limited to the receipt of distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
5
<PAGE> 7
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL TRANSAMERICA OR THE TRUST
ACCEPT SURRENDERS FOR EXCHANGE FROM, HOLDERS OF OLD CAPITAL SECURITIES IN ANY
JURISDICTION IN WHICH THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE
IN COMPLIANCE WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), NO ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" OF ANY SUCH PLAN BY REASON OF SUCH
PLAN'S INVESTMENT IN THE ENTITY (COLLECTIVELY, "PLANS"), AND NO PERSON INVESTING
"PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THE CAPITAL SECURITIES OR ANY
INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE
RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH
PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE CAPITAL SECURITIES OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT IT EITHER (A) IS NOT A PLAN AND IS NOT PURCHASING SUCH SECURITIES
ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN OR (B) IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH
RESPECT TO SUCH PURCHASE OR HOLDING.
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information....................................... 7
Incorporation of Certain Documents by Reference............. 8
Summary..................................................... 9
Risk Factors................................................ 16
Selected Consolidated Financial Information................. 22
Capitalization.............................................. 23
Accounting Treatment........................................ 23
Transamerica Corporation.................................... 23
The Trust................................................... 24
The Exchange Offer.......................................... 25
Description of the Capital Securities....................... 33
Description of the Guarantee................................ 46
Description of the Subordinated Debt Securities............. 49
Effect of Obligations Under the Subordinated Debt Securities
and the Guarantee......................................... 58
United States Federal Income Taxation....................... 59
Plan of Distribution........................................ 63
ERISA Considerations........................................ 63
Legal Matters............................................... 65
Experts..................................................... 65
</TABLE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THE
SECURITIES TO WHICH IT RELATES OR AN OFFER TO ANY PERSON IN ANY JURISDICTION
WHERE SUCH OFFER WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE OF SUCH INFORMATION.
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AVAILABLE INFORMATION
Transamerica is subject to the reporting requirements of Sections 13 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and in accordance therewith files reports and other information with the
Commission. Any reports and other information filed by Transamerica with the
Commission may be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's regional offices in
Chicago, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and in
New York, Seven World Trade Center, 13th Floor, New York, New York 10048. Copies
of such material may also be obtained by mail from the Public Reference Section
of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants who file electronically with the
Commission. In addition, such reports, proxy statements and other information
can be inspected at The New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005, and the Pacific Exchange, Inc., 301 Pine Street, San
Francisco, California 94104, on which the common stock of Transamerica is
traded.
No separate financial statements of the Trust have been included herein.
Transamerica does not consider that such financial statements would be material
to holders of Capital Securities because (i) all of the voting securities of the
Trust are owned by Transamerica, (ii) the Trust has no independent operations
and exists for the sole purpose of issuing and selling securities representing
undivided beneficial interests in the assets of the Trust, investing the
proceeds thereof in the Subordinated Debt Securities and engaging in activities
necessary or incidental thereto, including the Exchange Offer and (iii) the
obligations of the Trust under the Trust Securities are fully and
unconditionally guaranteed by Transamerica to the extent the Trust has funds
available to meet such obligations. In addition, Transamerica does not expect
that the Trust will be filing reports under the Exchange Act with the
Commission.
This Prospectus constitutes a part of a registration statement on Form S-4
(together with all exhibits thereto, the "Registration Statement") filed by
Transamerica and the Trust with the Commission under the Securities Act. This
Prospectus does not contain all the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission, and reference is hereby made to the Registration
Statement for further information with respect to Transamerica and the New
Capital Securities. Any statements contained herein concerning the provisions of
any document are not necessarily complete, and, in each instance, reference is
made to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is
qualified in its entirety by such reference.
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<PAGE> 9
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by Transamerica with the
Commission, are incorporated by reference in this Prospectus:
Transamerica's Annual Report on Form 10-K for the year ended December
31, 1997.
All documents filed by Transamerica pursuant to Sections 13(a), 14 or 15(d)
of the Exchange Act, after the date of this Prospectus and prior to the
termination of the offering hereunder shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated by reference
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for all purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that is also incorporated
or 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 WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF SUCH
PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE THAT 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
THEREIN. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO: THE OFFICE OF THE
CORPORATE SECRETARY, TRANSAMERICA CORPORATION, 600 MONTGOMERY STREET, SAN
FRANCISCO, CALIFORNIA 94111 (TELEPHONE: (415) 983-4182). IN ORDER TO ENSURE
TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY ,
1998.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus,
including the documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of any
contract or other document referred to herein do not purport to be complete, and
where reference is made to the particular provisions of such contract or other
document, such provisions are qualified in all respects by reference to all of
the provisions of such contract or other document.
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<PAGE> 10
SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information and the financial statements,
including the notes thereto, appearing elsewhere or incorporated by reference
herein. Holders of Old Capital Securities should consider carefully the factors
set forth herein under "Risk Factors." As used in this Prospectus,
"Transamerica" includes its predecessors and subsidiaries, except as the context
otherwise may require.
TRANSAMERICA CAPITAL III
The Trust is a statutory business trust continued under Delaware law
pursuant to (i) an amended and restated declaration of trust executed by
Transamerica, as sponsor for the Trust, the Issuer Trustees (as defined herein)
and the Administrators (as defined herein) for the Trust and (ii) a certificate
of trust filed with the Delaware Secretary of State on October 31, 1997. The
Trust exists for the exclusive purposes of (i) issuing and selling the Trust
Securities representing undivided beneficial interests in the assets of the
Trust, (ii) investing the gross proceeds of the Trust Securities in the
Subordinated Debt Securities, (iii) effecting the Exchange Offer, and (iv)
engaging in only those other activities necessary or incidental thereto. All of
the Common Securities of the Trust are owned by Transamerica. The principal
place of business of the Trust is c/o Transamerica Corporation, 600 Montgomery
Street, San Francisco, California 94111 (Telephone: (415) 983-4000).
TRANSAMERICA CORPORATION
Transamerica Corporation is a financial services organization which
engages, primarily through its subsidiaries, in life insurance, commercial
lending, leasing and real estate services. At December 31, 1997, Transamerica
had consolidated assets of $51.2 billion and total stockholders' equity of $4.9
billion. For the year ended December 31, 1997, Transamerica had revenues of $5.7
billion and net income of $793.8 million. Transamerica was incorporated in
Delaware in 1928.
Because Transamerica is a holding company, the Subordinated Debt Securities
and the Guarantee are effectively subordinated to all existing and future
liabilities, including trade payables, of Transamerica's subsidiaries, except to
the extent that 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 (Telephone: (415) 983-4000).
THE EXCHANGE OFFER
THE EXCHANGE OFFER Up to $190,000,000 aggregate liquidation amount of New
Capital Securities are being offered in exchange for a
like aggregate liquidation amount of Old Capital
Securities. Old Capital Securities may be tendered for
exchange in whole or in part in a liquidation amount of
$100,000 (100 Capital Securities) or any integral
multiple of $1,000 in excess thereof. Transamerica and
the Trust are making the Exchange Offer in order to
satisfy their obligations under the Registration Rights
Agreement relating to the Old Capital Securities. For a
description of the procedures for tendering Old Capital
Securities, see "The Exchange Offer -- Procedures for
Tendering Old Capital Securities."
EXPIRATION DATE 5:00 p.m., New York City time, on ,
1998 (such time on such date being hereinafter called
the "Expiration Date") unless the Exchange Offer is
extended by Transamerica and the Trust (in which case
the term "Expiration Date" shall mean the latest date
and time to which the Exchange Offer is extended). See
"The Exchange Offer -- Expiration Date; Extensions;
Amendments."
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<PAGE> 11
CONDITIONS TO THE
EXCHANGE OFFER The Exchange Offer is subject to certain conditions,
which may be waived by Transamerica and the Trust in
their sole discretion. The Exchange Offer is not
conditioned upon any minimum liquidation amount of Old
Capital Securities being tendered. See "The Exchange
Offer -- Conditions to the Exchange Offer." Transamerica
and the Trust reserve the right in their sole and
absolute discretion, subject to applicable law, at any
time and from time to time, (i) to delay the acceptance
of the Old Capital Securities for exchange, (ii) to
terminate the Exchange Offer if certain specified
conditions have not been satisfied, (iii) to extend the
Expiration Date of the Exchange Offer and retain all Old
Capital Securities tendered pursuant to the Exchange
Offer, subject, however, to the right of holders of Old
Capital Securities to withdraw their tendered Old
Capital Securities, or (iv) to waive any condition or
otherwise amend the terms of the Exchange Offer in any
respect. See "The Exchange Offer -- Expiration Date;
Extensions; Amendments."
WITHDRAWAL RIGHTS Tenders of Old Capital Securities may be withdrawn at
any time on or prior to the Expiration Date by
delivering a written notice of such withdrawal to the
Exchange Agent (as defined herein) in conformity with
certain procedures set forth below under "The Exchange
Offer -- Withdrawal Rights."
PROCEDURES FOR TENDERING
OLD CAPITAL SECURITIESTendering holders of Old Capital Securities must
complete and sign a Letter of Transmittal in accordance
with the instructions contained therein and forward the
same by mail, facsimile or hand delivery, together with
any other required documents, to the Exchange Agent,
either with the Old Capital Securities to be tendered or
in compliance with the specified procedures for
guaranteed delivery of Old Capital Securities. Certain
brokers, dealers, commercial banks, trust companies and
other nominees may also effect tenders by book-entry
transfer. Holders of Old Capital Securities registered
in the name of a broker, dealer, commercial bank, trust
company or other nominee are urged to contact such
nominee promptly if they wish to tender Old Capital
Securities pursuant to the Exchange Offer. See "The
Exchange Offer -- Procedures for Tendering Old Capital
Securities." Letters of Transmittal and certificates
representing Old Capital Securities should not be sent
to Transamerica or the Trust. Such documents should only
be sent to the Exchange Agent. Questions regarding how
to tender and requests for information should be
directed to the Exchange Agent. See "The Exchange
Offer -- Exchange Agent."
RESALES OF NEW CAPITAL
SECURITIES Based on interpretations by the staff of the Commission
as set forth in no-action letters issued to third
parties, Transamerica and the Trust believe that holders
of Old Capital Securities (other than any holder that is
an "affiliate" of Transamerica or the Trust as defined
under Rule 405 of the Securities Act) who exchange their
Old Capital Securities for New Capital Securities
pursuant to the Exchange Offer may offer such New
Capital Securities for resale, resell such New Capital
Securities and otherwise transfer such New Capital
Securities without compliance with the registration and
prospectus delivery provisions of the Securities Act,
provided that such New Capital Securities are acquired
in the ordinary course of such holders' business and
such holders are not engaged in, and do not intend to
engage in, a distribution of such New Capital Securities
and have no arrangement or understanding with any person
to participate in the distribution of such New Capital
Securities. However, the
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<PAGE> 12
staff of the Commission has not considered and will not
consider the Exchange Offer in the context of a
no-action letter, and there can be no assurance that the
staff of the Commission would make a similar
determination with respect to the Exchange Offer.
However, any holder of Old Capital Securities who is an
"affiliate" of Transamerica or the Trust or who intends
to participate in the Exchange Offer for the purpose of
distributing the New Capital Securities, or any
broker-dealer who purchased the Old Capital Securities
from the Trust to resell pursuant to Rule 144A or any
other available exemption under the Securities Act, (a)
will not be able to rely on the interpretations of the
staff set forth in the above-mentioned interpretive
letters, (b) will not be permitted or entitled to tender
such Old Capital Securities in the Exchange Offer and
(c) must comply with the registration and prospectus
delivery requirements of the Securities Act in
connection with any sale or other transfer of such Old
Capital Securities unless such sale is made pursuant to
an exemption from such requirements. In addition, as
described below, if any broker-dealer holds Old Capital
Securities acquired for its own account as a result of
market-making or other trading activities and exchanges
such Old Capital Securities for New Capital Securities,
then such broker-dealer must deliver a prospectus
meeting the requirements of the Securities Act in
connection with any resales of such New Capital
Securities.
Each holder of Old Capital Securities (other than
certain specified holders) who wishes to exchange Old
Capital Securities for New Capital Securities in the
Exchange Offer will be required to represent that (i) it
is not an "affiliate" of Transamerica or the Trust, (ii)
any New Capital Securities to be received by it are
being acquired in the ordinary course of its business,
and (iii) it is not engaged in, and does not intend to
engage in, a distribution (within the meaning of the
Securities Act) of such New Capital Securities and has
no arrangement or understanding to participate in a
distribution of New Capital Securities. Each
broker-dealer that receives New Capital Securities for
its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus meeting
the requirements of the Securities Act in connection
with any resale of such New Capital Securities. The
Letter of Transmittal states that by so acknowledging
and by delivering a prospectus, a broker-dealer will not
be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. Based on the position
taken by the staff of the Commission in the interpretive
letters referred to above, Transamerica and the Trust
believe that broker-dealers who acquired Old Capital
Securities for their own accounts as a result of
market-making activities or other trading activities
("Participating Broker-Dealers") may fulfill their
prospectus delivery requirements with respect to the New
Capital Securities received upon exchange of such Old
Capital Securities (other than Old Capital Securities
which represent an unsold allotment from the original
sale of the Old Capital Securities) with a prospectus
meeting the requirements of the Securities Act, which
may be the prospectus prepared for an exchange offer so
long as it contains a description of the plan of
distribution with respect to the resale of such New
Capital Securities. Accordingly, this Prospectus, as it
may be amended or supplemented from time to time, may be
used by a Participating Broker-Dealer in connection with
resales of New Capital Securities received in exchange
for Old Capital Securities where such Old Capital
Securities were acquired by such Participating
Broker-Dealer for its own account as a result of
market-making or other trading activities. Subject to
certain provisions set forth in the Registration Rights
Agreement and to the limitations described below under
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<PAGE> 13
"The Exchange Offer -- Resales of New Capital
Securities," Transamerica and the Trust have agreed to
allow the Participating Broker-Dealers to use this
Prospectus in connection with resales of such New
Capital Securities for a period of 180 days after the
Expiration Date. See "Plan of Distribution." Any
Participating Broker-Dealer who is an "affiliate" of
Transamerica or the Trust may not rely on such
interpretive letters and must comply with the
registration and prospectus delivery requirements of the
Securities Act in connection with any resale
transaction. See "The Exchange Offer -- Resales of New
Capital Securities."
EXCHANGE AGENT The exchange agent with respect to the Exchange Offer is
The First National Bank of Chicago (the "Exchange
Agent"). The addresses, and telephone and facsimile
numbers of the Exchange Agent are set forth in "The
Exchange Offer -- Exchange Agent" and in the Letter of
Transmittal.
UNITED STATES FEDERAL
INCOME TAXATION,
ERISA CONSIDERATIONS Holders of Old Capital Securities and prospective
purchasers of New Capital Securities should review the
information set forth under "United States Federal
Income Taxation" and "ERISA Considerations" prior to
tendering Old Capital Securities in the Exchange Offer
or purchasing such New Capital Securities, as the case
may be.
THE NEW CAPITAL SECURITIES
SECURITIES OFFERED Up to $190,000,000 aggregate liquidation amount of the
Trust's 7 5/8% Capital Trust Pass-through Securities
which have been registered under the Securities Act
(liquidation amount $1,000 per Capital Security). The
New Capital Securities will be issued, and the Old
Capital Securities were issued, under the Declaration.
The New Capital Securities and any Old Capital
Securities which remain outstanding after consummation
of the Exchange Offer will constitute a single series of
Capital Securities under the Declaration and,
accordingly, will vote together as a single class for
purposes of determining whether holders of the requisite
percentage in outstanding liquidation amount thereof
have taken certain actions or exercised certain rights
under the Declaration. See "Description of the Capital
Securities -- General." The terms of the New Capital
Securities are identical in all material respects to the
terms of the Old Capital Securities, except that the New
Capital Securities have been registered under the
Securities Act and therefore are not subject to certain
restrictions on transfer applicable to the Old Capital
Securities and will not provide for any increase in the
Distribution Rate thereon. See "The Exchange
Offer -- Purpose and Effect of the Exchange Offer" and
"Description of the Capital Securities."
DISTRIBUTIONS Holders of the New Capital Securities are entitled to
receive cumulative cash distributions at a rate per
annum of 7 5/8% of the stated liquidation amount of
$1,000 per Capital Security, accruing from the original
date of issuance of the Old Capital Securities, and
(subject to the possible extension of distribution
payment periods described below) payable semiannually,
in arrears, on November 15 and May 15 of each year,
commencing May 15, 1998. See "Description of the Capital
Securities -- Distributions."
OPTION TO EXTEND
INTEREST PAYMENT PERIOD Transamerica has the right, at any time, subject to
certain conditions, to defer payments of interest on the
Subordinated Debt Securities for one or more
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<PAGE> 14
Extension Periods, each not exceeding 10 consecutive
semiannual periods; provided, that no Extension Period
may extend beyond the maturity date of the Subordinated
Debt Securities. As a consequence of Transamerica's
extension of the interest payment period on the
Subordinated Debt Securities, distributions on the
Capital Securities would be deferred but interest would
continue to accrue at an annual rate of 7 5/8%,
compounded semiannually (to the extent permitted by
law), during any such Extension Period. In the event
that Transamerica exercises its right to extend an
interest payment period, then during any Extension
Period, subject to certain exceptions, (i) Transamerica
shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to,
any of its capital stock or rights to acquire such
capital stock, or make any guarantee payments with
respect to the foregoing and (ii) Transamerica shall not
make any payment of interest on or principal of, or
repay, repurchase or redeem, any debt securities issued
by Transamerica which rank pari passu with or junior to
the Subordinated Debt Securities. Upon the termination
of any Extension Period and the payment of all amounts
then due, Transamerica may commence a new Extension
Period, subject to certain requirements. See
"Description of the Subordinated Debt
Securities -- Option to Extend Interest Payment Period."
Should an Extension Period occur with respect to the
Capital Securities, holders of the Capital Securities
will continue to recognize interest income at an annual
rate of 7 5/8%, compounded semiannually (to the extent
permitted by law), for United States federal income tax
purposes notwithstanding the deferred receipt of
payments which accrue during the Extension Period. As a
result, such holders will be required to include such
interest in gross income for United States federal
income tax purposes in advance of the receipt of cash,
and such holders will not receive the cash from the
Trust related to such income if such holders dispose of
such Capital Securities prior to the record date for
payment of distributions. See "United States Federal
Income Taxation -- US Holders -- Original Issue
Discount."
REDEMPTION UPON
MATURITY Upon the repayment of the Subordinated Debt Securities
at maturity, the proceeds from such repayment will be
applied by the Institutional Trustee (as defined herein)
to redeem a like amount of Trust Securities upon the
terms and conditions described herein. See "Description
of the Capital Securities -- Redemption."
TAX EVENT REDEMPTION Transamerica has the right to redeem the Subordinated
Debt Securities at any time, in whole or in part, upon
the occurrence of a Tax Event and receipt of a
Redemption Tax Opinion as described under "Description
of the Capital Securities -- Redemption," at a
redemption price equal to 100% of the principal amount
of Subordinated Debt Securities being redeemed plus any
accrued but unpaid interest to the redemption date. See
"Description of the Subordinated Debt
Securities -- Redemption." If Transamerica so redeems
the Subordinated Debt Securities, the proceeds from such
redemption will be applied by the Institutional Trustee
to redeem a like amount of Trust Securities outstanding
on a pro rata basis, upon the terms and conditions
described herein. See "Description of the Capital
Securities -- Redemption." The Subordinated Debt
Securities are not otherwise redeemable at the option of
Transamerica prior to maturity.
LIQUIDATION Transamerica, as the holder of all of the outstanding
Common Securities, has the right at any time to dissolve
the Trust (including, without limitation, upon the
occurrence of a Tax Event under certain circumstances)
and, after
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<PAGE> 15
satisfaction of liabilities to creditors of the Trust
(to the extent not satisfied by Transamerica), cause the
Subordinated Debt Securities to be distributed to the
holders of the Capital Securities and the Common
Securities of the Trust on a pro rata basis in
accordance with the aggregate stated liquidation amount
thereof, in liquidation of the Trust. In addition, the
Trust will be dissolved and liquidated under certain
other circumstances. See "Description of the Capital
Securities -- Liquidation Distribution Upon
Dissolution."
LIQUIDATION AMOUNT In the event of the voluntary or involuntary
liquidation, dissolution, winding-up or termination of
the Trust, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied by
Transamerica), holders of the Capital Securities will be
entitled to receive $1,000 per Capital Security plus an
amount equal to any accrued and unpaid distributions
thereon to the date of payment, unless the Subordinated
Debt Securities are distributed to holders of the Trust
Securities in exchange therefor. See "Description of
Capital Securities -- Liquidation Distribution Upon
Dissolution."
VOTING RIGHTS Holders of the Capital Securities will have limited
voting rights relating generally to the modification of
the Capital Securities and the Guarantee and the
exercise of the Trust's rights as the holder of the
Subordinated Debt Securities. Holders of the Capital
Securities will not be entitled to appoint, remove or
replace the Institutional Trustee or the Delaware
Trustee (as defined herein) except upon the occurrence
of an Indenture Event of Default (as defined herein).
See "Description of the Capital Securities -- Voting
Rights" and "-- Removal of Issuer Trustees; Appointment
of Successors."
THE GUARANTEE The payment of distributions on the Capital Securities
out of moneys held by the Trust, payment on liquidation
of the Trust and payment upon the redemption of the
Capital Securities are guaranteed by Transamerica as
described herein under "Description of the Guarantee."
The Guarantee covers payments of distributions and other
payments on the Capital Securities only if and to the
extent that the Trust has funds available therefor,
which funds will not be available except to the extent
Transamerica has made payments of interest or principal
on the Subordinated Debt Securities. The Guarantee, when
taken together with Transamerica's obligations under the
Subordinated Debt Securities, the Declaration and the
Indenture, including its obligations to pay costs,
expenses, debts and other liabilities of the Trust
(other than with respect to the Trust Securities),
provides a full and unconditional guarantee on a
subordinated basis by Transamerica of amounts due on the
Capital Securities. Transamerica has also agreed
separately to guarantee the obligations of the Trust
with respect to the Common Securities as described
herein under "Description of the Guarantee -- General."
RANKING The Common Securities will rank pari passu, and payments
will be made thereon on a pro rata basis, with the
Capital Securities, except that, upon the occurrence and
during the continuance of a Declaration Event of Default
(as defined herein), the rights of the holders of the
Common Securities to receive payment of periodic
distributions and payments upon liquidation, redemption
or otherwise will be subordinated to the rights of the
holders of the Capital Securities. See "Description of
the Capital Securities -- General." The Subordinated
Debt Securities will rank pari passu with $200,000,000
in aggregate principal amount of 9 1/8% Junior
Subordinated Deferrable Interest Debentures, Series A,
due 2024 of Transamerica (the "Outstanding Debentures
I"), $100,000,000 in aggregate principal amount of 7.80%
Junior Subordinated Deferrable Interest Debentures due
2026 of Transamerica (the "Outstanding
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<PAGE> 16
Debentures II") and $225,000,000 in aggregate principal
amount of 7.65% Junior Subordinated Deferrable Interest
Debentures due 2026 of Transamerica (the "Outstanding
Debentures III," and together with the Outstanding
Debentures I and the Outstanding Debentures II, the
"Outstanding Subordinated Debentures") and will be
unsecured and subordinate and junior in right of payment
to the extent and in the manner set forth in the
Indenture to all Senior Indebtedness. See "Description
of the Subordinated Debt Securities -- Subordination."
The Guarantee will constitute an unsecured obligation of
Transamerica and will rank subordinate and junior in
right of payment to the extent and in the manner set
forth in the Guarantee to all Senior Indebtedness. See
"Description of the Guarantee."
RATINGS The New Capital Securities are expected to be rated "A-"
by Standard & Poor's Ratings Services and "a2" by
Moody's Investors Service, Inc. A security rating is not
a recommendation to buy, sell or hold securities and may
be subject to revision or withdrawal at any time by the
assigning rating organization.
TRANSFER RESTRICTIONS The Capital Securities will be issued and may be
transferred only in blocks having an aggregate stated
liquidation amount of not less than $100,000. Any such
transfer of the Capital Securities in a block having an
aggregate stated liquidation amount of less than
$100,000 shall be deemed to be void and of no legal
effect whatsoever. See "Description of the Capital
Securities -- Restrictions on Transfer."
ERISA CONSIDERATIONS Prospective purchasers must carefully consider the
restrictions on purchase set forth under "ERISA
Considerations."
FORM OF CAPITAL
SECURITIES The Old Capital Securities are represented by a global
certificate or certificates registered in the name of
Cede & Co., as nominee for DTC. Beneficial interests in
the New Capital Securities will be represented by a
global certificate or certificates and will be evidenced
by, and transfers thereof will be effected only through,
records maintained by the participants in DTC. Except in
limited circumstances described herein, New Capital
Securities in certificated form will not be issued in
exchange for the global certificate or certificates. See
"Description of the Capital Securities -- Book-Entry
Only Issuance -- The Depository Trust Company."
ABSENCE OF MARKET FOR
THE CAPITAL SECURITIES The Capital Securities will be a new issue of securities
for which there is currently no market. There can be no
assurance as to the development or liquidity of any
market for the Capital Securities.
TRADING PRICE Because the Capital Securities pay distributions at a
fixed rate based on the fixed interest rate payable on
the Subordinated Debt Securities, the trading price on
the Capital Securities is likely to decline if interest
rates rise.
For additional information with respect to the Capital Securities, see
"Description of the Capital Securities," "Description of the Guarantee,"
"Description of the Subordinated Debt Securities," and "United States Federal
Income Taxation."
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<PAGE> 17
RISK FACTORS
Prior to deciding whether to participate in the Exchange Offer, holders of
Old Capital Securities should carefully review the information contained
elsewhere, or incorporated by reference, in this Prospectus and should
particularly consider the following matters:
ABSENCE OF PUBLIC TRADING MARKET
The Old Capital Securities were issued to, and Transamerica believes are
currently owned by, a relatively small number of beneficial owners. The Old
Capital Securities have not been registered under the Securities Act and will be
subject to restrictions on transferability to the extent that they are not
exchanged for the New Capital Securities. Although the New Capital Securities
will generally be permitted to be resold or otherwise transferred by the holders
(who are not affiliates of Transamerica or the Trust) without compliance with
the registration requirements under the Securities Act, they will constitute a
new issue of securities with no established trading market. Capital Securities
may be transferred by the holders thereof only in blocks having a liquidation
amount of not less than $100,000 (100 Capital Securities). Transamerica and the
Trust have been advised by the Initial Purchasers that the Initial Purchasers
presently intend to make a market in the New Capital Securities. However, the
Initial Purchasers are not obligated to do so and any market-making activity
with respect to the New Capital Securities may be discontinued at any time
without notice. In addition, such market-making activity will be subject to the
limits imposed by the Securities Act and the Exchange Act and may be limited
during the Exchange Offer. Accordingly, no assurance can be given that an active
public or other market will develop for the New Capital Securities or the Old
Capital Securities or as to the liquidity of or the trading market for the New
Capital Securities or the Old Capital Securities. If an active public market
does not develop, the market price and liquidity of the New Capital Securities
may be adversely affected.
If a public trading market for the New Capital Securities develops, future
trading prices of such securities will depend on many factors, including, among
other things, prevailing interest rates, results of operations and the market
for similar securities. Depending on prevailing interest rates, the market for
similar securities and other factors, including the financial condition of
Transamerica, the New Capital Securities may trade at a discount.
Notwithstanding the registration of the New Capital Securities in the
Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of the
Securities Act) of Transamerica or the Trust may publicly offer for sale or
resell the New Capital Securities only in compliance with the provisions of Rule
144 under the Securities Act.
Each broker-dealer that receives New Capital Securities for its own account
in exchange for Old Capital Securities, where such Old Capital Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Capital Securities. See "Plan of
Distribution."
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE GUARANTEE AND THE SUBORDINATED DEBT
SECURITIES
The obligations of Transamerica under the Guarantee and the Subordinated
Debt Securities are subordinate and junior in right of payment to all present
and future Senior Indebtedness of Transamerica and rank pari passu with
obligations to or rights of Transamerica's other general unsecured creditors,
including the holders of the Outstanding Subordinated Debentures. No payment of
principal of (including redemption payments, if any) or interest on the
Subordinated Debt Securities may be made if (i) any Senior Indebtedness of
Transamerica is not paid when due and any applicable grace period with respect
to such default has ended with such default not having been cured or waived or
ceasing to exist or (ii) the maturity of any Senior Indebtedness of Transamerica
has been accelerated because of a default. As of December 31, 1997, Transamerica
had $404.8 million of Senior Indebtedness (excluding indebtedness of
Transamerica's subsidiaries guaranteed by Transamerica), and the indebtedness of
Transamerica's subsidiaries aggregated $5.8 billion. There are no terms in the
Capital Securities, the Subordinated Debt Securities, or the Guarantee that
limit the ability of Transamerica or its subsidiaries to incur additional
indebtedness, including indebtedness
16
<PAGE> 18
that ranks senior to the Subordinated Debt Securities and the Guarantee. See
"Description of the Guarantee -- Status of the Guarantee" and "Description of
the Subordinated Debt Securities."
Because Transamerica is a holding company, the Subordinated Debt Securities
and the Guarantee are effectively subordinated to all existing and future
liabilities, including trade payables, of Transamerica's subsidiaries, except to
the extent that Transamerica is a creditor of the subsidiaries recognized as
such.
GUARANTEE COVERS DISTRIBUTIONS AND OTHER PAYMENTS ONLY TO THE EXTENT THE TRUST
HAS AVAILABLE FUNDS; RELATED REMEDIES
The terms of the Guarantee are those set forth in the Guarantee and those
made part of the Guarantee by the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), under which The First National Bank of Chicago will act
as trustee (the "Guarantee Trustee"). The Guarantee has been qualified under the
Trust Indenture Act. The Guarantee Trustee will hold the Guarantee for the
benefit of the holders of the Capital Securities.
The Guarantee guarantees to the holders of the Capital Securities the
payment of (i) any accrued and unpaid distributions that are required to be paid
on the Capital Securities, to the extent the Trust has funds available therefor,
(ii) the Redemption Price, including all accrued and unpaid distributions to the
date of redemption with respect to Capital Securities called for redemption by
the Trust, to the extent the Trust has funds available therefor, and (iii) upon
a voluntary or involuntary liquidation, dissolution, winding-up or termination
of the Trust (other than in connection with the distribution of Subordinated
Debt Securities to the holders of the Capital Securities), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid distributions on
the Capital Securities to the date of the payment, to the extent the Trust has
funds available therefor, or (b) the amount of assets of the Trust remaining
available for distribution to holders of the Capital Securities in liquidation
of the Trust.
The holders of a majority in liquidation amount of the Capital Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee or to direct the exercise of
any trust or power conferred upon the Guarantee Trustee under the Guarantee. A
holder of record of the Capital Securities may institute a legal proceeding
directly against Transamerica to enforce the Guarantee Trustee's rights without
first instituting any legal proceeding against the Trust, the Guarantee Trustee
or any other person or entity. If Transamerica were to default on its obligation
to pay amounts payable on the Subordinated Debt Securities, the Trust would lack
available funds for the payment of distributions or amounts payable on
redemption of the Capital Securities or otherwise, and, in such event, holders
of the Capital Securities would not be able to rely upon the Guarantee for
payment of such amounts. Instead, each holder of the Capital Securities would
rely on the enforcement (i) by the Institutional Trustee of its rights as
registered holder of the Subordinated Debt Securities against Transamerica
pursuant to the terms of the Subordinated Debt Securities or (ii) by such holder
of the Capital Securities of the Institutional Trustee's right against
Transamerica to enforce payments of principal of and interest on the
Subordinated Debt Securities having an aggregate principal amount equal to the
aggregate liquidation amount of Capital Securities of such holder. See
"Description of the Capital Securities," "Description of the Guarantee," and
"Description of the Subordinated Debt Securities." The Declaration provides that
each holder of the Capital Securities, by acceptance thereof, agrees to the
provisions of the Guarantee and the Indenture, including the subordination
provisions thereof.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Declaration Event of Default with respect to the Trust occurs and is
continuing, then the holders of the Capital Securities would, except as provided
below, rely on the enforcement by the Institutional Trustee of its rights as
holder of the Subordinated Debt Securities against Transamerica. The holders of
a majority in liquidation amount of the Capital Securities will have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Institutional Trustee with respect to the Capital
Securities or to direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee to exercise the remedies available to it as
17
<PAGE> 19
holder of the Subordinated Debt Securities. If the Institutional Trustee fails
to enforce its rights under the Subordinated Debt Securities after the holders
of a majority in liquidation amount of the Capital Securities have so directed
the Institutional Trustee, a holder of record of the Capital Securities may, to
the fullest extent permitted by law, institute a legal proceeding directly
against Transamerica to enforce the rights of the Institutional Trustee under
the Subordinated Debt Securities, without first instituting any legal proceeding
against such Institutional Trustee or any other person.
Notwithstanding the foregoing, if a Declaration Event of Default has
occurred and is continuing and such event is attributable to the failure of
Transamerica to pay interest or principal on the Subordinated Debt Securities on
the respective dates such interest or principal is payable, after giving effect
to any Extension Period (or in the case of redemption, on the redemption date),
then a holder of record of the Capital Securities may institute a legal
proceeding directly against Transamerica for enforcement of payment, on or after
the respective due dates specified in the Subordinated Debt Securities, to such
holder directly of the principal of or interest on the Subordinated Debt
Securities having an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Securities of such holder (a "Direct Action").
In connection with such Direct Action, Transamerica, as the holder of the Common
Securities, will be subrogated to the rights of such holder of the Capital
Securities under the Declaration to the extent of any payment made by
Transamerica to the holder of Capital Securities in such Direct Action;
provided, however, that no such subrogation right may be exercised so long as a
Declaration Event of Default has occurred and is continuing. The holders of
Capital Securities will not be able to exercise directly any other remedy
available to the holders of the Subordinated Debt Securities. See "Description
of the Capital Securities -- Declaration Events of Default."
OPTION TO EXTEND INTEREST PAYMENT PERIOD FOR UP TO FIVE YEARS AND CONSEQUENT
DEFERRAL OF DISTRIBUTIONS ON CAPITAL SECURITIES
Transamerica has the right, subject to certain conditions, to defer
payments of interest on the Subordinated Debt Securities by extending the
interest payment period, at any time and from time to time, for one or more
Extension Periods, each not exceeding 10 consecutive semiannual periods;
provided that no Extension Period may extend beyond the maturity date of the
Subordinated Debt Securities. During each such Extension Period, semiannual
distributions on the Capital Securities would also be deferred but would
continue to accrue, despite such deferral, with interest thereon compounded
semiannually, to the extent permitted by law, by the Trust. In the event
Transamerica exercises this right to defer interest payments and such deferral
is continuing, or if there shall have occurred and be continuing any Indenture
Event of Default or if Transamerica shall fail to perform any of its payment or
other obligations under the Guarantee, (i) Transamerica shall not declare or pay
dividends on, make any distribution with respect to, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of its capital stock
or rights to acquire such capital stock (other than (a) purchases or
acquisitions of shares of any such capital stock or rights to acquire such
capital stock in connection with the satisfaction by Transamerica of its
obligations under any employee benefit plans, (b) as a result of a
reclassification of Transamerica's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of
Transamerica's capital stock or rights to acquire such capital stock for another
class or series of Transamerica's capital stock or rights to acquire such
capital stock, (c) the purchase of fractional interests in shares of
Transamerica's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged or (d)
dividends and distributions made on Transamerica's capital stock or rights to
acquire such capital stock with Transamerica's capital stock or rights to
acquire such capital stock) or make any guarantee payments with respect to the
foregoing and (ii) Transamerica shall not make any payment of interest or
principal on or repay, repurchase or redeem any debt securities issued by
Transamerica that rank pari passu with or junior to the Subordinated Debt
Securities. Prior to the termination of any such Extension Period, Transamerica
may further defer payments of interest by extending the interest payment period;
provided, however, that each such Extension Period, including all such previous
and further consecutive extensions, may not exceed 10 consecutive semiannual
periods or extend beyond the maturity date of the Subordinated Debt Securities.
Upon the termination of any Extension Period and the payment of all amounts then
due, Transamerica may commence a new Extension Period, subject to the terms set
forth herein. See "Description of the Capital Securities --
18
<PAGE> 20
Distributions" and "Description of the Subordinated Debt Securities -- Option to
Extend Interest Payment Period" and "-- Certain Covenants."
During each Extension Period, each holder of the Capital Securities will
continue to accrue income (as original issue discount ("OID")) in respect of the
deferred interest allocable to its Capital Securities for United States federal
income tax purposes, which will be allocated but not distributed to holders of
the Capital Securities. In such event, each holder of the Capital Securities
will recognize income for United States federal income tax purposes in advance
of the receipt of cash, and will not receive cash related to such income from
the Trust if such holder disposes of its Capital Securities prior to the record
date for payment of such deferred interest. See "United States Federal Income
Taxation -- US Holders -- Original Issue Discount."
Transamerica has no current intention of exercising its right to defer
payments of interest on the Subordinated Debt Securities. However, should
Transamerica determine to exercise such right in the future, the market price of
the Capital Securities is likely to be affected. A holder that disposes of its
Capital Securities during an Extension Period, therefore, might not receive the
same return on its investment as a holder that continues to hold its Capital
Securities. In addition, as a result of the existence of Transamerica's right to
defer interest payments, the market price of the Capital Securities (which
represent undivided beneficial interests in the Subordinated Debt Securities)
may be more volatile than other securities on which OID accrues that do not have
such rights.
EXCHANGE OF CAPITAL SECURITIES FOR SUBORDINATED DEBT SECURITIES; TAX EVENT
REDEMPTION
Transamerica, as the holder of all of the outstanding Common Securities,
has the right at any time to dissolve the Trust (including without limitation
upon the occurrence of a Tax Event and the receipt of a Redemption Tax Opinion)
and, after satisfaction of liabilities to creditors of the Trust (to the extent
not paid by Transamerica), cause the Subordinated Debt Securities to be
distributed to the holders of the Capital Securities and the Common Securities
on a pro rata basis in accordance with the aggregate stated liquidation amount
thereof, in liquidation of the Trust. See "Description of the Capital
Securities -- Liquidation Distribution Upon Dissolution." Upon the occurrence of
a Tax Event and receipt of a Redemption Tax Opinion as described under
"Description of the Capital Securities -- Redemption," Transamerica will have
the right to redeem the Subordinated Debt Securities, in whole or in part, in
which event the Trust will redeem the Trust Securities on a pro rata basis to
the same extent the Subordinated Debt Securities are redeemed by Transamerica.
See "Description of the Capital Securities -- Redemption."
Under current United States federal income tax law, a distribution of the
Subordinated Debt Securities upon the dissolution of the Trust generally would
not be a taxable event to holders of the Capital Securities. However, a
dissolution of the Trust in which holders of the Capital Securities receive cash
would be a taxable event to such holders. See "United States Federal Income
Taxation -- US Holders -- Receipt of Subordinated Debt Securities or Cash upon
Liquidation of Trust."
There can be no assurance as to the market prices for the Capital
Securities or the Subordinated Debt Securities that may be distributed in
exchange for the Capital Securities if a dissolution or liquidation of the Trust
were to occur. Accordingly, the Capital Securities that an investor may
purchase, whether pursuant to the offering made hereby or in the secondary
market, or the Subordinated Debt Securities that a holder of Capital Securities
may receive on dissolution and liquidation of the Trust, may trade in the
secondary market at a discount to the price paid to purchase the Capital
Securities offered hereby. Because the ability of the Trust to pay amounts due
on the Capital Securities is wholly dependent upon Transamerica making payments
on the Subordinated Debt Securities as and when required, and because holders of
the Capital Securities may receive the Subordinated Debt Securities upon
dissolution and liquidation of the Trust, prospective purchasers of the Capital
Securities are also making an investment decision with regard to the
Subordinated Debt Securities and should carefully review all the information
regarding the Subordinated Debt Securities contained herein and evaluate the
credit risk of Transamerica. See "Description of the Capital Securities" and
"Description of the Subordinated Debt Securities."
19
<PAGE> 21
CONSEQUENCES OF HIGHLY LEVERAGED TRANSACTION
The Indenture contains no provisions that afford holders of the
Subordinated Debt Securities protection in the event of a highly leveraged
transaction, including a change of control, or other similar transactions
involving Transamerica that may adversely affect such holders. See "Description
of the Subordinated Debt Securities."
LIMITED VOTING RIGHTS
Holders of the Capital Securities will have limited voting rights relating
generally to the modification of the Capital Securities and the Guarantee and
the exercise of the Trust's rights as the holder of the Subordinated Debt
Securities. Holders of the Capital Securities will not be entitled to appoint,
remove or replace the Institutional Trustee or the Delaware Trustee except upon
the occurrence of an Indenture Event of Default. Holders of Capital Securities
will not be entitled to appoint, remove or replace the Administrators. The
Institutional Trustee and holders of a majority of the stated liquidation amount
of the Common Securities may amend the Declaration without the consent of
holders of the Capital Securities to ensure that the Trust will be classified
for United States federal income tax purposes as a grantor trust and will not be
required to be registered as an investment company under the 1940 Act (as
defined herein) or to ensure that the Declaration will be qualified under the
Trust Indenture Act, even if such action adversely affects the interests of such
holders. See "Description of the Capital Securities -- Voting Rights,"
"-- Removal of the Issuer Trustees; Appointment of Successors" and
"-- Modification of the Declaration."
POSSIBLE DECLINE OF TRADING PRICE
Because the Capital Securities pay distributions at a fixed rate based upon
the fixed interest rate payable on the Subordinated Debt Securities, the trading
price of the Capital Securities may decline if interest rates rise.
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the Securities
Act or any state securities laws and therefore may not be offered, sold or
otherwise transferred except in compliance with the registration requirements of
the Securities Act and any other applicable securities laws, or pursuant to an
exemption therefrom or in a transaction not subject thereto, and in each case in
compliance with certain other conditions and restrictions. Old Capital
Securities which remain outstanding after consummation of the Exchange Offer
will continue to bear a legend reflecting such restrictions on transfer. In
addition, upon consummation of the Exchange Offer, holders of Old Capital
Securities which remain outstanding will not be entitled to any rights to have
such Old Capital Securities registered under the Securities Act or to any
similar rights under the Registration Rights Agreement (subject to certain
limited exceptions). Transamerica and the Trust do not intend to register under
the Securities Act any Old Capital Securities which remain outstanding after
consummation of the Exchange Offer (subject to such limited exceptions, if
applicable).
To the extent that Old Capital Securities are tendered and accepted in the
Exchange Offer, a holder's ability to sell untendered Old Capital Securities
could be adversely affected, and any trading market for Old Capital Securities
which remain outstanding after the Exchange Offer could be adversely affected.
The New Capital Securities and any Old Capital Securities which remain
outstanding after consummation of the Exchange Offer will constitute a single
series of Capital Securities under the Declaration and, accordingly, will vote
together as a single class for purposes of determining whether holders of the
requisite percentage in outstanding liquidation amount thereof have taken
certain actions or exercised certain rights under the Declaration. See
"Description of the Capital Securities -- General." If, under certain
circumstances set forth in the Registration Rights Agreement, the Exchange Offer
is not consummated on or prior to the 225th day following the date of original
issuance of the Old Subordinated Debt Securities and the Old Capital Securities
(subject to extension in certain circumstances), interest will accrue (in
addition to the stated interest thereon) from and including the next day
following such 225-day period. Such additional interest (the "Special Payment")
will be payable in cash semiannually in arrears on each Distribution Payment
Date or
20
<PAGE> 22
each Interest Payment Date (as defined herein), at a rate per annum equal to
0.25% of the principal amount or liquidation amount, as applicable, of the Old
Subordinated Debt Securities and the Old Capital Securities. The aggregate
amount of Special Payment payable pursuant to the above provisions will in no
event exceed 0.25% per annum of the principal amount or the liquidation amount,
as applicable, of the Old Subordinated Debt Securities and the Old Capital
Securities. Following consummation of the Exchange Offer, the Old Capital
Securities will not be entitled to any increase in the Distribution Rate
thereon. The New Capital Securities will not be entitled to any such increase in
the Distribution Rate thereon. See "The Exchange Offer -- Purpose and Effect of
the Exchange Offer."
EXCHANGE OFFER PROCEDURES
Issuance of the New Capital Securities in exchange for Old Capital
Securities pursuant to the Exchange Offer will be made only after a timely
receipt by the Exchange Agent of such Old Capital Securities, a properly
completed and duly executed Letter of Transmittal and all other required
documents. Therefore, holders of the Old Capital Securities desiring to tender
such Old Capital Securities in exchange for New Capital Securities should allow
sufficient time to ensure timely delivery. The Trust is under no duty to give
notification of defects or irregularities with respect to the tenders of Old
Capital Securities for exchange.
21
<PAGE> 23
SELECTED CONSOLIDATED FINANCIAL INFORMATION
TRANSAMERICA CORPORATION
The selected consolidated financial information contained in the following
table is qualified in its entirety by, and should be read in conjunction with,
the detailed information and financial statements and notes thereto included in
the documents incorporated by reference herein. See "Incorporation of Certain
Documents by Reference."
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
---------------------------------------------------------
1993 1994 1995 1996 1997
--------- --------- --------- --------- ---------
(IN MILLIONS, EXCEPT FOR SHARE DATA)
<S> <C> <C> <C> <C> <C>
Revenues.................................. $ 4,159.0 $ 4,663.9 $ 5,170.3 $ 5,311.7 $ 5,726.5
Income from continuing operations......... $ 354.5 $ 336.9 $ 390.1 $ 501.5 $ 532.0
Income (loss) from discontinued
operations.............................. 46.0 90.3 80.4 (45.2) 261.8
Extraordinary loss on early extinguishment
of debt................................. (23.1)
--------- --------- --------- --------- ---------
Net income................................ $ 377.4 $ 427.2 $ 470.5 $ 456.3 $ 793.8
========= ========= ========= ========= =========
Earnings per common share:
Basic:
Income from continuing operations......... $ 4.22 $ 4.21 $ 5.41 $ 7.27 $ 8.12
Income (loss) from discontinued
operations.............................. 0.58 1.24 1.17 (0.68) 4.05
Extraordinary loss on early extinguishment
of debt................................. (0.29)
--------- --------- --------- --------- ---------
Net income................................ $ 4.51 $ 5.45 $ 6.58 $ 6.59 $ 12.17
========= ========= ========= ========= =========
Diluted:
Income from continuing operations......... $ 4.12 $ 4.13 $ 5.31 $ 7.10 $ 7.87
Income (loss) from discontinued
operations.............................. 0.57 1.23 1.15 (0.66) 3.92
Extraordinary loss on early extinguishment
of debt................................. (0.28)
--------- --------- --------- --------- ---------
Net income................................ $ 4.41 $ 5.36 $ 6.46 $ 6.44 $ 11.79
========= ========= ========= ========= =========
Average number of common shares
outstanding............................. 78.5 72.6 68.8 66.6 64.7
Ratio of earnings from continuing
operations to fixed charges(1).......... 2.47 2.55 2.36 2.52 2.32
Balance sheet data (at period end):
Total assets.............................. $35,956.6 $40,299.0 $47,952.6 $49,931.2 $51,172.9
Notes and loans payable:
Short-term and current portion of
long-term debt....................... 2,023.0 1,684.0 996.3 1,241.3 998.6
Long-term debt.......................... 5,681.0 7,489.1 9,341.5 9,087.0 5,236.7
Stockholders' equity(2)................... 3,363.5 2,735.8 4,299.9 4,140.6 4,881.3
Book value per common share(2)............ 38.46 34.87 58.61 57.99 77.60
</TABLE>
- ---------------
(1) The consolidated ratios of earnings from continuing operations to fixed
charges were computed by dividing income from continuing operations before
fixed charges and income taxes by the fixed charges. Fixed charges consist
of interest and debt expense, minority interest charges related to certain
securities of affiliates and one-third of rent expense, which approximates
the interest factor.
(2) 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. There is no effect on the
income statement from the adoption of this new accounting standard and prior
periods have not been restated.
22
<PAGE> 24
CAPITALIZATION
The following table sets forth the consolidated short-term obligations and
capitalization of Transamerica as of December 31, 1997, which reflects the sale
of the Capital Securities and the application of the net proceeds thereof. The
issuance of the New Capital Securities in the Exchange Offer will have no effect
on the capitalization of Transamerica.
<TABLE>
<CAPTION>
DECEMBER 31, 1977
-----------------
(IN MILLIONS)
<S> <C>
Short-term debt and current portion of long-term debt....... $ 998.6
Life insurance policy liabilities........................... 30,141.9
Other liabilities........................................... 2,096.9
Long-term debt(1)........................................... 5,236.7
Minority interest in capital securities of affiliates(2).... 715.0
Stockholders' equity:
Common stock, par value $1.00 per share; 150,000,000
shares authorized; 62,904,108 shares outstanding, after
deducting 16,834,354 shares in treasury................ 62.9
Retained earnings........................................... 3,330.8
Net unrealized gain from investments marked to fair value... 1,533.6
Foreign currency translation adjustments.................... (46.0)
---------
Total stockholders' equity............................. 4,881.3
Total capitalization (excluding life insurance policy
liabilities, other liabilities and short-term
obligations).......................................... $10,833.0
=========
</TABLE>
- ---------------
(1) Senior Indebtedness of Transamerica, for purposes of the subordination
provisions of the Subordinated Debt Securities, includes only indebtedness
of Transamerica on an unconsolidated basis. As of December 31, 1997, such
Senior Indebtedness aggregated $404.8 million. Because Transamerica is a
holding company, the Subordinated Debt Securities 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.
(2) As described herein, the sole assets of the Trust are the Subordinated Debt
Securities with a principal amount of $190 million. The Subordinated Debt
Securities bear interest at the rate of 7 5/8% per annum and will mature on
November 15, 2037. Transamerica owns all of the Common Securities of the
Trust. Upon redemption of the Subordinated Debt Securities, the Capital
Securities will be mandatorily redeemable.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust will be treated as an affiliate
of Transamerica and, accordingly, the accounts of the Trust will be included in
the consolidated financial statements of Transamerica. The Capital Securities
will be presented in the consolidated balance sheet of Transamerica as a
separate line item directly above stockholders' equity under the caption
"Minority interest in capital securities of affiliates" and appropriate
disclosures about the Capital Securities, the Guarantee and the Subordinated
Debt Securities will be included in the notes to the consolidated financial
statements. For financial reporting purposes, Transamerica will record
distributions payable on the Capital Securities as an expense in its
consolidated statement of income.
TRANSAMERICA CORPORATION
Transamerica is a financial services organization which engages, primarily
through its subsidiaries, in life insurance, commercial lending, leasing and
real estate services. At December 31, 1997, Transamerica had consolidated assets
of $51.2 billion and total stockholders' equity of $4.9 billion. For the year
ended December 31, 1997, Transamerica had revenues of $5.7 billion and net
income of $793.8 million. Transamerica was incorporated in Delaware in 1928.
The principal executive offices of Transamerica are located at 600
Montgomery Street, San Francisco, California 94111 (Telephone: (415) 983-4000).
23
<PAGE> 25
THE TRUST
The Trust is a statutory business trust continued under Delaware law
pursuant to (i) an amended and restated declaration of trust (the "Declaration")
executed by Transamerica, as sponsor for the Trust (the "Sponsor"), the Issuer
Trustees (as defined herein) and the Administrators (as defined herein) for the
Trust and (ii) a certificate of trust filed with the Delaware Secretary of State
on October 31, 1997. The Trust exists for the exclusive purpose of (i) issuing
and selling the Trust Securities representing undivided beneficial interests in
the assets of the Trust, (ii) investing the gross proceeds of the Trust
Securities in the Subordinated Debt Securities, (iii) effecting the Exchange
Offer, including exchanging up to $190,000,000 aggregate principal amount of the
Old Subordinated Debt Securities for up to $190,000,000 aggregate principal
amount of the New Subordinated Debt Securities, and (iv) engaging in only those
other activities necessary or incidental thereto. All of the Common Securities
are directly owned by Transamerica. The Common Securities rank pari passu, and
payments will be made thereon pro rata, with the Capital Securities, except
that, upon a Declaration Event of Default, the rights of the holders of the
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of the
holders of the Capital Securities. Transamerica acquired the Common Securities
in an aggregate liquidation amount equal to approximately 3% of the total
capital of the Trust. The Trust has a term of approximately 55 years, but may
earlier dissolve as provided in the Declaration. Transamerica, as the holder of
all of the outstanding Common Securities, has the right at any time to dissolve
the Trust (including without limitation upon the occurrence of a Tax Event and
the receipt of a Redemption Tax Opinion) and, after satisfaction of liabilities
to creditors of the Trust (to the extent not satisfied by Transamerica), cause
the Subordinated Debt Securities to be distributed to the holders of the Capital
Securities and the Common Securities on a pro rata basis in accordance with the
aggregate stated liquidation amount thereof, in liquidation of the Trust.
The Trust's business and affairs are conducted by its trustees and the
Administrators, as set forth in the Declaration. The holders of the Capital
Securities are not entitled to appoint, remove or replace any of the Trust's
trustees except upon the occurrence of an Indenture Event of Default. The duties
and obligations of the Trust's trustees are governed by the Declaration. One of
the Trust's trustees is required to be a financial institution that is
unaffiliated with Transamerica and is eligible to act as (i) institutional
trustee (the "Institutional Trustee"), (ii) guarantee trustee under the
Guarantee (the "Guarantee Trustee"), and (iii) indenture trustee pursuant to the
Indenture (the "Indenture Trustee"). The First National Bank of Chicago, a
national banking association, is the Institutional Trustee, Guarantee Trustee
and Indenture Trustee. One of the Trust's trustees is required to be an entity
that maintains its principal place of business in the State of Delaware (the
"Delaware Trustee" and together with the Institutional Trustee, the "Issuer
Trustees"). First Chicago Delaware Inc., an affiliate of the Institutional
Trustee, is acting as Delaware Trustee. In addition, three individuals who are
employees or officers of or affiliated with the holder of the majority in
liquidation amount of the Common Securities, act as administrators with respect
to the Trust (the "Administrators"). The Administrators were selected by the
holders of a majority in liquidation amount of the Common Securities. The
Administrators have only those ministerial duties set forth in the Declaration
with respect to accomplishing the purposes of the Trust and are not intended to
be trustees or fiduciaries with respect to the Trust or the holders of Capital
Securities.
The Institutional Trustee holds title to the Subordinated Debt Securities
for the benefit of the holders of the Trust Securities, and the Institutional
Trustee has the power to exercise all rights, powers and privileges under the
Indenture as the holder of the Subordinated Debt Securities. In addition, the
Institutional Trustee maintains exclusive control of a separate segregated
non-interest bearing trust account (the "Property Account") to hold all payments
made in respect of the Subordinated Debt Securities for the benefit of the
holders of the Trust Securities. The Institutional Trustee will make payments of
distributions and payments on liquidation, redemption and otherwise to the
holders of record of the Trust Securities out of funds from the Property
Account. Transamerica, as Sponsor, will not have the right to remove or replace
the Institutional Trustee or the Delaware Trustee. The Indenture Trustee may be
removed only under limited circumstances as provided in the Indenture.
Transamerica has agreed to pay all costs, expenses, debts and other obligations
related to the Trust (other than in respect of the Trust Securities) and the
offering and sale of the Trust
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Securities. See "Description of the Subordinated Debt
Securities -- Miscellaneous." The rights of the holders of the Capital
Securities, including economic rights, rights to information and voting rights,
are set forth in the Declaration, the Delaware Business Trust Act, as amended
(the "Trust Act"), and the Trust Indenture Act. See "Description of the Capital
Securities." The principal place of business of the Trust is c/o Transamerica
Corporation, 600 Montgomery Street, San Francisco, California 94111 (Telephone:
(415) 983-4000).
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, Transamerica and
the Trust entered into the Registration Rights Agreement with the Initial
Purchasers, pursuant to which Transamerica and the Trust agreed, among other
things, to file and to use their best efforts to cause to become effective with
the Commission a registration statement with respect to the exchange of the Old
Capital Securities for capital securities which have been registered under the
Securities Act with terms identical in all material respects to the terms of the
Old Capital Securities. The Guarantee, which has been registered under the
Securities Act, will apply to the New Capital Securities. A copy of the
Registration Rights Agreement has been filed as an Exhibit to the Registration
Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations of
Transamerica and the Trust under the Registration Rights Agreement. The form and
terms of the New Capital Securities are the same as the form and terms of the
Old Capital Securities, except that the New Capital Securities have been
registered under the Securities Act and therefore will not be subject to certain
restrictions on transfer applicable to the Old Capital Securities and will not
provide for any increase in the Distribution Rate thereon. In that regard, if,
under certain circumstances set forth in the Registration Rights Agreement, the
Exchange Offer is not consummated on or prior to the 225th day following the
date of original issuance of the Old Subordinated Debt Securities and the Old
Capital Securities (subject to extension in certain circumstances), interest
will accrue (in addition to the stated interest thereon) from and including the
next day following such 225-day period. Such Special Payment will be payable in
cash semiannually in arrears on each Distribution Payment Date or each Interest
Payment Date (as defined herein), at a rate per annum equal to 0.25% of the
principal amount or liquidation amount, as applicable, of the Old Subordinated
Debt Securities and the Old Capital Securities. The aggregate amount of Special
Payment payable pursuant to the above provisions will in no event exceed 0.25%
per annum of the principal amount or the liquidation amount, as applicable, of
the Old Subordinated Debt Securities and the Old Capital Securities. Upon
consummation of the Exchange Offer, holders of Old Capital Securities that
remain outstanding will not be entitled to any increase in the Distribution Rate
thereon or any further registration rights under the Registration Rights
Agreement, except under limited circumstances. See "Risk Factors -- Consequences
of a Failure to Exchange Old Capital Securities."
The Exchange Offer is not being made to, nor will Transamerica or the Trust
accept tenders for exchange from, holders of Old Capital Securities in any
jurisdiction in which the Exchange Offer or the acceptance thereof would not be
in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to
the Exchange Offer means any person in whose name the Old Capital Securities are
registered on the books of the Trust or any other person who has obtained a
properly completed bond power from the registered holder, or any person whose
Old Capital Securities are held of record by The Depository Trust Company
("DTC") who desires to deliver such Old Capital Securities by book-entry
transfer at DTC. Pursuant to the Exchange Offer, Transamerica will exchange as
soon as practicable after the date hereof, $195,877,000 aggregate principal
amount of the Old Subordinated Debt Securities for a like aggregate principal
amount of the New Subordinated Debt Securities. The New Subordinated Debt
Securities have also been registered under the Securities Act.
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TERMS OF THE EXCHANGE
Transamerica and the Trust hereby offer, upon the terms and subject to the
conditions set forth in this Prospectus and in the accompanying Letter of
Transmittal, to exchange up to $190,000,000 aggregate liquidation amount of New
Capital Securities for a like aggregate liquidation amount of Old Capital
Securities properly tendered on or prior to the Expiration Date (as defined
below) and not properly withdrawn in accordance with the procedures described
below. The Trust will issue, promptly after the Expiration Date, an aggregate
liquidation amount of up to $190,000,000 of New Capital Securities in exchange
for a like liquidation amount of outstanding Old Capital Securities tendered and
accepted in connection with the Exchange Offer. Holders may tender their Old
Capital Securities in whole or in part in a liquidation amount of not less than
$100,000 or any integral multiple of $1,000 in excess thereof.
The Exchange Offer is not conditioned upon any minimum liquidation amount
of Old Capital Securities being tendered. As of the date of this Prospectus,
$190,000,000 aggregate liquidation amount of the Old Capital Securities is
outstanding. Holders of Old Capital Securities do not have any appraisal or
dissenters' rights in connection with the Exchange Offer. Old Capital Securities
which are not tendered for, or are tendered but not accepted in connection with,
the Exchange Offer will remain outstanding and be entitled to the benefits of
the Declaration, but will not be entitled to any further registration rights
under the Registration Rights Agreement, except under limited circumstances. See
"Risk Factors -- Consequences of a Failure to Exchange Old Capital Securities."
If any tendered Old Capital Securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Old Capital Securities
will be returned, without expense, to the tendering holder thereof promptly
after the Expiration Date.
Holders who tender Old Capital Securities in connection with the Exchange
Offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the Letter of Transmittal, transfer taxes with respect to
the exchange of Old Capital Securities in connection with the Exchange Offer.
Transamerica will pay all charges and expenses, other than certain applicable
taxes described below, in connection with the Exchange Offer. See " -- Fees and
Expenses."
NEITHER THE BOARD OF DIRECTORS OF TRANSAMERICA NOR THE ADMINISTRATORS OR
ISSUER TRUSTEES OF THE TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL
SECURITIES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION
OF THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO
ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL
SECURITIES MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE
EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF OLD CAPITAL SECURITIES TO
TENDER AFTER READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND
CONSULTING WITH THEIR ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION
AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on
, 1998 unless the Exchange Offer is extended by Transamerica
and the Trust (in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended). Transamerica and the
Trust expressly reserve the right in their sole and absolute discretion, subject
to applicable law, at any time and from time to time, (i) to delay the
acceptance of the Old Capital Securities for exchange, (ii) to terminate the
Exchange Offer (whether or not any Old Capital Securities have theretofore been
accepted for exchange) if Transamerica and the Trust determine, in their sole
and absolute discretion, that any of the events or conditions referred to under
"-- Conditions to the Exchange Offer" have occurred or exist or have not been
satisfied, (iii) to extend the Expiration Date of the Exchange Offer and retain
all Old Capital Securities tendered pursuant to the Exchange Offer, subject,
however, to the right of holders of Old Capital Securities to
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withdraw their tendered Old Capital Securities as described under "-- Withdrawal
Rights," and (iv) to waive any condition or otherwise amend the terms of the
Exchange Offer in any respect. If the Exchange Offer is amended in a manner
determined by Transamerica and the Trust to constitute a material change, or if
Transamerica and the Trust waive a material condition of the Exchange Offer,
Transamerica or the Trust will promptly disclose such amendment or waiver by
means of a prospectus supplement that will be distributed to the registered
holders of the Old Capital Securities, and Transamerica and the Trust will
extend the Exchange Offer to the extent required by Rule 14e-1 under the
Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the Exchange Agent and by
making a public announcement thereof, and such announcement in the case of an
extension will be made no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. Without limiting
the manner in which Transamerica or the Trust may choose to make any public
announcement and subject to applicable law, neither Transamerica nor the Trust
shall have any obligation to publish, advertise or otherwise communicate any
such public announcement other than by issuing a release to an appropriate news
agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF NEW CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer,
Transamerica and the Trust will exchange, and will issue to the Exchange Agent,
New Capital Securities for Old Capital Securities validly tendered and not
withdrawn (pursuant to the withdrawal rights described under "-- Withdrawal
Rights") promptly after the Expiration Date.
In all cases, delivery of New Capital Securities in exchange for Old
Capital Securities tendered and accepted for exchange pursuant to the Exchange
Offer will be made only after timely receipt by the Exchange Agent of (i) Old
Capital Securities or a book-entry confirmation of a book-entry transfer of Old
Capital Securities into the Exchange Agent's account at DTC, (ii) the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, and (iii) any other documents required by the
Letter of Transmittal.
The term "book-entry confirmation" means a timely confirmation of a
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC.
Subject to the terms and conditions of the Exchange Offer, Transamerica and
the Trust will be deemed to have accepted for exchange, and thereby exchanged,
Old Capital Securities validly tendered and not withdrawn as, if and when
Transamerica or the Trust gives oral or written notice to the Exchange Agent of
Transamerica's and the Trust's acceptance of such Old Capital Securities for
exchange pursuant to the Exchange Offer. The Exchange Agent will act as agent
for Transamerica and the Trust for the purpose of receiving tenders of Old
Capital Securities, Letters of Transmittal and related documents, and as agent
for tendering holders for the purpose of receiving Old Capital Securities,
Letters of Transmittal and related documents and transmitting New Capital
Securities to validly tendering holders. Such exchange will be made promptly
after the Expiration Date. If for any reason whatsoever, acceptance for exchange
or the exchange of any Old Capital Securities tendered pursuant to the Exchange
Offer is delayed (whether before or after Transamerica's and the Trust's
acceptance for exchange of Old Capital Securities) or Transamerica or the Trust
extends the Exchange Offer or is unable to accept for exchange or exchange Old
Capital Securities tendered pursuant to the Exchange Offer, then, without
prejudice to Transamerica's or the Trust's rights set forth herein, the Exchange
Agent may, nevertheless, on behalf of Transamerica and the Trust and subject to
Rule 14e-1(c) under the Exchange Act, retain tendered Old Capital Securities and
such Old Capital Securities may not be withdrawn except to the extent tendering
holders are entitled to withdrawal rights as described under "-- Withdrawal
Rights."
Pursuant to the Letter of Transmittal, a holder of Old Capital Securities
will warrant and agree in the Letter of Transmittal that it has full power and
authority to tender, exchange, sell, assign and transfer Old Capital Securities,
that the Trust will acquire good, marketable and unencumbered title to the
tendered Old Capital Securities, free and clear of all liens, restrictions,
charges and encumbrances, and the Old Capital Securities tendered for exchange
are not subject to any adverse claims or proxies. The holder also will warrant
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and agree that it will, upon request, execute and deliver any additional
documents deemed by Transamerica, the Trust or the Exchange Agent to be
necessary or desirable to complete the exchange, sale, assignment, and transfer
of the Old Capital Securities tendered pursuant to the Exchange Offer.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
Valid Tender. Except as set forth below, in order for Old Capital
Securities to be validly tendered pursuant to the Exchange Offer, a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees and any other required documents, must be
received by the Exchange Agent at its address set forth under "-- Exchange
Agent," and either (i) tendered Old Capital Securities must be received by the
Exchange Agent on or prior to the Expiration Date, or (ii) such Old Capital
Securities must be tendered pursuant to the procedures for book-entry transfer
set forth below and a book-entry confirmation must be received by the Exchange
Agent, in each case on or prior to the Expiration Date, or (iii) the guaranteed
delivery procedures set forth below must be complied with.
If less than all of a tendering holder's Old Capital Securities are
tendered, the tendering holder should fill in the amount of Old Capital
Securities being tendered in the appropriate box on the Letter of Transmittal.
The entire amount of Old Capital Securities delivered to the Exchange Agent will
be deemed to have been tendered unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book-entry Transfer. The Exchange Agent will establish an account with
respect to the Old Capital Securities at DTC for purposes of the Exchange Offer
within two business days after the date of this Prospectus. Any financial
institution that is a participant in DTC's book-entry transfer facility system
may make a book-entry delivery of the Old Capital Securities by causing DTC to
transfer such Old Capital Securities into the Exchange Agent's account at DTC in
accordance with DTC's procedures for transfers. However, although delivery of
Old Capital Securities may be effected through book-entry transfer into the
Exchange Agent's account at DTC, the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees and any other required documents, must in any case be delivered to
and received by the Exchange Agent at its address set forth under "-- Exchange
Agent" on or prior to the Expiration Date, or the guaranteed delivery procedure
set forth below must be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT
Signature Guarantees. Certificates for the Old Capital Securities need not
be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (a) a certificate for the Old Capital Securities is
registered in a name other than that of the person surrendering the certificate
or (b) such registered holder completes the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in the Letter of Transmittal.
In the case of (a) or (b) above, such certificates for Old Capital Securities
must be duly endorsed or accompanied by a properly executed bond power, with the
endorsement or signature on the bond power and on the Letter of Transmittal
guaranteed by a firm or other entity identified in Rule 17Ad-15 under the
Exchange Act as an "eligible guarantor institution," including (as such terms
are defined therein): (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association (an "Eligible Institution"), unless surrendered
on behalf of such Eligible Institution. See Instruction 1 to the Letter of
Transmittal.
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Guaranteed Delivery. If a holder desires to tender Old Capital Securities
pursuant to the Exchange Offer and the certificates for such Old Capital
Securities are not immediately available or time will not permit all required
documents to reach the Exchange Agent on or before the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis, such
Old Capital Securities may nevertheless be tendered, provided that all of the
following guaranteed delivery procedures are complied with: (i) such tenders are
made by or through an Eligible Institution; (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form accompanying
the Letter of Transmittal, is received by the Exchange Agent, as provided below,
on or prior to the Expiration Date; and (iii) the certificates (or a book-entry
confirmation) representing all tendered Old Capital Securities, in proper form
for transfer, together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature guarantees and
any other documents required by the Letter of Transmittal, are received by the
Exchange Agent within three New York Stock Exchange trading days after the date
of execution of such Notice of Guaranteed Delivery. The Notice of Guaranteed
Delivery may be delivered by hand, or transmitted by facsimile or mail, to the
Exchange Agent and must include a guarantee by an Eligible Institution in the
form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of New Capital
Securities in exchange for Old Capital Securities tendered and accepted for
exchange pursuant to the Exchange Offer will in all cases be made only after
timely receipt by the Exchange Agent of Old Capital Securities, or of a
book-entry confirmation with respect to such Old Capital Securities, and a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof), together with any required signature guarantees and any other
documents required by the Letter of Transmittal. Accordingly, the delivery of
New Capital Securities might not be made to all tendering holders at the same
time, and will depend upon when Old Capital Securities, book-entry confirmations
with respect to Old Capital Securities and other required documents are received
by the Exchange Agent.
The acceptance by Transamerica and the Trust for exchange of Old Capital
Securities tendered pursuant to any of the procedures described above will
constitute a binding agreement among the tendering holder, Transamerica and the
Trust upon the terms and subject to the conditions of the Exchange Offer.
Determination of Validity. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Old Capital Securities will be determined by Transamerica and the
Trust, in their sole discretion, whose determination shall be final and binding
on all parties. Transamerica and the Trust reserve the absolute right, in their
sole and absolute discretion, to reject any and all tenders determined by them
not to be in proper form or the acceptance of which, or exchange for, may, in
the view of counsel to Transamerica and the Trust, be unlawful. Transamerica and
the Trust also reserve the absolute right, subject to applicable law, to waive
any of the conditions of the Exchange Offer as set forth under "-- Conditions to
the Exchange Offer" or any condition or irregularity in any tender of Old
Capital Securities of any particular holder whether or not similar conditions or
irregularities are waived in the case of other holders.
Transamerica's and the Trust's interpretation of the terms and conditions
of the Exchange Offer (including the Letter of Transmittal and the instructions
thereto) will be final and binding. No tender of Old Capital Securities will be
deemed to have been validly made until all irregularities with respect to such
tender have been cured or waived. Neither Transamerica, the Trust, any
affiliates or assigns of Transamerica or the Trust, the Exchange Agent nor any
other person shall be under any duty to give any notification of any
irregularities in tenders or incur any liability for failure to give any such
notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney,
or any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by Transamerica
or the Trust, proper evidence satisfactory to Transamerica or the Trust, in
their sole discretion, of such person's authority to so act must be submitted.
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A beneficial owner of Old Capital Securities that are held by or registered
in the name of a broker, dealer, commercial bank, trust company or other nominee
or custodian is urged to contact such entity promptly if such beneficial holder
wishes to participate in the Exchange Offer.
RESALES OF NEW CAPITAL SECURITIES
Based on interpretations by the staff of the Commission as set forth in
no-action letters issued to third parties, Transamerica and the Trust believe
that holders of Old Capital Securities (other than any holder that is an
"affiliate" of Transamerica or the Trust as defined under Rule 405 of the
Securities Act) who exchange their Old Capital Securities for New Capital
Securities pursuant to the Exchange Offer may offer such New Capital Securities
for resale, resell such New Capital Securities and otherwise transfer such New
Capital Securities without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such New Capital
Securities are acquired in the ordinary course of such holders' business and
such holders are not engaged in, and do not intend to engage in, a distribution
of such New Capital Securities and have no arrangement or understanding with any
person to participate in the distribution of such New Capital Securities.
However, the staff of the Commission has not considered and will not consider
the Exchange Offer in the context of a no-action letter, and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offer. However, any holder of Old Capital
Securities who is an "affiliate" of Transamerica or the Trust or who intends to
participate in the Exchange Offer for the purpose of distributing New Capital
Securities, or any broker-dealer who purchased Old Capital Securities from the
Trust to resell pursuant to Rule 144A or any other available exemption under the
Securities Act, (a) will not be able to rely on the interpretations of the staff
of the Commission set forth in the above-mentioned interpretive letters, (b)
will not be permitted or entitled to tender such Old Capital Securities in the
Exchange Offer and (c) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or other transfer
of such Old Capital Securities unless such sale is made pursuant to an exemption
from such requirements. In addition, as described below, if any broker-dealer
holds Old Capital Securities acquired for its own account as a result of
market-making or other trading activities and exchanges such Old Capital
Securities for New Capital Securities, then such broker-dealer must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of such New Capital Securities.
Each holder of Old Capital Securities (other than certain specified
holders) who wishes to exchange them for New Capital Securities in the Exchange
Offer will be required to represent that: (i) it is not an "affiliate" of
Transamerica or the Trust; (ii) any New Capital Securities to be received by it
are being acquired in the ordinary course of its business; and (iii) it is not
engaged in, and does not intend to engage in, a distribution (within the meaning
of the Securities Act) of such New Capital Securities and has no arrangement or
understanding to participate in a distribution of New Capital Securities. Each
broker-dealer that receives New Capital Securities for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such New
Capital Securities. The Letter of Transmittal states that by so acknowledging
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act. Based on the
position taken by the staff of the Commission in the interpretive letters
referred to above, Transamerica and the Trust believe that broker-dealers who
acquired Old Capital Securities for their own accounts as a result of
market-making activities or other trading activities may fulfill their
prospectus delivery requirements with respect to the New Capital Securities
received upon exchange of such Old Capital Securities (other than Old Capital
Securities which represent an unsold allotment from the original sale of the Old
Capital Securities) with a prospectus meeting the requirements of the Securities
Act, which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale of
such New Capital Securities. Accordingly, this Prospectus, as it may be amended
or supplemented from time to time, may be used by a Participating Broker-Dealer
during the period referred to below in connection with resales of New Capital
Securities received in exchange for Old Capital Securities where such Old
Capital Securities were acquired by such Participating Broker-Dealer for its own
account as a result of market-making or other trading activities. Subject to
certain provisions set forth in the Registration Rights Agreement, Transamerica
and the Trust have agreed to allow the Participating Broker-Dealers to use
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this Prospectus, as it may be amended or supplemented from time to time, in
connection with resales of such New Capital Securities for a period of 180 days
after the Expiration Date. See "Plan of Distribution." Any Participating
Broker-Dealer who is an "affiliate" of Transamerica or the Trust may not rely on
such interpretive letters and must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction.
In that regard, each Participating Broker-Dealer who surrenders Old Capital
Securities pursuant to the Exchange Offer will be deemed to have agreed, by
execution of the Letter of Transmittal, that, upon receipt of notice from
Transamerica or the Trust of the occurrence of any event or the discovery of any
fact which makes any statement contained or incorporated by reference in this
Prospectus untrue in any material respect or which causes this Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference herein, in light of the circumstances
under which they were made, not misleading, such Participating Broker-Dealer
will suspend the sale of New Capital Securities pursuant to this Prospectus
until Transamerica or the Trust has amended or supplemented this Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to such Participating Broker-Dealer or Transamerica or
the Trust has given notice that the sale of the New Capital Securities may be
resumed, as the case may be.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Capital Securities may
be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective a written, telegraphic, telex or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at its address set forth under "-- Exchange Agent" on or prior to
the Expiration Date. Any such notice of withdrawal must specify the name of the
person who tendered the Old Capital Securities to be withdrawn, the aggregate
liquidation amount of Old Capital Securities to be withdrawn, and (if
certificates for such Old Capital Securities have been tendered) the name of the
registered holder of the Old Capital Securities as set forth on the Old Capital
Securities, if different from that of the person who tendered such Old Capital
Securities. If Old Capital Securities have been delivered or otherwise
identified to the Exchange Agent, then prior to the physical release of such Old
Capital Securities, the tendering holder must submit the serial numbers shown on
the particular Old Capital Securities to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution, except in
the case of Old Capital Securities tendered for the account of an Eligible
Institution. If Old Capital Securities have been tendered pursuant to the
procedures for book-entry transfer set forth in "-- Procedures for Tendering Old
Capital Securities," then the notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal of Old Capital
Securities, in which case a notice of withdrawal will be effective if delivered
to the Exchange Agent by written, telegraphic, telex or facsimile transmission.
Withdrawals of tenders of Old Capital Securities may not be rescinded. Old
Capital Securities properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be re-tendered at any subsequent time on
or prior to the Expiration Date by following any of the procedures described
above under "-- Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by Transamerica and the
Trust, in their sole discretion, whose determination shall be final and binding
on all parties. Neither Transamerica, the Trust, any affiliates or assigns of
Transamerica or the Trust, the Exchange Agent nor any other person shall be
under any duty to give any notification of any irregularities in any notice of
withdrawal or incur any liability for failure to give any such notification. Any
Old Capital Securities which have been tendered but which are withdrawn will be
returned to the holder thereof promptly after withdrawal.
DISTRIBUTIONS ON THE NEW CAPITAL SECURITIES
Holders of Old Capital Securities whose Old Capital Securities are accepted
for exchange will not receive accumulated Distributions on such Old Capital
Securities for any period from and after the last Distribution Payment Date with
respect to such Old Capital Securities prior to the original issue date of the
New Capital
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Securities or, if no such Distributions have been made, will not receive any
accumulated Distributions on such Old Capital Securities, and will be deemed to
have waived the right to receive any Distributions on such Old Capital
Securities accumulated from and after such Distribution Payment Date or, if no
such Distributions have been made, from and after November 14, 1997. However,
because Distributions on the New Capital Securities will accumulate from such
date, the amount of the Distributions received by holders whose Old Capital
Securities are accepted for exchange will not be affected by the exchange.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, Transamerica and the Trust will not be required
to accept for exchange, or to exchange, any Old Capital Securities for any New
Capital Securities, and, as described below, may terminate the Exchange Offer
(whether or not any Old Capital Securities have theretofore been accepted for
exchange) or may waive any conditions to or amend the Exchange Offer, if any of
the following conditions have occurred or exists or have not been satisfied:
(a) there shall occur a change in the current interpretation by the
staff of the Commission which permits the New Capital Securities issued
pursuant to the Exchange Offer in exchange for Old Capital Securities to be
offered for resale, resold and otherwise transferred by holders thereof
(other than broker-dealers and any such holder which is an 'affiliate' of
Transamerica or the Trust within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such New Capital
Securities are acquired in the ordinary course of such holders' business
and such holders have no arrangement or understanding with any person to
participate in the distribution of such New Capital Securities.
(b) any action or proceeding shall have been instituted or threatened
in any court or by or before any governmental agency or body with respect
to the Exchange Offer which, in Transamerica's and the Trust's judgment,
would reasonably be expected to impair the ability of the Trust or
Transamerica to proceed with the Exchange Offer;
(c) any law, statute, rule or regulation shall have been adopted or
enacted which, in Transamerica's and the Trust's judgment, would reasonably
be expected to impair the ability of the Trust or Transamerica to proceed
with the Exchange Offer;
(d) a banking moratorium shall have been declared by United States
federal or New York State authorities which, in Transamerica's and the
Trust's judgment, would reasonably be expected to impair the ability of the
Trust or Transamerica to proceed with the Exchange Offer;
(e) trading on the New York Stock Exchange or generally in the United
States over-the-counter market shall have been suspended by order of the
Commission or any other governmental authority which, in Transamerica's and
the Trust's judgment, would reasonably be expected to impair the ability of
the Trust or Transamerica to proceed with the Exchange Offer;
(f) a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration
Statement or proceedings shall have been initiated or, to the knowledge of
Transamerica or the Trust, threatened for that purpose or any government
approval has not been obtained, which approval Transamerica and the Trust
shall, in their sole discretion, deem necessary for the consummation of the
Exchange Offer as contemplated hereby; or
(g) any change, or any development involving a prospective change, in
the business or financial affairs of the Trust or Transamerica or any of
its subsidiaries has occurred which, in the sole judgment of Transamerica
and the Trust, might materially impair the ability of the Trust or
Transamerica to proceed with the Exchange Offer.
If Transamerica and the Trust determine in their sole and absolute
discretion that any of the foregoing events or conditions has occurred or exists
or has not been satisfied, Transamerica and the Trust may, subject to applicable
law, terminate the Exchange Offer (whether or not any Old Capital Securities
have theretofore
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been accepted for exchange) or may waive any such condition or otherwise amend
the terms of the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, Transamerica and the Trust
will promptly disclose such amendment or waiver by means of a prospectus
supplement that will be distributed to the registered holders of the Old Capital
Securities, and Transamerica and the Trust will extend the Exchange Offer to the
extent required by Rule 14e-1 under the Exchange Act.
EXCHANGE AGENT
The First National Bank of Chicago has been appointed as Exchange Agent for
the Exchange Offer. Delivery of the Letter of Transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this Prospectus or of the Letter of Transmittal should be directed to
the Exchange Agent as follows:
The First National Bank of Chicago
c/o First Chicago Trust
Company of New York
14 Wall Street,
8th Floor, Window 2
New York, New York 10005
Telephone: (212) 240-8801
Facsimile: (212) 240-8938
Delivery to other than the above address or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
Transamerica has agreed to pay the Exchange Agent reasonable and customary
fees for its services and will reimburse it for its reasonable out-of-pocket
expenses in connection therewith. Transamerica will also pay brokerage houses
and other custodians, nominees and fiduciaries the reasonable out-of-pocket
expenses incurred by them in forwarding copies of this Prospectus and related
documents to the beneficial owners of Old Capital Securities, and in handling or
tendering for their customers.
Holders who tender their Old Capital Securities for exchange will not be
obligated to pay any transfer taxes in connection therewith. If, however, New
Capital Securities are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Old Capital Securities
tendered, or if a transfer tax is imposed for any reason other than the exchange
of Old Capital Securities in connection with the Exchange Offer, then the amount
of any such transfer taxes (whether imposed on the registered holder or any
other persons) will be payable by the tendering holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with the Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering holder.
Neither Transamerica nor the Trust will make any payment to brokers,
dealers or others soliciting acceptances of the Exchange Offer.
DESCRIPTION OF THE CAPITAL SECURITIES
The Old Capital Securities have been issued and the New Capital Securities
will be issued pursuant to the terms of the Declaration. The Institutional
Trustee acts as trustee for the Capital Securities under the Declaration. The
Declaration has been qualified under the Trust Indenture Act. The terms of the
Capital Securities include those stated in the Declaration and those made part
of such Declaration by the Trust Indenture Act and the Trust Act. The following
summary of the material terms and provisions of Capital Securities does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, the Declaration (a copy of which may be obtained from Transamerica
or the Trust), the Trust Act and the Trust Indenture Act.
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GENERAL
The Declaration authorizes the Administrators to issue, on behalf of the
Trust, the Trust Securities, which represent undivided beneficial interests in
the assets of the Trust. All of the Common Securities are owned by Transamerica.
The Common Securities have equivalent terms to and rank pari passu, and payments
will be made thereon on a pro rata basis, with the Capital Securities, except
that, upon the occurrence and during the continuance of a Declaration Event of
Default, the rights of the holders of the Common Securities to receive payment
of periodic distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Capital
Securities. The Declaration does not permit the issuance by the Trust of any
securities other than the Trust Securities or the incurrence of any indebtedness
by the Trust. Pursuant to the Declaration, the Institutional Trustee holds legal
title to the Subordinated Debt Securities purchased by the Trust for the benefit
of the holders of the Trust Securities. The payment of distributions out of
money held by the Trust, and payments upon redemption of the Capital Securities
or upon liquidation of the Trust, are guaranteed by Transamerica as described
under "Description of the Guarantee." The Guarantee will be held by the
Guarantee Trustee for the benefit of the holders of the Capital Securities. The
Guarantee does not cover payment of distributions or other payments in respect
of Capital Securities to the extent the Trust does not have available funds to
pay such amounts. In such event, the remedy of holders of the Capital Securities
would be, through the vote of holders of a majority in liquidation amount of the
Capital Securities, to direct the Institutional Trustee to enforce the
Institutional Trustee's rights under the Subordinated Debt Securities except in
the circumstances in which a holder of such Capital Securities may take Direct
Action. See "-- Declaration Events of Default" and "-- Voting Rights."
DISTRIBUTIONS
Distributions on the Capital Securities are fixed at a rate per annum of
7 5/8% of the stated liquidation amount of $1,000 per Capital Security (the
"Distribution Rate"). Distributions in arrears for more than one semiannual
period will accrue on the Capital Securities at the distribution rate per annum
of 7 5/8% thereof, compounded semiannually, to the extent permitted by law. The
term "distribution" as used herein includes any such compounded distributions
payable unless otherwise stated. The amount of distributions payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months.
The amount of interest payable for any period shorter than a full semiannual
period for which interest is computed will be computed on the basis of the
actual number of days elapsed per 30-day month.
Distributions on the Capital Securities will be cumulative, will accrue
from the original date of issuance of the Capital Securities, and will be
payable, subject to extension of distribution payment periods as described
herein, semiannually in arrears on November 15 and May 15 of each year (each, a
"Distribution Payment Date"), commencing May 15, 1998, when, as and if available
for payment. Distributions will be made by the Institutional Trustee, except as
otherwise described below.
Transamerica has the right under the Indenture to defer payments of
interest on the Subordinated Debt Securities by extending at any time and from
time to time the interest payment period for one or more Extension Periods,
subject to the conditions described below, although such interest would continue
to accrue on the Subordinated Debt Securities at a rate of 7 5/8% per annum,
compounded semiannually (to the extent permitted by law), during any Extension
Period. If such right is exercised, semiannual distributions on the Capital
Securities will also be deferred though such distributions would continue to
accrue at the distribution rate of 7 5/8% per annum, compounded semiannually (to
the extent permitted by law), during any Extension Period. Such right to extend
any interest payment period for the Subordinated Debt Securities is limited to
one or more Extension Periods, each not exceeding 10 consecutive semiannual
periods, and no Extension Period may be initiated while accrued interest from a
prior, completed Extension Period is unpaid or while Transamerica is in default
in the payment of interest that has become due and payable on the Subordinated
Debt Securities, and no Extension Period may extend beyond the maturity date of
the Subordinated Debt Securities. In the event that Transamerica exercises this
right, then, during any Extension Period (i) Transamerica shall not declare or
pay dividends on, make a distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital stock
or rights to acquire such capital stock (other than (a) purchases or
acquisitions of shares of any such capital stock or rights to
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acquire such capital stock in connection with the satisfaction by Transamerica
of its obligations under any employee benefit plans, (b) as a result of a
reclassification of Transamerica's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of
Transamerica's capital stock or rights to acquire such capital stock for another
class or series of Transamerica's capital stock or rights to acquire such
capital stock, (c) the purchase of fractional interests in shares of
Transamerica's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged or (d)
dividends and distributions made on Transamerica's capital stock or rights to
acquire such capital stock with Transamerica's capital stock or rights to
acquire such capital stock), or make guarantee payments with respect to the
foregoing, and (ii) Transamerica shall not make any payment of interest or
principal on or repay, repurchase or redeem any debt securities issued by
Transamerica that rank pari passu with or junior to the Subordinated Debt
Securities. Prior to the termination of any such Extension Period in respect of
the Subordinated Debt Securities, Transamerica may further extend the interest
payment period; provided, that each such Extension Period in respect of the
Subordinated Debt Securities, together with all such previous and further
extensions thereof, may not exceed 10 consecutive semiannual periods or extend
beyond the maturity date of the Subordinated Debt Securities. Upon the
termination of any Extension Period, Transamerica may commence a new Extension
Period, subject to the above requirements. See "Description of the Subordinated
Debt Securities -- Interest," "-- Option to Extend Interest Payment Period" and
"-- Certain Covenants." If distributions are deferred, the distributions due
shall be paid on the date that the related Extension Period terminates, or, if
such date is not a Distribution Payment Date, on the immediately following
Distribution Payment Date, to holders of applicable Capital Securities as they
appear on the books and records of the Trust on the record date immediately
preceding such date.
Distributions on the Capital Securities must be paid on the dates payable
(after giving effect to any Extension Period) to the extent that the Trust has
funds available for the payment of such distributions in the Property Account.
The Trust's funds available for distribution to the holders of the Capital
Securities will be limited to payments received from Transamerica on the
Subordinated Debt Securities. See "Description of the Subordinated Debt
Securities." The payment of distributions out of moneys held by the Trust is
guaranteed by Transamerica to the extent set forth under "Description of the
Guarantee."
Distributions on the Capital Securities will be payable to the holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which, as long as the Capital Securities are held solely in
book-entry only form, will be one Business Day (as defined herein) prior to the
relevant payment dates. Such distributions will be paid through the
Institutional Trustee who will hold amounts received in respect of the
Subordinated Debt Securities in the Property Account for the benefit of the
holders of the Trust Securities. Subject to any applicable laws and regulations
and the provisions of the Declaration, each such payment will be made as
described under "-- Book-Entry Only Issuance -- The Depository Trust Company."
At any time when Capital Securities are not held solely in book-entry form, the
Administrators shall select record dates, which shall be 15 days prior to the
relevant Distribution Payment Date. In the event that any date on which
distributions are to be made on the Capital Securities is not a Business Day,
then payment of the distributions 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) with the same force and effect as if made
on such payment date. A "Business Day" shall mean any day other than Saturday,
Sunday or any other day on which banking institutions in New York City (in the
State of New York) are permitted or required by any applicable law to close.
REDEMPTION
The Subordinated Debt Securities are scheduled to mature on November 15,
2037. The Subordinated Debt Securities may be redeemed by Transamerica at par,
together with accrued and unpaid interest thereon to the date of redemption, in
whole or in part, at any time upon the occurrence of a Tax Event and receipt of
a Redemption Tax Opinion, but are not otherwise redeemable at the option of
Transamerica prior to maturity.
Upon the repayment or payment of the Subordinated Debt Securities (other
than following the distribution of the Subordinated Debt Securities to the
holders of the Trust Securities), whether at maturity or upon redemption, the
proceeds from such repayment or payment shall simultaneously be applied to
redeem,
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on a pro rata basis, at the Redemption Price, Trust Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Subordinated Debt Securities so repaid or redeemed; provided, however, that
holders of such Trust Securities shall be given not less than 30 nor more than
60 days' notice of such redemption (other than at the scheduled maturity of the
Subordinated Debt Securities). See "Description of the Subordinated Debt
Securities -- Redemption." In the event that fewer than all of the outstanding
Capital Securities are to be redeemed, the Capital Securities will be redeemed
on a pro rata basis; provided that the Capital Securities held in book-entry
form will be redeemed in accordance with the procedures of DTC as described
under "-- Book-Entry Only Issuance -- The Depository Trust Company."
"Tax Event" means that the Institutional Trustee shall have received an
opinion of a nationally recognized independent tax counsel to Transamerica
experienced in such matters to the effect that, as a result of (i) any amendment
to, clarification of 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, (ii) any judicial decision
or official administrative pronouncement, ruling, regulatory procedure, notice
or announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (iii) any amendment
to, clarification of or change in the administrative position or interpretation
of any Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, by any legislative body,
court, governmental agency or regulatory body, irrespective of the manner in
which such amendment, clarification or change is made known, which amendment,
clarification or change is effective or such Administrative Action or decision
is announced, in each case, on or after the date of this Prospectus, there is
more than an insubstantial risk that (a) the Trust is, or will be within 90 days
of the date thereof, subject to United States federal income tax with respect to
interest accrued or received on the Subordinated Debt Securities or subject to
more than a de minimis amount of other taxes, duties or other governmental
charges, (b) any portion of interest payable by Transamerica to the Trust on the
Subordinated Debt Securities is not, or within 90 days of the date thereof will
not be, deductible by Transamerica for United States federal income tax
purposes, or (c) Transamerica could become liable to pay, on the next date on
which any amount would be payable with respect to the Subordinated Debt
Securities, any Additional Interest (as defined herein).
If, at any time, a Tax Event shall occur and be continuing, and
Transamerica receives an opinion (a "Redemption Tax Opinion") of nationally
recognized independent tax counsel experienced in such matters that, as a result
of such Tax Event, there is more than an insubstantial risk that Transamerica
would be precluded from deducting the interest on the Subordinated Debt
Securities for United States federal income tax purposes, even if the
Subordinated Debt Securities were distributed to the holders of Trust Securities
in liquidation of such holders' interests in the Trust as described in
"-- Liquidation Distribution Upon Dissolution," Transamerica shall have the
right within 90 days following the occurrence of such Tax Event, upon not less
than 30 nor more than 60 days' notice to the holders, to redeem the Subordinated
Debt Securities, in whole or in part, for cash so long as such Tax Event is
continuing at par plus any accrued and unpaid interest thereon to the date of
redemption, and, following such redemption, Trust Securities with an aggregate
liquidation amount equal to the aggregate principal amount of such Subordinated
Debt Securities so redeemed shall be redeemed by the Trust on a pro rata basis
at the applicable Redemption Price; provided, however, that if (i) at the time
there is available to Transamerica or the Trust the opportunity to eliminate,
within such 90-day period the adverse effects of the Tax Event by taking some
ministerial action, such as filing a form or making an election or pursuing some
other similar reasonable measure that will have no adverse effect on the Trust,
Transamerica or the holders of the Trust Securities and (ii) if such notice has
not been given, Transamerica or the Trust will pursue such measure in lieu of
redemption.
The rights of Transamerica described above if a Tax Event occurs are in
addition to the right of Transamerica, as the holder of the Common Securities,
at any time to dissolve the Trust, after satisfaction of liabilities to
creditors of the Trust and cause the Subordinated Debt Securities to be
distributed to holders of the Trust Securities as described above.
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REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding Capital
Securities unless all accrued and unpaid distributions have been paid on all the
Capital Securities for all semiannual distribution periods terminating on or
prior to the date of redemption.
If the Trust gives a notice of redemption in respect of the Capital
Securities (which notice will be irrevocable), then, by 12:00 noon, New York
City time, on the redemption date, provided that Transamerica has paid to the
Institutional Trustee a sufficient amount of cash in connection with the related
redemption of the Subordinated Debt Securities, the Institutional Trustee will
irrevocably deposit with DTC or its nominee funds sufficient to pay the
applicable Redemption Price with respect to Capital Securities held in
book-entry form and will give DTC irrevocable instructions and authority to pay
such Redemption Price to the holders of such Capital Securities. See
"-- Book-Entry Only Issuance -- The Depository Trust Company." With respect to
the Capital Securities that are Certificated Securities (as defined herein),
provided that Transamerica has paid to the Institutional Trustee a sufficient
amount of cash in connection with the related redemption of the Subordinated
Debt Securities, the Institutional Trustee will pay the applicable Redemption
Price to the holders of such Capital Securities by check mailed to the address
of each such holder appearing on the books and records of the Trust on the
redemption date. If notice of redemption shall have been given and funds
deposited as required, then, immediately prior to the close of business on the
date of such deposit, distributions will cease to accrue and all rights of
holders of such Capital Securities so called for redemption will cease, except
the right of the holders of such Capital Securities to receive the applicable
Redemption Price but without interest on such Redemption Price. In the event
that any date fixed for redemption of Capital Securities is not a Business Day,
then payment of the Redemption Price payable on such date will be made on the
next succeeding day that is a Business Day (without any interest or other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day. In the event that payment of the Redemption Price is
improperly withheld or refused and not paid by the Institutional Trustee or by
Transamerica pursuant to the Guarantee, distributions on such Capital Securities
will continue to accrue at the then applicable rate from the original redemption
date to the actual 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.
In the event that fewer than all of the outstanding Capital Securities are
to be redeemed, Capital Securities will be redeemed on a pro rata basis,
provided that Capital Securities held in book-entry form will be redeemed in
accordance with the procedures of DTC as described under "-- Book-Entry Only
Issuance -- The Depository Trust Company."
In the event of any redemption of Capital Securities in part, the Trust
shall not be required to (i) issue, register the transfer of or exchange any
Capital Security during a period beginning at the opening of business 15 days
before any selection for redemption of Capital Securities and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all holders of Capital Securities to
be so redeemed or (ii) register the transfer of or exchange any Capital
Securities so selected for redemption, in whole or in part, except for the
unredeemed portion of any Capital Securities being redeemed in part.
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 Capital Securities by
tender, in the open market or by private agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation") other than in
connection with a redemption of the Subordinated Debt Securities as previously
described, the holders of the Capital Securities will be entitled to receive out
of the assets of the Trust, after satisfaction of liabilities to creditors of
the Trust (to the extent not satisfied by Transamerica), distributions in an
amount equal to the aggregate of the stated liquidation amount of $1,000 per
Capital Security plus accrued and unpaid distributions thereon to the date of
payment (the "Liquidation Distribu-
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tion"), unless, in connection with such Liquidation, the Subordinated Debt
Securities in an aggregate stated principal amount equal to the aggregate stated
liquidation amount of the Capital Securities have been distributed on a pro rata
basis to the holders of the Capital Securities.
Transamerica, as the holder of all of the outstanding Common Securities,
has the right at any time to dissolve the Trust (including without limitation
upon the occurrence of a Tax Event and the receipt of a Redemption Tax Opinion)
and, after satisfaction of liabilities to creditors of the Trust (to the extent
not satisfied by Transamerica), cause the Subordinated Debt Securities to be
distributed to the holders of the Capital Securities and the Common Securities
on a pro rata basis in accordance with the aggregate stated liquidation amount
thereof, in liquidation of the Trust.
Pursuant to the Declaration, the Trust shall dissolve on the first to occur
of (i) November 15, 2052, the expiration of the term of the Trust, (ii) the
bankruptcy of Transamerica, (iii) (other than in connection with a merger,
consolidation or similar transaction not prohibited by the Indenture, the
Declaration or the Guarantee, as the case may be) the filing of a certificate of
dissolution or its equivalent with respect to Transamerica or the Trust or upon
the revocation of the charter of Transamerica and the expiration of 90 days
after the date of revocation without a reinstatement thereof, (iv) the
distribution to the holders of the Trust Securities of Subordinated Debt
Securities, upon the exercise of the right of the holder of all of the
outstanding Common Securities to dissolve the Trust as described above, (v) the
entry of a decree of a judicial dissolution of Transamerica or the Trust, or
(vi) the redemption of all of the Trust Securities. Pursuant to the Declaration,
as soon as practicable after the dissolution of the Trust and upon completion of
the winding up of the Trust, the Trust shall terminate upon the filing of a
certificate of cancellation.
If a Liquidation of the Trust occurs as described in clause (i), (ii),
(iii) or (v) of the preceding paragraph, the Trust shall be liquidated by the
Institutional Trustee as expeditiously as such Institutional Trustee determines
to be possible by distributing, after satisfaction of liabilities to creditors
of the Trust (to the extent not satisfied by Transamerica), to the holders of
the Trust Securities the Subordinated Debt Securities, unless such distribution
is determined by the Institutional Trustee not to be practical, in which event
such holders will be entitled to receive out of the assets of the Trust
available for distribution to holders, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied by Transamerica), an amount
equal to the Liquidation Distribution. An early Liquidation of the Trust
pursuant to clause (iv) above shall occur only if the Institutional Trustee
determines that such Liquidation is possible by distributing the Subordinated
Debt Securities, after satisfaction of liabilities to creditors of the Trust (to
the extent not satisfied by Transamerica), to the holders of the Trust
Securities and such distribution occurs.
If, upon any such Liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on such Capital Securities shall be paid to the holders of the Trust
Securities on a pro rata basis. The holders of the Common Securities will be
entitled to receive distributions upon any such Liquidation pro rata with the
holders of the Capital Securities, except that if a Declaration Event of Default
has occurred and is continuing, the Capital Securities shall have a preference
over the Common Securities with regard to such distributions.
Upon any such Liquidation of the Trust involving a distribution of the
Subordinated Debt Securities, if at the time of such Liquidation, the Capital
Securities were rated by at least one nationally-recognized statistical rating
organization, Transamerica will use its reasonable best efforts to obtain from
at least one such or other rating organization a rating for the Subordinated
Debt Securities.
After the date for any distribution of the Subordinated Debt Securities
upon dissolution of the Trust, (i) the Trust Securities will be deemed to be no
longer outstanding, (ii) the Depositary or its nominee, as the record holder of
the Capital Securities issued in book-entry form, will receive a registered
Global Security (as defined herein) representing the Subordinated Debt
Securities to be delivered upon such distribution, and (iii) any certificates
representing the Capital Securities not held by the Depositary or its nominee
will be deemed to represent undivided beneficial interests in the Subordinated
Debt Securities having an aggregate principal amount equal to the aggregate
stated liquidation amount of such Capital Securities until such certificates are
presented to Transamerica or its agent for transfer or reissuance.
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There can be no assurance as to the market prices for the Capital
Securities or the Subordinated Debt Securities that may be distributed in
exchange for the Capital Securities if Liquidation of the Trust were to occur.
Accordingly, the Capital Securities that an investor may purchase in the
secondary market, or the Subordinated Debt Securities that an investor may
receive if Liquidation of the Trust were to occur, may trade at a discount to
the price paid to purchase the Capital Securities offered hereby.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture in respect of the Subordinated Debt
Securities issued to the Trust (an "Indenture Event of Default") constitutes an
event of default under the Declaration with respect to the Trust Securities
(each a "Declaration Event of Default"); provided, that pursuant to the
Declaration, the holder of the Common Securities will be deemed to have waived
any Declaration Event of Default with respect to such Common Securities until
all Declaration Events of Default with respect to the Capital Securities have
been cured, waived or otherwise eliminated. Until such Declaration Events of
Default have been so cured, waived, or otherwise eliminated, the Institutional
Trustee will be deemed to be acting solely on behalf of the holders of the
Capital Securities and only the holders of such Capital Securities will have the
right to direct the Institutional Trustee with respect to certain matters under
the Declaration, and, therefore, the Indenture. The holders of a majority in
liquidation amount of the Capital Securities will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Institutional Trustee or to direct the exercise of any trust or power
conferred upon the Institutional Trustee under the Declaration, including the
right to direct the Institutional Trustee to exercise the remedies available to
it as holder of the Subordinated Debt Securities. If the Institutional Trustee
fails to enforce its rights under the Subordinated Debt Securities after the
holders of a majority in liquidation amount of the Capital Securities have so
directed the Institutional Trustee, a holder of record of such Capital
Securities may, to the fullest extent permitted by law, institute a legal
proceeding against Transamerica to enforce the Institutional Trustee's rights
under such Subordinated Debt Securities without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if a Declaration Event of Default has occurred
and is continuing and such event is attributable to the failure of Transamerica
to pay interest or principal on the Subordinated Debt Securities on the
respective dates such interest or principal is payable, as deferred, if
applicable (or in the case of redemption, the redemption date), then a holder of
record of the Capital Securities may institute a Direct Action against
Transamerica for enforcement of payment, on or after the respective due dates
specified in the Subordinated Debt Securities, to such holder directly, of
principal or interest on the Subordinated Debt Securities in an aggregate
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such holder. In connection with such Direct Action, Transamerica,
as the holder of the Common Securities, will be subrogated to the rights of such
holder of Capital Securities under the Declaration to the extent of any payment
made by Transamerica to such holder of Capital Securities in such Direct Action;
provided, however, that no such subrogation right may be exercised so long as a
Declaration Event of Default has occurred and is continuing. The holders of
Capital Securities will not be able to exercise directly any other remedy
available to the holders of the Subordinated Debt Securities.
Upon the occurrence of a Declaration Event of Default, the Institutional
Trustee, so long as it is the sole holder of the Subordinated Debt Securities,
will have the right under the Indenture to declare the principal of and interest
on the Subordinated Debt Securities to be immediately due and payable.
Transamerica and the Trust are each required to file annually with the
Institutional Trustee an officer's certificate as to whether they have complied
with all conditions and covenants under the Declaration.
VOTING RIGHTS
Except as described herein, under the Trust Act and under "-- Removal of
Issuer Trustees; Appointment of Successors" and "Description of the
Guarantee -- Modification of the Guarantee; Assignment," and as otherwise
required by law and the Declaration, the holders of the Capital Securities will
have no voting rights.
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Subject to the requirement of the Institutional Trustee obtaining a tax
opinion in certain circumstances set forth in the last sentence of this
paragraph, the holders of a majority in aggregate liquidation amount of the
Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon such Institutional Trustee under
the Declaration, including the right to direct such Institutional Trustee, as
holder of the Subordinated Debt Securities, to (i) exercise the remedies
available to it under the Indenture as a holder of the Subordinated Debt
Securities, (ii) waive any past default that is waivable under the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Subordinated Debt Securities shall be due and payable or (iv) consent on
behalf of all the holders of the Capital Securities to any amendment,
modification or termination of the Indenture or the Subordinated Debt Securities
where such consent shall be required; provided, however, that where a consent or
action under the Indenture would require the consent or act of holders of more
than a majority in principal amount of the Subordinated Debt Securities (a
"Super-Majority") affected thereby, the Institutional Trustee may only give such
consent or take such action at the written direction of the holders of at least
the proportion in aggregate liquidation amount of the Capital Securities
outstanding which the relevant Super-Majority represents of the aggregate
principal amount of the Subordinated Debt Securities outstanding. If the
Institutional Trustee fails to enforce its rights under the Subordinated Debt
Securities after the holders of a majority (or Super-Majority, as the case may
be) in liquidation amount of the Capital Securities have so directed the
Institutional Trustee, a holder of record of such Capital Securities may, to the
fullest extent permitted by law, institute a legal proceeding directly against
Transamerica to enforce the Institutional Trustee's rights under the
Subordinated Debt Securities without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity. Notwithstanding
the foregoing, if a Declaration Event of Default has occurred and is continuing
and such event is attributable to the failure of Transamerica to pay principal
of or interest on the Subordinated Debt Securities on the respective dates such
principal or interest is payable (or in the case of redemption, the redemption
date), then a holder of record of the Capital Securities may institute a Direct
Action against Transamerica for enforcement of payment, on or after the
respective due dates specified in the Subordinated Debt Securities, to such
holder directly of the principal of or interest on the Subordinated Debt
Securities having an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Securities of such holder. The Institutional
Trustee shall notify all holders of the Capital Securities of any Indenture
Event of Default actually known to the Institutional Trustee with respect to the
Subordinated Debt Securities unless (a) such defaults have been cured prior to
the giving of such notice or (b) the Institutional Trustee determines in good
faith that the withholding of such notice is in the interest of the holders of
such Capital Securities, except where the default relates to the payment of
principal of or interest on any of the Subordinated Debt Securities. Such notice
shall state that such Indenture Event of Default also constitutes a Declaration
Event of Default. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any of the actions described in clauses (i), (ii) or (iii) above unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes.
In the event the consent of the Institutional Trustee, as the holder of the
Subordinated Debt Securities, is required under the Indenture with respect to
any amendment, modification or termination of the Indenture, such Institutional
Trustee shall request the direction of the holders of the Trust Securities with
respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a majority
in liquidation amount of such Trust Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of a Super-Majority, the Institutional Trustee may only give such
consent at the direction of the holders of at least the proportion in
liquidation amount of such Trust Securities outstanding which the relevant
Super-Majority represents of the aggregate principal amount of Subordinated Debt
Securities outstanding. The Institutional Trustee shall not take any such action
in accordance with the directions of the holders of such Trust Securities unless
the Institutional Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be classified as other than
a grantor trust for United States federal income tax purposes.
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A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of the Capital Securities may
be given at a separate meeting of such holders convened for such purpose, at a
meeting of all of the holders of Trust Securities or pursuant to written
consent. The Institutional Trustee will cause a notice of any meeting at which
holders of the Capital 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 the Capital Securities. Each such notice will include a
statement setting forth the following information: (i) the date of such meeting
or the date by which such action is to be taken; (ii) a description of any
resolution proposed for adoption at such meeting on which such holders are
entitled to vote or of such matter upon which written consent is sought; and
(iii) instructions for the delivery of proxies or consents. No vote or consent
of the holders of the Capital Securities will be required for the Trust to
redeem and cancel the Capital Securities or distribute the Subordinated Debt
Securities in accordance with the Declaration.
Notwithstanding that holders of Capital Securities are entitled to vote or
consent under any of the circumstances described above, any of the Capital
Securities that are owned at such time by Transamerica or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, Transamerica, shall not entitle the holders thereof to vote or
consent and shall, for purposes of such vote or consent, be treated as if such
Capital Securities were not outstanding.
The procedures by which holders of Capital Securities issued in book-entry
form may exercise their voting rights are described below. See "-- Book-Entry
Only Issuance -- The Depository Trust Company."
REMOVAL OF THE ISSUER TRUSTEES; APPOINTMENT OF SUCCESSORS
If an Indenture Event of Default has occurred and is continuing, an Issuer
Trustee may be removed and its successor appointed by the holders of at least a
majority in liquidation amount of Capital Securities. In no event will the
holders of the Capital Securities have the right to vote to appoint, remove or
replace the Administrators, which voting rights are vested exclusively in
Transamerica as the holder of the Common Securities. No resignation or removal
of an Issuer Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor trustee in
accordance with the provisions of the Declaration.
MODIFICATION OF THE DECLARATION
The Declaration may be amended from time to time by the Institutional
Trustee and the holders of a majority in liquidation amount of the Common
Securities without the consent of the holders of the Capital Securities to (i)
cure any ambiguity, (ii) correct or supplement any provision in the Declaration
that may be defective or inconsistent with any other provision of the
Declaration, (iii) add to the covenants, restrictions or obligations of
Transamerica, (iv) modify, eliminate or add to any provision of the Declaration
to such an extent as may be necessary to ensure that the Trust will be
classified for United States federal income tax purposes at all times as a
grantor trust and will not be required to register as an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 Act"), (v)
modify, eliminate or add to any provision of the Declaration to such an extent
as may be necessary to ensure that the Declaration will be qualified under the
Trust Indenture Act upon effectiveness of the Registration Statement with
respect to the Capital Securities, and (vi) modify, eliminate and add to any
provision of such Declaration, provided that no such modification, elimination
or addition referred to in clauses (i), (ii), (iii) and (vi) shall adversely
affect the powers, preferences or special rights of the holders of such Capital
Securities.
In addition to the foregoing, the Declaration may be modified and amended
if approved by the Institutional Trustee and the holders of a majority in
liquidation amount of the Common Securities (and in certain circumstances the
Delaware Trustee), provided that if any proposed amendment provides for, or the
Institutional Trustee otherwise proposes to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Trust
Securities, whether by way of amendment to the Declaration or otherwise or (ii)
the Liquidation of the Trust other than pursuant to the terms of the
Declaration, then, in
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each case, the holders of the Trust Securities voting together as a single class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of at least a majority
in liquidation amount of the Trust Securities affected thereby; provided that if
any amendment or proposal referred to in clause (i) above would adversely affect
only the Capital Securities or the Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of a majority in
liquidation amount of such class of Trust Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust to
be classified for purposes of United States federal income taxation as other
than a grantor trust, (ii) reduce or otherwise adversely affect the powers of
the Institutional Trustee or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the 1940 Act.
Notwithstanding any provision of the Declaration, the provisions of Section
316(b) of the Trust Indenture Act incorporated by reference into the Declaration
provides that the right of any holder of Capital Securities to receive payment
of distributions and other payments upon redemption or otherwise, on or after
their respective due dates, or to institute a suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such holder, except for a deferral of
distributions during an Extension Period as provided therein.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any corporation or other body, except as
described below or under "Liquidation Distribution Upon Dissolution." The Trust
may, with the consent of the Institutional Trustee and without the consent of
the Delaware Trustee or the holders of the Capital Securities, consolidate,
amalgamate, merge with or into, or be replaced by, a trust organized as such
under the laws of any State of the United States; provided that (i) if the Trust
is not the survivor, such successor entity either (a) expressly assumes all of
the obligations of the Trust under the Trust Securities or (b) substitutes for
the Trust Securities other securities having substantially the same terms as the
Trust Securities (the "Successor Securities"), so that the Successor Securities
rank the same as such Trust Securities rank with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) a trustee of such
successor entity possessing the same powers and duties as the Institutional
Trustee is appointed as the holder of the Subordinated Debt Securities, (iii)
such merger, consolidation, amalgamation or replacement does not cause the
Capital Securities (including any Successor Securities) to be downgraded by any
nationally-recognized statistical rating organization, (iv) such merger,
consolidation, amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the holders of such Trust Securities (including
any Successor Securities) in any material respect (other than with respect to
any dilution of the holders' interest in such successor entity), (v) such
successor entity has a purpose substantially identical to that of the Trust,
(vi) prior to such merger, consolidation, amalgamation or replacement, the
Institutional Trustee has received an opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect that
(a) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of the Trust
Securities (including any Successor Securities) in any material respect (other
than with respect to any dilution of the holders' interest in such successor
entity), (b) following such merger, consolidation, amalgamation or replacement,
neither the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (c) following such merger,
consolidation, amalgamation or replacement, neither the Trust nor such successor
entity will be classified as other than a grantor trust for United States
federal income tax purposes, (vii) Transamerica guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee and (viii) prior to such merger, consolidation,
amalgamation or replacement, the Institutional Trustee shall have received an
officers' certificate of the Administrators and an opinion of counsel, each to
the effect that all conditions precedent specified in this paragraph to such
transaction have been satisfied. Notwithstanding the foregoing, the Trust shall
not, except with the consent of holders of 100%
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in liquidation amount of the Trust Securities, consolidate, amalgamate, merge
with or into, or be replaced by, any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if such
consolidation, amalgamation, merger or replacement would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
BOOK-ENTRY ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC is acting as securities depository for the Capital Securities. The
description of book-entry procedures in this Prospectus includes summaries of
certain rules and operating procedures of DTC that affect transfers of interests
in the global certificate or certificates issued in connection with sales of
Capital Securities. Except as described in the next paragraph, the Capital
Securities will be issued only as fully registered securities registered in the
name of Cede & Co. (as nominee for DTC). One or more fully registered global
Capital Security certificates (the "Global Certificates") will be issued,
representing, in the aggregate, New Capital Securities, and will be deposited
with DTC.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in the global Capital
Securities as represented by a Global Certificate.
DTC has advised Transamerica and the Trust that it 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 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. Participants in DTC 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 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 transactions through or maintain a
direct or indirect 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 Commission.
Purchases of Capital Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Capital
Securities on DTC's records. The ownership interest of each actual purchaser of
each Capital Security ("Beneficial Owner") is, in turn, to be recorded on the
Direct Participants' 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 Capital
Securities. Transfers of ownership interests in the Capital 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 the Capital Securities, except in the event that
use of the book-entry system for the Capital Securities is discontinued.
To facilitate subsequent transfers, all the Capital Securities deposited by
Participants with DTC will be registered in the name of DTC's nominee, Cede &
Co. The deposit of Capital Securities with DTC and their registration in the
name of Cede & Co. will effect no change in beneficial ownership. DTC will have
no knowledge of the actual Beneficial Owners of the Capital Securities. DTC's
records will reflect only the identity of the Direct Participants to whose
accounts such Capital Securities are credited, which may or may not be the
Beneficial Owners. The Direct Participants and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate in respect of the Capital Securities, DTC or such nominee, as
the case may be, will be considered the sole owner or holder of
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the Capital Securities represented thereby for all purposes under the
Declaration and such Capital Securities. Accordingly, each Beneficial Owner must
rely on the procedures of DTC and, if such Beneficial Owner is not a
Participant, on the procedures of the Participant through which such Beneficial
Owner owns its interest to exercise any rights of a holder under the
Declaration.
DTC has advised Transamerica that it will take any action permitted to be
taken by a holder of Capital Securities (including the presentation of Capital
Securities for exchange as described below) only at the direction of one or more
Participants to whose accounts the DTC interests in the Global Certificates are
credited and only in respect of such portion of the aggregate liquidation amount
of Capital Securities as to which such Participant or Participants has or have
given such direction. However, if there is a Declaration Event of Default with
respect to the Capital Securities, DTC will, upon notice, exchange the Global
Certificates in respect of such Capital Securities for Certificated Securities,
which it will distribute to its Participants.
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 in respect of the Capital Securities held as Global
Certificates will be sent to Cede & Co. If less than all of the Capital
Securities are being redeemed, Capital Securities held as Global Certificates
will be redeemed in accordance with the procedures of DTC, which currently is to
redeem by lot.
Although voting with respect to the Capital Securities is limited, in those
cases where a vote is required, neither DTC nor Cede & Co. will itself consent
or vote with respect to Capital Securities. Under its usual procedures, DTC
would mail an Omnibus Proxy to the Trust 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 Capital Securities are credited
on the record date (identified in a listing attached to the Omnibus Proxy).
Distributions on the Capital Securities held as Global Certificates will be
made to DTC in immediately available funds. 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 Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Direct Participants and Indirect Participants and not of DTC, the Trust or
Transamerica, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of distributions to DTC is the responsibility
of the Trust, 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 Participants and Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a Global
Certificate will not be entitled to receive physical delivery of Capital
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC, the Direct Participants and the Indirect Participants to exercise any
rights under the Capital Securities.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificates among Participants of DTC, DTC
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. None of Transamerica, the Trust
or the Issuer Trustees will have any responsibility for the performance by DTC
or its Direct Participants or Indirect Participants under the rules and
procedures governing DTC. DTC may discontinue providing its services as
securities depositary with respect to the Capital Securities at any time by
giving notice to the Trust. Under such circumstances, in the event that a
successor securities depositary is not obtained, Capital Security certificates
will be required to be printed and delivered. Additionally, the Administrators
(with the consent of Transamerica) may decide to discontinue use of the system
of book-entry transfers through DTC (or a
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successor depositary) with respect to the Capital Securities of the Trust. In
that event, certificates for such Capital Securities will be printed and
delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Transamerica and the Trust believe to be
reliable, but neither Transamerica nor the Trust takes responsibility for the
accuracy thereof.
RESTRICTIONS ON TRANSFER
The Old Capital Securities were, and the New Capital Securities will be,
issued and may be transferred only in blocks having an aggregate liquidation
amount of not less than $100,000 (100 Old Capital Securities or New Capital
Securities, as the case may be). Any such transfer of the Old Capital Securities
or New Capital Securities in a block having an aggregate liquidation amount of
less than $100,000 shall be deemed to be void and of no legal effect whatsoever.
Any such transferee shall be deemed not to be the holder of such Capital
Securities for any purpose, including but not limited to, the receipt of
distributions on such Capital Securities, and such transferee shall be deemed to
have no interest whatsoever in such Capital Securities.
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities represented by the Global
Certificates shall be made to DTC, which shall credit the relevant accounts at
DTC on the applicable distribution payment dates or, in the case of Certificated
Securities, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on books and records of the
Trust. The paying agent for the Trust Securities (the "Paying Agent") is The
First National Bank of Chicago. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Institutional Trustee. In the
event that The First National Bank of Chicago shall no longer be the Paying
Agent, the Institutional Trustee shall appoint a successor to act as Paying
Agent (which shall be a bank or trust company).
REGISTRAR AND TRANSFER AGENT
The Institutional Trustee initially is acting as registrar and transfer
agent (the "Transfer Agent") for the Capital Securities.
Registration of transfers or exchanges of Capital Securities will be
effected without charge by or on behalf of the Trust, but upon payment (with the
giving of such indemnity as the Trust or Transamerica may require) in respect of
any tax or other government charges which may be imposed in relation to it.
In the event of any redemption of the Capital Securities in part, the Trust
shall not be required to (i) issue, register the transfer of or exchange any
Capital Security during a period beginning at the opening of business 15 days
before any selection for redemption of the Capital Securities and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all holders of the Capital Securities
to be so redeemed or (ii) register the transfer of or exchange any Capital
Securities so selected for redemption, in whole or in part, except for the
unredeemed portion of any Certificated Securities being redeemed in part.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
The Institutional Trustee, prior to the occurrence of a Declaration Event
of Default and after the curing of any Declaration Event of Default that may
have occurred, undertakes to perform only such duties as are specifically set
forth in the Declaration and, after a Declaration Event of Default, shall
exercise such of the rights and powers vested in it by the Declaration, and use
the same degree of care and skill in their exercise, as a prudent individual
would exercise or use in the conduct of his or her own affairs. Subject to such
provisions, the Institutional Trustee is under no obligation to exercise any of
the powers vested in it by the Declaration at the request of any holder of
Capital Securities, unless offered reasonable indemnity by such holder against
the costs, expenses and liabilities which might be incurred thereby. The holders
of Capital Securities will not be required to offer such indemnity in the event
such holders, by exercising their voting rights, direct the
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Institutional Trustee to take any action it is empowered to take under the
Declaration following a Declaration Event of Default. The Institutional Trustee
also serves as Guarantee Trustee and the Indenture Trustee.
Whenever the Institutional Trustee in the exercise of its rights or powers
or the performance of its duties under the Declaration shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or taking
any other action thereunder, the Institutional Trustee (i) may request
instructions from the holders of the Capital Securities which instructions may
only be given by the holders of a majority, or such other proportion, in
liquidation amount of the Capital Securities as would be entitled to direct the
Institutional Trustee under the terms of such Capital Securities in respect of
such remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in accordance with
such instructions.
Transamerica and certain of its subsidiaries maintain a banking
relationship with the Institutional Trustee in the ordinary course of their
business.
GOVERNING LAW
The Declaration and the Capital Securities will be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to conflict of laws principles.
MISCELLANEOUS
The Administrators, the Institutional Trustee and the holders of a majority
in aggregate liquidation amount of the Common Securities are authorized and
directed to operate the Trust in such a way so that the Trust will not be
required to register as an "investment company" under the 1940 Act nor be
characterized as other than a grantor trust for United States federal income tax
purposes. Transamerica has agreed to conduct its affairs so that the
Subordinated Debt Securities will be treated as indebtedness of Transamerica for
United States federal income tax purposes. In this connection, the Institutional
Trustee and the holders of a majority in aggregate liquidation amount of Common
Securities are authorized to take any action, not inconsistent with applicable
law or the Declaration that the Institutional Trustee and the holders of a
majority in aggregate liquidation amount of Common Securities determine in their
discretion to be necessary or desirable to achieve such end, even if such action
adversely affects the interests of the holders of the Capital Securities.
Holders of the Capital Securities have no preemptive rights.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which
has been executed and delivered by Transamerica for the benefit of the holders
from time to time of the Capital Securities. The Guarantee will apply to the New
Capital Securities. The First National Bank of Chicago is acting as trustee (the
"Guarantee Trustee") under the Guarantee. The terms of the Guarantee will be
those set forth in the Guarantee and those made part of such Guarantee by the
Trust Indenture Act. The Guarantee has been qualified under the Trust Indenture
Act. This summary of the material terms of the Guarantee 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 and the Trust Indenture Act. The
Guarantee will be held by the Guarantee Trustee for the benefit of the holders
of the Capital Securities.
GENERAL
Pursuant to the Guarantee, Transamerica has irrevocably and unconditionally
agreed, to the extent set forth therein, to pay in full, to the holders of the
Capital Securities, the Guarantee Payments (as defined herein) (except to the
extent paid by the Trust), as and when due, regardless of any defense, right of
set-off or counterclaim which the Trust may have or assert. The following
payments with respect to the Capital Securities, to the extent not paid by the
Trust (the "Guarantee Payments"), will be subject to the Guarantee (without
duplication): (i) any accrued and unpaid distributions which are required to be
paid on the Capital Securities, to the extent the Trust shall have funds
available therefor; (ii) the Redemption Price, to the extent
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the Trust has funds available therefor, with respect to any Capital Securities
called for redemption by the Trust; and (iii) upon a voluntary or involuntary
dissolution, liquidation, winding-up or termination of the Trust (other than in
connection with the distribution of Subordinated Debt Securities to the holders
of the Capital Securities), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid distributions on such Capital Securities to
the date of payment, to the extent the Trust has funds available therefor, and
(b) the amount of assets of the Trust remaining available for distribution to
holders of such Capital Securities in liquidation of the Trust. Transamerica's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by Transamerica to the holders of Capital Securities or by
causing the Trust to pay such amounts to such holders.
The Guarantee will not apply to any payment of distributions or other
payments in respect of the Capital Securities except to the extent the Trust
shall have funds available therefor, which funds will not be available except to
the extent Transamerica has made payments of interest or principal or other
payments on the Subordinated Debt Securities. See "Description of the
Subordinated Debt Securities -- Certain Covenants." The Guarantee, when taken
together with Transamerica's obligations under the Subordinated Debt Securities,
the Declaration and the Indenture, including its obligations to pay costs,
expenses, debts, liabilities and other obligations of the Trust (other than with
respect to the Trust Securities), will provide a full and unconditional
guarantee on a subordinated basis by Transamerica of payments due on the Capital
Securities.
Because the Guarantee is a guarantee of payment and not of collection,
holders of the Capital Securities may proceed directly against Transamerica as
guarantor, rather than having to proceed against the Trust before attempting to
collect from Transamerica, and Transamerica waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against Transamerica. Such obligations will not be
discharged except by payment of the Guarantee Payments in full. The Guarantee
will be deposited with the Guarantee Trustee to be held for the benefit of the
holders of Capital Securities. Except as otherwise noted herein, the Guarantee
Trustee has the right to enforce the Guarantee on behalf of the holders of the
Capital Securities.
Transamerica has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Trust with respect to the Common Securities
(the "Common Securities Guarantee") to the same extent as the Guarantee, except
that upon a Declaration Event of Default, holders of Capital Securities shall
have priority over holders of the Common Securities with respect to payments
made by Transamerica on or in respect of the Trust Securities under the
Guarantee and the Common Securities Guarantee.
CERTAIN COVENANTS OF TRANSAMERICA UNDER THE GUARANTEE
In the Guarantee, Transamerica has covenanted that so long as any Capital
Securities remain outstanding, during any Extension Period or if Transamerica
shall fail to perform any of its payment or other obligations under such
Guarantee or if there shall have occurred and be continuing any event that would
constitute a Declaration Event of Default, then (i) Transamerica shall not
declare or pay any dividend on, make a distribution with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of Transamerica's
capital stock or rights to acquire such capital stock (other than (a) purchases
or acquisitions of shares of any such capital stock or rights to acquire such
capital stock in connection with the satisfaction by Transamerica of its
obligations under any employee benefit plans, (b) as a result of a
reclassification of Transamerica's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of
Transamerica's capital stock or rights to acquire such capital stock for another
class or series of Transamerica's capital stock or rights to acquire such
capital stock, (c) the purchase of fractional interests in shares of
Transamerica's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged, or (d)
dividends and distributions made on Transamerica's capital stock or rights to
acquire such capital stock with Transamerica's capital stock or rights to
acquire such capital stock), or make any guarantee payments with respect to the
foregoing and (ii) Transamerica shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by Transamerica that rank pari passu with or junior to the
Subordinated Debt Securities.
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MODIFICATION OF THE GUARANTEE; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Capital Securities in any material respect (in which case no vote
of such holders will be required), the Guarantee may be amended only with the
prior approval of the holders of not less than a majority in liquidation amount
of the outstanding Capital Securities. 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 Capital Securities then outstanding.
TERMINATION
The Guarantee will terminate as to the Capital Securities (i) upon full
payment of the Redemption Price of all Capital Securities, (ii) upon
distribution of the Subordinated Debt Securities to the holders of the Capital
Securities, or (iii) upon full payment of the amounts payable in accordance with
the Declaration upon Liquidation of the Trust. The Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of Capital Securities must restore payment of any sums paid under the Capital
Securities or the Guarantee.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of
Transamerica to perform any of its payment or other obligations thereunder.
The holders of a majority in liquidation amount of the Capital Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of the Guarantee or
to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under the Guarantee. A holder of record of the Capital Securities may
institute a legal proceeding directly against Transamerica to enforce the
Guarantee Trustee's rights under the Guarantee, without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. Pursuant to the Guarantee, Transamerica will waive any right or remedy
to require that any action be brought first against the Trust or any other
person or entity before proceeding directly against Transamerica.
STATUS OF THE GUARANTEE
Transamerica's obligations under the Guarantee are subordinate and junior
in right of payment to all present and future Senior Indebtedness of
Transamerica and are also effectively subordinated to claims of creditors of
Transamerica's subsidiaries. The Guarantee does not limit the aggregate amount
of Senior Indebtedness that may be issued by Transamerica. The terms of the
Capital Securities provide that each holder of Capital Securities issued by the
Trust by acceptance thereof agrees to the subordination provisions and other
terms of the Guarantee relating thereto.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of an event of default with
respect to the Guarantee, undertakes to perform only such duties as are
specifically set forth in the Guarantee and, after an event of default, shall
exercise such of the rights and powers vested in it by the Guarantee, and use
the same degree of care and skill in their exercise, as a prudent individual
would exercise or use in the conduct of his or her own affairs. Subject to such
provisions, the Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by a Guarantee at the request of any holder of Capital
Securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby.
Transamerica and certain of its subsidiaries maintain a banking
relationship with the Guarantee Trustee in the ordinary course of their
business.
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GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York, without regard to conflict of laws principles.
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Set forth below is a description of the principal terms of the Subordinated
Debt Securities. The following description does not purport to be complete and
is subject to, and is qualified in its entirety by reference to, the description
in the Indenture, dated as of December 5, 1996 (the "Base Indenture"), among
Transamerica and The First National Bank of Chicago, as trustee (the "Indenture
Trustee"), as supplemented by a Second Supplemental Indenture to be dated as of
November 14, 1997 (the Base Indenture, as so supplemented, the "Indenture"). The
terms of the Indenture are those set forth in the Indenture and those made part
thereof by the Trust Indenture Act. The Indenture, by its terms, requires
Transamerica and the Indenture Trustee to comply with the Trust Indenture Act.
The Indenture has been qualified under the Trust Indenture Act. This summary of
the material terms of the Indenture 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 and the Trust Indenture Act. Certain capitalized
terms used herein are defined in the Indenture.
The Outstanding Debentures II and the Outstanding Debentures III were
issued under the Base Indenture, as supplemented by a First Supplemental
Indenture, dated as of December 5, 1996.
Under certain circumstances, the Subordinated Debt Securities may be
distributed to the holders of the Trust Securities in Liquidation of the Trust.
See "Description of the Capital Securities -- Liquidation Distribution Upon
Dissolution."
GENERAL
Concurrently with the issuance of the Capital Securities, the Trust
invested the proceeds thereof, together with the consideration paid by
Transamerica for the Common Securities, in the Old Subordinated Debt Securities
issued by Transamerica. The Old Subordinated Debt Securities were, and the New
Subordinated Debt Securities exchanged for the Old Subordinated Debt Securities
under the Exchange Offer will be, issued as unsecured debt under the Indenture.
The Subordinated Debt Securities will be limited to an amount equal to the sum
of the aggregate stated liquidation amount of the Trust Securities.
The Subordinated Debt Securities are not subject to a sinking fund
provision. The entire principal amount of the Subordinated Debt Securities will
mature and become due and payable, together with any accrued and unpaid interest
thereon including Compounded Interest (as defined herein) and Additional
Interest (as defined herein), if any, on November 15, 2037.
If the Subordinated Debt Securities are distributed to holders of Capital
Securities in liquidation of such holders' interests in the Trust, the
Subordinated Debt Securities will, with respect to the Capital Securities held
as a Global Certificate, initially be issued as a Global Security (as defined
herein) having an aggregate principal amount equal to the stated liquidation
amount of such Capital Securities and, with respect to such Capital Securities
held as Certificated Securities, will initially be represented by such
certificates and to have an aggregate principal amount equal to the stated
liquidation amount of such Capital Securities. As described herein, under
certain limited circumstances, Subordinated Debt Securities may be issued in
certificated form in exchange for a Global Security. See "-- Book-Entry And
Settlement" below. Subordinated Debt Securities represented by a Global Security
will be issued in certificated form upon presentation for transfer or
reissuance. Payments on Subordinated Debt Securities issued as a Global Security
will be made to DTC, a successor depositary or, in the event that no depositary
is used, to a paying agent for the Subordinated Debt Securities. In the event
Subordinated Debt Securities are issued in certificated form, principal and
interest will be payable, the transfer of the Subordinated Debt Securities will
be registrable and Subordinated Debt Securities will be exchangeable for
Subordinated Debt Securities of other denominations of a like aggregate
principal amount at the corporate trust office of the Indenture Trustee in New
York, New York; provided that payment of interest may be made at the option of
Transamerica by check mailed to the address of the holder
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entitled thereto or by wire transfer to an account appropriately designated by
the holder entitled thereto. Notwithstanding the foregoing, so long as the
holder of any Subordinated Debt Securities is the Institutional Trustee, the
payment of principal of and interest on the Subordinated Debt Securities held by
the Institutional Trustee will be made by transfer of immediately available
funds at such place and to such account as may be designated by the
Institutional Trustee.
The Indenture does not contain provisions that afford holders of the
Subordinated Debt Securities protection in the event of a highly leveraged
transaction or other similar transaction involving Transamerica that may
adversely affect such holders.
SUBORDINATION
The Indenture provides that the Subordinated Debt Securities are
subordinated and junior in right of payment to all present and future Senior
Indebtedness of Transamerica. No payment of principal (including redemption
payments) of or interest on the Subordinated Debt Securities may be made (in
cash, property, securities, by set-off or otherwise) if (i) any Senior
Indebtedness of Transamerica is not paid when due and any applicable grace
period with respect to a payment default under such Senior Indebtedness has
ended and such default has not been cured or waived or ceased to exist or (ii)
the maturity of any Senior Indebtedness of Transamerica 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, premium, if any, and interest due or to become
due on all Senior Indebtedness of Transamerica must be paid in full before the
holders of Subordinated Debt Securities are entitled to receive or retain any
payment. Upon satisfaction of all claims of all Senior Indebtedness then
outstanding, the rights of the holders of the Subordinated Debt Securities will
be subrogated to the rights of the holders of Senior Indebtedness of
Transamerica to receive payments or distributions applicable to Senior
Indebtedness until all amounts owing on the Subordinated Debt Securities are
paid in full.
The term "Senior Indebtedness" means, with respect to Transamerica (i) the
principal, premium, if any, and interest in respect of (a) indebtedness of
Transamerica for money borrowed and (b) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by Transamerica, (ii) all
capital lease obligations of Transamerica, (iii) all obligations of Transamerica
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of Transamerica and all obligations of Transamerica under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of Transamerica for the
reimbursement on any letter of credit, any banker's acceptance, any security
purchase facility, any repurchase agreement or similar arrangement, any interest
rate swap, any other hedging arrangement, any obligation under options or any
similar credit or other transaction, (v) all obligations of the type referred to
in clauses (i) through (iv) above of other persons for the payment of which
Transamerica is responsible or liable as obligor, guarantor or otherwise and
(vi) all obligations of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of Transamerica
(whether or not such obligation is assumed by Transamerica), except for (a) any
such indebtedness that contains express terms, or is issued under a deed,
indenture or other instrument that contains express terms, providing that it is
subordinate to or ranks pari passu with the Subordinated Debt Securities, (b)
any indebtedness between or among Transamerica or any affiliate of Transamerica
and (c) all other debt securities and guarantees in respect of those debt
securities, in any case issued by Transamerica to (1) any other Delaware
business trust, or other similar trust, of which Transamerica is the sponsor,
created for the purpose of issuing capital securities in connection with the
issuance of debt securities under the Base Indenture or a trustee of such trust
and (2) any other trust, or a trustee of such trust, partnership or other entity
affiliated with Transamerica that is a financing vehicle of Transamerica (a
"financing entity") in connection with the issuance by such financing entity of
preferred securities or capital securities of a similar nature to the Capital
Securities or of other securities that rank pari passu with, or junior to, the
Capital Securities (including, without limitation, the Outstanding Subordinated
Debentures). The Outstanding Subordinated Debentures shall rank pari passu with
the Subordinated Debt Securities. Such Senior
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Indebtedness shall continue to be Senior Indebtedness and be entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness.
The Indenture does not limit the aggregate amount of Senior Indebtedness
that may be issued by Transamerica or the aggregate amount that may be incurred
by its subsidiaries. As of December 31, 1997, Senior Indebtedness of
Transamerica aggregated $404.8 million (excluding indebtedness of subsidiaries
of Transamerica guaranteed by Transamerica) and the indebtedness of
Transamerica's subsidiaries aggregated $5.8 billion.
REDEMPTION
The Subordinated Debt Securities may be redeemed by Transamerica at any
time upon the occurrence of a Tax Event and receipt of a Redemption Tax Opinion
as described under "Description of the Capital Securities -- Redemption," 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
to the redemption date, but are not otherwise redeemable at the option of
Transamerica prior to maturity.
INTEREST
The Subordinated Debt Securities bear interest at the rate of 7 5/8% per
annum from the original date of issuance, payable semiannually in arrears on
November 15 and May 15 of each year (each an "Interest Payment Date"),
commencing May 15, 1998, to the persons in whose names the Subordinated Debt
Securities are registered, subject to certain exceptions, at the close of
business on the Business Day next preceding such Interest Payment Date. The term
"interest" as used herein, as such term relates to the Subordinated Debt
Securities, includes any Compounded Interest or Additional Interest or any
Special Payment payable unless otherwise stated. At any time when Subordinated
Debt Securities are not held solely as Global Securities, Transamerica shall
select relevant record dates, which shall be 15 days prior to the relevant
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. The amount of interest payable for
any period shorter than a full semiannual period for which interest is computed
will be computed on the basis of the actual number of days elapsed per 30-day
month. In the event that any date on which interest is payable on the
Subordinated Debt Securities is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
with the same force and effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as Transamerica is not in default in the payment of interest that
has become due and payable on the Subordinated Debt Securities and no accrued
interest from a prior completed Extension Period is unpaid, Transamerica shall
have the right to defer payments of interest on the Subordinated Debt Securities
by extending the interest payment period, at any time and from time to time, for
one or more Extension Periods, each not exceeding 10 consecutive semiannual
periods and none extending beyond the maturity date of the Subordinated Debt
Securities, and on the date on which each such Extension Period ends, or, if
such date is not an Interest Payment Date on the immediately following Interest
Payment Date, Transamerica shall pay all interest then accrued and unpaid,
together with interest thereon at an annual rate of 7 5/8% compounded
semiannually, to the extent permitted by applicable law. During any Extension
Period (i) Transamerica shall not declare or pay dividends on, make any
distribution with respect to, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock or rights to
acquire such capital stock (other than (a) purchases or acquisitions of shares
of any such capital stock or rights to acquire such capital stock in connection
with the satisfaction by Transamerica of its obligations under any employee
benefit plans, (b) as a result of a reclassification of Transamerica's capital
stock or rights to acquire such capital stock or the exchange or conversion of
one class or series of Transamerica's capital stock or rights to acquire such
capital stock for another class or series of Transamerica's capital stock or
rights to acquire such capital stock, (c) the
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purchase of fractional interests in shares of Transamerica's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged or (d) dividends and distributions made on
Transamerica's capital stock or rights to acquire such capital stock with
Transamerica's capital stock or rights to acquire such capital stock), or make
any guarantee payments with respect to the foregoing, and (ii) Transamerica
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities issued by Transamerica that rank
pari passu with or junior to the Subordinated Debt Securities. Prior to the
termination of any such Extension Period, Transamerica may further defer
payments of interest by extending the interest payment period; provided,
however, that each such Extension Period, including all such previous and
further extensions thereof, may not exceed 10 consecutive semiannual periods or
extend beyond the maturity date of such Subordinated Debt Securities. Upon the
termination of any Extension Period and the payment of all amounts then due,
Transamerica may commence a new Extension Period, subject to the terms set forth
herein. No interest during an Extension Period, except on the date on which such
Extension Period terminates (or if such date is not an Interest Payment Date, on
the immediately following Interest Payment Date), shall be due and payable.
Transamerica has no present intention of exercising its right to defer payments
of interest on the Subordinated Debt Securities.
If the Institutional Trustee shall be the sole holder of the Subordinated
Debt Securities, Transamerica shall give the Administrators, the Institutional
Trustee and the Indenture Trustee notice of its initiation of any Extension
Period one Business Day prior to the earlier of (i) the next succeeding
Distribution Payment Date or (ii) the date the Administrators are required to
give notice to holders of the Capital Securities of the record date or the
Distribution Payment Date, in each case with respect to distributions on the
Trust Securities the payment of which is being deferred. An Administrator shall
give notice of Transamerica's initiation of any Extension Period to the holders
of the Capital Securities. If the Institutional Trustee shall not be the sole
holder of the Subordinated Debt Securities, Transamerica shall give the holders
of the Subordinated Debt Securities notice of its initiation of such Extension
Period at least 10 Business Days prior to the earlier of (i) the next succeeding
Interest Payment Date or (ii) the date upon which Transamerica is required to
give notice to holders of such Subordinated Debt Securities of the record date
or Interest Payment Date, in each case, with respect to interest payments the
payment of which is being deferred.
ADDITIONAL INTEREST
If at any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
such case, Transamerica will pay as additional interest ("Additional Interest")
on the Subordinated Debt Securities such additional amounts as shall be required
so that the net amounts received and retained by the Trust after paying any such
taxes, duties, assessments or other governmental charges will equal the amounts
the Trust and the Institutional Trustee would have received had no such taxes,
duties, assessments or other governmental charges been imposed.
CERTAIN COVENANTS
If (i) there shall have occurred and be continuing any event that would
constitute an Indenture Event of Default (as defined herein), (ii) Transamerica
shall have failed to perform its payment or any other obligations under the
Guarantee or the Common Securities Guarantee, or (iii) Transamerica shall have
given notice of its election to defer payments of interest on the Subordinated
Debt Securities by extending the interest payment period as provided in the
Indenture and such period, or any extension thereof, shall be continuing, then
(a) Transamerica shall not declare or pay any dividend on, make a distribution
with respect to, or redeem, purchase or make a liquidation payment with respect
to, any of its capital stock or rights to acquire such capital stock (other than
(1) purchases or acquisitions of shares of any such capital stock or rights to
acquire such capital stock in connection with the satisfaction by Transamerica
of its obligations under any employee benefit plans, (2) as a result of a
reclassification of Transamerica's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of
Transamerica's capital stock or rights to acquire such capital stock for another
class or series of Transamerica's capital stock or rights to acquire such
capital stock, (3) the purchase of fractional interests in shares of
Transamerica's capital stock
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pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged or (4) dividends and distributions made on
Transamerica's capital stock or rights to acquire such capital stock with
Transamerica's capital stock or rights to acquire such capital stock), or make
any guarantee payments (other than payments under the Guarantee and the Common
Securities Guarantee) with respect to the foregoing, and (b) Transamerica shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by Transamerica that rank pari
passu with or junior to the Subordinated Debt Securities.
For so long as the Trust Securities remain outstanding, Transamerica has
agreed to maintain 100% ownership of the Common Securities; provided, however,
that any permitted successor of Transamerica under the Indenture may succeed to
Transamerica's ownership of such Common Securities. The Administrators and the
holder of a majority in liquidation amount of the Common Securities each has
agreed to use their respective reasonable efforts to cause the Trust (a) to
remain a statutory business trust, except in connection with the distribution of
Subordinated Debt Securities to the holders of Trust Securities in Liquidation
of the Trust, the redemption of all of the Trust Securities or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and (b)
to otherwise continue to be classified as a grantor trust for United States
federal income tax purposes and (c) to use its reasonable efforts to cause each
holder of Trust Securities to be treated as owning an undivided beneficial
interest in the Subordinated Debt Securities.
LIMITATION ON MERGERS AND SALES OF ASSETS
Nothing contained in the Indenture or in the Subordinated Debt Securities
shall prevent any consolidation or merger of Transamerica with or into any other
corporation (whether or not affiliated with Transamerica) or successive
consolidations or mergers in which Transamerica or its successor or successors
shall be a party, or shall prevent any sale, conveyance, transfer or other
disposition of the property of Transamerica or its successor or successors as an
entirety, or substantially as an entirety, to any other corporation (whether or
not affiliated with Transamerica or its successor or successors) authorized to
acquire and operate the same; provided, however, that Transamerica shall, upon
any such consolidation, merger, sale, conveyance, transfer or other disposition,
cause the obligations of Transamerica under the Subordinated Debt Securities and
under the Indenture to be expressly assumed by supplemental indenture
satisfactory in form to the Indenture Trustee and executed and delivered to the
Indenture Trustee by the successor entity formed by such consolidation or into
which Transamerica shall have been merged or which shall have acquired such
property. Upon execution and delivery of such supplemental indenture to the
Indenture Trustee, such successor entity will be substituted under the Indenture
and the Subordinated Debt Securities and thereupon Transamerica will be relieved
of any further liability or obligation thereunder.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The Indenture provides that any one or more of the following described
events which has occurred and is continuing with respect to the Subordinated
Debt Securities constitutes an "Event of Default" with respect to the
Subordinated Debt Securities (an "Indenture Event of Default"):
(i) default for 30 days in payment of any interest on the Subordinated
Debt Securities, including any Compounded Interest, Additional Interest or
Special Payments in respect thereof, when due; provided, however, that a
valid extension of the interest payment period by Transamerica shall not
constitute a default in the payment of interest for this purpose;
(ii) default in payment of principal on the Subordinated Debt
Securities when due either at maturity, upon redemption, by declaration or
otherwise; provided, however, that a valid extension of the maturity of
such Subordinated Debt Securities shall not constitute a default for this
purpose;
(iii) default by Transamerica in the performance of any other of the
covenants or agreements in the Indenture which shall not have been remedied
for a period of 90 days after notice;
(iv) default resulting in acceleration of other indebtedness of
Transamerica for borrowed money where the aggregate principal amount so
accelerated exceeds $50 million and such acceleration is not
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rescinded or annulled within 30 days after the written notice thereof to
Transamerica by the Trustee or to Transamerica and the Trustee by the
holders of 25% in aggregate principal amount of the Subordinated Debt
Securities then outstanding;
(v) certain events of bankruptcy, insolvency or reorganization of
Transamerica; or
(vi) the Liquidation of the Trust, except in connection with the
distribution of the Subordinated Debt Securities to the holders of Trust
Securities in Liquidation of the Trust, the redemption of all of the Trust
Securities, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
The Indenture provides that the Indenture Trustee may, under certain
circumstances, withhold from the holders notice of default with respect to the
Subordinated Debt Securities (except for any default in payment of principal of
or interest on the Subordinated Debt Securities) if the Indenture Trustee
considers it in the interest of such holders to do so.
The Indenture provides that if an Indenture Event of Default shall have
occurred and be continuing, either the Indenture Trustee or the holders of not
less than 25% in aggregate principal amount of the Subordinated Debt Securities
then outstanding may declare the principal of and accrued interest on all
Subordinated Debt Securities to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be waived
(except defaults in payment of principal of or interest on the Subordinated Debt
Securities, which must be cured or paid in full) by the holders of a majority in
aggregate principal amount of the Subordinated Debt Securities (or of all
series, as the case may be) then outstanding.
No holder of any Subordinated Debt Security shall have any right to
institute any suit, action or proceeding for any remedy under the Indenture,
unless such holder previously shall have given to the Indenture Trustee written
notice of a continuing Indenture Event of Default and unless the holders of not
less than 25% in aggregate principal amount of the Subordinated Debt Securities
then outstanding shall have given the Indenture Trustee a written request to
institute such action, suit or proceeding and shall have offered to the
Indenture Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred thereby, and the Indenture 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; provided that no
holder of Subordinated Debt Securities shall have any right to prejudice the
rights of any other holder of Subordinated Debt Securities, obtain priority or
preference over any other such holder or enforce any right under the Indenture
except as provided in the Indenture and for the equal, ratable and common
benefit of all holders of the Subordinated Debt Securities. Notwithstanding the
foregoing, the right of any holder of any Subordinated Debt Security to receive
payment of the principal of, and interest on such Subordinated Debt Security
when due, or to institute suit for the enforcement of any such payment, shall
not be impaired or affected without the consent of such holder.
The holders of a majority in aggregate principal amount of the affected and
then outstanding Subordinated Debt Securities and debt securities of any other
series issued under the Base Indenture (including, without limitation,
Outstanding Debentures II and Outstanding Debentures III) (voting as one class),
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to, or exercising any trust or power
conferred on, the Indenture Trustee under the Indenture; provided, however,
that, except under certain circumstances, the Indenture Trustee may decline to
follow any such direction if the Indenture Trustee determines that the action so
directed would be unjustly prejudicial to holders not taking part in such
direction or would be unlawful or would involve the Indenture Trustee in
personal liability. The Indenture requires the annual filing by Transamerica
with the Indenture Trustee of a certificate as to the absence or occurrence of
certain defaults under the Indenture.
An Indenture Event of Default also constitutes a Declaration Event of
Default. The holders of Capital Securities in certain circumstances have the
right to direct the Institutional Trustee to exercise its rights as the holder
of the Subordinated Debt Securities. See "Description of the Capital
Securities -- Declaration Events of Default" and "-- Voting Rights."
Notwithstanding the foregoing, if an Indenture Event of Default has
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occurred and is continuing and such event is attributable to the failure of
Transamerica to pay principal of or interest on the Subordinated Debt Securities
on the respective dates such principal or interest is payable, as deferred, if
applicable (or in the case of redemption, on the redemption date), Transamerica
acknowledges that a holder of record of Capital Securities may institute a
Direct Action for payment, on or after the respective due dates specified in the
Subordinated Debt Securities, to such holder directly of the principal of or
interest on Subordinated Debt Securities having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities of such
holder. Notwithstanding any payments made to such holder of Capital Securities
by Transamerica in connection with a Direct Action, Transamerica shall remain
obligated to pay the principal of or interest on the Subordinated Debt
Securities, and Transamerica, as holder of the Common Securities, shall be
subrogated to the rights of such holder of such Capital Securities under the
Declaration to the extent of any payments made by Transamerica to such holder in
any Direct Action; provided, however, that no such subrogation right may be
exercised so long as a Declaration Event of Default has occurred and is
continuing. Except to the extent described above under "Description of the
Capital Securities -- Declaration Events of Default" and "-- Voting Rights," the
holders of Capital Securities will not be able to exercise directly any other
remedy available to the holders of the Subordinated Debt Securities.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting Transamerica and the Indenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of the affected and then outstanding Subordinated Debt
Securities and debt securities of any other series issued under the Base
Indenture (including, without limitation, Outstanding Debentures II and
Outstanding Debentures III) (voting as one class), to modify the Indenture or
any supplemental indenture or the rights of the holders of the Subordinated Debt
Securities; provided, however, that no such modification shall, without the
consent of the holder of each Subordinated Debt Security so affected, (i) extend
the fixed maturity of any Subordinated Debt Security, or reduce the principal
amount thereof or any redemption premium thereon, or reduce the rate or extend
the time of payment of interest thereon, or make the principal of, or interest
on, the Subordinated Debt Securities payable in any coin or currency other than
that provided in the Subordinated Debt Securities, or impair or affect the right
of any holder of Subordinated Debt Securities to institute suit for the payment
thereof, or (ii) reduce the aforesaid percentage of Subordinated Debt Securities
the consent of the holders of which is required for any such modification.
Transamerica and the Indenture Trustee may enter into supplemental
indentures, without the consent of any holder of the Subordinated Debt
Securities (i) to evidence the succession of another corporation to Transamerica
and the assumption by the successor corporation of the covenants, agreements and
obligations of Transamerica pursuant to the Indenture, (ii) to add to the
covenants of Transamerica such further covenants, restrictions or conditions for
the protection of the holders of the Subordinated Debt Securities and to make
the occurrence, or the occurrence and continuance (including any or no grace
periods), of a default in any of such additional covenants, restrictions or
conditions a default or an Indenture Event of Default permitting the enforcement
of remedies provided in the Indenture, (iii) to cure any ambiguity or to correct
or supplement any provision contained in the Indenture or in any supplemental
indenture which may be defective or inconsistent with any other provision
contained therein or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under the Indenture,
provided that any such action shall not adversely affect the interests of the
holders of the Subordinated Debt Securities, (iv) to add to, delete from, or
revise the terms of Subordinated Debt Securities to provide for transfer
procedures and restrictions substantially similar to those applicable to the
Capital Securities (for purposes of assuring that no registration of
Subordinated Debt Securities is required under the Securities Act), (v) to
evidence and provide for the acceptance of appointment under the Indenture by a
successor Indenture Trustee with respect to the Subordinated Debt Securities and
to add to or change any of the provisions of the Indenture as shall be necessary
to provide for or facilitate the administration of the Trust under the Indenture
by more than one Indenture Trustee, pursuant to the Indenture, (vi) to make any
change that does not adversely affect the rights of any holder of any
Subordinated Debt Security in any material respect, or (vii) to provide for the
issuance, and establish the form and terms and conditions, of the Subordinated
Debt Securities, to establish
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the form of any certifications required to be furnished pursuant to the terms of
the Indenture or the Subordinated Debt Securities or to add to the rights of the
holders of the Subordinated Debt Securities.
DEFEASANCE AND DISCHARGE
The Indenture provides that Transamerica, at Transamerica's option (i) will
be discharged from any and all obligations in respect of the Subordinated Debt
Securities (except for certain obligations to register the transfer or exchange
of Subordinated Debt Securities, replace stolen, lost or mutilated Subordinated
Debt Securities, maintain paying agencies and hold moneys for payment in trust)
or (ii) need not comply, with respect to the Subordinated Debt Securities, with
certain restrictive covenants of the Indenture (including those described under
"-- Certain Covenants" above), in each case if Transamerica deposits, in trust
with the Indenture Trustee or the Defeasance Agent (as defined in the
Indenture), money or U.S. Government Obligations (as defined in the Indenture)
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
all the principal of, and interest on, the Subordinated Debt Securities on the
dates such payments are due in accordance with the terms of the Subordinated
Debt Securities. To exercise any such option, Transamerica is required to
deliver to the Indenture Trustee and the Defeasance Agent, if any, an opinion of
counsel to the effect that (a) the deposit and related defeasance would not
cause the holders of the Subordinated Debt Securities to recognize income, gain
or loss for federal income tax purposes and, in the case of a discharge pursuant
to clause (i), such opinion shall be accompanied by a private letter ruling to
such effect received from the United States Internal Revenue Service or a
revenue ruling pertaining to a comparable form of transaction to such effect
published by the United States Internal Revenue Service, and (b) if listed on
any national securities exchange, the Subordinated Debt Securities would not be
delisted from such exchange as a result of the exercise of such option.
THE INDENTURE TRUSTEE
Transamerica and certain of its subsidiaries maintain a banking
relationship with the Indenture Trustee in the ordinary course of their
business.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Capital Securities in connection with the
Liquidation of the Trust, the Subordinated Debt Securities will, with respect to
such Capital Securities held as Global Certificates, initially be issued in the
form of one or more global certificates (each a "Global Security") registered in
the name of the Depositary or its nominee. Except under the limited
circumstances described below, Subordinated Debt Securities represented by a
Global Security will not be exchangeable for, and will not otherwise be issuable
as, Subordinated Debt Securities in certificated form. The Global Securities
described above may not be transferred except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or to a successor depositary or its nominee.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated form. Such
laws may impair the ability to transfer beneficial interests in such a Global
Security.
Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to receive physical delivery of Subordinated Debt
Securities in definitive form and will not be considered the holders thereof for
any purpose under the Indenture, and no Global Security representing
Subordinated Debt Securities shall be exchangeable, except for another Global
Security of like denomination and tenor to be registered in the name of the
Depositary or its nominee or to a successor Depositary or its nominee.
Accordingly, each Beneficial Owner must rely on the procedures of the Depositary
or 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.
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THE DEPOSITARY
If Subordinated Debt Securities are distributed to holders of Capital
Securities in liquidation of such holders' interests in the Trust, DTC will act
as securities depositary (the "Depositary") for the Subordinated Debt Securities
issued by the Trust with respect to Capital Securities held as Global
Certificates. For a description of DTC and the specific terms of the depositary
arrangements, see "Description of the Capital Securities -- Book-Entry Only
Issuance -- The Depository Trust Company." As of the date of this Prospectus,
the description herein of DTC's book-entry system and DTC's practices as they
relate to purchases, transfers, notices, redemptions and payments with respect
to the Capital Securities apply in all material respects to any debt obligations
represented by one or more Global Securities held by DTC. Transamerica may
appoint a successor to DTC or any successor depositary in the event DTC or such
successor depositary is unable or unwilling to continue as the Depositary for
the Global Securities.
None of Transamerica, the Trust, the Institutional Trustee, the Indenture
Trustee, any paying agent and any other agent of Transamerica, the Trust, the
Institutional Trustee or the Indenture 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 the Subordinated Debt
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Subordinated Debt Securities
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary notifies Transamerica that it is unwilling or unable to
continue as a depositary for such Global Security and no successor depositary
shall have been appointed within 90 days, (ii) the Depositary, at any time,
ceases to be a clearing agency registered under the Exchange Act at which time
the Depositary is required to be so registered to act as such depositary and no
successor depositary shall have been appointed within 90 days, (iii)
Transamerica, in its sole discretion, determines that such Global Security shall
be so exchangeable or (iv) there shall have occurred an Indenture Event of
Default. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Subordinated Debt Securities registered in
such names as the Depositary shall direct. It is expected that such instructions
will be based upon directions received by the Depositary from its Participants
with respect to ownership of beneficial interests in such Global Security.
RESTRICTIONS ON TRANSFER
The Old Subordinated Debt Securities were, and the new Subordinated Debt
Securities will be, issued and may be transferred only in blocks having an
aggregate principal amount of not less than $100,000 (and integral multiples of
$1,000 in excess thereof). Any such transfer of the Old Subordinated Debt
Securities or New Subordinated Debt Securities in a block having an aggregate
principal amount of less than $100,000 shall be deemed to be void and of no
legal effect whatsoever. Any such transferee shall be deemed not to be the
holder of such Subordinated Debt Securities for any purpose, including but not
limited to the receipt of payments on such Subordinated Debt Securities, and
such transferee shall be deemed to have no interest whatsoever in such
Subordinated Debt Securities.
GOVERNING LAW
The Indenture and the Subordinated Debt Securities will be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of laws principles.
MISCELLANEOUS
The Indenture provides that Transamerica will pay all fees and expenses
related to (i) the offering and sale of the Trust Securities and the
Subordinated Debt Securities, (ii) the organization, maintenance and dissolution
of the Trust, (iii) the retention of the Issuer Trustees and Administrators and
(iv) the enforcement by the Institutional Trustee of the rights of the holders
of the Capital Securities.
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Transamerica has the right at all times to assign any of its respective
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 of its obligations. 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. Except as otherwise
provided in "-- Limitation on Mergers and Sales of Assets," the Indenture
provides that it may not otherwise be assigned by the parties thereto.
EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED
DEBT SECURITIES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of the Trust is to issue
and sell the Trust Securities evidencing undivided beneficial interests in the
assets of the Trust, and to invest the proceeds from such issuance and sale in
the Subordinated Debt Securities issued by Transamerica in accordance with the
Trust Securities, to effect the Exchange Offer and to engage in certain other
limited activities described herein.
As long as payments of interest and other payments are made when due on the
Subordinated Debt Securities, such payments will be sufficient to cover
distributions and payments due on the Trust Securities because of the following
factors: (i) the aggregate principal amount of Subordinated Debt Securities will
be equal to the aggregate stated liquidation amount of the Trust Securities;
(ii) the interest rate and the interest and other payment dates on the
Subordinated Debt Securities will match the distribution rate and distribution
and other payment dates for the Trust Securities; (iii) Transamerica shall pay
all, and the Trust shall not be obligated to pay directly or indirectly any,
costs, expenses, debts, and obligations of the Trust (other than with respect to
the Trust Securities); and (iv) the Declaration further provides that the Issuer
Trustees shall not take any action or cause or permit the Trust to, among other
things, engage in any activity that is not consistent with the purposes of the
Trust.
Payments of distributions (to the extent funds therefor are available to
the Trust) and other payments due on the Capital Securities (to the extent funds
therefor are available to the Trust) are guaranteed by Transamerica as described
under "Description of the Guarantee." If Transamerica does not make payments on
the Subordinated Debt Securities, it is expected that the Trust will not have
sufficient funds to pay distributions on the Capital Securities. The Guarantee
will not apply to any payment of distributions or other payments in respect of
Capital Securities except to the extent that the Trust has funds available for
the payment of such amounts. The Guarantee will cover the payment of
distributions and other payments on the Capital Securities only if and to the
extent that Transamerica has made payments of principal of or interest on the
Subordinated Debt Securities held by the Trust as its sole assets. The
Guarantee, when taken together with Transamerica's obligations under the
Subordinated Debt Securities, the Declaration and the Indenture, including its
obligations to pay costs, expenses, debts and liabilities of the Trust (other
than with respect to the Trust Securities), provides a full and unconditional
guarantee on a subordinated basis by Transamerica of amounts due on the Capital
Securities.
If Transamerica fails to make interest or other payments on the
Subordinated Debt Securities when due (after giving effect to any Extension
Period), the Declaration provides a mechanism whereby the holders of the Capital
Securities, using the procedures described herein under "Description of the
Capital Securities -- Book-Entry Only Issuance -- The Depository Trust Company"
and "-- Voting Rights," may direct the Institutional Trustee to enforce its
rights under the Subordinated Debt Securities. If the Institutional Trustee
fails to enforce its rights under the Subordinated Debt Securities after a
majority in liquidation amount of the Capital Securities have so directed the
Institutional Trustee, a holder of record of the Capital Securities may, to the
fullest extent permitted by law, institute a legal proceeding directly against
Transamerica to enforce the Institutional Trustee's rights under the
Subordinated Debt Securities without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity. Notwithstanding
the foregoing, if a Declaration Event of Default has occurred and is continuing
and such event is attributable to the failure of Transamerica to pay interest or
principal on the Subordinated Debt Securities on the respective dates such
interest or principal is payable, as deferred, if applicable (or in the case of
redemption, on the redemption date), then a holder of record of the Capital
Securities may institute a Direct Action for payment on or after
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the respective due dates specified in the Subordinated Debt Securities. In
connection with such Direct Action, Transamerica, as the holder of the Common
Securities, will be subrogated to the rights of such holder of Capital
Securities under the Declaration to the extent of any payment made by
Transamerica to such holder of such Capital Securities in such Direct Action;
provided, however, that no such subrogation right may be exercised so long as a
Declaration Event of Default has occurred and is continuing.
Because Transamerica is a holding company, the Subordinated Debt Securities
and the Guarantee are effectively subordinated to all existing and future
liabilities, including trade payables, of Transamerica's subsidiaries, except to
the extent that Transamerica is a creditor of the subsidiaries recognized as
such. The Subordinated Debt Securities and the Guarantee are also subordinated
to all present and future Senior Indebtedness of Transamerica. See "Description
of the Subordinated Debt Securities -- Subordination."
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
In the opinion of Orrick, Herrington & Sutcliffe LLP, special counsel to
Transamerica ("Counsel"), the discussion that follows is a summary of certain of
the material United States federal income tax consequences of the Exchange Offer
and of the ownership and disposition of Capital Securities.
This summary is based on the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury regulations thereunder, and administrative and judicial
interpretations thereof, each as of the date hereof, all of which are subject to
change, possibly on a retroactive basis.
Except as otherwise stated, this summary deals only with a Capital Security
held as a capital asset by a holder that (i) purchased Capital Securities upon
original issuance at their initial offering price (an "Initial Holder") and (ii)
is a US Holder (as defined below). It does not deal with all aspects of United
States federal income taxation, nor with the particular United States federal
income tax (hereafter, "income tax") consequences that may be applicable to
certain classes of US Holders (such as banks, thrift institutions, real estate
investment trusts, regulated investment companies, insurance companies, brokers
and dealers in securities or currencies, other financial institutions,
tax-exempt organizations, persons holding Capital Securities as a position in a
"straddle," as part of a "synthetic security or hedge," as part of a "conversion
transaction" or as part of any other integrated investment, persons having a
functional currency other than the U.S. dollar and certain United States
expatriates). Further, this summary does not address (i) the income tax
consequences to shareholders in, or partners or beneficiaries of, a holder of
Capital Securities, (ii) the United States federal alternative minimum tax
consequences of the purchase, ownership or disposition of Capital Securities, or
(iii) any state, local or foreign tax consequences of the purchase, ownership or
disposition of Capital Securities.
A "US Holder" is a holder of Capital Securities that is a citizen or
individual resident (or is treated as a citizen or individual resident) of the
United States for income tax purposes, a corporation or partnership created or
organized (or treated as created or organized for income tax purposes) in or
under the laws of the United States or any political subdivision thereof, an
estate the income of which is includible in its gross income for income tax
purposes without regard to its source, or a trust if (i) a court within the
United States is able to exercise primary supervision over the administration of
the trust and (ii) one or more United States persons have the authority to
control all substantial decisions of the trust.
EXCHANGE OFFER
The exchange of an Old Capital Security for a New Capital Security pursuant
to the terms and conditions of the Exchange Offer should have no United States
federal income tax consequences. The New Capital Security received in exchange
for the Old Capital Security should be treated for United States federal income
tax purposes as a continuation of the exchanged Old Capital Security.
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US HOLDERS
CHARACTERIZATION OF THE TRUST
In connection with the issuance of the Capital Securities, Counsel has
rendered its opinion generally to the effect that, under then current law and
assuming full compliance with the terms of the Declaration (and other
documents), and based on certain assumptions and qualifications referenced in
the opinion, the Trust will be characterized for United States federal income
tax purposes as a grantor trust, and will not be characterized as an association
taxable as a corporation for such purposes. Accordingly, for income tax
purposes, each holder of Capital Securities generally will be considered the
owner of an undivided interest in the Subordinated Debt Securities, and each US
Holder will be required to include all income or gain recognized for income tax
purposes with respect to its allocable share of the Subordinated Debt Securities
on its own income tax return.
CHARACTERIZATION OF THE SUBORDINATED DEBT SECURITIES
In connection with the issuance of the Subordinated Debt Securities,
Counsel has rendered its opinion generally to the effect that, under then
current law and assuming full compliance with the terms of the Indenture (and
other documents), and based on certain assumptions and qualifications referenced
in the opinion, such Subordinated Debt Securities will be characterized for
income tax purposes as debt of Transamerica.
ORIGINAL ISSUE DISCOUNT
Under the terms of the Subordinated Debt Securities, Transamerica has the
option to defer payments of interest from time to time by extending the interest
payment period for a period not exceeding 10 consecutive semiannual periods, but
not beyond the maturity of such Subordinated Debt Securities. Recently issued
Treasury regulations under Section 1273 of the Code provide that debt
instruments like the Subordinated Debt Securities will not be considered issued
with OID by reason of Transamerica's option to defer payments of interest if the
likelihood of deferral is "remote."
Transamerica has concluded, and this discussion assumes, that, as of the
date of this Prospectus, the likelihood of exercise of that option is "remote"
within the meaning of the applicable regulations, in part because exercising
that option would prevent Transamerica from declaring dividends on its stock and
would prevent Transamerica from making any payments with respect to debt
securities that rank pari passu or junior to the Subordinated Debt Securities.
Therefore, the Subordinated Debt Securities should not be treated as issued with
OID by reason of Transamerica's deferral option. Rather, stated interest on the
Subordinated Debt Securities will generally be taxable to a US Holder, as
ordinary income, when paid or accrued in accordance with that holder's method of
accounting for income tax purposes. It should be noted, however, that these
regulations have not yet been addressed in any rulings or other interpretations
by the Internal Revenue Service (the "Service"). Accordingly, it is possible
that the Service could take a position contrary to the interpretation described
herein.
In the event Transamerica subsequently exercises its option to defer
payments of interest on the Subordinated Debt Securities, the Subordinated Debt
Securities would be treated as reissued for OID purposes and the sum of the
remaining interest payments on the Subordinated Debt Securities would thereafter
be treated as OID, which would accrue, and be includible in a US Holder's
taxable income, on an economic accrual basis (regardless of the US Holder's
method of accounting for income tax purposes) over the remaining term of the
Subordinated Debt Securities (including any period of interest deferral),
without regard to the timing of cash payments under the Subordinated Debt
Securities. The amount of OID that accrued in any period would generally
approximate the amount of interest that accrued on the Subordinated Debt
Securities in that period at the stated interest rate. Consequently, during any
period of interest deferral, US Holders will include OID in gross income in
advance of the receipt of cash, and a US Holder that disposes of a Capital
Security prior to the record date for payment of distributions on the
Subordinated Debt Securities following that period will be subject to income tax
on OID accrued through the date of disposition (and not previously included in
income), but will not receive cash from the Trust with respect to that OID.
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If Transamerica's option to defer payments of interest were not treated as
remote, the Subordinated Debt Securities would be treated as initially issued
with OID in an amount equal to the aggregate stated interest over the term of
the Subordinated Debt Securities (plus de minimis OID). That OID would generally
be includible in a US Holder's taxable income, over the term of the Subordinated
Debt Securities, on an economic accrual basis.
CHARACTERIZATION OF INCOME
Because the income underlying the Capital Securities will not be
characterized as dividends for income tax purposes, corporate holders of Capital
Securities will not be entitled to a dividends-received deduction for any income
recognized with respect to the Capital Securities.
MARKET DISCOUNT AND BOND PREMIUM
Holders of Capital Securities other than Initial Holders may be considered
to have acquired their undivided interests in the Subordinated Debt Securities
with market discount or acquisition premium (as each phrase is defined for
income tax purposes).
RECEIPT OF SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF TRUST
Under the circumstances described under the caption "Description of the
Capital Securities -- Liquidation Distribution Upon Dissolution," above, the
Subordinated Debt Securities may be distributed to holders in exchange for the
Capital Securities and in liquidation of the Trust. Except as discussed below,
such a distribution would not be a taxable event for income tax purposes, and
each US Holder would have an aggregate adjusted basis in its Subordinated Debt
Securities for income tax purposes equal to such US Holder's aggregate adjusted
basis in its Capital Securities. For income tax purposes, a US Holder's holding
period in the Subordinated Debt Securities received in such a liquidation of the
Trust would include the period during which such Capital Securities were held by
such US Holder. If, however, the relevant event is a Tax Event that results in
the Trust being treated as an association taxable as a corporation, the
distribution likely would constitute a taxable event to US Holders of such
Capital Securities.
Under certain circumstances described herein (see "Description of the
Capital Securities"), the Subordinated Debt Securities may be redeemed for cash
and the proceeds of such redemption distributed to holders in redemption of
their Capital Securities. Such a redemption would be taxable for income tax
purposes, and a US Holder would recognize gain or loss as if it had sold the
Capital Securities for cash. See "-- Sales of Capital Securities."
SALES OF CAPITAL SECURITIES
A US Holder that sells Capital Securities will recognize gain or loss equal
to the difference between its adjusted basis in the Capital Securities and the
amount realized on the sale of such Capital Securities. A US Holder's adjusted
basis in the Capital Securities generally will be its initial purchase price,
increased by OID previously included (or currently includible) in such US
Holder's gross income to the date of disposition, and decreased by payments
received on the Capital Securities (other than any interest received with
respect to the period prior to the effective date of Transamerica's first
exercise of its option to defer payments of interest). Any such gain or loss
generally will be capital gain or loss, and generally will be a long-term
capital gain or loss if such Capital Securities have been held for more than one
year. The Taxpayer Relief Act of 1997 generally reduces tax rates on capital
gains recognized by individuals in respect of capital assets held for more than
18 months. US Holders are advised to consult with their own tax advisors as to
the consequences of the Taxpayer Relief Act of 1997 in their particular
circumstances.
A holder that disposes of his Capital Securities between record dates for
payments of distributions thereon will be required to include accrued but unpaid
interest (or OID) on the Subordinated Debt Securities through the date of
disposition in its taxable income for United States federal income tax purposes
(notwithstanding that the holder may receive a separate payment from the
purchaser with respect to accrued interest), and to deduct that amount from the
sales proceeds received (including the separate payment, if any,
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with respect to accrued interest) for the Capital Securities (or as to OID only,
to add such amount to such holder's adjusted tax basis in its Capital
Securities). To the extent the selling price is less than the holder's adjusted
tax basis (which will include accrued but unpaid OID, if any), a holder will
recognize a capital loss. Subject to certain limited exceptions, capital losses
cannot be applied to offset ordinary income for income tax purposes.
NON-US HOLDERS
The following discussion applies to an Initial Holder that is not a US
Holder (a "Non-US Holder").
Payments to a holder of a Capital Security that is a Non-US Holder will
generally not be subject to withholding of income tax, provided that (i) the
beneficial owner of the Capital Security does not (directly or indirectly,
actually or constructively) own 10% or more of the total combined voting power
of all classes of stock of Transamerica entitled to vote, (ii) the beneficial
owner of such Capital Security is not a controlled foreign corporation that is
related to Transamerica through stock ownership, and (iii) either (a) the
beneficial owner of such Capital Securities certifies to the Trust or its agent,
under penalties of perjury, that it is a Non-US Holder and provides its name and
address, or (b) 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 holds the Capital Security in such
capacity, certifies to the Trust or its agent, under penalty of perjury, that
such a statement has been received from the beneficial owner by it or by another
Financial Institution between it and the beneficial owner in the chain of
ownership, and furnishes the Trust or its agent with a copy thereof.
A Non-US Holder of a Capital Security will generally not be subject to
withholding of income tax on any gain realized upon the sale or other
disposition of a Capital Security.
A Non-US Holder that holds Capital Securities in connection with the active
conduct of a United States trade or business will be subject to income tax on
all income and gains recognized with respect to its proportionate share of the
Subordinated Debt Securities.
INFORMATION REPORTING
In general, information reporting requirements will apply to payments made
on, and proceeds from the sale of, Capital Securities held by a noncorporate US
Holder within the United States. In addition, payments made on, and payments of
the proceeds from the sale of, Capital Securities to or through the United
States office of a broker are subject to information reporting unless the holder
thereof certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding. See "-- Backup
Withholding." Taxable income on the Capital Securities for a calendar year
should be reported to US Holders on Forms 1099 by the following January 31st.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Capital Securities may
be subject to a "backup" withholding tax of 31% unless the holder complies with
certain identification or exemption requirements. Any amounts so withheld will
be allowed as a credit against the holder's income tax liability, or refunded,
conditioned on the required information being provided to the Service.
* * *
THE PRECEDING DISCUSSION IS ONLY A SUMMARY AND DOES NOT ADDRESS THE
CONSEQUENCES TO A PARTICULAR HOLDER OF THE PURCHASE, OWNERSHIP AND DISPOSITION
OF CAPITAL SECURITIES. POTENTIAL HOLDERS OF CAPITAL SECURITIES ARE URGED TO
CONTACT THEIR OWN TAX ADVISORS TO DETERMINE THEIR PARTICULAR TAX CONSEQUENCES.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives New Capital Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of New Capital Securities received
in exchange for Old Capital Securities where such Old Capital Securities were
acquired as a result of market-making activities or other trading activities.
Transamerica and the Trust have agreed that, starting on the date on which
the Exchange Offer is consummated and ending on the close of business 180 days
after such date, they will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until , 1998, all dealers effecting transactions
in the New Capital Securities may be required to deliver a prospectus.
Transamerica and the Trust will not receive any proceeds from any sale of
New Capital Securities by broker-dealers. New Capital Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the New Capital
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or the purchasers of
any such New Capital Securities. Any broker-dealer that resells New Capital
Securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such New
Capital Securities may be deemed to be an "underwriter" within the meaning of
the Securities Act and any profit on any such resale of New Capital Securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the date on which the Exchange Offer is
consummated, Transamerica and the Trust will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal.
Transamerica has agreed to pay all expenses incident to the Exchange Offer
(including the expenses of one counsel for the holders of the Old Capital
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the holders of the Old Capital Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (a "Plan"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an investment
in the Capital Securities. Accordingly, among other factors, the fiduciary
should consider whether the investment would satisfy the prudence and
diversification requirements of ERISA and would be consistent with the documents
and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well
as individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or "disqualified
persons" under the Code ("Parties in Interest") with respect to such Plan. A
violation of these "prohibited transaction" rules may result in an excise tax or
other liabilities under ERISA and/or Section 4975 of the Code for such persons,
unless exemptive relief is available under an applicable statutory or
administrative exemption. Employee benefit plans that are governmental plans (as
defined in Section 3(32) of ERISA),
63
<PAGE> 65
certain church plans (as defined in Section 3(33) of ERISA) and foreign plans
(as described in Section 4(b)(5) of ERISA) are not subject to the requirements
of ERISA or Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Trust would be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire equity interests in the Trust and
no exception were applicable under the Plan Assets Regulation. An "equity
interest" is defined under the Plan Assets Regulation as any interest in an
entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the
assets of the Trust would not be deemed to be "plan assets" of investing Plans
if, immediately after the most recent acquisition of any equity interest in the
Trust, less than 25% of the value of each class of equity interests in the Trust
were held by Plans, other employee benefit plans not subject to ERISA or Section
4975 of the Code (such as governmental, church and foreign plans), and entities
holding assets deemed to be "plan assets" (collectively, "Benefit Plan
Investors"). No assurance can be given that the value of the Capital Securities
held by Benefit Plan Investors will be less than 25% of the total value of the
Capital Securities at the completion of the initial offering or thereafter, and
no monitoring or other measures will be taken with respect to the satisfaction
of the conditions to this exception. All of the Common Securities will be
purchased and held by Transamerica.
Certain transactions involving the Trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the Capital Securities of the Trust were acquired
with "plan assets" of such Plan and assets of the Trust were deemed to be "plan
assets." For example, if Transamerica is a Party in Interest with respect to an
investing Plan (either directly or by reason of its ownership of its
subsidiaries), extensions of credit between Transamerica and the Trust (as
represented by the Subordinated Debt Securities and the Guarantee) would likely
be prohibited by Section 406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the
Code, unless exemptive relief were available under an applicable administrative
exemption (see below).
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief for direct or indirect prohibited transactions
resulting from the purchase or holding of the Capital Securities, assuming that
assets of the Trust were deemed to be "plan assets" (see above). Those class
exemptions are PTCE 96-23 (for certain transactions determined by in-house asset
managers), PTCE 95-60 (for certain transactions involving insurance company
general accounts), PTCE 91-38 (for certain transactions involving bank
collective investment funds), PTCE 90-1 (for certain transactions involving
insurance company separate accounts), and PTCE 84-14 (for certain transactions
determined by independent qualified professional asset managers).
Because the Capital Securities may be deemed to be equity interests in the
Trust for purposes of applying ERISA and Section 4975 of the Code, the Capital
Securities may not be purchased or held by any Plan, any entity whose underlying
assets include "plan assets" by reason of any Plan's investment in the entity (a
"Plan Asset Entity") or any person investing "plan assets" of any Plan, unless
such purchaser or holder is eligible for the exemptive relief available under
PTCE 96-23, 95-60, 91-38, 90-1, or 84-14. Any purchaser or holder of the Capital
Securities or any interest therein will be deemed to have represented by its
purchase and holding thereof that it either (a) is not a Plan or a Plan Asset
Entity and is not purchasing such securities on behalf of or with "plan assets"
of any Plan or (b) is eligible for the exemptive relief available under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14 with respect to such purchase or holding. See
"Notice to Investors" herein.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is particularly
important that fiduciaries or other persons considering purchasing the Capital
Securities on behalf of or with "plan assets" of any Plan consult with their
counsel regarding the potential consequences if the assets of the Trust were
deemed to be "plan assets" and the availability of exemptive relief under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14.
64
<PAGE> 66
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Trust
Securities and the creation of the Trust will be passed upon on by Richards,
Layton & Finger, P.A., Wilmington, Delaware, special Delaware counsel to the
Trust and Transamerica. The validity under New York law of the Subordinated Debt
Securities and the Guarantee will be passed upon for Transamerica by Orrick,
Herrington & Sutcliffe LLP, San Francisco, California. Certain United States
federal income tax matters will be passed upon for Transamerica and the Trust by
Orrick, Herrington & Sutcliffe LLP.
EXPERTS
The consolidated financial statements of Transamerica incorporated by
reference in Transamerica's Annual Report on Form 10-K for the year ended
December 31, 1997, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon incorporated by reference therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
65
<PAGE> 67
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 145 of the Delaware Corporation Law,
Transamerica's Certificate of Incorporation eliminates the personal liability of
its directors to Transamerica or its stockholders for monetary damages for any
breach of fiduciary duty as a director, except for: (i) any breach of the duty
of loyalty to Transamerica or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) liability under Section 174 of the Delaware General Corporation Law
(involving certain unlawful dividends or stock repurchases) or (iv) any
transaction from which the director derived an improper personal benefit.
As authorized by Section 145 of the Delaware Corporation Law,
Transamerica's By-Laws provide for indemnification of its directors and officers
in certain cases. Indemnification shall be provided when a person is made a
party or is threatened to be made a party to any proceeding by reason of the
fact that he or she is or was a director or officer of Transamerica or a
director or officer of Transamerica serving at the request of Transamerica as a
director, officer, employee or agent of another enterprise; provided, however,
that no indemnification shall be provided to any such person if a judgment or
other final adjudication adverse to the director or officer establishes that the
director or officer did not act in good faith and in a manner reasonably
believed by him or her to be in, or not opposed to, the best interests of
Transamerica or, with respect to any criminal proceeding, had reasonable cause
to believe that his or her conduct was unlawful; and provided, further, that,
except as to actions to enforce indemnification rights, Transamerica shall
indemnify any such person seeking indemnification in connection with an action,
suit or proceeding (or part thereof) initiated by such person only if the
action, suit or proceeding (or part thereof) was authorized by the Board of
Directors of Transamerica. When indemnification is required, the director or
officer shall be indemnified for losses, liabilities and expenses (including
attorney's fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred by him or her in connection therewith.
If such proceeding is brought by or on behalf of Transamerica, such person
shall be indemnified against expenses actually and reasonably incurred if he or
she acted in good faith and in a manner reasonably believed by him or her to be
in, or not opposed to, the best interests of Transamerica. There can be no
indemnification with respect to any matter as to which such person is adjudged
to be liable to Transamerica; however, a court may, even in such case, allow
indemnification to such person for such expenses as the court deems proper.
Transamerica's By-Laws provide that, notwithstanding the foregoing, where
such person is successful in any such proceeding, he or she is entitled to be
indemnified against expenses actually and reasonably incurred by him or her. In
all other cases, he or she is entitled to be indemnified against expenses
actually and reasonably incurred by him or her unless Transamerica has
determined that indemnification of such person is not proper because he or she
has not met the applicable standard of conduct.
In addition to the above, Transamerica has entered into Indemnification
Agreements (the "Indemnification Agreements") with each of its directors and
officers. The Indemnification Agreements provide directors and officers with
generally the same indemnification by Transamerica as is set forth in the
immediately preceding paragraphs except that the Indemnification Agreements
differ from the By-Laws in the following significant respects: (1) following a
change in control (as defined) of Transamerica, approval by the board of
Directors of Transamerica of a claim initiated by a director or officer is not
required as a condition to such person's indemnification rights; and (2) no
indemnification shall be provided to a director or officer if a final
adjudication or judgment adverse to such person establishes that such person did
not meet the required standard of care and such person's actions were material
to the cause of action adjudicated or, with respect to an action brought by or
in the right of Transamerica, that such person committed an act for which
personal liability has not been eliminated under Transamerica's Certificate of
Incorporation.
The Indemnification Agreements also provide (i) for arbitration of
indemnification claims after a change in control of Transamerica, (ii) if a
potential change in control or a change in control occurs, the
II-1
<PAGE> 68
establishment of a trust for the benefit of an indemnitee of reasonably
anticipated indemnification amounts, and (iii) if the indemnification provided
in the Indemnification Agreements is not available, contribution by Transamerica
based on the relative benefits to Transamerica and the indemnitee and the
relative fault of Transamerica and the indemnitee.
There is directors and officers liability insurance presently outstanding
which insures directors and officers of Transamerica. The policy covers losses
for which Transamerica shall be required or permitted by law to indemnify
directors and officers and which result from claims made against such directors
or officers based upon the commission of wrongful acts in the performance of
their duties. The policy also covers losses which the directors or officers must
pay as the result of claims brought against them based upon the commission of
wrongful acts in the performance of their duties and for which they are not
indemnified by Transamerica. The losses covered by the policy are subject to
certain exclusions and do not include fines or penalties imposed by law or other
matters deemed uninsurable under the law. The policy contains certain deductible
provisions.
Under the Amended and Restated Declaration of Trust (which is filed as an
exhibit to this Registration Statement), Transamerica has agreed to indemnify
(i) the Institutional Trustee, the Delaware Trustee, any of their affiliates and
any officers, directors, shareholders, members, partners or certain other
persons of the Institutional Trustee and the Delaware Trustee, and (ii) any
Administrator, any affiliates, officers, directors, shareholders, members,
partners or certain other persons of any Administrator, or any officer, employee
or agent of the Trust or its affiliates against expenses (including attorneys'
fees and expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such indemnified person by reason of the fact that they
are or were an indemnified person, if such indemnified person acted in good
faith and in a manner such indemnified person reasonably believed to be in or
not opposed to the best interests of the Trust, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
An index of exhibits appears at page II-6, which is incorporated herein by
reference.
ITEM 22. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to the Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(c) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs 1(a) and 1(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
II-2
<PAGE> 69
Registrants pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act, 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.
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of a Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Each of the undersigned Registrants hereby undertakes to respond to
requests for information that is incorporated by reference into the Prospectus
pursuant to Items 4, 10(b), 11 or 13 of this form, within one business day of
receipt of such request, and to send the incorporated documents by first-class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the Registration Statement
through the date of responding to the request.
Each of the undersigned Registrants hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, the Registrants
have been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of expenses incurred or
paid by a director, officer or controlling person of the Registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 70
SIGNATURES
Pursuant to the requirements of the Securities Act, Transamerica
Corporation certifies that it has reasonable grounds to believe that it meets
all the requirements for filing this Registration Statement on Form S-4 and has
duly caused this to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City and County of San Francisco, State of California, on
March 30, 1998.
TRANSAMERICA CORPORATION
By: /s/ FRANK C. HERRINGER
---------------------------------------
Frank C. Herringer
Chairman, President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ FRANK C. HERRINGER Chairman, President, Chief March 30, 1998
- ----------------------------------------------------- Executive Officer and Director
Frank C. Herringer (Principal Executive Officer)
/s/ EDGAR H. GRUBB Executive Vice President and March 30, 1998
- ----------------------------------------------------- Chief Financial Officer
Edgar H. Grubb (Principal Financial Officer)
/s/ BURTON E. BROOME Vice President and Controller March 30, 1998
- ----------------------------------------------------- (Principal Accounting Officer)
Burton E. Broome
* Director March 30, 1998
- -----------------------------------------------------
Robert W. Matschullat
* Director March 30, 1998
- -----------------------------------------------------
Samuel L. Ginn
* Director March 30, 1998
- -----------------------------------------------------
Gordon E. Moore
* Director March 30, 1998
- -----------------------------------------------------
Toni Rembe
* Director March 30, 1998
- -----------------------------------------------------
Condoleezza Rice
* Director March 30, 1998
- -----------------------------------------------------
Charles R. Schwab
* Director March 30, 1998
- -----------------------------------------------------
Forrest N. Shumway
* Director March 30, 1998
- -----------------------------------------------------
Peter V. Ueberroth
*By /s/ AUSTIN D. KIM March 30, 1998
------------------------------------------------
Austin D. Kim
(attorney-in-fact)
</TABLE>
II-4
<PAGE> 71
Pursuant to the requirements of the Securities Act, Transamerica Capital
III certifies that it has reasonable grounds to believe that it meets all the
requirements for filing this Registration Statement on Form S-4 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City and County of San Francisco,
State of California, on March 30, 1998.
TRANSAMERICA CAPITAL III
By: /s/ DAVID C. THOMAS
------------------------------------
Name: David C. Thomas
Administrator:
II-5
<PAGE> 72
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ------- -----------
<C> <S>
4.1 Certificate of Trust of the Trust, dated October 31, 1997,
as filed with the Secretary of State of the State of
Delaware
4.2 Indenture, dated as of December 5, 1996, between
Transamerica and The First National Bank of Chicago, as
Indenture Trustee
4.3 Second Supplemental Indenture, dated November 14, 1997,
between Transamerica and The First National Bank of Chicago,
as Indenture Trustee
4.4 Form of 7 5/8% Junior Subordinated Deferrable Interest
Debenture (included in Exhibit 4.3)
4.5 Amended and Restated Declaration of Trust, dated as of
November 14, 1997, among Transamerica, the Trust, The First
National Bank of Chicago, as Institutional Trustee, First
Chicago Delaware Inc., as Delaware Trustee, and the
Administrators named therein
4.6 Form of New Capital Security Certificate for the Trust
(included in Exhibit 4.5)
4.7 Capital Securities Guarantee Agreement dated November 14,
1997 between Transamerica and The First National Bank of
Chicago, as Guarantee Trustee
4.8 Registration Rights Agreement, dated November 14, 1997
between the Trust, Transamerica and the Initial Purchasers
named therein
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP, as to the
validity of the New Subordinated Debt Securities and the
Guarantee
5.2 Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel, as to the validity of the New Capital Securities
8.1 Opinion of Orrick, Herrington & Sutcliffe LLP, special tax
counsel, as to certain federal income tax matters
12.1 Ratio of Earnings to Fixed Charges Computation (incorporated
by reference to Exhibit 12 to Transamerica's Annual Report
on Form 10-K for the year ended December 31, 1997)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (included in
Exhibit 5.1)
23.3 Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5.2)
23.4 Consent of Orrick, Herrington & Sutcliffe LLP (included in
Exhibit 8.1)
24.1 Powers of Attorney
25.1 Form T-1 Statement of Eligibility of The First National Bank
of Chicago to act as trustee under the Indenture
25.2 Form T-1 Statement of Eligibility of The First National Bank
of Chicago to act as trustee under the Amended and Restated
Declaration of Trust
25.3 Form T-1 Statement of Eligibility of The First National Bank
of Chicago under the Guarantee for the benefit of the
holders of Capital Securities
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Exchange Agent Agreement
</TABLE>
II-6
<PAGE> 1
Exhibit 4.1
CERTIFICATE OF TRUST
OF
TRANSAMERICA CAPITAL III
This Certificate of Trust of Transamerica Capital III (the
"Trust"), dated October 31, 1997, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
Transamerica Capital III.
2. Delaware Trustee. The name and business address of the trustee
of the Trust, with a principal place of business in the State of Delaware, are
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
FIRST CHICAGO DELAWARE INC.,
not in its individual capacity but solely
as trustee of the Trust
By: /s/ John R. Prendiville
-------------------------------------
Name: John R. Prendiville
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as trustee of the Trust
By: /s/ John R. Prendiville
-------------------------------------
Name: John R. Prendiville
Title: Vice President
<PAGE> 1
EXHIBIT 4.2
================================================================================
TRANSAMERICA CORPORATION
as Issuer
INDENTURE
Dated as of December 5, 1996
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of December
5, 1996 among Transamerica Corporation, as Issuer, and The First National Bank
of Chicago, as Trustee:
<TABLE>
<CAPTION>
ACT SECTION INDENTURE SECTION
<S> <C>
310(a)(1)...................................................... 6.09
(a)(2)........................................................ 6.09
310(a)(3)...................................................... N.A.
(a)(4)........................................................ N.A.
310(b)......................................................... 6.08; 6.10(a)(b) and (d)
310(c)......................................................... N.A.
311(a) and (b)................................................. 6.13
311(c)......................................................... N.A.
312(a)......................................................... 4.01; 4.02(a)
312(b) and (c)................................................. 4.02(b) and (c)
313(a)......................................................... 4.04(a)
313(b)(1)...................................................... N.A.
313(b)(2)...................................................... 4.04(a)
313(c)......................................................... 4.04(a)
313(d)......................................................... 4.04(b)
314(a)......................................................... 4.03
314(b)......................................................... N.A.
314(c)(1) and (2).............................................. 13.06
314(c)(3)...................................................... N.A.
314(d)......................................................... N.A.
314(e)......................................................... 13.06
314(f)......................................................... N.A.
315(a)(c) and (d).............................................. 6.01
315(b)......................................................... 5.08
315(e)......................................................... 5.09
316(a)(1)...................................................... 5.01; 5.07
316(a)(2)...................................................... Omitted
316(a) last sentence........................................... 7.04
316(b)......................................................... 5.04
317(a)......................................................... 5.02
317(b)......................................................... 3.04(a)
318(a)......................................................... 13.08
</TABLE>
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties ........................................................................1
Recitals .......................................................................1
Authorization of Indenture......................................................1
Compliance with Legal Requirements..............................................1
Purpose of and Consideration for Indenture......................................1
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions......................................................1
Affiliate...............................................................1
Authenticating Agent....................................................2
Bankruptcy Law..........................................................2
Board of Directors......................................................2
Board Resolution........................................................2
Business Day............................................................2
Capital Securities......................................................2
Capital Securities Guarantee............................................2
Certificate.............................................................2
Common Securities.......................................................2
Common Securities Guarantee.............................................3
Company.................................................................3
Custodian...............................................................3
Debt Security or Debt Securities........................................3
Debt Security Register..................................................3
Declaration.............................................................3
Default.................................................................3
Depositary..............................................................3
Event of Default........................................................3
Exchange Act............................................................3
Global Security.........................................................3
Indenture...............................................................4
Institutional Trustee...................................................4
Interest................................................................4
Interest Payment Date...................................................4
Mortgage................................................................4
Officers' Certificate...................................................4
Opinion of Counsel......................................................4
Original Issue Date.....................................................4
Original Issue Discount Security........................................4
Person..................................................................5
Predecessor Security....................................................5
Principal Office of the Trustee.........................................5
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Responsible Officer.....................................................5
Securityholder, holder of Debt Securities...............................6
Senior Indebtedness.....................................................6
Subsidiary..............................................................6
Transamerica Trust......................................................7
Trust Indenture Act.....................................................7
Trust Securities........................................................7
Trustee.................................................................7
U.S. Government Obligations.............................................7
Yield to Maturity.......................................................7
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally..................................................8
SECTION 2.02. Form of Trustee's Certificate of Authentication..................8
SECTION 2.03. Amount Unlimited; Issuable in Series.............................8
SECTION 2.04. Authentication and Dating.......................................10
SECTION 2.05. Date and Denomination of Debt Securities........................11
SECTION 2.06. Execution of Debt Securities....................................13
SECTION 2.07. Exchange and Registration of Transfer of Debt Securities........13
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities............16
SECTION 2.09. Temporary Debt Securities.......................................16
SECTION 2.10. Cancellation of Debt Securities Paid, etc.......................17
SECTION 2.11. Global Securities...............................................17
SECTION 2.12. CUSIP Numbers...................................................18
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest......................18
SECTION 3.02. Offices for Notices and Payments, etc...........................19
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office..............19
SECTION 3.04. Provision as to Paying Agent....................................19
SECTION 3.05. Certificate to Trustee..........................................20
SECTION 3.06. Compliance with Consolidation Provisions........................21
SECTION 3.07. Limitation on Dividends.........................................21
SECTION 3.08. Covenants as to Transamerica Trusts.............................21
SECTION 3.09. Calculation of Original Issue Discount..........................22
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists..........................................22
SECTION 4.02. Preservation and Disclosure of Lists............................22
SECTION 4.03. [Reserved]......................................................24
SECTION 4.04. Reports by the Trustee..........................................24
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ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default...............................................24
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor............26
SECTION 5.03. Application of Moneys Collected by Trustee......................28
SECTION 5.04. Proceedings by Securityholders..................................29
SECTION 5.05. Proceedings by Trustee..........................................29
SECTION 5.06. Remedies Cumulative and Continuing..............................29
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders..............................30
SECTION 5.08. Notice of Defaults..............................................31
SECTION 5.09. Undertaking to Pay Costs........................................31
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee..........................31
SECTION 6.02. Reliance on Documents, Opinions, etc............................32
SECTION 6.03. No Responsibility for Recitals, etc.............................34
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Debt Securities..............34
SECTION 6.05. Moneys to be Held in Trust......................................34
SECTION 6.06. Compensation and Expenses of Trustee............................34
SECTION 6.07. Officers' Certificate as Evidence...............................35
SECTION 6.08. Conflicting Interest of Trustee.................................35
SECTION 6.09. Eligibility of Trustee..........................................35
SECTION 6.10. Resignation or Removal of Trustee...............................36
SECTION 6.11. Acceptance by Successor Trustee.................................37
SECTION 6.12. Succession by Merger, etc.......................................38
SECTION 6.13. Limitation on Rights of Trustee as a Creditor...................38
SECTION 6.14. Authenticating Agents...........................................38
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.......................................40
SECTION 7.02. Proof of Execution by Securityholders...........................40
SECTION 7.03. Who Are Deemed Absolute Owners..................................41
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding.........41
SECTION 7.05. Revocation of Consents; Future Holders Bound....................41
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings............................................42
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SECTION 8.02. Call of Meetings by Trustee.....................................42
SECTION 8.03. Call of Meetings by Company or Securityholders..................42
SECTION 8.04. Qualifications for Voting.......................................43
SECTION 8.05. Regulations.....................................................43
SECTION 8.06. Voting..........................................................43
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Securityholders......44
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.........45
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures...............................................46
SECTION 9.04. Notation on Debt Securities.....................................47
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to
be Furnished Trustee.....................................47
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.................47
SECTION 10.02. Successor Corporation to be Substituted........................48
SECTION 10.03. Opinion of Counsel to be Given Trustee.........................48
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.........................................48
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be
Held in Trust by Trustee.................................49
SECTION 11.03. Paying Agent to Repay Moneys Held..............................49
SECTION 11.04. Return of Unclaimed Moneys.....................................50
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations..............................................50
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate Obligations.....51
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.....................................................52
SECTION 13.02. Official Acts by Successor Corporation.........................52
SECTION 13.03. Surrender of Company Powers....................................52
SECTION 13.04. Addresses for Notices, etc.....................................52
SECTION 13.05. Governing Law..................................................52
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SECTION 13.06. Evidence of Compliance with Conditions Precedent...............53
SECTION 13.07. Non-Business Days..............................................53
SECTION 13.08. Trust Indenture Act to Control.................................53
SECTION 13.09. Table of Contents, Headings, etc...............................53
SECTION 13.10. Execution in Counterparts......................................53
SECTION 13.11. Separability...................................................54
SECTION 13.12. Assignment.....................................................54
SECTION 13.13. Acknowledgment of Rights.......................................54
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.......................................54
SECTION 14.02. Notice of Redemption; Selection of Debt Securities.............55
SECTION 14.03. Payment of Debt Securities Called for Redemption...............55
SECTION 14.04. Mandatory and Optional Sinking Fund............................56
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.......................................58
SECTION 15.02. Default on Senior Indebtedness.................................58
SECTION 15.03. Liquidation; Dissolution; Bankruptcy...........................59
SECTION 15.04. Subrogation....................................................60
SECTION 15.05. Trustee to Effectuate Subordination............................61
SECTION 15.06. Notice by the Company..........................................61
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness..........62
SECTION 15.08. Subordination May Not Be Impaired..............................62
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THIS INDENTURE, dated as of December 5, 1996, between
Transamerica Corporation, a Delaware corporation (hereinafter sometimes called
the "Company"), and The First National Bank of Chicago, a national banking
corporation, as trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue from time to time of its subordinated unsecured debentures,
notes or other evidence of indebtedness to be issued in one or more series (the
"Debt Securities") up to such principal amount or amounts as may from time to
time be authorized in accordance with the terms of this Indenture and, to
provide the terms and conditions upon which the Debt Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Debt
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Debt Securities or of a series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), or which are by reference therein defined in the
Securities Act of 1933, as amended (the "Securities Act"), shall (except as
herein otherwise expressly provided or unless the context otherwise requires)
have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally executed.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to vote
10% or more of the outstanding
<PAGE> 9
voting securities or other ownership interests of the specified Person, (b) any
Person 10% or more of whose outstanding voting securities or other ownership
interests are directly or indirectly owned, controlled or held with power to
vote by the specified Person, (c) any Person directly or indirectly controlling,
controlled by, or under common control with the specified Person, (d) a
partnership in which the specified Person is a general partner, (e) any officer
or director of the specified Person, and (f) if the specified Person is an
individual, any entity of which the specified Person is an officer, director or
general partner.
"Authenticating Agent" shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean the board of directors or the
executive committee or any other duly authorized designated officers of the
Company.
"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
certification.
"Business Day" shall mean, with respect to any series of Debt
Securities, any day other than Saturday, Sunday or any other day on which
banking institutions in New York City (in the State of New York) are permitted
or required by any applicable law to close.
"Capital Securities" shall mean undivided beneficial interests in
the assets of a Transamerica Trust which rank pari passu with Common Securities
issued by such Transamerica Trust; provided, however, that upon the occurrence
of an Event of Default (as defined in the Declaration with respect to such
Transamerica Trust), the rights of holders of such Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of such Capital Securities.
"Capital Securities Guarantee" shall mean, in respect of any
Transamerica Trust, any guarantee that the Company may enter into with The First
National Bank of Chicago or other Persons that operates directly or indirectly
for the benefit of holders of Capital Securities of such Transamerica Trust.
"Certificate" shall mean a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company.
"Common Securities" shall mean undivided beneficial interests in
the assets of a Transamerica Trust which rank pari passu with Capital Securities
issued by such Transamerica Trust; provided, however, that upon the occurrence
of an Event of Default (as defined in the Declaration with respect to such
Transamerica Trust), the rights of holders of such Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of such Capital Securities.
2
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"Common Securities Guarantee" shall mean, in respect of any
Transamerica Trust, any guarantee that the Company may enter into with any
Person or Persons and that operates directly or indirectly for the benefit of
holders of Common Securities of such Transamerica Trust.
"Company" shall mean Transamerica Corporation, a Delaware
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Custodian" shall mean any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" shall have the meaning
stated in the first recital of this Indenture and more particularly means any
debt security or debt securities, as the case may be, authenticated and
delivered under this Indenture.
"Debt Security Register" shall have the meaning specified in
Section 2.07.
"Declaration", with respect to a Transamerica Trust, shall mean
the Amended and Restated Declaration of Trust of such Transamerica Trust.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Depositary" shall mean, with respect to Debt Securities of any
series for which the Company shall determine that such Debt Securities will be
issued as a Global Security, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.03 or
2.11.
"Event of Default" shall mean any event specified in Section
5.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Global Security" shall mean, with respect to any series of Debt
Securities, a Debt Security executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
"Indenture" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of particular series of Debt
Securities established as contemplated hereunder.
"Institutional Trustee" has the meaning set forth in the
Declaration of the applicable Transamerica Trust.
"Interest" shall mean, when used with respect to noninterest
bearing Debt Securities, interest payable after maturity.
3
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"Interest Payment Date", when used with respect to any
installment of interest on a Debt Security of a particular series, shall mean
the date specified in such Debt Security 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 Debt Securities of that series
is due and payable.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the President, any Managing Director or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Comptroller, an
Assistant Comptroller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 13.06 if and to the extent required by the provisions of
such Section.
"Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company, or may be
other counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.06 if and to the extent required by the
provisions of such Section.
"Original Issue Date" of any Debt Security (or any portion
thereof) shall mean the earlier of (a) the date of such Debt Security or (b) the
date of any Debt Security (or portion thereof) for which such Debt Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" shall mean any Debt Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 5.01.
The term "outstanding", when used with reference to Debt
Securities, shall, subject to the provisions of Section 7.04, mean, as of any
particular time, all Debt Securities authenticated and delivered by the Trustee
or the Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or
redemption of which moneys 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
that, if such Debt Securities, or portions thereof, are to be redeemed
prior to maturity thereof, notice of such redemption shall have been
given as provided in Article Fourteen or provision satisfactory to the
Trustee shall have been made for giving such notice; and
4
<PAGE> 12
(c) Debt Securities paid pursuant to Section 2.08 or in lieu of
or in substitution for which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.08 unless
proof satisfactory to the Company and the Trustee is presented that any
such Debt Securities are held by bona fide holders in due course.
In determining whether the holders of the requisite principal
amount of outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal Office of the Trustee", or other similar term, shall
mean the office of the Trustee, at which at any particular time its corporate
trust business shall be principally administered.
"Responsible Officer", when used with respect to the Trustee,
shall mean the chairman and vice chairman of the board of directors, the
chairman or vice chairman of the executive committee of the board of directors,
the president, any vice president, any assistant vice president, the cashier,
any assistant cashier, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any senior trust officer, any trust officer, the
controller, any assistant controller or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securityholder", "holder of Debt Securities", or other similar
terms, shall mean any Person in whose name at the time a particular Debt
Security is registered on the register kept by the Company or the Trustee for
that purpose in accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company; (ii) all
capital lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv)
5
<PAGE> 13
all obligations of the Company for the reimbursement on any letter of credit,
any banker's acceptance, any security purchase facility, any repurchase
agreement or similar arrangement, any interest rate swap, any other hedging
arrangement, any obligation under options or any similar credit or other
transaction; (v) all obligations of the type referred to in clauses (i) through
(iv) above of other Persons for the payment of which the Company is responsible
or liable as obligor, guarantor or otherwise; and (vi) all obligations of the
type referred to in clauses (i) through (v) above of other Persons secured by
any lien on any property or asset of the Company (whether or not such obligation
is assumed by the Company), except (1) any such indebtedness that contains
express terms, or is issued under a deed, indenture or other instrument that
contains express terms, providing that it is subordinate to or ranks pari passu
with the Debt Securities, (2) any indebtedness between or among the Company and
any of its Affiliates, and (3) all other debt securities and guarantees in
respect of those debt securities, in any case issued by the Company to (x) any
other Transamerica Trust or a trustee of such Trust and (y) any other trust, or
a trustee of such trust, partnership or other entity affiliated with the
Company, which is a financing vehicle of the Company (a "Financing Entity"), in
connection with the issuance by such Financing Entity of preferred securities or
capital securities of a similar nature to the Capital Securities or of other
securities that rank pari passu with, or junior to, the Capital Securities
(including, without limitation, the Company's 9-1/8% Junior Subordinated
Deferrable Interest Debentures, Series A, Due 2024) and, with respect to any
series of Debt Securities, any other series of Debt Securities.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of the
outstanding partnership or similar interests of which shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and one
or more of its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the purposes of this
definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
"Transamerica Trust" shall mean a Delaware business trust, or any
other similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debt Securities under this Indenture of which
the Company is the sponsor.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939
as in force at the date of execution of this Indenture, except as provided in
Section 9.03.
"Trust Securities" shall mean Common Securities and Capital
Securities of a Transamerica Trust.
"Trustee" shall mean the Person identified as "Trustee" in the
first paragraph hereof, and, subject to the provisions of Article Six hereof,
shall also include its successors and
6
<PAGE> 14
assigns as Trustee hereunder. The term "Trustee" as used with respect to a
particular series of Debt Securities shall mean the trustee with respect to that
series.
"U.S. Government 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
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 under
clauses (i) or (ii), are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a 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 receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Yield to Maturity" shall mean the yield to maturity on a series
of Debt Securities, calculated at the time of issuance of such series of Debt
Securities, or if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.
The Debt Securities of each series shall be in substantially the
form as shall be established by or pursuant to a Board Resolution and as set
forth in an Officers' Certificate of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the Debt
Securities.
In the event the Debt Securities are issued in definitive form
pursuant to this Indenture, such Debt Securities shall be typed, printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Debt
Securities shall be in substantially the following form:
7
<PAGE> 15
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
The First National Bank of Chicago, as Trustee
By_________________________
Authorized Signatory
SECTION 2.03. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series up to the
aggregate principal amount of Debt Securities of that series from time to time
authorized by or pursuant to a Board Resolution of the Company or pursuant to
one or more indentures supplemental hereto. Prior to the initial issuance of
Debt Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company and set forth in an Officers' Certificate of the
Company or established in one or more indentures supplemental:
(1) the title of the Debt Securities of the series (which
shall distinguish Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of the series pursuant to Section 2.07,
2.08, 2.09, 9.04 or 14.03);
(3) the date or dates on which the principal of and
premium, if any, on the Debt Securities of the series is payable;
(4) the rate or rates at which the Debt Securities of the
series shall bear interest, if any, or the method by which such interest
may be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall 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;
(5) the place or places where the principal of, and
premium, if any, and any interest on Debt Securities of the series shall
be payable;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the price or prices at which, the period or periods
within which and the terms and conditions upon which Debt Securities of
the series may be redeemed, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise;
8
<PAGE> 16
(8) the obligation, if any, of the Company to redeem,
purchase or repay Debt Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Securityholder
thereof and the price or prices at which and the period or periods
within which and the terms and conditions upon which Debt Securities of
the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 5.01 or provable in bankruptcy pursuant to
Section 5.02;
(11) any Events of Default with respect to the Debt
Securities of a particular series, if not set forth herein;
(12) the form of the Debt Securities of the series
including the form of the certificate of authentication of such series;
(13) any trustee, authenticating or paying agents, warrant
agents, transfer agents or registrars with respect to the Debt
Securities of such series;
(14) whether the Debt Securities of the series shall be
issued in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary for such Global Security or
Securities, and whether beneficial owners of interests in any such
Global Securities may exchange such interests for other Debt Securities
of such series in the manner provided in Section 2.07, and the manner
and the circumstances under which and the place or places where any such
exchanges may occur if other than in the manner provided in Section
2.07, and any other terms of the series relating to the global nature of
the Global Securities of such series and the exchange, registration or
transfer thereof and the payment of any principal thereof, or interest
or premium, if any, thereon;
(15) if the Debt Securities of the series are issued
pursuant to an exemption from registration under the Securities Act; and
(16) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Board of Directors or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee
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at or prior to the delivery of the Officers' Certificate of the Company setting
forth the terms of the series.
SECTION 2.04. Authentication and Dating.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities of any
series executed by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said Debt
Securities to or upon the written order of the Company, signed by its Chairman
of the Board of Directors, President, one of its Managing Directors or one of
its Vice Presidents and by its Treasurer or any Assistant Treasurer, without any
further action by the Company hereunder. In authenticating such Debt Securities,
and accepting the additional responsibilities under this Indenture in relation
to such Debt Securities, the Trustee shall be entitled to receive, and (subject
to Section 6.01) shall be fully protected in relying upon:
(1) a copy of any Board Resolution or Resolutions relating
thereto and, if applicable, an appropriate record of any action taken
pursuant to such resolution, in each case certified by the Secretary or
an Assistant Secretary of the Company as the case may be;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and
terms of the Debt Securities if and as required pursuant to Sections
2.01 and 2.03, respectively; and
(4) an Opinion of Counsel prepared in accordance with
Section 13.06 which shall also state:
(a) that the form of such Debt Securities has been established by
or pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.01 in conformity with
the provisions of this Indenture;
(b) that the terms of such Debt Securities have been established
by or pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.03 in conformity with
the provisions of this Indenture;
(c) that such Debt Securities, when authenticated and delivered
by the Trustee and issued by the Company in each case in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company;
(d) that all laws and requirements in respect of the execution
and delivery by the Company of the Debt Securities, have been complied
with and that authentication and delivery of the Debt Securities by the
Trustee will not violate the terms of the Indenture; and
(e) such other matters as the Trustee may reasonably request.
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The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or vice presidents shall determine
that such action would expose the Trustee to personal liability to existing
holders.
SECTION 2.05. Date and Denomination of Debt Securities.
The Debt Securities shall be issuable as registered Debt
Securities without coupons and in such denominations as shall be specified as
contemplated by Section 2.03. In the absence of any such specification with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable in the denominations of $1,000 and any multiple thereof. The
Debt Securities shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Every Debt Security shall be dated the date of its
authentication, shall bear interest, if any, from such date and shall be payable
on such dates, in each case, as contemplated by Section 2.03. The interest
installment on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date for Debt Securities of that series
shall be paid to the Person in whose name said Debt Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment. In the event that any Debt Security
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
Interest Payment Date and prior to such Interest Payment Date, interest on such
Debt Security will be paid upon presentation and surrender of such Debt Security
as provided in Section 14.03.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for a Debt
Security 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 Securities to the Persons in whose names such Debt Securities (or
their respective Predecessor Securities) 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 Debt Security 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 arrangements
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 Persons 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 ten days prior to the date of the proposed payment and
not less than ten days after the receipt by the Trustee of the notice of
the
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proposed payment. The Trustee shall promptly 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 Securityholder at his or her address as it appears in
the Debt Security Register (as hereinafter defined), not less than ten
days prior to such special record date. Notice of the proposed payment
of such Defaulted Interest and the special record date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Debt Securities (or their respective
Predecessor Securities) 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 Debt Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities 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.
In respect of any series of Debt Securities in which the right to extend the
interest payment periods has been provided pursuant to Section 2.03(6), any
interest scheduled to become payable on an Interest Payment Date accruing during
a valid extension of an interest payment period shall be payable on such other
date as may be specified in the terms of such Debt Securities.
Unless otherwise set forth in a Board Resolution of the Company
or one or more indentures supplemental hereto establishing the terms of any
series of Debt Securities pursuant to Section 2.01 hereof, the term "regular
record date" as used in this Section with respect to a series of Debt Securities
with respect to any Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.01 hereof shall
occur, if such Interest Payment Date is the first day of a month, or the last
day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debt Security.
SECTION 2.06. Execution of Debt Securities.
The Debt Securities shall be signed in the name and on behalf of
the Company by the manual or facsimile signature of its Chairman of the Board of
Directors, President, one of its Managing Directors or one of its
Vice-Presidents and by the manual or facsimile signature of its Treasurer or one
of its Assistant Treasurers, under its corporate seal which may be affixed
thereto or printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise, and which need not be attested. Only such Debt Securities as shall
bear thereon a certificate of authentication
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substantially in the form herein before recited, executed by the Trustee or the
Authenticating Agent by the manual signature of an authorized signatory, shall
be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee or the Authenticating Agent upon any
Debt Security executed by the Company shall be conclusive evidence that the Debt
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of
the Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee or the
Authenticating Agent, or disposed of by the Company, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of the
Company; and any Debt Security may be signed on behalf of the Company by such
Persons as, at the actual date of the execution of such Debt Security, shall be
the proper officers of the Company, although at the date of the execution of
this Indenture any such person was not such an officer.
SECTION 2.07. Exchange and Registration of Transfer of Debt
Securities.
Subject to Section 2.03(14), Debt Securities of any series may be
exchanged for a like aggregate principal amount of Debt Securities of the same
series of other authorized denominations. Debt Securities to be exchanged may be
surrendered at the principal corporate trust office of the Trustee or at any
office or agency to be maintained by the Company for such purpose as provided in
Section 3.02, and the Company shall execute, the Company or the Trustee shall
register and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in exchange therefor the Debt Security or Debt Securities
which the Securityholder making the exchange shall be entitled to receive.
Subject to Section 2.03(14), upon due presentment for registration of transfer
of any Debt Security of any series at the principal corporate trust office of
the Trustee or at any office or agency of the Company maintained for such
purpose as provided in Section 3.02, the Company shall execute, the Company or
the Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Debt Security or Debt Securities of the same series for a like
aggregate principal amount. Registration or registration of transfer of any Debt
Security by the Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Debt Security, shall be deemed to complete
the registration or registration of transfer of such Debt Security.
The Company shall cause to be kept, at the office or agency
maintained for the purpose of registration or transfer and for exchange as
provided in Section 3.02, a register (the "Debt Security Register") for each
series of Debt Securities issued hereunder in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
and transfer of all Debt Securities as in this Article Two provided. Such
register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
All Debt Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be
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duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee or the
Authenticating Agent duly executed by, the holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration
of transfer of Debt Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax, fee or other governmental charge
that may be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or
register a transfer of (a) any Debt Security for a period of 15 days next
preceding the date of selection of Debt Securities of such series for
redemption, or (b) any Debt Securities of any series selected, called or being
called for redemption in whole or in part, except in the case of any Debt
Securities of any series to be redeemed in part, the portion thereof not so to
be redeemed.
Notwithstanding the foregoing, if pursuant to Section 2.03, a
series of Debt Securities are issued pursuant to an exemption from registration
under the Securities Act, such Debt Securities may not be transferred except in
compliance with the restricted securities legend set forth below (the
"Restrictive Securities Legend"), unless otherwise determined by the Company in
accordance with applicable law:
THE DEBT SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH TRANSAMERICA
CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2),
(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES
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AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY
BE OBTAINED FROM THE COMPANY. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE.
Prior to any distribution of the Debt Securities to the holders
of Capital Securities in accordance with the related Declaration, the Company
and the Trustee shall enter into a supplemental indenture pursuant to Article IX
to provide for transfer procedures and restrictions with respect to the Debt
Securities substantially similar to those contained in the Declaration to the
extent applicable in the circumstances existing at the time of such distribution
for purposes of assuring that no registration of such Debt Securities is
required under the Securities Act of 1933, as amended.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt
Securities.
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed, lost or stolen, the Company shall execute, and upon
its request the Trustee shall authenticate and deliver, a new Debt Security of
the same series bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Debt Security, or in lieu of and in
substitution for the Debt Security so destroyed, lost or stolen. In every case
the applicant for a substituted Debt Security shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
The Trustee may authenticate any such substituted Debt Security
and deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Debt Security, 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 connected
therewith. In case any Debt Security which has matured or is about to mature or
has been called for redemption in full shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Debt Security,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Debt Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and to the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
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Every substituted Debt Security of any series issued pursuant to
the provisions of this Section 2.08 by virtue of the fact that any such Debt
Security is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of the same series duly issued hereunder. All Debt Securities shall
be held and owned upon the express condition that, to the extent permitted by
applicable law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities
and shall preclude any and all other rights or remedies notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.09. Temporary Debt Securities.
Pending the preparation of definitive Debt Securities of any
series, the Company may execute and the Trustee shall authenticate and make
available for delivery temporary Debt Securities that are typed, printed or
lithographed. Temporary Debt Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Debt Securities
but with such omissions, insertions and variations as may be appropriate for
temporary Debt Securities, all as may be determined by the Company. Every such
temporary Debt Security shall be executed by the Company and be authenticated by
the Trustee upon the same conditions and in substantially the same manner, and
with the same effect, as the definitive Debt Securities. Without unreasonable
delay the Company will execute and deliver to the Trustee or the Authenticating
Agent definitive Debt Securities and thereupon any or all temporary Debt
Securities of such series may be surrendered in exchange therefor, at the
principal corporate trust office of the Trustee or at any office or agency
maintained by the Company for such purpose as provided in Section 3.02, and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in exchange for such temporary Debt Securities a like aggregate
principal amount of such definitive Debt Securities. Such exchange shall be made
by the Company at its own expense and without any charge therefor except that in
case of any such exchange involving a registration of transfer the Company may
require payment of a sum sufficient to cover any tax, fee or other governmental
charge that may be imposed in relation thereto. Until so exchanged, the
temporary Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of the same
series authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Debt Securities Paid, etc.
All Debt Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer, shall, if surrendered to the
Company or any paying agent, be surrendered to the Trustee and promptly canceled
by it, or, if surrendered to the Trustee or any Authenticating Agent, shall be
promptly canceled by it, and no Debt Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. All
Debt Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall deliver all canceled Debt Securities to the Company.
If the Company shall acquire any of the Debt Securities, however, such
acquisition shall not operate as a redemption or satisfaction of
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the indebtedness represented by such Debt Securities unless and until the same
are surrendered to the Trustee for cancellation.
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.03 that
the Debt Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in accordance
with Section 2.04, authenticate and deliver, a Global Security that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all or a specified portion of the outstanding Debt
Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary'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 Security may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.07, the Global
Security of a series may be transferred, in whole but not in part and only in
the manner provided in Section 2.07, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Debt
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act, or
other applicable statute or regulation, and a successor Depositary 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 Debt Securities of such series and the
Company will execute, and subject to Section 2.07, the Trustee will authenticate
and make available for delivery the Debt Securities 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 Security
of such series in exchange for such Global Security. In addition, the Company
may at any time determine that the Debt Securities of any series shall no longer
be represented by a Global Security and that the provisions of this Section 2.11
shall no longer apply to the Debt Securities of such series. In such event the
Company will execute and subject to Section 2.07, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and make available for delivery the Debt Securities 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
Security of such series in exchange for such Global Security. Upon the exchange
of the Global Security for such Debt Securities in definitive registered form
without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee. Such Debt Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c)
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Debt
Securities to the Depositary for delivery to the Persons in whose names such
Debt Securities are so registered.
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SECTION 2.12. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Securityholders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debt Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Debt Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series
of Debt Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Debt Securities of
that series at the place, at the respective times and in the manner provided in
such Debt Securities. At the option of the Company, each installment of interest
on the Debt Securities of any series may be paid (i) by mailing checks for such
interest payable to the order of the holders of Debt Securities entitled thereto
as they appear on the registry books of the Company or (ii) if so specified with
respect to the Debt Securities of such series as contemplated by Section 2.03,
by wire transfer to any account with a banking institution located in the United
States designated by such Person to the paying agent no later than the related
record date.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Debt Securities remain outstanding, the
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Debt Securities of each series may be presented for
payment, an office or agency where the Debt Securities of that series may be
presented for registration or transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon the
Company in respect of the Debt Securities of that series or of this Indenture
may be served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in a notice to the
Trustee, or specified as contemplated by Section 2.03, such office or agency for
all of the above purposes shall be the office or agency of the Trustee. In case
the Company shall fail to maintain any such office or agency in the Borough of
Manhattan, The City of New York, or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the principal corporate trust office of the
Trustee.
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Debt Securities may be presented for
registration of transfer and for exchange in
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the manner provided in this Indenture, and the Company may from time to time
rescind such designation, as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office or agency in
the Borough of Manhattan, The City of New York, for the purposes above
mentioned. The Company will give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Debt Securities of any series, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provision of this Section
3.04,
(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, if any, on the
Debt Securities of such series (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities of such series) in trust
for the benefit of the holders of the Debt Securities of such series;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities of such series) to make
any payment of the principal of and premium, if any, or interest, if any, on the
Debt Securities of such series when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of and premium, if any, or interest, if
any, on the Debt Securities of any series, set aside, segregate and hold in
trust for the benefit of the holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium or interest so becoming due and will
notify the Trustee of any failure to take such action and of any failure by the
Company (or by any other obligor under the Debt Securities of such series) to
make any payment of the principal of and premium, if any, or interest, if any,
on the Debt Securities of such series when the same shall become due and
payable.
Whenever the Company shall have one or more paying agents for any
series of Debt Securities, it will, on or prior to each due date of the
principal of and premium, if any, or interest, if any, on any Debt Securities of
such series, deposit with a paying agent a sum sufficient to pay the principal,
premium or interest so becoming due, such sum to be held in trust
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for the benefit of the Persons entitled thereto, and (unless such paying agent
is the Trustee) the Company shall promptly notify the Trustee of its action or
failure to act.
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of Debt
Securities hereunder, or for any other reason, pay, or direct any paying agent
to pay to the Trustee all sums held in trust for any such series by the Company
or any such paying agent, such sums to be held by the Trustee upon the trusts
herein contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days
after the end of each fiscal year in each year, so long as Debt Securities of
any series are outstanding hereunder, a Certificate stating that in the course
of the performance by the signers of their duties as officers of the Company
they would normally have knowledge of any default by the Company in the
performance of any covenants contained herein, stating whether or not they have
knowledge of any such default and, if so, specifying each such default of which
the signers have knowledge and the nature thereof.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Debt Securities 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 X hereof are complied with.
SECTION 3.07. Limitation on Dividends.
If Debt Securities of a series are initially issued to a
TransamericaTrust or a trustee of such trust in connection with the issuance of
Trust Securities by such Transamerica Trust (regardless of whether such Debt
Securities continue to be held by such trust) and (i) there shall have occurred
and be continuing any event that would constitute an Event of Default, (ii) the
Company shall be in default with respect to its payment of any obligations under
a Capital Securities Guarantee or a Common Securities Guarantee with respect to
securities issued by such trust, or (iii) the Company shall have given notice of
its election to defer payments of interest on the Debt Securities of such series
by extending the interest payment period as provided herein and such period, or
any extension thereof, shall be continuing, then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock or rights to acquire such capital stock (other than (i) purchases
or acquisitions of shares of the Company's capital stock or rights to acquire
such capital stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Company's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of the
Company's capital stock or rights to acquire such capital stock for another
class or series of the Company's capital stock or rights to acquire such capital
stock, (iii)
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the purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged or (iv) dividends or distributions made on
the Company's capital stock or rights to acquire such capital stock with the
Company's capital stock or rights to acquire such capital stock) or make any
guarantee payments with respect to the foregoing, and (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Company which rank pari passu with or junior to the Debt Securities of such
series.
SECTION 3.08. Covenants as to Transamerica Trusts.
In the event Debt Securities of a series are initially issued to
a Transamerica Trust or a trustee of such trust in connection with the issuance
of Trust Securities by such Transamerica Trust, for so long as such Trust
Securities remain outstanding, the Company will (i) maintain 100% direct
ownership of the Common Securities of such Transamerica Trust; provided,
however, that any permitted successor of the Company under this Indenture may
succeed to the Company's ownership of such Common Securities, (ii) use its
reasonable efforts to cause such Transamerica Trust (a) to remain a statutory
business trust, except in connection with a distribution of Debt Securities of
such series to the holders of such Trust Securities in liquidation of such
Trust, the redemption of all of the Trust Securities of such Transamerica Trust
or mergers, consolidations or amalgamations, each as permitted by the
Declaration of such Transamerica Trust, and (b) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes and
(iii) use its reasonable efforts to cause each holder of Trust Securities issued
by such Trust to be treated as owning an undivided beneficial interest in the
Debt Securities of such series issued to such Trust.
SECTION 3.09. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods), if any, accrued on
outstanding Debt Securities as of the end of such year.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or caused
to be furnished to the Trustee:
(a) on each regular record date for each series of Debt
Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Securityholders of such series of Debt Securities as
of such record date (and on dates to be determined pursuant to Section 2.03 for
non-interest bearing securities in each year); and
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(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; except that no such lists need be furnished under this
Section 4.01 so long as the Trustee is in possession thereof by reason of its
acting as Debt Security registrar for such series.
SECTION 4.02. Preservation and Disclosure of Lists.
(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 each series of Debt Securities (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2) received by it in the
capacity of Debt Securities registrar (if so acting) hereunder. The Trustee may
destroy any list furnished to it as provided in Section 4.01 upon receipt of a
new list so furnished.
(b) In case three or more holders of Debt Securities of any
series (hereinafter referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such applicant has owned a
Debt Security of such series for a period of at least six months preceding the
date of such application, and such application states that the applicants desire
to communicate with other holders of Debt Securities of such series or with
holders of all Debt Securities with respect to their rights under this Indenture
or under such Debt Securities and is accompanied by a copy of the form of proxy
or other communication which such applicants propose to transmit, then the
Trustee shall within five Business Days after the receipt of such application,
at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.02, or
(2) inform such applicants as to the approximate number of
holders of such series or all Debt Securities, 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 4.02, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any,
specified in such application.
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 Securityholder of such series or all Debt Securities,
as the case may be, whose name and address appear in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.02 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 material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless, within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission (in the case of any Debt Securities of a
series that is registered with the Securities and Exchange Commission under the
Securities Act of 1933), 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 interests of the holders of Debt
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Securities of such series or all Debt Securities, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If (in the case of any Debt Securities of a series filed
with the Securities and Exchange Commission under the Securities Act of 1933)
said 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 1 or more of
such objections, said 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
Securityholders 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.
(c) Each and every holder of Debt Securities, by receiving and
holding the same, agrees with Company and the Trustee that neither the Company
nor the Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Debt Securities in accordance with the provisions of subsection (b) of this
Section 4.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 4.03. [Reserved]
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each May 15 following the date of this
Indenture deliver to Securityholders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission and
with the Company. The Company will promptly notify the Trustee when the Debt
Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.
The following Events of Default with respect to Debt Securities
of any series or such other events as may be established with respect to the
Debt Securities of that series as
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contemplated by Section 2.03 hereof shall be "Events of Default" with respect to
Debt Securities of that series:
(a) the Company defaults in the payment of any interest upon any
Debt Securities of that series when it becomes due and payable, and continuance
of such default for a period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company in accordance with the
terms of such Debt Securities shall not constitute a default in the payment of
interest for this purpose; or
(b) the Company defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities of that series as and
when the same shall become due and payable either at maturity, upon redemption
(including redemption for any sinking fund), by declaration or otherwise;
provided, however, that a valid extension of the maturity of such Debt
Securities in accordance with the terms of such Debt Securities shall not
constitute a default in the payment of principal or premium, if any; or
(c) the Company defaults in the performance of, or breaches, any
of its covenants or warranties in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with and other than those set forth exclusively in
terms of any particular series of Debt Securities established as contemplated in
this Indenture solely for the benefit of the holders of such Debt Securities),
and continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Debt Securities of such series then outstanding, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(d) the Company defaults with respect to indebtedness for money
borrowed resulting in acceleration of such indebtedness having an aggregate
principal amount in excess of $50 million and such acceleration is not rescinded
or annulled within 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in aggregate principal amount of the Debt
Securities of such series then outstanding, a written notice specifying such
acceleration and stating that such Notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(f) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property,
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or shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(g) as to Debt Securities of any series issued to a Transamerica
Trust, such Transamerica Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its existence except in
connection with (i) the distribution of the Debt Securities of such series to
holders of such Trust Securities in liquidation of their interests in such
Transamerica Trust, (ii) the redemption of all of the outstanding Trust
Securities of such Transamerica Trust or (iii) certain mergers, consolidations
or amalgamations, each as permitted by the Declaration of such Transamerica
Trust.
If an Event of Default occurs and is continuing with respect to
any series of Debt Securities, then, and in each and every such case, unless the
principal of all of the Debt Securities 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 Debt Securities of that series then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Debt Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Debt Securities of any series (or of all
the Debt Securities, as the case may be) shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debt Securities of such series (or of all
the Debt Securities, as the case may be) and the principal of and premium, if
any, on any and all Debt Securities of such series (or of all the Debt
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Debt Securities of such series, (or at the respective rates of interest
or Yields to Maturity of all the Debt Securities, as the case may be) to the
date of such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith, and if any and all Events of
Default under the Indenture, other than the non-payment of the principal of or
premium, if any, on Debt Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein , then
and in every such case the holders of a majority in aggregate principal amount
of the Debt Securities of such series (or of all the Debt Securities, as the
case may be) then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults with respect to that series (or with respect to
all Debt Securities, as the case may be, in such case, treated as a single
class) and
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rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the Trustee and the holders of the Debt Securities shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the holders of the
Debt Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Debt Securities on Default; Suit
Therefor.
The Company covenants that (a) in case default shall be made in
the payment of any installment of interest upon any of the Debt Securities of
any series as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of the principal of or premium, if any, on any of the Debt
Securities of any series as and when the same shall have become due and payable,
whether at maturity of the Debt Securities of that series or upon redemption or
by declaration or otherwise -- then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Debt Securities
of that series the whole amount that then shall have become due and payable on
all such Debt Securities of that series 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 applicable law) upon the overdue installments of interest at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by the Debt Securities of that series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith. 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 actions 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 Company or any other obligor on such Debt Securities
and collect in the manner provided by law out of the property of the Company or
any other obligor on such Debt Securities wherever situated the moneys adjudged
or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Debt
Securities of any series under Title 11, United States Code, or any other
applicable law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon the
Debt Securities of any series, or to the creditors or property of the Company or
such other obligor, the Trustee, irrespective of whether the principal of the
Debt Securities of any series shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether
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the Trustee shall have made any demand pursuant to the provisions of this
Section 5.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Debt Securities of that series are
Original Issue Discount Securities such portion of the principal amount as may
be specified in the terms of that series) owing and unpaid in respect of the
Debt Securities of such series and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in such judicial proceedings relative to the Company or
any other obligor on the Debt Securities of any series, or to the creditors or
property of the Company or such other obligor, unless prohibited by applicable
law and regulations, to vote on behalf of the holders of the Debt Securities or
any series in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and to collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the Securityholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debt Securities of any series or the rights of any
holder thereof or to authorize the Trustee to vote in respect of the claim of
any Securityholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Debt Securities, may be enforced by the Trustee
without the possession of any of the Debt Securities, or the production thereof
at any trial or other proceeding relative 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 be for the ratable
benefit of the holders of the Debt Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Debt Securities, and it shall not be necessary to make any
holders of the Debt Securities parties to any such proceedings.
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SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the
following order, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Debt Securities in respect of
which moneys have been collected, 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 collection
applicable to such series and reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Company
if and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon
Debt Securities of such series for principal (and premium, if any), and interest
on the Debt Securities of such series, in respect of which or for the benefit of
which money has been collected, ratably, without preference or priority of any
kind, according to the amounts due on such Debt Securities for principal (and
premium, if any) and interest, respectively; and
Fourth: The balance, if any, to the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Debt Security of any series shall have any right
by virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding 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 previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Debt Securities 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 Debt Securities of that 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 understood and intended, and being expressly covenanted by the taker and
holder of every Debt Security with every other taker and holder and the Trustee,
that no one or more holders of Debt Securities of any series shall have any
right in any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other holder of
Debt Securities of such series, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debt Securities of the applicable series.
Notwithstanding any other provisions in this Indenture, however,
the right of any holder of any Debt Security to receive payment of the principal
of (and premium, if any) and
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interest, if any, on such Debt Security, on or after the same shall have become
due and payable, or to institute suit for the enforcement of any such payment,
shall not be impaired or affected without the consent of such holder. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.05. Proceedings by Trustee.
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 by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in Section 2.08, all powers and
remedies given by this Article V to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the Debt
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such series, and no delay or omission of
the Trustee or of any holder of any of the Debt Securities 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 5.04, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Debt Securities of any or all series affected (voting as one class) at the time
outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series;
provided, however, that (subject to the provisions of Section 6.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee
shall determine that the action so directed would be unjustly prejudicial to the
holders not taking part in such direction or if the Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceedings so directed
would involve the Trustee in personal liability. Prior to any declaration
accelerating the maturity of any series of the Debt Securities, or of all the
Debt Securities, as the case may be, the holders of a majority in aggregate
principal
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amount of the Debt Securities of that series at the time outstanding
may on behalf of the holders of all of the Debt Securities of such series waive
(or modify any previously granted waiver of) any past default or Event of
Default, including any default or Event of Default the conditions for the
occurrence of which are established pursuant to Section 2.03, and its
consequences, except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Debt Securities, (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
holder of each Debt Security affected, or (c) a default of the covenants
contained in Section 3.08; provided, however, that if the Debt Securities of
such series are held by a Transamerica Trust or a trustee of such trust, such
waiver or modification to such waiver shall not be effective until the holders
of a majority in liquidation preference of Trust Securities of the applicable
Transamerica Trust shall have consented to such waiver or modification to such
waiver; provided, further, that if the consent of the holder of each outstanding
Debt Security is required, such waiver shall not be effective until each holder
of the Trust Securities of the applicable Transamerica Trust shall have
consented to such waiver. 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 Debt Securities 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 Event of Default
or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.07, said default
or Event of Default shall for all purposes of the Debt Securities of that series
(or of all Securities, as the case may be) and this Indenture be deemed to have
been cured and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Debt Securities of any series, mail to all
Securityholders of that series, as the names and addresses of such holders
appear upon the Debt Security Register, notice of all defaults 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 purpose of this
Section 5.08 being hereby defined to be the events specified in clauses (a),
(b), (c), (d), (e) and (f) of Section 5.01, not including periods of grace, if
any, provided for therein, and irrespective of the giving of written notice
specified in clause (c) of Section 5.01); and provided that, except in the case
of default in the payment of the principal of, premium, if any, or interest on
any of the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series; and provided further, that in
the case of any default of the character specified in Section 5.01(c) no such
notice to Securityholders of such series shall be given until at least 60 days
after the occurrence thereof but shall be given within 90 days after such
occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against
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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 attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 5.09 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders of any series, holding in the
aggregate more than 10% in principal amount of the Debt Securities of that
series outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Debt Security against the Company on or after the same shall have become
due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of any series of Debt Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to Debt Securities of that series and after the curing or waiving
of all Events of Default which may have occurred, with respect to Debt
Securities of that series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Debt Securities of a series has occurred (which has
not been cured or waived) the Trustee shall exercise 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to Debt Securities of a series and after the curing or waiving of all
Events of Default with respect to that series which may have occurred
(1) the duties and obligations of the Trustee with respect
to Debt Securities of such series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations with
respect to such series as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee, and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the
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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 furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith, in accordance with the
direction of the Securityholders pursuant to Section 5.07, relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability 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 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture 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 an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed);
and any Board Resolution may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and
any advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the Debt
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Securities (that has not been cured or waived) to exercise with respect to Debt
Securities of that series such of the rights and powers vested in it by this
Indenture, and to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, coupon or other paper or document, unless requested in writing to do
so by the holders of not less than a majority in principal amount of the
outstanding Debt Securities of the series affected thereby; 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 expense or liability as a
condition to so proceeding; 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 (including any Authenticating Agent) or attorneys, and the Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed by it with due care.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Debt Securities (except
in the certificate of authentication of the Trustee or the Authenticating Agent)
shall be taken as the statements of the Company and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities. The Trustee
and the Authenticating Agent shall not be accountable for the use or application
by the Company of any Debt Securities or the proceeds of any Debt Securities
authenticated and delivered by the Trustee or the Authenticating Agent in
conformity with the provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Debt Securities.
The Trustee or any Authenticating Agent or any paying agent or
any transfer agent or any Debt Security registrar, in its individual or any
other capacity, may become the owner or pledgee of Debt Securities with the same
rights it would have if it were not Trustee, Authenticating Agent, paying agent,
transfer agent or Debt Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received
by the Trustee or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee and any paying agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any
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such moneys shall be paid from time to time upon the written order of the
Company, signed by the Chairman of the Board of Directors, the President, a
Managing Director, a Vice President, the Treasurer or an Assistant Treasurer of
the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation as shall be
agreed to in writing between the Company and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all 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 each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the Trustee) 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. The obligations of the Company under this Section 6.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debt Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
Debt Securities.
Without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d), Section
5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, 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 omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an 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 or omitted by
it under the provisions of this Indenture upon the faith thereof.
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SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
the Company shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act, subject to the penultimate paragraph thereof.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state or territory thereof or of the District of Columbia or a corporation
or other Person permitted to act as trustee by the Securities and Exchange
Commission authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000)
and subject to supervision or examination by federal, state, territorial, or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 6.09 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
records of condition so published.
The Company may not, nor may any person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Debt Securities by giving written notice of such resignation to the Company and
by mailing notice thereof to the holders of the applicable series of Debt
Securities at their addresses as they shall appear on the Debt Security
Register. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee or trustees with respect to the applicable series by
written instrument, in duplicate, executed by order of its 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 with respect to any series of Debt Securities and have accepted
appointment within 30 days after the mailing of such notice of resignation to
the affected Securityholders, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee, or any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.09, 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 --
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(1) the Trustee shall fail to comply with the provisions of Section
6.08 after written request therefor by the Company or by any Securityholder who
has been a bona fide holder of a Debt Security or Debt Securities for at least
six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, 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 and
appoint a successor Trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor Trustee, or, subject to
the provisions of Section 5.09, any Securityholder who has been a bona fide
holder of a Debt Security or Debt Securities of the applicable series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint successor Trustee.
(c) Upon prior written notice to the Company and the Trustee,
the holders of a majority in aggregate principal amount of the Debt Securities
of any series at the time outstanding may at any time remove the Trustee with
respect to such series and nominate a successor Trustee with respect to the
applicable series of Debt Securities, which shall be deemed appointed as
successor Trustee with respect to the applicable series unless within ten
Business Days after such nomination the Company objects thereto, in which case
the Trustee so removed or any Securityholder of the applicable series, upon the
terms and conditions and otherwise as in subsection (a) of this Section 6.10
provided, may petition any court of competent jurisdiction for an appointment of
a successor Trustee with respect to such series.
(d) Any resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to any of the provisions of this Section 6.10
shall become effective upon acceptance of appointment by the successor Trustee
as provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor Trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring Trustee with respect to all or any
applicable series shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall duly
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assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee thereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien
upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 6.06.
If a successor Trustee is appointed with respect to the Debt
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Debt Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the Trust hereunder
by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee.
No successor Trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor Trustee as provided
in this Section 6.11, the Company shall mail notice of the succession of such
Trustee hereunder to the holders of Debt Securities of any applicable series at
their addresses as they shall appear on the Debt Security Register. If the
Company fails to mail such notice within ten Business Days after the acceptance
of appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Debt Securities of any series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee,
and deliver such Debt Securities so authenticated; and in case at that time any
of the Debt Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Debt Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificates shall have the full
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force which it is anywhere in the Debt Securities of such series or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Debt Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Debt Securities
of any series issued upon exchange or transfer thereof as fully to all intents
and purposes as though any such Authenticating Agent had been expressly
authorized to authenticate and deliver Debt Securities of such series; provided
that the Trustee shall have no liability to the Company for any acts or
omissions of the Authenticating Agent with respect to the authentication and
delivery of Debt Securities of any series. Any such Authenticating Agent shall
at all times be a corporation organized and doing business under the laws of the
United States or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $5,000,000 and being 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 the requirements of such authority, then for the
purposes of this Section 6.14 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. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect to
one or more or all series of Debt Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to one or more or
all series of Debt Securities by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or
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upon such a termination, or in case at any time any Authenticating Agent shall
cease to be eligible under this Section 6.14, the Trustee may, and upon the
request of the Company shall, promptly appoint a successor Authenticating Agent
with respect to the applicable series eligible under this Section 6.14, shall
give written notice of such appointment to the Company and shall mail notice of
such appointment to all holders of the applicable series of Debt Securities as
the names and addresses of such holders appear on the Debt Security Register.
Any successor Authenticating Agent with respect to all or any series upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities with respect to such series of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein.
The Company agrees to pay to any Authenticating Agent from time
to time reasonable compensation for its services. Any Authenticating Agent shall
have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Debt Securities of any
or all 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 taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Debt Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders or (d) by any other method
the Trustee deems satisfactory.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver or
other action or revocation of the same, 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 Securityholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action or
revocation of the same, 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 or revocation of the same may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same, and for that purpose the
outstanding Debt Securities of that series shall be computed as of the record
date; provided, however, that no such authorization, agreement or consent by
such Securityholders on the record
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date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof
of the execution of any instrument by a Securityholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debt Securities shall be proved by
the Debt Security Register or by a certificate of the Debt Security registrar.
The Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Debt
Security, the Company, the Trustee, any Authenticating Agent, any paying agent,
any transfer agent and any Debt Security registrar may deem the person in whose
name such Debt Security shall be registered upon the Debt Security Register to
be, and may treat him as, the absolute owner of such Debt Security (whether or
not such Debt Security shall be overdue) for the purpose of receiving payment of
or on account of the principal of, premium, if any, and interest on such Debt
Security and for all other purposes; and neither the Company nor the Trustee nor
any Authenticating Agent nor any paying agent nor any transfer agent nor any
Security registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being or upon his order shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Debt Security.
SECTION 7.04. Debt Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Debt Securities have concurred in any direction, consent or
waiver under this Indenture, Debt Securities which are owned by the Company or
any other obligor on the Debt Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Debt Securities shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt Securities which the
Trustee actually knows are so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as outstanding for
the purposes of this Section 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Debt Securities and
that the pledgee is not the Company or any such other obligor or Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
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SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Debt Securities specified
in this Indenture in connection with such action, any holder (in cases where no
record date has been set pursuant to Section 7.01) or any holder as of an
applicable record date (in cases where a record date has been set pursuant to
Section 7.01) of a Debt Security (or any Debt Security issued in whole or in
part in exchange or substitution therefor) the serial number of which is shown
by the evidence to be included in the Debt Securities the holders of which have
consented to such action may, by filing written notice with the Trustee at the
Principal Office of the Trustee and upon proof of holding as provided in Section
7.02, revoke such action so far as concerns such Debt Security (or so far as
concerns the principal amount represented by any exchanged or substituted Debt
Security). Except as aforesaid any such action taken by the holder of any Debt
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Debt Security, and of any Debt Security issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be called
at any time and from time to time pursuant to the provisions of this Article
Eight for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VI; (c) to consent to the execution of an
indenture or indentures supplemental hereto pursuant to the provisions of
Section 9.02; or
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of such Debt
Securities under any other provision of this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders of
any or all series to take any action specified in Section 8.01, to be held at
such time and at such place in the
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Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Securityholders of any or all series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed to holders of Debt
Securities of each series affected at their addresses as they shall appear on
the Debt Securities Register for each series affected. Such notice shall be
mailed not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the
Board of Directors, or the holders of at least 10% in aggregate principal amount
of the Debt Securities of any or all series, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of
Securityholders of any or all series, as the case may be, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Securityholders
may determine the time and the place in said Borough of Manhattan for such
meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a Person
shall (a) be a holder of one or more Debt Securities with respect to which the
meeting is being held or (b) a Person appointed by an instrument in writing as
proxy by a holder of one or more such Debt Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Securityholders
shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Debt Securities
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.04, at any meeting each
holder of Debt Securities with respect to which such meeting is being held or
proxy therefor shall be entitled to one vote for each $1,000 principal amount
(in the case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition "outstanding") of Debt
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Securities held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Debt Security challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of Debt
Securities held by him or instruments in writing as aforesaid duly designating
him as the Person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders
of Debt Securities with respect to which such meeting is being held shall be by
written ballots on which shall be subscribed the signatures of such holders or
of their representatives by proxy and the serial number or numbers of the Debt
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders.
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
Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company,
pursuant to Article X hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the holders of all
or any series of Debt Securities (and if such
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covenants are to be for the benefit of less than all series of Debt Securities
stating that such covenants are expressly being included for the benefit of such
series) as the Board of Directors and the Trustee shall consider to be for the
protection of the holders of such Debt Securities, and to make the occurrence,
or the occurrence and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
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 or condition 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 default or may limit the remedies
available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to matters or
questions arising under this Indenture; provided that any such action shall not
adversely affect the interests of the holders of the Debt Securities of any
series;
(d) to add to, delete from, or revise the terms of Debt
Securities of any series as required by Section 2.07, including, without
limitation, any terms relating to the issuance, exchange, registration or
transfer of Debt Securities; provided that any such action shall not adversely
affect the interests of the holders of the Debt Securities of any series then
outstanding;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11;
(f) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and
terms and conditions of the Debt Securities of any series, to establish the form
of any certifications required to be furnished pursuant to the terms of this
Indenture or any series of Debt Securities, or to add to the rights of the
holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the Trustee
shall not be obligated to, but may in its discretion, 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 provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Debt Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
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SECTION 9.02. Supplemental Indentures with Consent of
Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of not less than a majority in aggregate principal amount of the Debt
Securities at the time outstanding of all series affected by such supplemental
indenture (voting as a class), the Company 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, then in effect,
applicable to indentures qualified thereunder) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities of each series so affected;
provided, however, that no such supplemental indenture shall without the consent
of the holders of each Debt Security then outstanding and affected thereby (i)
extend the fixed maturity of any Debt Security of any series, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the Debt
Securities, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy
pursuant to Section 5.02, or impair or affect the right of any Securityholder to
institute suit for payment thereof or impair the right of repayment, if any, at
the option of the holder, or (ii) reduce the aforesaid percentage of Debt
Securities the holders of which are required to consent to any such supplemental
indenture; provided, further, that if the Debt Securities of such series are
held by a Transamerica Trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the applicable Trust shall have consented to
such supplemental indenture; provided further, that if the consent of the
Securityholder of each outstanding Debt Security is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the applicable Transamerica Trust shall have consented to such supplemental
indenture.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Debt Securities, or which
modifies the rights of Securityholders of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture or the Securityholders of any other series.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders 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.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice, prepared
by the Company, setting forth in general
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terms the substance of such supplemental indenture, to the Securityholders of
all series affected thereby as their names and addresses appear upon the Debt
Security Register. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 9.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of
this Article IX shall comply with the Trust Indenture Act, as then in effect to
the extent applicable to indentures qualified under the Trust Indenture Act.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article IX, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debt Securities of each series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Debt Securities.
Debt Securities of any series authenticated and delivered after
the execution of any supplemental indenture affecting such series pursuant to
the provisions of this Article IX may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Debt Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debt Securities of any series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to
be Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
may receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX. The Trustee may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
to this Article IX is authorized or permitted by, and conforms to, the terms of
this Article IX and that it is proper for the Trustee under the provisions of
this Article IX to join in the execution thereof.
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ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in the Debt Securities of
any series 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 shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors 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 operate the same; provided, however,
that 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 (and premium, if any) and interest on all of the
Debt Securities 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 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,
applicable to indentures qualified thereunder) satisfactory 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. Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and premium, if any, and interest on all of the Debt Securities and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company, 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 Company, and thereupon the
predecessor corporation shall be relieved of any further liability or obligation
hereunder or upon the Debt Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of
Transamerica Corporation, any or all of the Debt Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Debt Securities which previously shall
have been signed and delivered by the officers of the Company, to the Trustee or
the Authenticating Agent for authentication, and any Debt Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee or the Authenticating Agent for that purpose. All the Debt Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in
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accordance with the terms of this Indenture as though all of such Debt
Securities had been issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02,
may receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or other disposition, and any assumption,
permitted or required by the terms of this Article X complies with the
provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Debt Securities theretofore authenticated (other than any Debt
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.08) and not theretofore canceled,
or (b) all the Debt Securities not theretofore canceled or 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
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds sufficient to pay at maturity or upon redemption all of
the Debt Securities (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.08) not theretofore canceled or 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 redemption date, as the case may be, but
excluding, however, the amount of any moneys for the payment of principal of,
and premium, if any, or interest on the Debt Securities (1) theretofore repaid
to the Company in accordance with the provisions of Section 11.04, or (2) paid
to any state or to the District of Columbia pursuant to its unclaimed property
or similar laws, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect except for the provisions of Sections 2.05, 2.07,
2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof shall survive until such
Debt Securities shall mature and be paid. Thereafter, Sections 6.10 and 11.04
shall survive, and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture, the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee in connection with this Indenture or the Debt
Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations
to be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the
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Company if acting as its own paying agent), to the holders of the particular
Debt Securities for the payment of which such moneys or U.S. Government
Obligations have been deposited with the Trustee, of all sums due and to become
due thereon for principal, and premium, if any, and interest.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.05 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the holders of outstanding Debt Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys
then held by any paying agent of the Debt Securities (other than the Trustee)
shall, upon demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying
agent for payment of the principal of, and premium, if any, or interest on Debt
Securities and not applied but remaining unclaimed by the holders of Debt
Securities for two years after the date upon which the principal of, and
premium, if any, or interest on such Debt Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Trustee or
such paying agent on written demand; and the holder of any of the Debt
Securities shall thereafter look only to the Company for any payment which such
holder may be entitled to collect and all liability of the Trustee or such
paying agent with respect to such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
The Company shall be deemed to have been Discharged (as defined
below) from its respective obligations with respect to any series of Debt
Securities on the 91st day after the applicable conditions set forth below have
been satisfied with respect to such series of Debt Securities:
(1) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee or the Defeasance Agent (as
defined below) as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the holders of the Debt
Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee and the Defeasance Agent, if any, to pay and discharge each
installment of principal (including any mandatory sinking fund payments)
of, and interest and premium, if any, on, the
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outstanding Debt Securities of such series on the dates such
installments of principal, interest or premium are due;
(2) if the Debt Securities of such series are then listed
on any national securities exchange, the Company shall have delivered to
the Trustee and the Defeasance Agent, if any, an Opinion of Counsel to
the effect that the exercise of the option under this Section 11.05
would not cause such Debt Securities to be delisted from such exchange;
(3) no Event of Default or event which with notice or
lapse of time would become an Event of Default with respect to the Debt
Securities of such series shall have occurred and be continuing on the
date of such deposit; and
(4) the Company, shall have delivered to the Trustee and
the Defeasance Agent, if any, an Opinion of Counsel to the effect that
holders of the Debt Securities of such series will not recognize income,
gain or loss for United States federal income tax purposes as a result
of the exercise of the option under this Section 11.05 and will be
subject to United States federal income tax on the same amount and in
the same manner and at the same times as would have been the case if
such option had not been exercised, and, in the case of the Debt
Securities of such series being Discharged, such opinion shall be
accompanied by a private letter ruling to that effect received from the
United States Internal Revenue Service or a revenue ruling pertaining to
a comparable form of transaction to that effect published by the United
States Internal Revenue Service.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Debt Securities of such series and to have satisfied all the obligations
under this Indenture relating to the Debt Securities of such series (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except (A) the rights of holders of Debt Securities of
such series to receive, from the trust fund described in clause (1) above,
payment of the principal of and the interest and premium, if any, on such Debt
Securities when such payments are due; (B) the Company's obligations with
respect to such Debt Securities under Sections 2.05, 2.07, 2.08, 3.01, 3.02,
3.04, 6.06, 6.10 and 11.04; and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations of
the Trustee necessary to enable the Trustee to act under this Section 11.05. In
the event such a Defeasance Agent is appointed pursuant to this Section, the
following conditions shall apply:
1. The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth such Defeasance
Agent's rights and responsibilities;
2. The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U.S. Government Obligations to
meet the applicable conditions set forth in this Section 11.05;
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3. The Trustee shall determine whether the Company shall be
deemed to have been Discharged from its respective obligations with respect to
any series of Debt Securities.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if
any, or interest on any Debt Security, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any such Debt Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation of the Company, either directly or
through the Company or any successor corporation of the Company, 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 all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Debt
Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns whether
so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision 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 like board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company as the case may be, and
thereupon such power so surrendered shall terminate both as to the Company, and
as to any successor corporation.
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SECTION 13.04. Addresses for Notices, etc.
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
Debt Securities on the Company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company, with the Trustee for the
purpose) to the Company, 600 Montgomery Street, San Francisco, California 94111,
Attention: Secretary. Any notice, direction, request or demand by any
Securityholder or the Company 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 office of the Trustee, addressed to the Trustee, One First National
Plaza, Suite 0126, Chicago, Illinois 60670, Attention: Corporate Trust Services
Division.
SECTION 13.05. Governing Law.
This Indenture and each Debt Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of said State,
without regard to conflict of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
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 in the
opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person, he 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. Non-Business Days.
Subject to Section 2.03, in any case where the date of payment of
interest on or principal of the Debt Securities will be a Saturday, Sunday or a
day on which banking institutions in New York City (in the State of New York)
are permitted or required by any applicable law to close, the payment of such
interest on or principal of the Debt Securities need not be made on such date
but may be made on the next succeeding day not a Saturday, Sunday or a day on
which banking institutions in such City are permitted or required by any
applicable law to close, with the same force and effect as if made on the date
of payment and no interest shall accrue for the period from and after such date.
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SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision 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. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles
and sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this
Indenture or in the Debt Securities 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 Debt Securities, but this Indenture and such Debt
Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company, will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debt
Securities held by any Transamerica Trust or a trustee of such trust, if the
Institutional Trustee of such trust fails to enforce its rights under this
Indenture as the holder of the series of Debt Securities held as the assets of
such Transamerica Trust any holder of Capital Securities may institute legal
proceedings directly against the Company to enforce such Institutional Trustee's
rights under this Indenture without first instituting any legal proceedings
against such Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest (or premium, if any) or principal on the applicable series of Debt
Securities on the date such interest (or premium, if any) or principal is
otherwise payable (or in the case of redemption, on the
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redemption date), the Company acknowledges that a holder of record of Capital
Securities of the Transamerica Trust that purchased the applicable series of
Debt Securities may directly institute a proceeding for enforcement of payment
to such holder of the principal of (or premium, if any, on) or interest on the
applicable series of Debt Securities having a principal amount equal to the
aggregate liquidation amount of the Capital Securities of such holder on or
after the respective due date specified in the applicable series of Debt
Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 2.03 for Debt Securities of such
series.
SECTION 14.02. Notice of Redemption; Selection of Debt
Securities.
In case the Company shall desire to exercise the right to redeem
all, or, as the case may be, any part of the Debt Securities of any series in
accordance with their terms, it shall fix a date for redemption and shall mail a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Debt Securities of such series so to
be redeemed as a whole or in part at their last addresses as the same appear on
the Debt Security Register. Such mailing shall be by first class mail. The
notice if mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to the
holder of any Debt Security of a series designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Debt Security of such series.
Each such notice of redemption shall specify the CUSIP number of
the Debt Securities to be redeemed, the date fixed for redemption, the
redemption price at which Debt Securities of such series are to be redeemed, the
place or places of payment, that payment will be made upon presentation and
surrender of such Debt Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Debt Securities of such series are to be redeemed
the notice of redemption shall specify the numbers of the Debt Securities of
that series to be redeemed. In case any Debt Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of that series in principal amount equal to the
unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the
Trustee or with one or more paying
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agents an amount of money sufficient to redeem on the redemption date all the
Debt Securities so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption.
If all, or less than all, the Debt Securities of a series are to
be redeemed, the Company will give the Trustee notice not less than 45 or 60
days, respectively, prior to the redemption date as to the aggregate principal
amount of Debt Securities of that series to be redeemed and the Trustee shall
select, in such manner as in its sole discretion it shall deem appropriate and
fair, the Debt Securities of that series or portions thereof (in integral
multiples of $1,000, except as otherwise set forth in the applicable form of
Debt Security) to be redeemed.
SECTION 14.03. Payment of Debt Securities Called for Redemption.
If notice of redemption has been given as provided in Section
14.02 or Section 14.04, the Debt Securities or portions of Debt Securities of
the series with respect to which such notice has been given shall become due and
payable on the date and at the place or places stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption, and on and after said date (unless the Company shall default in
the payment of such Debt Securities at the redemption price, together with
interest accrued to said date) interest on the Debt Securities or portions of
Debt Securities of any series so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption.
Upon presentation of any Debt Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the Company, a
new Debt Security or Debt Securities of such series of authorized denominations,
in principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". The last date on which any such payment may be
made is herein referred to as a "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Debt Securities of that series
theretofore purchased by the Company and (b) may apply as a credit Debt
Securities of that series which have been redeemed either at the election of the
Company pursuant to the terms of such Debt Securities or through the application
of optional sinking fund payments pursuant to the next succeeding paragraph, in
each case in satisfaction of all or any part of any mandatory sinking fund
payment, provided that such Debt Securities have not been previously so
credited. Each such Debt Security so delivered or applied as a credit shall
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be credited at the sinking fund redemption price for such Debt Securities and
the amount of any mandatory sinking fund shall be reduced accordingly. If the
Company intends so to deliver or credit such Debt Securities with respect to any
mandatory sinking fund payment it shall deliver to the Trustee at least 60 days
prior to the next succeeding sinking fund payment date for such series (a) a
certificate signed by the Treasurer or an Assistant Treasurer of the Company
specifying the portion of such sinking fund payment, if any, to be satisfied by
payment of cash and the portion of such sinking fund payment, if any, which is
to be satisfied by delivering and crediting such Debt Securities and the basis
for such credit and stating that such Debt Securities have not been previously
so credited and (b) any Debt Securities to be so delivered. All Debt Securities
so delivered to the Trustee shall be canceled by the Trustee and no Debt
Securities shall be authenticated in lieu thereof. If the Company fails to
deliver such certificate and Debt Securities at or before the time provided
above, the Company shall not be permitted to satisfy any portion of such
mandatory sinking fund payment by delivery or credit of Debt Securities.
At its option the Company may pay into the sinking fund for the
retirement of Debt Securities of any particular series, on or before each
sinking fund payment date for such series, any additional sum in cash as
specified by the terms of such series of Debt Securities. If the Company intends
to exercise its right to make any such optional sinking fund payment, it shall
deliver to the Trustee at least 60 days prior to the next succeeding sinking
fund payment date for such series a certificate signed by the Treasurer or an
Assistant Treasurer of the Company stating that the Company intends to exercise
such optional right and specifying the amount which the Company intends to pay
on such sinking fund payment date. If the Company fails to deliver such
certificate at or before the time provided above, the Company shall not be
permitted to make any optional sinking fund payment with respect to such sinking
fund payment date. To the extent that such right is not exercised in any year it
shall not be cumulative or carried forward to any subsequent year.
If the sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request)
with respect to the Debt Securities of any particular series, it shall be
applied by the Trustee or one or more paying agents on the next succeeding
sinking fund payment date to the redemption of Debt Securities of such series at
the sinking fund redemption price together with accrued interest to the date
fixed for redemption. The Trustee shall select, in the manner provided in
Section 14.02, for redemption on such sinking fund payment date a sufficient
principal amount of Debt Securities of such series to absorb said cash, as
nearly as may be, and the Trustee shall, at the expense and in the name of the
Company, thereupon cause notice of redemption of Debt Securities of such series
to be given in substantially the manner and with the effect provided in Sections
14.02 and 14.03 for the redemption of Debt Securities of that series in part at
the option of the Company, except that the notice of redemption shall also state
that the Debt Securities of such series are being redeemed for the sinking fund.
Any sinking fund moneys not so applied or allocated by the Trustee or any paying
agent to the redemption of Debt Securities of that series shall be added to the
next cash sinking fund payment received by the Trustee or such paying agent and,
together with such payment, shall be applied in accordance with the provisions
of this Section 14.04. Any and all sinking fund moneys held by the Trustee or
any paying agent on the maturity date of the Debt Securities of any particular
series, and not held for the payment or redemption of particular Debt Securities
of such series, shall be applied by the Trustee or such paying agent, together
with other
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moneys, if necessary, to be deposited sufficient for the purpose, to the payment
of the principal of the Debt Securities of that series at maturity.
On or before each sinking fund payment date, the Company shall
pay to the Trustee or to one or more paying agents in cash a sum equal to all
interest accrued to the date fixed for redemption on Debt Securities to be
redeemed on the next following sinking fund payment date pursuant to this
Section.
Neither the Trustee nor any paying agent shall redeem any Debt
Securities of a series with sinking fund moneys, and the Trustee shall not mail
any notice of redemption of Debt Securities for such series by operation of the
sinking fund, during the continuance of a default in payment of interest on such
Debt Securities or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph), except that if the notice of
redemption of any Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee or any paying agent shall
redeem such Debt Securities if cash sufficient for that purpose shall be
deposited with the Trustee or such paying agent for that purpose in accordance
with the terms of this Article XIV. Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such default or Event of
Default shall occur and any moneys thereafter paid into the sinking fund shall,
during the continuance of such default or Event of Default, be held as security
for the payment of all such Debt Securities; provided, however, that in case
such Event of Default or default, shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date on which such moneys may be applied pursuant to the provisions
of this Section 14.04.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debt
Securities issued hereunder and under any supplemental indenture or by any Board
Resolution ("Additional Provisions") by such Securityholder's acceptance thereof
likewise covenants and agrees, that all Debt Securities shall be issued subject
to the provisions of this Article XV; and each holder of a Debt Security,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of, and premium, if
any, and interest on all Debt Securities issued hereunder and under any
Additional Provisions shall, to the extent and in the manner hereinafter set
forth, be subordinated and junior in right of payment to the prior payment in
full of all Senior Indebtedness of the Company, whether outstanding at the date
of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of
any default or Event of Default hereunder.
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SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment due
on any Senior Indebtedness of the Company following any applicable grace period,
or in the event that the maturity of any Senior Indebtedness of the Company, has
been accelerated because of a default, then, in either case, no payment shall be
made by the Company, with respect to the principal (including redemption and
sinking fund payments) of, or premium, if any, or interest on the Debt
Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 15.02, such payment shall be held in trust
for the benefit 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 in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
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
of the Company, shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company,
on account of the principal (and premium, if any) or interest on the Debt
Securities; and upon any such dissolution or winding-up or liquidation or
reorganization, 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 Securityholders or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article XV, shall be paid by the
Company, or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Securityholders
or by the Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (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 such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders 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 before all Senior Indebtedness of
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the Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company, remaining unpaid to the
extent necessary to pay such Senior Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or distribution to
or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article XV, 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 Fifteen with
respect to the Debt Securities to the payment of all Senior Indebtedness of the
Company, that may at the time be outstanding, provided that (i) such Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
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 property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article X of this Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 15.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article X of this Indenture. Nothing in Section 15.02 or in this Section
15.03 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.06 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the Securityholders shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of cash, property
or securities of the Company, applicable to such Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debt Securities shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property
or securities to which the Securityholders or the Trustee would be entitled
except for the provisions of this Article XV, and no payment over pursuant to
the provisions of this Article XV to or for the benefit of the holders of such
Senior Indebtedness by Securityholders or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the Company,
and the holders of the Debt Securities be deemed to be a payment or distribution
by the Company to or on account of such Senior Indebtedness. It is understood
that the provisions of this Article Fifteen are and are intended solely for the
purposes of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of such Senior Indebtedness, on the other hand.
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Nothing contained in this Article XV or elsewhere in this
Indenture, any Additional Provisions or in the Debt Securities is intended to or
shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness of the Company, and the holders of the Debt Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Debt Securities the principal of (and premium, if any) and
interest on the Debt Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Debt Securities and creditors of the
Company, other than the holders of Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the holder of any Debt
Security from exercising all remedies otherwise permitted by applicable law upon
default under the Indenture, subject to the rights, if any, under this Article
XV of the holders of such 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 Fifteen, the Trustee, subject to the provisions of
Article VI of this Indenture, and the Securityholders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Securityholders, for
the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of 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 pertinent thereto or to this Article XV.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee at the Principal Office of the Trustee of any fact known
to the Company that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Debt Securities pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture or any Additional Provisions, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the Debt
Securities pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Trustee at the Principal Office of the Trustee shall
have received written notice thereof 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 Article VI of
this Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section 15.06 at least two Business
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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 interest on any Debt Security), 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 affected by any notice
to the contrary that may be received by it within two Business Days prior to
such date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee or representative on behalf of such
holder), to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder 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 such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent 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 XV, 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 15.07. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article XV 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 or any Additional Provisions shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or any Additional Provisions
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Indebtedness and, subject to the provisions of
Article VI of this Indenture, the Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall pay over or deliver to Securityholders, the
Company or any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company 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 Company, 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,
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provisions and covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Debt Securities to the holders
of such 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, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any manner
for the collection of such Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company, and any other Person.
The First National Bank of Chicago hereby accepts the trusts in
this Indenture declared and provided, upon the terms and conditions herein above
set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed by their respective officers thereunto duly authorized, as
of the day and year first above written.
TRANSAMERICA CORPORATION
By /s/ Mark A. McEachen
-------------------------------------
Name: Mark A. McEachen
Title: Vice President & Treasurer
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By /s/ John R. Prendiville
-------------------------------------
Name: John R. Prendiville
Title: Vice President
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<PAGE> 1
Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE
between
TRANSAMERICA CORPORATION, as Issuer,
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
Dated as of November 14, 1997
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
<TABLE>
<S> <C>
DEFINITIONS..................................................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES...............................3
ARTICLE III
REDEMPTION OF THE DEBENTURES................................................10
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD........................................11
ARTICLE V
EXPENSES AND GUARANTEE......................................................12
ARTICLE VI
FORM OF DEBENTURE...........................................................13
ARTICLE VII
MISCELLANEOUS...............................................................22
</TABLE>
i
<PAGE> 3
SECOND SUPPLEMENTAL INDENTURE, dated as of November 14, 1997 (the
"Second Supplemental Indenture"), between Transamerica Corporation, a Delaware
corporation (the "Company") and The First National Bank of Chicago, as trustee
(the "Trustee"), under the Indenture dated as of December 5, 1996 between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a series of its Debt Securities to
be known as 7-5/8% Junior Subordinated Deferrable Interest Debentures due 2037
(the "Initial Debentures"), and to provide for, if and when issued in exchange
for the Initial Debentures pursuant to the Indenture and the Registration
Agreement, a series of its Debt Securities to be known as 7-5/8% Junior
Subordinated Deferrable Interest Debentures due 2037 (the "Exchange Debentures"
and, together with the Initial Debentures, the "Debentures"), the form and
substance of each such series of Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this Second
Supplemental Indenture;
WHEREAS, Transamerica Capital III, a Delaware statutory business
trust (the "Trust"), has offered for sale pursuant to an exemption from the
registration requirements of the Securities Act of 1933, $190,000,000 aggregate
liquidation amount of 7-5/8% Capital Trust Pass-through Securities
(the "Initial Capital Securities"), representing undivided beneficial interests
in the assets of the Trust and proposes to invest the proceeds from such
offering, together with the proceeds of the issuance and sale by the Trust to
the Company of its common securities, in $195,877,000 aggregate principal amount
of the Initial Debentures;
WHEREAS, pursuant to the Registration Agreement, the Trust may
offer and issue 7-5/8% Capital Trust Pass-through Securities (the "Exchange
Capital Securities," and together with the Initial Capital Securities, the
"Capital Securities") in exchange for the Initial Capital Securities; and
WHEREAS, Sections 2.03 and 9.01 of the Base Indenture permit,
among other things, the Company and the Trustee to enter into one or more
indentures supplemental thereto, without the consent of the Securityholders, to
provide for the issuance and establish the forms and terms and conditions of
Debt Securities of any series; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Second Supplemental Indenture; all requirements necessary to make
this Second Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed; and the execution and delivery of this Second
Supplemental Indenture has been duly authorized in all respects;
<PAGE> 4
NOW THEREFORE, in consideration of the purchase and acceptance of
the Initial Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of each series of
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in
Declaration III: (i) Administrators; (ii) Business Day; (iii) Capital Security
Certificate; (iv) Clearing Agency; (v) Delaware Trustee; (vi) Depositary; (vii)
Distribution; (viii) Institutional Trustee; (ix) Purchase Agreement; (x)
Redemption Tax Opinion; (xi) Tax Event; and (xii) Trust Securities;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section
2.5(c).
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Declaration III" means the Amended and Restated Declaration of
Trust dated as of November 14, 1997.
"Deferred Interest" shall have the meaning set forth in Section
4.1.
"Dissolution Event" means that the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the Institutional
Trustee are to be distributed to the holders of the Trust Securities pro rata in
accordance with the Declaration.
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<PAGE> 5
"Extension Period" shall have the meaning set forth in Section
4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4(a)(i).
"interest" shall include all interest payable on a series of
Debentures including any Additional Interest, Compounded Interest and Special
Interest, if applicable.
"Maturity Date" means November 15, 2037.
"Non Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.4(a)(ii).
"Record Date" shall have the meaning set forth in the Debentures.
"Registration Agreement" means the Registration Rights Agreement,
dated as of November 14, 1997, relating to the Debentures and the other
securities described therein among the Company, the Trust and the Initial
Purchasers (as defined therein).
"Registered Exchange Offer" has the meaning set forth in the
Registration Agreement.
"Restricted Securities Legend" shall have the meaning as set
forth in Section 2.7.
"Special Interest" has the meaning set forth in Section
2.5(e)(iii).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1
The Initial Debentures and the Exchange Debentures are hereby
authorized as two series of Debt Securities. The aggregate principal amount of
Debentures outstanding at any time shall not exceed $195,877,000 (except as set
forth in Section 2.03(2) of the Indenture). Upon receipt of a written order of
the Company for the authentication and delivery of a series of Debentures and
satisfaction of the requirements of Section 2.04 of the Indenture, the Trustee
shall authenticate as specified in such order, either (a) Initial Debentures for
original issuance in an aggregate principal amount not to exceed $195,877,000
(except as set forth in Section 2.03(2) of the Indenture) or (b) Exchange
Debentures for issuance pursuant to (i) a Registered Exchange Offer for Initial
Debentures in a principal amount equal to the principal amount of Initial
Debentures exchanged in such Registered Exchange Offer and (ii) Section
2(d)(iii) of the Registration Agreement in a principal amount equal to the
principal amount of Initial Debentures exchanged pursuant to such section.
The Initial Debentures shall be issued pursuant to an exemption
from registration under the Securities Act and the Restricted Securities Legend
shall appear thereon, unless otherwise determined by the Company in accordance
with applicable law. The Debentures shall
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<PAGE> 6
be issued in minimum denominations of $100,000 and any integral multiple of
$1,000 in excess thereof.
SECTION 2.2
At the Maturity Date, the Debentures shall mature and the
principal thereof shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest, Additional Interest and Special
Interest thereon, if any.
SECTION 2.3
Except as provided in Section 2.4, Debentures of a series shall
be issued in fully registered certificated form without interest coupons.
Principal and interest on Debentures of a series issued in certificated form
will be payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures of such series bearing identical
terms and provisions, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, which office or agency shall initially be the
corporate trust office of the Trustee; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the holder
of any Debenture at such address as shall appear in the Debt Security Register
for such series of Debentures or by wire transfer to an account appropriately
designated by such holder. Notwithstanding the foregoing, so long as the holder
of any Debentures of a series is the Institutional Trustee, the payment of the
principal of and interest (including Compounded Interest, Additional Interest
and Special Interest, if any) on the Debentures held by the Institutional
Trustee will be made by transfer of immediately available funds at such place
and to such account as may be designated by the Institutional Trustee.
SECTION 2.4
(a) In connection with a Dissolution Event,
(i) except as provided in clause (ii) of this sentence,
Debentures of a series in certificated form may be presented to the
Trustee by the Institutional Trustee holding such Debentures in exchange
for a Global Security for such series in an aggregate principal amount
equal to the aggregate principal amount of all outstanding Debentures of
such series (a "Global Debenture"), to be registered in the name of The
Depository Trust Company, New York, New York, or its nominee (hereby
designated to be the Depositary for Debentures of such series), and
delivered by the Trustee to the Depositary or its custodian for
crediting to the accounts of the Depositary's participants pursuant to
the instructions of the Administrators, which instructions shall be
provided in accordance with the terms of the Declaration; the Company
upon any such presentation shall execute a Global Debenture for such
series in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture
and this Second Supplemental Indenture; payments on the Debentures of a
series issued as a Global Debenture will be made in accordance with the
payment procedures specified by the Depositary;
(ii) if any Capital Securities of a series are not held by
the Clearing Agency or its nominee ("Non Book-Entry Capital
Securities"), the Debentures in
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<PAGE> 7
certificated form of the series held by the Trust corresponding to the
Capital Securities of such series may be presented to the Trustee by the
Institutional Trustee and any Capital Security Certificate which
represents such Non Book-Entry Capital Securities will be deemed to
represent beneficial interests in Debentures so presented to the Trustee
by the Institutional Trustee having an aggregate principal amount equal
to the aggregate liquidation amount of such Non Book-Entry Capital
Securities until such Capital Security Certificates are presented to the
Debt Security registrar for registration of transfer or reissuance, at
which time such Capital Security Certificates will be canceled and a
Debenture of the series previously held by the Trust, registered in the
name of the holder of the Capital Security Certificate or the transferee
of the holder of such Capital Security Certificate, as the case may be,
with an aggregate principal amount equal to the aggregate liquidation
amount of the Capital Security Certificate canceled, will be executed by
the Company and delivered to the Trustee for authentication and delivery
in accordance with the Indenture and this Second Supplemental Indenture;
upon issue of such Debentures of such series, Debentures of such series
with an equivalent aggregate principal amount that were presented by
such Institutional Trustee to the Trustee will be deemed to have been
canceled; and
(iii) prior to the distribution of Debentures of a series
held by the Institutional Trustee to the holders of Trust Securities,
the Company and the Trustee shall enter into a supplemental indenture
pursuant to Article IX of the Indenture to provide for transfer
procedures and restrictions with respect to such Debentures of such
series substantially similar to those contained in the Declaration with
respect to Capital Securities of the corresponding series to the extent
applicable in the circumstances existing at the time of distribution of
Debentures of such series in connection with a Dissolution Event for
purposes of assuring that no registration of the distribution of such
Debentures of such series is required under the Securities Act of 1933,
as amended.
(b) A Global Debenture may be transferred, in whole but not in
part, only by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, and a
successor Depositary 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, the Company will execute, and, subject to Article II of the Indenture, the
Trustee, upon written notice from the Company, will authenticate and make
available for delivery, Debentures of each series in definitive registered form
without coupons,
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<PAGE> 8
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. In addition, the Company may at any time determine that the
Debentures of a series shall no longer be represented by a Global Debenture. In
such event the Company will execute, and subject to Section 2.07 of the
Indenture, 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. A Global Debenture shall also be exchangeable for Debentures in
definitive registered form upon the occurrence of an Event of Default. Upon the
exchange of a Global Debenture for Debentures in definitive registered form
without coupons, in authorized denominations, such Global Debenture shall be
canceled by the Trustee. Such Debentures in definitive registered form issued in
exchange for such Global Debenture shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Debentures to the Depositary for delivery to the
Persons in whose names such Debentures are so registered.
SECTION 2.5
(a) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full semiannual period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such a
period (assuming each full month elapsed in such period consists of 30 days). In
the event that any date on which interest is payable on the Debentures of a
series 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.
(b) The indebtedness evidenced by all Debentures of a series is
subordinate and junior in right of payment to the prior payment in full of all
present and future Senior Indebtedness and pari passu in right of payment with
(i) all Debentures of each other series and (ii) the Company's 7.80% Junior
Subordinated Deferrable Interest Debentures due 2026, 7.65% Junior Subordinated
Deferrable Interest Debentures due 2026 and 9-1/8% Junior Subordinated
Deferrable Interest Debentures, Series A, due 2024.
(c) If, at any time while the holder of any Debentures of a
series is the Institutional Trustee, the Trust is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Company shall pay as additional interest
("Additional Interest") on the Debentures held by the Institutional Trustee,
such additional amounts as shall be required so that the net amounts received
and retained by the Trust after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts such Trust and such
Institutional Trustee would have received had no such taxes, duties, assessments
or other governmental charges been imposed.
(d) If an Initial Debenture is exchanged in a Registered Exchange
Offer or pursuant to Section 2(d)(iii) of the Registration Agreement prior to
the Record Date for the first Interest Payment Date following such exchange,
accrued and unpaid interest, if any, on such Initial Debenture, up to but not
including the date of issuance of the Exchange Debenture or Exchange Debentures
issued in exchange for such Initial Debenture, shall be paid on the first
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<PAGE> 9
Interest Payment Date for such Exchange Debenture or Exchange Debentures to the
Securityholder or Securityholders of such Exchange Debenture or Exchange
Debentures on the first Record Date with respect to such Exchange Debenture or
Exchange Debentures. If an Initial Debenture is exchanged in a Registered
Exchange Offer or pursuant to Section 2(d)(iii) of the Registration Agreement
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to such Interest Payment Date, then any such accrued
and unpaid interest with respect to such Initial Debenture and any accrued and
unpaid interest on the Exchange Debenture or Exchange Debentures issued in
exchange for such Initial Debenture, through the day before such Interest
Payment Date, shall be paid on such Interest Payment Date to the Securityholder
of such Initial Debenture on such Record Date.
(e) The following terms relate to Special Interest:
(i) Except as described below, in the event that either
(A) the Exchange Offer Registration Statement (as such term is defined
in the Registration Agreement) is not filed with the Securities and
Exchange Commission (the "Commission") on or prior to the 150th day
following the Closing Date (as such term is defined in the Registration
Agreement), (B) the Exchange Offer Registration Statement is not
declared effective by the Commission on or prior to the 180th day
following the Closing Date or (C) the Registered Exchange Offer (as such
term is defined in the Registration Agreement) is not consummated or a
Shelf Registration Statement (as such term is defined in the
Registration Agreement) with respect to the Initial Debentures is not
declared effective by the Commission on or prior to the 225th day
following the Closing Date, interest shall accrue on the Initial
Debentures (in addition to the stated interest thereon) from and
including the next day following each of (1) such 150-day period in the
case of clause (A) above, (2) such 180-day period in the case of clause
(B) above and (3) such 225-day period in the case of clause (C) above,
in each case, at a rate per annum equal to 0.25% of the principal amount
of the Initial Debentures and payable in cash semiannually in arrears on
each Interest Payment Date. The aggregate amount of additional interest
payable pursuant to the above provisions will in no event exceed 0.25%
per annum of the principal amount of the Initial Debentures. If a Shelf
Registration Event (as defined in the Registration Agreement) shall
exist on or before the 150th day following the Closing Date, clauses (A)
and (1) of the first sentence of this Section 2.5(e)(i) shall not apply.
To the extent such a Shelf Registration Event exists and the Company has
filed a Shelf Registration Statement covering resales of the Registrable
Securities by the 180th day following the Closing Date, clauses (B) and
(2) of the first sentence of this Section 2.5(e)(i) shall not apply, and
to the extent a Tax Contingency (as defined in the Registration
Agreement) exists on the 225th day following the Closing Date, the
period specified in clauses (C) and (3) of the first sentence of this
Section 2.5(e)(i) will be 280 days. Upon (x) the filing of the Exchange
Offer Registration Statement or the occurrence of a Shelf Registration
Event, if applicable, after the 150-day period described in clause (A)
of the first sentence of this Section 2.5(e)(i), (y) the effectiveness
of the Exchange Offer Registration Statement (if applicable) (or the
filing of a Shelf Registration Statement in the event of a Shelf
Registration Event, if applicable) after the 180-day period described in
clause (B) of the first sentence of this Section 2.5(e)(i) or (z) the
consummation of the Registered Exchange Offer or the effectiveness of a
Shelf Registration Statement, as the case may be, after the 225-day
period described
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in clause (C) of the first sentence of this Section 2.5(e)(i) (or the
effectiveness of a Shelf Registration Statement after the 280-day period
described above, in the event of a Tax Contingency, if applicable), the
additional interest payable on the Initial Debentures, with respect to
such clause (A), (B) or (C), as the case may be, from the date of such
filing, effectiveness or consummation, as the case may be, shall cease
to accrue and all accrued and unpaid Special Interest as of the
occurrence of (x), (y) or (z) shall be paid on the next Interest Payment
Date.
(ii) In the event that a Shelf Registration Statement
filed with respect to the Initial Debentures is declared effective
pursuant to the terms of the Registration Agreement, if the Company or
the Trust fails to keep such Shelf Registration Statement continuously
effective for the period required by the Registration Agreement (subject
to the terms of the Registration Agreement), then from the next day
following such time as the Shelf Registration Statement is no longer
effective until the earlier of (A) the date that the Shelf Registration
Statement is again deemed effective, (B) the date that is the second
anniversary of the effective date or (C) the date as of which all of the
Initial Debentures are sold pursuant to the Shelf Registration Statement
or may be sold without registration pursuant to Rule 144 under the
Securities Act of 1933, interest shall accrue on the Initial Debentures
(in addition to the stated interest on the Initial Debentures) at a rate
per annum equal to 0.25% of the principal amount of the Initial
Debentures and shall be payable in cash semiannually in arrears on each
Interest Payment Date, without prejudice to any other claim any holder
of Initial Debentures may have for failure of the Company to obtain or
maintain continuous effectiveness of the Exchange Offer Registration
Statement or a Shelf Registration Statement in accordance with the terms
of the Registration Agreement.
(iii) Any additional interest (that is in addition to the
stated interest on the Initial Debentures) that accrues with respect to
the Initial Debentures as provided in this Section 2.5(e) is referred to
as "Special Interest." For all purposes of the Indenture, this
Supplemental Indenture and the Initial Debentures, Special Interest
shall be treated as interest and shall be payable on the same Interest
Payment Dates and to the Securityholders of record on the same record
dates as would be the case for stated interest.
SECTION 2.6
If at any time the holder of all Debentures of a series ceases to
be the Institutional Trustee and, at such time, the Capital Securities issued by
the Trust are rated by at least one nationally recognized statistical rating
agency, then the Company shall use its reasonable best efforts to obtain from at
least one nationally recognized statistical rating agency a rating for the
Debentures of such series.
SECTION 2.7
Notwithstanding Section 2.07 of the Base Indenture, the Initial
Debentures may not be transferred except in compliance with the restricted
securities legend set forth below (the
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"Restricted Securities Legend"), unless otherwise determined by the Company in
accordance with applicable law:
THE DEBT SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS. NEITHER THIS DEBT SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS DEBT SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH DEBT SECURITY PRIOR TO THE DATE
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH TRANSAMERICA CORPORATION (THE "COMPANY") OR THE TRUST OR ANY
AFFILIATE OF THE COMPANY OR THE TRUST WAS THE OWNER OF THIS DEBT SECURITY OR ANY
PREDECESSOR OF THIS DEBT SECURITY (THE "RESALE RESTRICTIONS TERMINATION DATE")
ONLY (A) TO THE COMPANY OR THE TRUST, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE DEBT SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE DEBT SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S OR THE TRUST'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (X) PURSUANT TO CLAUSE (D), TO REQUIRE THAT THE TRANSFEROR DELIVER
TO THE TRUST A LETTER SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
MEMORANDUM DATED NOVEMBER 7, 1997 FROM THE TRANSFEREE AND (Y) PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.
THE HOLDER OF THIS DEBT SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS. DEBT SECURITIES OWNED BY A PURCHASER THAT IS NOT A QUALIFIED
INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION
DATE.
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ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1
The Debentures are scheduled to mature on November 15, 2037.
Unless a Tax Event has occurred and the Company has received a Redemption Tax
Opinion, the Debentures will not be redeemable at the option of the Company at
any time prior to November 15, 2037. If, at any time, a Tax Event has occurred
and is continuing and the Company has received a Redemption Tax Opinion then the
Company shall have the right upon not less than 30 days nor more than 60 days'
notice to the holders of the Debentures to redeem such Debentures, in whole or
in part, for cash within 90 days following the occurrence of such Tax Event (the
"90 Day Period") so long as such Tax Event is continuing at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Redemption Price"),
provided that if (i) there is available to the Company or the Trust the
opportunity to eliminate, within the 90 Day Period, the adverse effects of the
Tax Event by taking some ministerial action ("Ministerial Action"), such as
filing a form or making an election, or pursuing some other similar reasonable
measure that will have no adverse effect on the Company, the Trust or the
holders of the Trust Securities and (ii) such notice has not been given, the
Company or the Trust shall pursue such Ministerial Action in lieu of redemption,
and, provided, further, that the Company shall have no right to redeem such
Debentures while the Trust is pursuing any Ministerial Action pursuant to its
obligations under the Declaration. If Debentures are only partially redeemed
pursuant to this Section 3.1, Debentures shall be redeemed pro rata or, if held
in book-entry form, in accordance with the procedures of the Clearing Agency.
The Redemption Price shall be paid prior to 11:00 a.m., New York City time, on
the date of such redemption or such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount sufficient to
pay the Redemption Price by 10:00 a.m., New York City time, on the date the
Redemption Price is to be paid.
SECTION 3.2
Neither series of Debentures are entitled to the benefit of any
sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1
The Company shall have the right, subject to the conditions set
forth herein, at any time and from time to time during the term of the
Debentures of a series, to defer payments of interest by extending the interest
payment period of such Debentures for a period not exceeding 10 consecutive
semiannual periods (the "Extension Period"), during which Extension Period no
interest shall be due and payable; provided that (i) no Extension Period may
extend beyond the Maturity Date and (ii) no Extension Period may commence or be
extended so long as the Company is in default in the payment of any interest
upon any Debentures of such series or has not paid all Deferred Interest from a
prior completed Extension Period. To the extent
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<PAGE> 13
permitted by applicable law, interest on the Debentures of a series, the payment
of which has been deferred because of the extension of the interest payment
period pursuant to this Section 4.1, will bear interest thereon at a rate equal
to the original interest rate borne by the principal of the Debentures (without
regard to any increase or increases from time to time in respect of Additional
Interest), compounded semiannually for each semiannual period of the Extension
Period ("Compounded Interest"). At the termination of an Extension Period for
Debentures of a series or, if not an Interest Payment Date, on the Interest
Payment Date immediately following termination of such Extension Period for the
Debentures of such series, the Company shall pay all interest accrued and unpaid
on the Debentures of such series, including any Additional Interest and
Compounded Interest (together, "Deferred Interest"), which Deferred Interest
shall be payable to the holders of the Debentures of such series in whose names
the Debentures of such series are registered in the Debt Security Register on
the record date for the payment of interest on such Interest Payment Date.
Before the termination of any Extension Period, the Company may further extend
such period, provided that such period together with all such previous and
further consecutive extensions thereof shall not exceed 10 consecutive
semiannual periods, or extend beyond the Maturity Date. Upon the termination of
any Extension Period and upon the payment of all Deferred Interest then due, the
Company may commence a new Extension Period, subject to the foregoing
requirements.
In the event that the Company exercises its right to extend an
interest payment period, then during any Extension Period, subject to certain
exceptions as provided in the Indenture, (i) the Company shall not declare or
pay any dividend on, make any distributions with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock or rights to acquire such capital stock (other than (a) purchases
or acquisitions of shares of any such capital stock or rights to acquire such
capital stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans, (b) as a result of a
reclassification of the Company's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of the
Company's capital stock or rights to acquire such capital stock for another
class or series of the Company's capital stock or rights to acquire such capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged or (d) dividends and
distributions made on the Company's capital stock or rights to acquire such
capital stock with the Company's capital stock or rights to acquire such capital
stock), or make any guarantee payments with respect to the foregoing and (ii)
the Company shall not make any payment of interest on or principal of (or
premium, if any, on), or repay, repurchase or redeem, any debt securities issued
by the Company that rank pari passu with or junior to the Debentures. No
interest during an Extension Period, except on the date on which such Extension
Period terminates (or if such date is not an Interest Payment Date, on the
immediately following Interest Payment Date), shall be due and payable.
SECTION 4.2
(a) If the Institutional Trustee is the only registered holder of
the Debentures of a series at the time the Company initiates an Extension
Period, the Company shall give written notice to the Administrators, the
Institutional Trustee and the Trustee of its initiation of such Extension Period
one Business Day before the earlier of (i) the next succeeding date on which
distributions on the Capital Securities are payable, or (ii) the date the
Administrators are required
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<PAGE> 14
to give notice to holders of the Capital Securities of the record date or the
distribution payment date, in each case with respect to distributions on the
Trust Securities the payment of which is being deferred.
(b) If the Institutional Trustee is not the only registered
holder of the Debentures of a series at the time the Company initiates an
Extension Period, the Company shall give the holders of the Debentures of such
series and the Trustee written notice of its initiation of such Extension Period
at least ten Business Days before the earlier of (i) the next succeeding
Interest Payment Date, or (ii) the date the Company is required to give notice
to holders of the Debentures of such series of the record or payment date of
such interest, in each case with respect to interest payments the payment of
which is being deferred.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1
In connection with the offering, sale and issuance of the
Debentures of a series and in connection with the sale of any Trust Securities
by the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of Debentures of such series, including commissions to the underwriters
payable pursuant to the Purchase Agreement and compensation of the Trustee under
the Indenture in accordance with the provisions of Section 6.06 of the
Indenture;
(b) pay debts and other obligations (other than with respect to
the Trust Securities) and all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization of the Trust,
the offering, sale and issuance of the Trust Securities (including commissions
to the underwriters in connection therewith), the fees and expenses of the
Institutional Trustee, the Delaware Trustee and each Administrator, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets of the Trust);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration, the Purchase Agreement or
the Registration Agreement; and
(d) pay any and all taxes, duties, assessments or governmental
charges of the Trust of whatever nature and all liabilities, costs and expenses
with respect thereto (other than United States withholding taxes attributable to
the Trust or assets of the Trust).
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<PAGE> 15
SECTION 5.2
Upon termination of the Declaration or the removal or resignation
of a Delaware Trustee or the Institutional Trustee, as the case may be, pursuant
to Section 5.7 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts owing to the
Delaware Trustee or the Institutional Trustee, as the case may be, under Section
10.4 and 10.6 of the Declaration accrued to the date of such termination,
removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
The Debentures and the Trustee's certificate of authentication to
be endorsed thereon are to be substantially in the following forms and are
expressly made a part of this Second Supplemental Indenture:
(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 Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures of this series
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Debenture may be registered except in limited circumstances. 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 Depositary or to a
successor Depositary or to a nominee of such successor Depositary.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture of this series issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
[IF THIS DEBENTURE IS ONE OF A SERIES ORIGINALLY ISSUED PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AS SPECIFIED
PURSUANT TO SECTION 2.03 OF THE INDENTURE, INSERT THE FOLLOWING UNLESS OTHERWISE
DETERMINED BY THE COMPANY -- THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
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<PAGE> 16
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS DEBENTURE BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH DEBENTURE
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH TRANSAMERICA CORPORATION (THE "COMPANY") OR
THE TRUST OR ANY AFFILIATE OF THE COMPANY OR THE TRUST WAS THE OWNER OF THIS
DEBENTURE (OR ANY PREDECESSOR OF THIS DEBENTURE) (THE "RESALE RESTRICTIONS
TERMINATION DATE") ONLY (A) TO THE COMPANY OR THE TRUST, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE DEBENTURES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
DEBENTURE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
TRUST'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (X) PURSUANT TO CLAUSE
(D), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A LETTER SUBSTANTIALLY
IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED NOVEMBER 7, 1997 FROM
THE TRANSFEREE AND (Y) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT
IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY. THE HOLDER OF THIS DEBENTURE AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS. DEBENTURES OWNED BY A PURCHASER THAT IS NOT A QUALIFIED
INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION
DATE.]
No. _________________
TRANSAMERICA CORPORATION
7-5/8% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE 2037
TRANSAMERICA CORPORATION, a Delaware corporation (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 November 15, 2037, and to pay interest on said
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<PAGE> 17
principal sum from November 14, 1997, 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, semiannually (subject to deferral as set forth
herein) in arrears on May 15 and November 15 of each year commencing May 15,
1998, at the rate of 7-5/8% per annum until the principal hereof shall have
become due and payable, and on any overdue principal 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
compounded semiannually. 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.
The amount of interest payable for any period shorter than a full semiannual
period for which interest is computed will be computed on the basis of the
actual number of days elapsed per 30-day month. In the event that any date on
which interest is payable on this Debenture is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any such
delay) 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 Securities, as defined
in said Indenture) is registered at the close of business on the record date for
such interest installment, [which shall be the close of business on the Business
Day next preceding such Interest Payment Date] ("the Record Date"). [IF PURSUANT
TO THE PROVISIONS OF THE INDENTURE THE DEBENTURES OF THIS SERIES ARE NO LONGER
REPRESENTED SOLELY BY A GLOBAL DEBENTURE, SUBSTITUTE THE FOLLOWING FOR FOREGOING
BRACKETED TEXT -- which shall be the close of business on the 15th 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 Record Date and may be paid to the Person in whose
name this Debenture (or one or more Predecessor Securities) 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 of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. In the event the
Debentures of this series are issued in non-book entry form, the principal of
and interest on this Debenture shall be payable at the office or agency of the
Trustee (or other paying agent appointed by the Company) maintained for that
purpose in any coin or currency of the United States of America that 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
Debt Security Register or by wire transfer to an account appropriately
designated by the holder hereof. Notwithstanding the foregoing, so long as the
holder of this Debenture is the Institutional Trustee, the payment of the
principal of and interest on this Debenture will be made by transfer of
immediately available funds at such place and to such account as may be
designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all present and future Senior Indebtedness, and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each holder of this Debenture, by accepting the same, (a) agrees
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<PAGE> 18
to and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his or her 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 or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her 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.
If this Debenture is exchanged in a Registered Exchange Offer or
pursuant to Section 2(d)(iii) of the Registration Agreement prior to the Record
Date for the first Interest Payment Date following such exchange, accrued and
unpaid interest, if any, on this Debenture, up to but not including the date of
issuance of the Exchange Debenture or Exchange Debentures issued in exchange for
this Debenture, shall be paid on the first Interest Payment Date for such
Exchange Debenture or Exchange Debentures to the Securityholder or
Securityholders of such Exchange Debenture or Exchange Debentures on the first
Record Date with respect to such Exchange Debenture or Exchange Debentures. If
this Debenture is exchanged in a Registered Exchange Offer or pursuant to
Section 2(d)(iii) of the Registration Agreement subsequent to the Record Date
for the first Interest Payment Date following such exchange but on or prior to
such Interest Payment Date, then any such accrued and unpaid interest with
respect to this Debenture and any accrued and unpaid interest on the Exchange
Debenture or Exchange Debentures issued in exchange for this Debenture, through
the day before such Interest Payment Date, shall be paid on such Interest
Payment Date to the Securityholder of this Debenture on such Record Date.
If at any time the Trust shall be required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Company shall pay as additional interest on the
Debentures held by the Institutional Trustee such additional amounts as shall be
required so that the net amounts received and retained by the Trust after paying
any such taxes, duties, assessments or other governmental charges will equal the
amounts the Trust and the Institutional Trustee would have received had no such
taxes, duties, assessments or other governmental charges been imposed.
[IF THIS DEBENTURE IS AN INITIAL DEBENTURE INSERT -- In addition,
the interest rate payable on the Debentures of this series is subject to
increase to give effect to Special Interest as provided in the Indenture if,
pursuant to the Registration Agreement, either (A) the Exchange Offer
Registration Statement (as such term is defined in the Registration Agreement)
is not filed with the Securities and Exchange Commission (the "Commission") on
or prior to the 150th day following the Closing Date (as such term is defined in
the Registration Agreement), (B) the Exchange Offer Registration Statement is
not declared effective by the Commission on or prior to the 180th day following
the Closing Date or (C) the Registered Exchange Offer (as such term is defined
in the Registration Agreement) is not consummated or a Shelf Registration
Statement (as such term is defined in the Registration Agreement) with respect
to the Initial Debentures is not declared effective by the Commission on or
prior to the 225th day following the Closing Date. If a Shelf Registration Event
(as defined in the Registration Agreement) shall exist on or before the 150th
day following the Closing Date, clause (A) of this paragraph shall not apply. To
the extent such a Shelf Registration Event exists and the Company has filed a
Shelf Registration Statement covering resales of the Debentures by the 180th day
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<PAGE> 19
following the Closing Date, clause (B) of this paragraph shall not apply, and
to the extent a Tax Contingency (as defined in the Registration Agreement)
exists on the 225th day following the Closing Date, the period specified in
clause (C) of this paragraph will be 280 days. Upon (x) the filing of the
Exchange Offer Registration Statement or the occurrence of a Shelf Registration
Event, if applicable, after the 150-day period described in clause (A) of this
paragraph, (y) the effectiveness of the Exchange Offer Registration Statement
(if applicable) (or the filing of a Shelf Registration Statement in the event of
a Shelf Registration Event (as defined in the Registration Agreement), if
applicable) after the 180-day period described in clause (B) of this paragraph
or (z) the consummation of the Registered Exchange Offer or the effectiveness of
a Shelf Registration Statement after the 225-day period described in clause (C)
of this paragraph (or the effectiveness of a Shelf Registration Statement after
the 280-day period described above, in the event of a Tax Contingency (as
described in the Registration Agreement), if applicable), the Special Interest
payable on the Debentures from the date of such filing, effectiveness or
consummation, as the case may be, will cease to accrue and all accrued and
unpaid Special Interest as of the occurrence of (x), (y) or (z) shall be paid to
the holders of the Debentures on the next Interest Payment Date.
The interest rate payable on the Debentures of this series is
also subject to adjustment in certain circumstances if a Shelf Registration
Statement filed pursuant to the Registration Agreement is not kept continuously
effective for a specified period, as provided in the Indenture.]
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee.
17
<PAGE> 20
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 instrument to be
executed.
TRANSAMERICA CORPORATION
By_____________________________
Name:
Title:
[Seal] By:____________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated ________________
The First National Bank of Chicago,
as Trustee
By_____________________________
Authorized Signatory
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<PAGE> 21
(REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt
Securities of the Company, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of December 5, 1996, duly executed
and delivered between the Company and The First National Bank of Chicago, as
Trustee (the "trustee"), as supplemented by the Second Supplemental Indenture
dated as of November 14, 1997, between the Company and the Trustee (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of this series of Debt Securities
(referred to herein as the "Debentures") of which this Debenture is a part. The
summary of the terms of this Debenture contained herein does not purport to be
complete and is qualified by reference to the Indenture. By the terms of the
Indenture, the Debt Securities are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as provided in
the Indenture. This series of Debentures is limited in aggregate principal
amount as specified in said Second Supplemental Indenture.
The Debentures are scheduled to mature on November 15, 2037.
However, upon the occurrence and continuation of a Tax Event and receipt by the
Company of a Redemption Tax Opinion, in certain circumstances and subject to
certain conditions, all as more fully described in the Indenture, this Debenture
may become due and payable in whole, or in part, at a redemption price equal to
100% of the principal amount being redeemed together with any interest accrued
and unpaid thereon, which shall be paid prior to 11:00 a.m., New York City time,
on the date of such redemption or at such earlier time as the Company
determines. Unless a Tax Event has occurred, the Debentures will not be
redeemable at the option of the Company at any time prior to November 15, 2037.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Debentures may be
declared due and payable, 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 permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of all series affected (voting
as a class) at the time outstanding, as specified 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 of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such supplemental indenture
shall, among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed maturity of
any Debt Securities 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
19
<PAGE> 22
premium payable upon the redemption thereof, or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are required to consent to
any such supplemental indenture. The Indenture also contains provisions
permitting the holders of a majority in aggregate principal amount of the Debt
Securities of any or all series at the time outstanding affected thereby as
provided in the Indenture, on behalf of all of the holders of the Debt
Securities of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any of the
Debt Securities of such series. Any such consent or waiver by the registered
holder of this Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and of any Debenture issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Debenture.
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, subject to certain conditions,
at any time during the term of the Debentures and from time to time to extend
the interest payment period of the Debentures for up to 10 consecutive
semiannual periods (each, an "Extension Period") as provided in the Indenture.
Notwithstanding the foregoing, no Extension Period may extend beyond the
Maturity Date of the Debentures. In the event that the Company exercises its
right to extend an interest payment period, then during any Extension Period,
subject to certain exceptions as provided in the Indenture, (i) the Company
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or rights to acquire such capital stock (other than (a)
purchases or acquisitions of shares of any such capital stock or rights to
acquire such capital stock in connection with the satisfaction by the Company of
its obligations under any employee benefit plans, (b) as a result of a
reclassification of the Company's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of the
Company's capital stock or rights to acquire such capital stock for another
class or series of the Company's capital stock or rights to acquire such capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged or (d) dividends and
distributions made on the Company's capital stock or rights to acquire such
capital stock with the Company's capital stock or rights to acquire such capital
stock), or make any guarantee payments with respect to the foregoing and (ii)
the Company shall not make any payment of interest on or principal of (or
premium, if any, on), or repay, repurchase or redeem, any debt securities issued
by the Company that rank pari passu with or junior to the Debentures. Prior to
the termination of any such Extension Period, the Company may further defer
payments of interest by extending the interest payment period; provided,
however, that each such Extension Period, including all such previous and
further extensions thereof, may not exceed 10 consecutive semiannual periods or
extend beyond the Maturity Date of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension
20
<PAGE> 23
Period, subject to the requirements contained in the Indenture. No interest
during an Extension Period, except on the date on which such Extension Period
terminates (or if such date is not an Interest Payment Date, on the immediately
following Interest Payment Date), shall be due and payable.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, this Debenture is transferable by the registered
holder hereof on the Debt Security Register of the Company, upon surrender of
this Debenture for registration of transfer at the office or agency of the
Trustee in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee duly
executed by the registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such registration of transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Authenticating Agent, any paying agent,
any transfer agent and any Debt Security 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) for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any Authenticating Agent nor any paying agent
nor any transfer agent nor any Debt Security registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or 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. A Global Debenture is exchangeable for Debentures in
definitive form only under certain limited circumstances set forth in the
Indenture. As provided in the Indenture and subject to certain limitations
herein and therein set forth, Debentures of this series are exchangeable for a
like aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the holder surrendering the same.
The Debentures of this series are issuable only in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
The Debentures of this series may be transferred only in blocks having an
aggregate principal amount of not less than $100,000. Any transfer of Debentures
of this series in a block having an aggregate principal amount of less than
$100,000 shall be deemed to be void and of no legal effect whatsoever. Any
transferee of Debentures of this series having an aggregate principal amount of
less than $100,000 shall be deemed not to be the holder of such Debentures for
any purpose, including, but
21
<PAGE> 24
not limited to, the receipt of payments on such Debentures, and such transferee
shall be deemed to have no interest whatsoever in such Debentures.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1
The Indenture, as supplemented by this Second Supplemental
Indenture, is in all respects ratified and confirmed, and this Second
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 7.2
The recitals herein contained are made by the Company and not by
the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this Second Supplemental Indenture.
SECTION 7.3
This Second Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State without regard to conflict of laws principles thereof.
SECTION 7.4
In case any one or more of the provisions contained in this
Second Supplemental Indenture or in a series of Debentures 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
Second Supplemental Indenture or of such series of Debentures, but this Second
Supplemental Indenture and such series of Debentures shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
This Second 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.
22
<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, and as of the day and year first above
written.
TRANSAMERICA CORPORATION
By: /s/ David Hawkins
------------------------------------
Name: David Hawkins
Title: Vice President
[Seal] Attest: /s/ Jaclyn L. Larson
---------------------------------
Name: Jaclyn L. Larson
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By: /s/ Janice Ott Rotunno
------------------------------------
Name: Janice Ott Rotunno
Title: Vice President
[Seal] Attest: /s/ Ann Longino
---------------------------------
Name: Ann Longino
Title: Trust Officer
23
<PAGE> 1
Exhibit 4.5
==============================================
AMENDED AND RESTATED DECLARATION
OF TRUST
TRANSAMERICA CAPITAL III
Dated as of November 14, 1997
==============================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions...................................................1
ARTICLE II - TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application..............................9
SECTION 2.2 Lists of Holders of Trust Securities..........................9
SECTION 2.3 Reports by the Institutional Trustee.........................10
SECTION 2.4 Periodic Reports to Institutional Trustee....................10
SECTION 2.5 Evidence of Compliance with Conditions Precedent.............10
SECTION 2.6 Events of Default; Waiver....................................10
SECTION 2.7 Events of Default; Notice....................................12
ARTICLE III - ORGANIZATION
SECTION 3.1 Name.........................................................12
SECTION 3.2 Office.......................................................13
SECTION 3.3 Purpose......................................................13
SECTION 3.4 Authority....................................................13
SECTION 3.5 Title to Property of the Trust...............................13
SECTION 3.6 Powers and Duties of the Trustees and the Administrators.....13
SECTION 3.7 Prohibition of Actions by the Trust, the Trustees and the
Administrators ............................................17
SECTION 3.8 Powers and Duties of the Institutional Trustee...............18
SECTION 3.9 Certain Duties and Responsibilities of the Trustees and
Administrators ............................................19
SECTION 3.10 Certain Rights of Institutional Trustee.....................21
SECTION 3.11 Delaware Trustee............................................23
SECTION 3.12 Execution of Documents......................................23
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust
Securities ................................................23
SECTION 3.14 Duration of Trust...........................................24
SECTION 3.15 Mergers.....................................................24
SECTION 3.16 Issuance of the Capital Securities..........................25
SECTION 3.17 Issuance of the Common Securities; Subscription and
Purchase of Debentures.....................................25
ARTICLE IV - SPONSOR
SECTION 4.1 Sponsor's Purchase of the Common Securities..................26
SECTION 4.2 Responsibilities of the Sponsor..............................26
ARTICLE V - TRUSTEES
SECTION 5.1 Number of Trustees...........................................26
SECTION 5.2 Delaware Trustee.............................................27
SECTION 5.3 Institutional Trustee; Eligibility...........................27
SECTION 5.4 Certain Qualifications of the Delaware Trustee Generally.....28
SECTION 5.5 Administrators...............................................28
SECTION 5.6 Delaware Trustee.............................................28
SECTION 5.7 Appointment, Removal and Resignation of Trustees and
Administrators .............................................28
SECTION 5.8 Vacancies Among Trustees.....................................30
SECTION 5.9 Effect of Vacancies..........................................30
SECTION 5.10 Meetings of the Trustees and the Administrators.............30
SECTION 5.11 Delegation of Power.........................................30
SECTION 5.12 Conversion, Consolidation or Succession to Business.........31
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE VI - DISTRIBUTIONS
SECTION 6.1 Distributions................................................31
ARTICLE VII - ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Trust Securities................31
SECTION 7.2 Paying Agent, Transfer Agent and Registrar...................32
SECTION 7.3 Form and Dating..............................................32
SECTION 7.4 Mutilated, Destroyed, Lost or Stolen Certificates............34
SECTION 7.5 Temporary Trust Securities...................................35
SECTION 7.6 Cancellation.................................................35
ARTICLE VIII - DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.........................35
ARTICLE IX - TRANSFER OF INTERESTS
SECTION 9.1 General......................................................36
SECTION 9.2 Transfer Procedures and Restrictions.........................37
SECTION 9.3 Deemed Trust Security Holders................................42
SECTION 9.4 Notices to Clearing Agency...................................43
SECTION 9.5 Appointment of Successor Clearing Agency.....................43
ARTICLE X - LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1 Liability...................................................43
SECTION 10.2 Exculpation.................................................44
SECTION 10.3 Fiduciary Duty..............................................44
SECTION 10.4 Indemnification.............................................44
SECTION 10.5 Outside Businesses..........................................46
SECTION 10.6 Compensation; Fee...........................................47
ARTICLE XI - ACCOUNTING
SECTION 11.1 Fiscal Year.................................................47
SECTION 11.2 Certain Accounting Matters..................................47
SECTION 11.3 Banking.....................................................48
SECTION 11.4 Withholding.................................................48
ARTICLE XII - AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments..................................................48
SECTION 12.2 Meetings of the Holders of Trust Securities; Action by
Written Consent ...........................................50
ARTICLE XIII - REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND
DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.....52
SECTION 13.2 Representations and Warranties of Delaware Trustee..........52
ARTICLE XIV - MISCELLANEOUS
SECTION 14.1 Notices.....................................................53
SECTION 14.2 Governing Law...............................................54
SECTION 14.3 Intention of the Parties....................................54
SECTION 14.4 Headings....................................................55
SECTION 14.5 Successors and Assigns......................................55
SECTION 14.6 Partial Enforceability......................................55
SECTION 14.7 Counterparts................................................55
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
ANNEX I....................................................................I-1
EXHIBIT A-1................................................................A-1-1
EXHIBIT A-2................................................................A-2-1
EXHIBIT A-3................................................................A-3-1
EXHIBIT B..................................................................B-1
EXHIBIT C..................................................................C-1
EXHIBIT D..................................................................D-1
EXHIBIT E .................................................................E-1
EXHIBIT F .................................................................F-1
</TABLE>
iii
<PAGE> 5
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust Indenture
Act of 1939, as amended Section of Declaration
- ----------------------- ----------------------
<S> <C>
310(a) 5.3(a)
310(c) Inapplicable
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(f) Inapplicable
315(a) 3.9(b)
315(c) 3.9(a)
315(d) 3.9(a)
316(a) Annex I
316(b) Annex I
316(c) 3.6(e)
</TABLE>
- --------
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
<PAGE> 6
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
TRANSAMERICA CAPITAL III
Dated as of November 14, 1997
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of November 14, 1997, by the Trustees (as defined herein), the
Administrators (as defined herein), the Sponsor (as defined herein) and by the
holders, from time to time, of undivided beneficial interests in the Trust to be
issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established Transamerica
Capital III (the "Trust"), a statutory business trust under the Delaware
Business Trust Act pursuant to a Declaration of Trust dated as of October 31,
1997 (the "Original Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on October 31, 1997, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust, investing the proceeds thereof
in certain Debentures of the Debenture Issuer (as defined herein) and engaging
in only those activities necessary or incidental thereto;
WHEREAS, prior to the date hereof, no interests in the Trust have
been issued; and
WHEREAS, all of the Trustees, the Administrators and the Sponsor,
by this Declaration, amend and restate each and every term and provision of the
Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a statutory business trust under the Business Trust Act
(as defined herein) and that this Declaration constitutes the governing
instrument of such statutory business trust, the Trustees declare that all
assets contributed to the Trust will be held in trust for the benefit of the
holders, from time to time, of the securities representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the provisions
of this Declaration and, in consideration of mutual covenants contained herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
<PAGE> 7
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Declaration and each Annex and Exhibit hereto, as modified, supplemented
or amended from time to time;
(d) all references in this Declaration to Articles and Sections
and Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as defined herein)
has the same meaning when used in this Declaration unless otherwise defined in
this Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Administrative Action" has the meaning set forth in paragraph
4(b) of Annex I.
"Administrators" means each of David C. Thomas, Mark A. McEachen,
and Joseph Martinetto, solely in such Person's capacity as Administrator of the
Trust created and continued hereunder and not in such Person's individual
capacity, or such Administrator's successor in interest in such capacity, or any
successor appointed as herein provided.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Bankruptcy Event" means, with respect to any Person:
(a) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of such Person in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(b) such Person shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of such Person of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
2
<PAGE> 8
"Book Entry Interest" means a beneficial interest in one or more
Global Capital Securities registered in the name of the Clearing Agency or its
nominee, ownership and transfers of which shall be maintained and made through
book entries by a Clearing Agency as described in Section 9.2.
"Business Day" means any day other than Saturday, Sunday or any
other day on which banking institutions in New York City (in the State of New
York) are permitted or required by any applicable any applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Capital Securities Guarantee" means the guarantee agreement,
dated as of November 14, 1997, as modified or amended from time to time, of the
Sponsor in respect of the Capital Securities.
"Capital Securities" means the Initial Capital Securities and the
Exchange Capital Securities.
"Capital Securities Certificate" means a certificate representing
a Capital Security substantially in the form of Exhibit A-1 or A-2, as
applicable.
"Capital Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Certificate" means any certificate evidencing Trust Securities.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Capital Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Capital Security and which shall
undertake to effect book entry transfers and pledges of the Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Date" under the Purchase
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement dated
as of November 14, 1997, as modified or amended from time to time, of the
Sponsor in respect of the Common Securities.
"Common Security" has the meaning specified in Section 7.1(a).
3
<PAGE> 9
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the form
of Exhibit A-3.
"Company Indemnified Person" means (a) any Administrator; (b) any
Affiliate of any Administrator; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator; or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Institutional
Trustee at which the corporate trust business of the Institutional Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Declaration is located at One First National Plaza,
Suite 0126, Chicago, Illinois 60670-0126.
"Covered Person" means: (a) any Administrator, officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Trust Securities.
"Debenture Issuer" means Transamerica Corporation, a Delaware
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means The First National Bank of Chicago, a
national banking association, as trustee under the Indenture until a successor
is appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the Initial Debentures and the Exchange
Debentures.
"Definitive Capital Securities" means Initial Definitive Capital
Securities and Exchange Definitive Capital Securities.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means, with respect to the Capital Securities, DTC,
or another Clearing Agency.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Trust
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, New York, New York, the
initial Clearing Agency.
4
<PAGE> 10
"Event of Default" in respect of the Trust Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Exchange Capital Securities" has the meaning set forth in
Section 7.1(a).
"Exchange Capital Security Certificate" means a certificate
representing an Exchange Capital Security substantially in the form of Exhibit
A-2.
"Exchange Debentures" means the 7 5/8 % Junior Subordinated
Deferrable Interest Debentures due 2037 to be issued by the Debenture Issuer
under the Indenture in exchange for the Initial Debentures pursuant to the
Registration Rights Agreement.
"Exchange Definitive Capital Securities" means any Exchange
Capital Securities in definitive form issued by the Trust.
"Exchange Global Capital Securities" means any Exchange Capital
Securities in global form issued by the Trust.
"Exchange Securities" means Exchange Debentures and Exchange
Capital Securities.
"Extension Period" has the meaning set forth in paragraph 2(b) of
Annex I.
"Fiduciary Indemnified Person" shall mean the Institutional
Trustee, the Delaware Trustee, any Affiliate of the Institutional Trustee or the
Delaware Trustee, and any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Institutional
Trustee and the Delaware Trustee.
"Global Capital Securities" means any Initial Global Capital
Securities and Exchange Global Capital Securities.
"Holder" means a Person in whose name a Certificate representing
a Trust Security is registered, such Person being a beneficial owner within the
meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture, dated as of December 5, 1996,
among the Debenture Issuer and the Debenture Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued, in each
case, as modified or amended from time to time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Indenture.
5
<PAGE> 11
"Initial Capital Securities" has the meaning set forth in Section
7.1(a).
"Initial Capital Security Certificate" means a Certificate
representing an Initial Capital Security substantially in the form of Exhibit
A-1.
"Initial Certificate" means a Common Security Certificate or an
Initial Capital Security Certificate.
"Initial Debentures" means the 7 5/8 % Junior Subordinated
Deferrable Interest Debentures due 2037 to be issued by the Debenture Issuer
under the Indenture on the Closing Date and to be held by the Institutional
Trustee or, upon a dissolution of the Trust, the Depositary or the Holders, as
the case may be, a specimen certificate of which is in the form of Exhibit D.
"Initial Definitive Capital Securities" means any Restricted
Definitive Capital Security and any other Initial Capital Securities in
definitive form issued by the Trust.
"Initial Global Capital Securities" means any Rule 144A Global
Security and any other Initial Capital Securities in global form issued by the
Trust.
"Initial Securities" means the Common Securities and the Initial
Capital Securities.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"interest" means any interest due on the Debentures including any
Compounded Interest, Special Interest and Additional Interest (as each such term
is defined in the Indenture).
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.8(e).
"Liquidation" has the meaning set forth in paragraph 3 of Annex
I.
"Liquidation Distribution" has the meaning set forth in paragraph
3 of Annex I.
"Majority in liquidation amount of the Securities" means, except
as provided in the terms of the Capital Securities or by the Trust Indenture
Act, Holder(s) of outstanding Trust Securities voting together as a single class
or, as the context may require, Holders of outstanding Capital Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of more than 50% of the aggregate liquidation amount
(including the amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Trust Securities of the
relevant class.
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"Offering Memorandum" has the meaning set forth in Section 3.6.
"Officers' Certificates" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for it in this Declaration shall include:
(a) a statement that each officer signing the certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Property Account" has the meaning set forth in Section 3.8(c).
"Pro Rata" has the meaning set forth in paragraph 8 of Annex I.
"Purchase Agreement" means the Purchase Agreement for the
offering and sale of the Initial Capital Securities dated November 7, 1997 and
attached hereto as Exhibit E.
"QIBs" has the meaning set forth in Section 7.3.
"Quorum" means a majority of the Administrators or, if there are
only two Administrators, both of them.
"Redemption/Distribution Notice" has the meaning set forth in
paragraph 4(e) of Annex I.
"Redemption Price" has the meaning set forth in paragraph 4(a) of
Annex I.
"Redemption Tax Opinion" has the meaning set forth in paragraph
4(c) of Annex I.
"Registered Exchange Offer" has the meaning as set forth in the
Registration Rights Agreement.
"Registrar" has the meaning set forth in Section 7.2.
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"Registration Rights Agreement" means the Registration Rights
Agreement relating to the Initial Capital Securities dated as of November 14,
1997 and attached hereto as Exhibit F.
"Responsible Officer" means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or other officer of the Corporate Trust Office of the Institutional Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Restricted Capital Securities" means Rule 144A Global Capital
Securities and Restricted Definitive Capital Securities.
"Restricted Definitive Capital Securities" has the meaning set
forth in Section 7.3(c).
"Restricted Securities Legend" has the meaning set forth in
Section 9.2(g).
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Capital Security" has the meaning set forth in
Section 7.3(a).
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and
the Capital Securities Guarantee.
"Sponsor" means Transamerica Corporation, a Delaware corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
"Successor Institutional Trustee" has the meaning set forth in
Section 5.7(a).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in paragraph 4(c) of Annex
I.
"10% in liquidation amount of the Trust Securities" means, except
as provided in the terms of the Capital Securities or by the Trust Indenture
Act, Holder(s) of outstanding Trust Securities voting together as a single class
or, as the context may require, Holders of outstanding Capital Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of 10% or more of the aggregate liquidation amount (including
the amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Trust Securities of the relevant class.
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"Transfer Agent" has the meaning set forth in Section 7.2.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Property Account and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Institutional Trustee pursuant to the trusts of
this Declaration.
"Trust Securities" means the Common Securities and the Capital
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is
a trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 2.2 Lists of Holders of Trust Securities.
(a) Each of the Sponsor and the Administrators on behalf of the
Trust shall provide the Institutional Trustee, (i) within 14 days after each
record date for payment of
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Distributions, a list, in such form as the Institutional Trustee may reasonably
require, of the names and addresses of the Holders of the Trust Securities
("List of Holders") as of such record date, provided that neither the Sponsor
nor the Administrators on behalf of the Trust shall be obligated to provide such
List of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Institutional Trustee by the Sponsor and the
Administrators on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request therefor, a List of Holders as
of a date no more than 14 days before such List of Holders is given to the
Institutional Trustee. The Institutional Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity) provided that the Institutional Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee. Within 60 days
after May 15 of each year, the Institutional Trustee shall provide to the
Holders of the Capital Securities such reports as are required by Section 313 of
the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Institutional Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Institutional Trustee. Each of
the Sponsor and the Administrators on behalf of the Trust shall provide to the
Institutional Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act and an
Officers' Certificate as to its compliance with all conditions and covenants
under this Declaration, on an annual basis on or before 120 days after the end
of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrators on behalf of the Trust shall provide
to the Institutional Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver. (a) The Holders of a
Majority in liquidation amount of Capital Securities may, by vote or consent, on
behalf of the Holders of all of the Capital Securities, waive any past Event of
Default in respect of the Capital Securities and its consequences, provided
that, if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Debentures (a
"Super Majority") to be waived
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under the Indenture, such Event of Default under this Declaration
may only be waived by the vote or consent of the Holders of at
least the proportion in liquidation amount of the Capital
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu
of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Declaration
and the Trust Securities, as permitted by the Trust Indenture Act. Upon such
waiver, any such Indenture Event of Default shall cease to exist, and any Event
of Default with respect to the Capital Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Capital Securities or impair any right consequent thereon. Any
waiver by the Holders of the Capital Securities of an Event of Default with
respect to the Capital Securities shall also be deemed to constitute a waiver by
the Holders of the Common Securities of any such Event of Default with respect
to the Common Securities for all purposes of this Declaration without any other
act, vote, or consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Capital
Securities will have the right to direct the time, method and place of
conducting any proceeding of any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee, including the right to direct the Institutional Trustee to exercise the
remedies available to it as holder of the Debentures.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote or consent, on behalf of the Holders of all of the
Common Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that if the underlying Indenture Event
of Default:
(i) is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived under the Indenture, such Event of Default under this
Declaration may only be waived by the vote or consent of the
Holders of at least the proportion in liquidation amount of the
Common Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding;
provided, further, that, notwithstanding (i) or (ii) above, each
Holder of Common Securities will be deemed to have waived any
such Indenture Event of Default and all Events of Default with
respect to the Common Securities and their consequences until all
Events of Default with respect to the Capital Securities have
been cured, waived or otherwise eliminated, and until such Events
of Default have been so cured, waived or otherwise eliminated,
the Institutional Trustee will be deemed to be acting solely on
behalf of the Holders of the Capital Securities and only the
Holders of the Capital Securities will have the right to direct
the Institutional Trustee in accordance with the terms of the
Trust Securities. The foregoing provisions of this Section 2.6(b)
shall be in lieu of Sections 316(a)(1)(A) and
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316(a)(1)(B) of the Trust Indenture Act and Sections 316(a)(1)(A)
and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly
excluded from this Declaration and the Trust Securities, as
permitted in the Trust Indenture Act. Subject to the foregoing
provisions in this Section 2.6(b), upon such waiver, any such
Indenture Event of Default shall cease to exist, and any Event of
Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the
Institutional Trustee at the direction of the Holders of the Capital Securities
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Trust Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Events of Default; Notice. (a) The Institutional
Trustee shall, within 90 days after the occurrence of an Event of Default
actually known to a Responsible Officer of the Institutional Trustee, transmit
by mail, first class postage prepaid, to the Holders of the Trust Securities,
notices of all such defaults with respect to the Trust Securities, unless such
defaults have been cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.7(a) being hereby defined to be an Indenture
Event of Default, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided, however,
that, except for a default in the payment of principal of or interest on any of
the Debentures, the Institutional Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Institutional Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Capital Securities.
(b) The Institutional Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 5.01(a) and 5.01(b) of the
Indenture; or
(ii) any default as to which the Institutional Trustee
shall have received written notice or of which a Responsible
Officer of the Institutional Trustee charged with the
administration of the Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name. The Trust is named "Transamerica Capital III"
as such name may be modified from time to time by the Administrators following
written notice to the Holders of Trust Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Administrators.
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SECTION 3.2 Office. The address of the principal office of the
Trust is c/o Transamerica Corporation, 600 Montgomery Street, San Francisco, CA
94111. On ten Business Days written notice to the Holders of Trust Securities,
the Administrators may designate another principal office.
SECTION 3.3 Purpose. The exclusive purposes and functions of the
Trust are (a) to issue and sell Trust Securities representing undivided
beneficial interests in the assets of the Trust, (b) investing the gross
proceeds from such sale to acquire the Debentures and (c) except as otherwise
limited herein, to engage in only those other activities necessary or incidental
thereto, which may include engaging in the Registered Exchange Offer. The Trust
shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
SECTION 3.4 Authority. Except as specifically provided in this
Declaration, the Institutional Trustee shall have exclusive and complete
authority to carry out the purposes of the Trust. An action taken by a Trustee
in accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration. The
Administrators shall have only those ministerial duties set forth herein with
respect to accomplishing the purposes of the Trust and are not intended to be
trustees or fiduciaries with respect to the Trust or the Holders. The
Institutional Trustee shall have the right, but shall not be obligated, except
as provided in Section 3.6, to perform those duties as assigned to the
Administrators.
SECTION 3.5 Title to Property of the Trust. Except as provided in
Section 3.8 with respect to the Debentures and the Property Account or as
otherwise provided in this Declaration, legal title to all assets of the Trust
shall be vested in the Trust. The Holders shall not have legal title to any part
of the assets of the Trust, but shall have an undivided beneficial interest in
the assets of the Trust.
SECTION 3.6 Powers and Duties of the Trustees and the
Administrators. (a) The Trustees and the Administrators shall conduct the
affairs of the Trust in accordance with the terms of this Declaration. Subject
to the limitations set forth in paragraph (b) of this Section, and in accordance
with the following provisions (i) and (ii), the Trustees and the Administrators
shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees or the Administrators, as
the case may be, under this Declaration, and to perform all acts in furtherance
thereof, including without limitation, the following:
(i) Each Administrator shall have the power and authority to act
on behalf of the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
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(B) to cause the Trust to enter into, and to execute and
deliver on behalf of the Trust, such agreements as may be
necessary or desirable in connection with the purposes and
function of the Trust, including agreements with the Depositary
and the Paying Agent;
(C) ensuring compliance with the Securities Act,
applicable state securities or blue sky laws, and assisting in
the compliance with the Trust Indenture Act;
(D) to execute and file one or more registration
statements relating to the Capital Securities contemplated by the
Registration Rights Agreement and the preparation and filing of
all periodic and other reports and other documents pursuant to
the foregoing;
(E) the sending of notices (other than notices of
default), and other information regarding the Trust Securities
and the Debentures to the Holders in accordance with this
Declaration;
(F) the consent to the appointment of a Paying Agent,
Transfer Agent and Registrar in accordance with this Declaration
which consent shall not be unreasonably withheld;
(G) execution of the Trust Securities in accordance with
this Declaration;
(H) execution and delivery of closing certificates,
pursuant to the Purchase Agreement and the application for a
taxpayer identification number;
(I) except as otherwise required by the Business Trust Act
or the Trust Indenture Act, to execute on behalf of the Trust
(either acting alone or together with any or all of the
Administrators) any documents that the Administrators have the
power to execute pursuant to this Declaration;
(J) the taking of any action incidental to the foregoing
as the Institutional Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
(K) execution and delivery of letters or documents to, or
instruments with DTC relating to the Capital Securities;
(L) to establish a record date with respect to all actions
to be taken hereunder that require a record date be established,
including and with respect to, for the purposes of Section 316(c)
of the Trust Indenture Act, Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the
Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates; and
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(M) to duly prepare and file all applicable tax returns
and tax information reports that are required to be filed with
respect to the Trust on behalf of the Trust.
(ii) As among the Trustees and the Administrators, the
Institutional Trustee shall have the power, duty and authority to act on
behalf of the Trust with respect to the following matters:
(A) the establishment of the Property Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Property
Account;
(D) the distribution through the Paying Agent of amounts
owed to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures to
the Holders in accordance with this Declaration;
(G) the distribution of the Trust Property in accordance
with the terms of this Declaration;
(H) to the extent provided in this Declaration, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after any Event of Default (provided that such Event
of Default is not by or with respect to the Institutional
Trustee), the taking of any action incidental to the foregoing as
the Institutional Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration and protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the effect of
any such action on any particular Holder); and
(J) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as a
statutory business trust under the laws of the State of Delaware
and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the
Capital Securities or to enable the Trust to effect the purposes
for which the Trust was created;
(iii) The Institutional Trustee shall have the power and
authority to act on behalf of the Trust with respect to any of the
duties, liabilities, powers or the authority of the Administrators set
forth in Section 3.6(a)(i)(E) and (G) herein but shall not have a duty
to
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do any such act unless specifically requested to do so in writing by the
Sponsor, and shall then be fully protected in acting pursuant to such
written request; and in the event of a conflict between the action of
the Administrators and the action of the Institutional Trustee, the
action of the Institutional Trustee shall prevail.
(b) So long as this Declaration remains in effect, the Trust (or
the Trustees or Administrators acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, neither the Trustees nor the
Administrators may cause the Trust to (i) acquire any investments or engage in
any activities not authorized by this Declaration, (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would reasonably be expected to
cause the Trust to fail or cease to qualify as a "grantor trust" for United
States Federal income tax purposes, (iv) incur any indebtedness for borrowed
money or issue any other debt or (v) take or consent to any action that would
result in the placement of a lien on any of the Trust Property. The
Institutional Trustee shall at the sole cost and expense of the Trust defend all
claims and demands of all Persons at any time claiming any lien on any of the
Trust Property adverse to the interest of the Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Sponsor in furtherance of the following prior to the date
of this Declaration are hereby ratified and confirmed in all respects):
(i) the preparation by the Trust of an offering memorandum in
relation to the Capital Securities, including any amendments or
supplements thereto (the "Offering Memorandum"), and the taking of any
action necessary to obtain an exemption from the Securities Act;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Capital
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice
to the Trustees of actions they must take on behalf of the Trust, and
the preparation for execution and filing of any documents to be executed
and filed by the Trust or on behalf of the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of
any such States in connection with the sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Purchase Agreement providing for the sale of the
Capital Securities; and
(iv) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Institutional Trustee and the Holders of a Majority in liquidation amount of the
Common Securities are authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that the Trust will not be
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deemed to be an Investment Company required to be registered under the
Investment Company Act or fail to be classified as a grantor trust for United
States Federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Debenture Issuer for United States Federal income tax
purposes. In this connection, the Institutional Trustee and the Holders of a
Majority in liquidation amount of the Common Securities are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Declaration, as amended from time to time, that each of the Institutional
Trustee and the Holders of a Majority in liquidation amount of the Common
Securities determines in its discretion to be necessary or desirable for such
purposes, even if such action adversely affects the interests of the Holders of
the Capital Securities.
(e) All expenses incurred by the Administrators or the Trustees
pursuant to this Section 3.6 shall be reimbursed by the Sponsor, and the
Trustees shall have no obligations with respect to such expenses.
(f) The assets of the Trust shall consist of the Trust Property.
(g) Legal title to all Trust Property shall be vested at all
times in the Institutional Trustee (in its capacity as such) and shall be held
and administered by the Institutional Trustee for the benefit of the Trust in
accordance with this Declaration.
SECTION 3.7 Prohibition of Actions by the Trust, the Trustees and
the Administrators. (a) The Trust shall not, and the Institutional Trustee and
the Administrators shall cause the Trust not to, engage in any activity other
than as required or authorized by this Declaration. In particular, the Trust
shall not and the Institutional Trustee and the Administrators shall cause the
Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Trust
Securities pursuant to the terms of this Declaration and of the Trust
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust Property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary
the Trust Property or the terms of the Trust Securities in any way
whatsoever other than as expressly provided herein;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities; or
(vii) other than as provided in this Declaration (including Annex
I), (A) direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under
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the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or termination of
the Indenture or the Debentures where such consent shall be required
unless the Trust shall have received an opinion of counsel to the effect
that such amendment, modification or termination will not cause more
than an insubstantial risk that for United States federal income tax
purposes the Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Institutional Trustee. (a)
The legal title to the Debentures shall be owned by and held of record in the
name of the Institutional Trustee in trust for the benefit of the Trust and the
Holders of the Trust Securities. The right, title and interest of the
Institutional Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Institutional Trustee in accordance with
Section 5.7. Such vesting and cessation of title shall be effective whether or
not conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Institutional Trustee shall not transfer its right, title
and interest in the Debentures to the Administrators or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and under the
exclusive control of the Institutional Trustee, and maintained in the
Institutional Trustee's trust department, on behalf of the Holders of
the Trust Securities and, upon the receipt of payments of funds made in
respect of the Debentures held by the Institutional Trustee, deposit
such funds into the Property Account and make payments to the Holders of
the Capital Securities and Holders of the Common Securities from the
Property Account in accordance with Section 6.1. Funds in the Property
Account shall be held uninvested until disbursed in accordance with this
Declaration;
(ii) engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Capital Securities and
the Common Securities to the extent the Debentures are redeemed or
mature; and
(iii) upon written notice of distribution issued by the
Administrators in accordance with the terms of the Trust Securities,
engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Trust Securities upon the occurrence of certain circumstances pursuant
to the terms of the Trust Securities.
(d) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of the Trust Securities.
(e) The Institutional Trustee may bring or defend, pay, collect,
compromise, arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust ("Legal Action") which arises out of or in
connection with an Event of Default of which a
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Responsible Officer of the Institutional Trustee has actual knowledge or the
Institutional Trustee's duties and obligations under this Declaration or the
Trust Indenture Act; provided, however, that if an Event of Default has occurred
and is continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest on or principal of the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may, to the fullest extent
permitted by law, directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation amount of the Capital Securities of
such Holder (a "Direct Action") on or after the respective due date specified in
the Debentures. In connection with such Direct Action, the rights of the Holders
of the Common Securities will be subrogated to the rights of such Holder of
Capital Securities to the extent of any payment made by the Debenture Issuer to
such Holder of Capital Securities in such Direct Action; provided, however, that
no Holder of the Common Securities may exercise any such right of subrogation so
long as an Event of Default with respect to the Capital Securities has occurred
and is continuing.
(f) The Institutional Trustee shall continue to serve as a
Trustee until either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Trust Securities pursuant
to the terms of the Trust Securities; or
(ii) a Successor Institutional Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7.
(g) The Institutional Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default occurs and is continuing, the
Institutional Trustee may, for the benefit of Holders of the Trust Securities,
enforce its rights as holder of the Debentures subject to the rights of the
Holders pursuant to this Declaration (including Annex I) and the terms of the
Trust Securities.
The Institutional Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Institutional Trustee shall not
take any action that is inconsistent with the purposes and functions of the
Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Trustees
and Administrators.
(a) The Institutional Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the Institutional
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
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(b) The duties and responsibilities of the Trustees and the
Administrators shall be as provided by this Declaration and, in the case of the
Institutional Trustee, subject to the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Declaration shall require the Trustees or
Administrators to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees or Administrators shall be subject to the provisions
of this Article. Nothing in this Declaration shall be construed to release an
Administrator or Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct. To the extent that, at
law or in equity, a Trustee or an Administrator has duties and liabilities
relating thereto to the Trust or to the Holders, such Administrator or Trustee
shall not be liable to the Trust or to any Holder for such Administrator's good
faith reliance on the provisions of this Declaration. The provisions of this
Declaration, to the extent that they restrict the duties and liabilities of the
Administrators or the Trustees otherwise existing at law or in equity, are
agreed by the Sponsor and the Holders to replace such other duties and
liabilities of the Administrators or the Trustees.
(c) All payments made by the Institutional Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the
Institutional Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Holder, by its acceptance of a Trust Security, agrees that it
will look solely to the revenue and proceeds from the Trust Property to the
extent legally available for distribution to it as herein provided and that the
Trustees and the Administrators are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 3.9(c) does not limit the liability
of the Trustees expressly set forth elsewhere in this Declaration or, in the
case of the Institutional Trustee, in the Trust Indenture Act.
(d) No provision of this Declaration shall be construed to
relieve the Institutional Trustee from liability with respect to matters that
are within the authority of the Institutional Trustee under this Declaration for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) the Institutional Trustee shall not be liable for any error
or judgment made in good faith by a Responsible Officer of the
Institutional Trustee, unless it shall be proved that the Institutional
Trustee was negligent in ascertaining the pertinent facts;
(ii) the Institutional Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Capital Securities or the Common
Securities, as applicable, relating to the time, method and place of
conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
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(iii) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Account shall be to deal with such property in a similar
manner as the Institutional Trustee deals with similar property for its
own account, subject to the protections and limitations on liability
afforded to the Institutional Trustee under this Declaration and the
Trust Indenture Act;
(iv) the Institutional Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Sponsor; and money held by the Institutional Trustee need not
be segregated from other funds held by it except in relation to the
Property Account maintained by the Institutional Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
(v) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Sponsor with
their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for the default or misconduct of the
Administrators or the Sponsor.
SECTION 3.10 Certain Rights of Institutional Trustee. Subject to
the provisions of Section 3.9:
(a) the Institutional Trustee may conclusively rely and shall
fully be protected in acting or refraining from acting in good faith upon any
resolution, opinion of counsel, certificate, written representation of a Holder
or transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness 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) if (i) in performing its duties under this Declaration the
Institutional Trustee is required to decide between alternative courses of
action, or (ii) in construing any of the provisions of this Declaration, the
Institutional Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein, or (iii) the Institutional Trustee is unsure of the
application of any provision of this Declaration, then, except as to any matter
as to which the Holders of Capital Securities are entitled to vote under the
terms of this Declaration, the Institutional Trustee may deliver a notice to the
Sponsor requesting the Sponsor's opinion as to the course of action to be taken
and the Institutional Trustee shall take such action, or refrain from taking
such action, as the Institutional Trustee in its sole discretion shall deem
advisable and in the best interests of the Holders, in which event the
Institutional Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Sponsor or the Administrators
contemplated by this Declaration shall be sufficiently evidenced by an Officers'
Certificate;
(d) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Institutional Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an Officers'
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Certificate as to factual matters (other than the interpretation of this
Declaration) which, upon receipt of such request, shall be promptly delivered by
the Sponsor or the Administrators;
(e) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Institutional Trustee may consult with counsel (which
counsel may be counsel to the Sponsor or any of its Affiliates) and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon and in accordance with such advice; the Institutional
Trustee shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent jurisdiction;
(g) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at the
request or direction of any of the Holders pursuant to this Declaration, unless
such Holders shall have offered to the Institutional Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction; provided, however, that nothing contained in this Section 3.10(g)
shall be taken to relieve the Institutional Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers vested in
it by this Declaration;
(h) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by one or more Holders, but
the Institutional Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit;
(i) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys and the Institutional Trustee shall not be
responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent or attorney appointed with due care by it
hereunder;
(j) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action hereunder,
the Institutional Trustee (i) may request instructions from the Holders of the
Capital Securities, which instructions may only be given by the Holders of the
same proportion in liquidation amount of the Capital Securities as would be
entitled to direct the Institutional Trustee under the terms of the Capital
Securities in respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be fully protected in acting in
accordance with such instructions;
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(k) except as otherwise expressly provided in this Declaration,
the Institutional Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration;
(l) when the Institutional Trustee incurs expenses or renders
services in connection with a Bankruptcy Event, such expenses (including the
fees and expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law or
law relating to creditors rights generally;
(m) the Institutional Trustee shall not be charged with knowledge
of an Event of Default unless a Responsible Officer of the Institutional Trustee
obtains actual knowledge of such event or the Institutional Trustee receives
written notice of such event from Holders of a Majority in liquidation amount of
the Capital Securities;
(n) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Trust Securities, and the
signature of the Institutional Trustee or its agents alone shall be sufficient
and effective to perform any such action and no third party shall be required to
inquire as to the authority of the Institutional Trustee to so act or as to its
compliance with any of the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Institutional Trustee's or its
agent's taking such action; and
(o) no provision of this Declaration shall be deemed to impose
any duty or obligation on the Institutional Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it in
any jurisdiction in which it shall be illegal, or in which the Institutional
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Institutional
Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee. Notwithstanding any other
provision of this Declaration other than Section 5.2, the Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities of any of the Trustees or the Administrators
described in this Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents. Subject to the provisions of
Section 3.11, unless otherwise determined in writing by the Institutional
Trustee, and except as otherwise required by the Business Trust Act, the
Institutional Trustee, or any one or more of the Administrators, as the case may
be, is authorized to execute on behalf of the Trust any documents, agreements,
instruments or certificates that the Trustees or the Administrators, as the case
may be, have the power and authority to execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Trust
Securities. The recitals contained in this Declaration and the Trust Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any
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part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration, the Debentures or the Trust Securities.
SECTION 3.14 Duration of Trust. The Trust, unless terminated
pursuant to the provisions of Article VIII hereof, shall have existence for
fifty-five (55) years from the Closing Date.
SECTION 3.15 Mergers. (a) The Trust may not consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to any corporation or
other body, except as described in this Section 3.15(b) and (c) and Section 3
and 4 of Annex I.
(b) The Trust may, with the consent of the Institutional Trustee
and without the consent of the Delaware Trustee or the Holders of the Capital
Securities, consolidate, amalgamate, merge with or into, or be replaced by, a
trust organized as such under the laws of any State; provided that:
(i) if the Trust is not the survivor, such successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Trust Securities; or
(B) substitutes for the Trust Securities other securities
having substantially the same terms as the Trust Securities (the
"Successor Securities") so that the Successor Securities rank the
same as the Trust Securities rank with respect to Distributions
and payments upon liquidation, redemption and otherwise;
(ii) the Institutional Trustee expressly appoints a trustee of
the Successor Entity, possessing the same powers and duties as the
Institutional Trustee, as the Holder of the Debentures;
(iii) such merger, consolidation, amalgamation or replacement
does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(iv) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the
Holders of the Trust Securities (including any Successor Securities) in
any material respect (other than with respect to any dilution of such
Holders' interests in the Successor Entity as a result of such merger,
consolidation, amalgamation or replacement);
(v) such Successor Entity has a purpose substantially identical
to that of the Trust;
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(vi) prior to such merger, consolidation, amalgamation or
replacement, the Institutional Trustee has received an opinion of a
nationally recognized independent counsel to the Trust experienced in
such matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the Successor
Entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company;
(C) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
classified as other than a grantor trust for United States
federal income tax purposes; and
(vii) the Sponsor guarantees the obligations of the Successor
Entity under such Successor Securities at least to the extent provided
by the Securities Guarantees;
(viii) prior to such merger, consolidation, amalgamation or
replacement, the Institutional Trustee shall have received an Officers'
Certificate of the Administrators and an opinion of counsel, each to the
effect that all conditions precedent of this paragraph (b) to such
transaction have been satisfied.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by, any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it, if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
SECTION 3.16 Issuance of the Capital Securities. On November 7,
1997, the Sponsor, both on its own behalf and on behalf of the Trust pursuant to
the Original Declaration, executed and delivered the Purchase Agreement.
Contemporaneously with the execution and delivery of this Declaration, an
Administrator, on behalf of the Trust, shall execute in accordance with Sections
3.6, 7.1 and 7.3, and the Institutional Trustee shall deliver to the Initial
Purchasers, an Initial Capital Security Certificate, registered in the names
requested by the Initial Purchasers, evidencing an aggregate of 190,000 Capital
Securities having an aggregate stated liquidation amount of $190,000,000,
against receipt of the aggregate purchase price of such Capital Securities of
$188,611,100 by the Institutional Trustee.
SECTION 3.17 Issuance of the Common Securities; Subscription and
Purchase of Debentures. Contemporaneously with the execution and delivery of
this Declaration, an Administrator, on behalf of the Trust, shall execute in
accordance with Sections 3.6 and 7.3, and the Institutional Trustee shall
deliver to the Sponsor, a Common Security Certificate, registered in the name of
the Sponsor, evidencing an aggregate of 5,877 Common Securities having an
aggregate stated liquidation amount of $5,877,000 against receipt of the
aggregate purchase price
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of such Common Securities of $5,834,039 to the Institutional Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Trust, shall
subscribe for and purchase from the Debenture Issuer the Initial Debentures,
registered in the name of the Institutional Trustee on behalf of the Trust and
having an aggregate principal amount equal to $195,877,000 and, in satisfaction
of the purchase price for such Debentures, the Institutional Trustee, on behalf
of the Trust, shall deliver to the Debenture Issuer the sum of $194,445,139
(being the sum of the amounts delivered to the Institutional Trustee pursuant to
(i) the second sentence of Section 3.16 and (ii) the first sentence of this
Section 3.17).
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities. On the
Closing Date, the Sponsor will purchase all of the Common Securities issued by
the Trust, in an amount equal to at least 3% of the capital of the Trust, at the
same time as the Capital Securities are issued and sold.
SECTION 4.2 Responsibilities of the Sponsor. In connection with
the issue and sale of the Capital Securities, the Sponsor shall have the
exclusive right and responsibility to engage in the following activities:
(a) to prepare and distribute the Offering Memorandum in relation
to the Capital Securities, including any supplements and amendments thereto and
to prepare for filing by the Trust and the Debenture Issuer with the Commission
any registration statement, including any amendments thereto, as contemplated by
the Registration Rights Agreement;
(b) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Capital Securities and to do
any and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States; and
(c) to negotiate the terms of and execute on behalf of the Trust,
the Purchase Agreement, the Registration Rights Agreement and other related
agreements providing for the sale of the Capital Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees. The number of Trustees initially
shall be two (2), and:
(a) at any time before the issuance of any Trust Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
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(b) after the issuance of any Trust Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Capital Securities voting as a class at a meeting of
the Holders of the Capital Securities; provided, however, that there shall be a
Delaware Trustee if required by Section 5.2; and there shall always be one
Trustee who shall be the Institutional Trustee, and such Trustee may also serve
as Delaware Trustee if it meets the applicable requirements, in which case
Section 3.11 shall have no application to such entity in its capacity as
Institutional Trustee.
SECTION 5.2 Delaware Trustee. If required by the Business Trust
Act, one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware;
or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law, including Section 3807 of the Business Trust Act.
SECTION 5.3 Institutional Trustee; Eligibility. (a) There shall
at all times be one Trustee which shall act as Institutional Trustee which
shall:
(i) not be an Affiliate of the Sponsor;
(ii) not offer or provide credit or credit enhancement to the
Trust; and
(iii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation permitted by the
Commission to act as an indenture trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 5.3(a)(ii),
the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(a).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Institutional Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Declaration.
(d) The Indenture, the Debentures, the Trust Securities and the
Securities Guarantees shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the proviso contained in Section
310(b)(1) of the Trust Indenture Act.
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(e) The initial Institutional Trustee shall be The First National
Bank of Chicago.
SECTION 5.4 Certain Qualifications of the Delaware Trustee
Generally. The Delaware Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more Authorized
Officers.
SECTION 5.5 Administrators. The initial Administrators shall be
David C. Thomas, Mark A. McEachen and Joseph Martinetto.
Except where a requirement for action by a specific number of
Administrators is expressly set forth in this Declaration and except with
respect to any action the taking of which is the subject of a meeting of the
Administrators any action required or permitted to be taken by the
Administrators may be taken by, and any power of the Administrators may be
exercised by, or with the consent of, any one Administrator.
SECTION 5.6 Delaware Trustee. The initial Delaware Trustee shall
be First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
SECTION 5.7 Appointment, Removal and Resignation of Trustees and
Administrators. (a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of this Section 5.7.
Subject to the immediately preceding paragraph, a Relevant
Trustee may resign at any time by giving written notice thereof to the Holders
of the Trust Securities and by appointing a successor Relevant Trustee. Upon the
resignation of the Institutional Trustee, the Institutional Trustee shall
appoint a successor by requesting from at least three Persons meeting the
eligibility requirements, its expenses and charges to serve as the successor
Institutional Trustee on a form provided by the Administrators, and selecting
the Person who agrees to the lowest expense and charges (the "Successor
Institutional Trustee"). If the instrument of acceptance by the successor
Relevant Trustee required by Section 5.7 shall not have been delivered to the
Relevant Trustee within 60 days after the giving of such notice of resignation
or delivery of the instrument of removal, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Relevant
Trustee. The Institutional Trustee shall have no liability for the selection of
such successor pursuant to this Section 5.7.
The Institutional Trustee or the Delaware Trustee, or both of
them, may be removed by the act of the Holders of a Majority in liquidation
amount of the Capital Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust) if an Event of Default shall
have occurred and be continuing at any time. If any Trustee shall be so removed,
the Holders of Capital Securities, by act of the Holders of a Majority in
liquidation amount of the Capital Securities then outstanding delivered to the
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and each such successor Relevant Trustee shall comply with the
applicable requirements of this Section 5.7. If no successor
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Relevant Trustee shall have been so appointed by the Holders of a Majority in
liquidation amount of the Capital Securities and accepted appointment in the
manner required by this Section 5.7, within 60 days after delivery of an
instrument of removal, any Holder who has been a Holder of the Capital
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a successor
Relevant Trust or Trustees.
The Institutional Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor Relevant
Trustee to all Holders in the manner provided in Section 5.7(b) and shall give
notice to the Sponsor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if it is the
Institutional Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration, in the event a Delaware Trustee who is a natural person dies or
becomes incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Institutional Trustee following
the procedures in this Section 5.7 (with the successor being a Person who
satisfies the eligibility requirement for a Delaware Trustee set forth in this
Declaration) (the "Successor Delaware Trustee").
(b) In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Declaration as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust of any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
(c) No Institutional Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Institutional Trustee or
Successor Delaware Trustee, as the case may be.
(d) The Holders of the Capital Securities will have no right to
vote to appoint, remove or replace the Administrators, which voting rights are
vested exclusively in the Holders of the Common Securities.
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SECTION 5.8 Vacancies Among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Trustees or, if there are more than two, a majority of the Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with an a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled by the appointment of a Trustee in
accordance with Section 5.7, the Institutional Trustee shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration.
SECTION 5.10 Meetings of the Trustees and the Administrators.
Meetings of the Trustees or the Administrators shall be held from time to time
upon the request of any Trustee or Administrator, as applicable. Regular
meetings of the Trustees and the Administrators, respectively, may be held at a
time and place fixed by resolution of the Trustees or the Administrators, as
applicable. Notice of any in-person meetings of the Trustees or the
Administrators shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Trustees or
the Administrators or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of a Trustee or an Administrator,
as the case may be, at a meeting shall constitute a waiver of notice of such
meeting except where a Trustee or an Administrator, as the case may be, attends
a meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Trustees or the Administrators, as the case may be, may be taken at a meeting by
vote of a majority of the Trustees or the Administrators present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous written
consent of the Trustees or the Administrators. Meetings of the Trustees and the
Administrators together shall be held from the time to time upon the call of any
Trustee or Administrator.
SECTION 5.11 Delegation of Power. (a) Any Trustee may, by power
of attorney consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6; and
(b) the Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Trustees or otherwise as the Trustees may deem expedient, to the extent
such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
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SECTION 5.12 Conversion, Consolidation or Succession to Business.
Any Person into which the Institutional Trustee or the Delaware Trustee, as the
case may be, may be merged or converted or with which either may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional Trustee
or the Delaware Trustee, as the case may be, hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions. Holders shall receive Distributions in
accordance with the applicable terms of the relevant Holder's Trust Securities.
Distributions shall be made on the Capital Securities and the Common Securities
in accordance with the preferences set forth in their respective terms. If and
to the extent that the Debenture Issuer makes a payment of interest (including
any Compounded Interest, Special Interest and Additional Interest) (as each sum
term is defined in the Indenture) on and/or principal of the Debentures held by
the Institutional Trustee (the amount of any such payment being a "Payment
Amount"), the Institutional Trustee shall and is directed, to the extent funds
are available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Trust Securities. (a)
The Administrators shall on behalf of the Trust issue one class of capital
securities substantially in the form of Exhibit A-1 representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I ("Initial Capital Securities") and to be exchanged pursuant to
the Registration Rights Agreement for capital securities substantially in the
form of Exhibit A-2 having the terms set forth in Annex I (the "Exchange Capital
Securities") and one class of common securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Common Securities"). The Trust shall issue no securities
or other interests in the assets of the Trust other than the Capital Securities
and the Common Securities. The Capital Securities rank pari passu, and payment
thereon shall be made Pro Rata, with the Common Securities except that, where an
Event of Default has occurred and is continuing, the rights of Holders of the
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to payment
of the Holders of the Capital Securities.
(b) The Certificates shall be signed on behalf of the Trust by
one or more Administrators. Such signature shall be the facsimile or manual
signature of any present or any future Administrator. In case any Administrator
of the Trust who shall have signed any of the
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Trust Securities shall cease to be such Administrator before the Certificates
so signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Administrator; and any Certificate may be signed on behalf of the Trust by
such persons who, at the actual date of execution of such Trust Security, shall
be an Administrator of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such an Administrator. A
Capital Security shall not be valid until authenticated by the manual signature
of an authorized officer of the Institutional Trustee. Such signature shall be
conclusive evidence that the Capital Security has been authenticated under this
Declaration. Upon written order of the Trust signed by one Administrator, the
Institutional Trustee shall authenticate the Capital Securities for original
issue. The Institutional Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate the Capital Securities. A Common Security need not
be so authenticated.
(c) The consideration received by the Trust for the issuance of
the Trust Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(d) Upon issuance of the Trust Securities as provided in this
Declaration, the Trust Securities so issued shall be deemed to be validly
issued, fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a
Capital Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration and the Capital Securities
Guarantee.
SECTION 7.2 Paying Agent, Transfer Agent and Registrar. The Trust
shall maintain in the Borough of Manhattan, City of New York, State of New York,
an office or agency where the Capital Securities may be presented for payment
("Paying Agent"), and an office or agency where Trust Securities may be
presented for registration of transfer or exchange (the "Transfer Agent"). The
Trust shall keep or cause to be kept at such office or agency a register for the
purpose of registering Trust Securities and transfers and exchanges of Trust
Securities, such register to be held by a registrar (the "Registrar"). The
Administrators may appoint the Paying Agent, the Registrar, the Transfer Agent
and may appoint one or more additional Paying Agents or one or more
co-Registrars, or one or more co-Transfer Agents in such other locations as it
shall determine. The term "Paying Agent" includes any additional paying agent,
the term "Registrar" includes any additional registrar or co-Registrar and the
term "Transfer Agent" includes any additional transfer agent. The Administrators
may change any Paying Agent without prior notice to any Holder. The
Administrators shall notify the Institutional Trustee of the name and address of
any Paying Agent, Transfer Agent and Registrar not a party to this Declaration.
The Administrators hereby appoint the Institutional Trustee to act as Paying
Agent, Transfer Agent and Registrar for the Capital Securities and the Common
Securities. The Institutional Trustee or any of its Affiliates may act as Paying
Agent, Transfer Agent or Registrar.
SECTION 7.3 Form and Dating. The Initial Capital Securities and
the Institutional Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit A-1, the Exchange Capital Securities and
the Institutional Trustee's certificate of
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authentication thereon shall be substantially in the form of Exhibit A-2 and the
Common Securities shall be substantially in the form of Exhibit A-3, each of
which is hereby incorporated in and expressly made a part of this Declaration.
Certificates may be typed, printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Administrators, as
conclusively evidenced by their execution thereof. The Trust Securities may have
letters, numbers, notations or other marks of identification or designation and
such legends or endorsements required by law, stock exchange rule, agreements to
which the Trust is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Sponsor). The Trust at the
direction of the Sponsor shall furnish any such legend not contained in Exhibits
A-1, A-2 or A-3 to the Institutional Trustee in writing. Each Capital Security
shall be dated the date of its authentication. The terms and provisions of the
Trust Securities set forth in Annex I and the forms of Trust Securities set
forth in Exhibits A-1, A-2 and A-3 are part of the terms of this Declaration
and, to the extent applicable, the Institutional Trustee, the Delaware Trustee,
the Administrators and the Sponsor, by their execution and delivery of this
Declaration, expressly agree to such terms and provisions and to be bound
thereby. Capital Securities will be issued only in blocks having an aggregate
liquidation amount of not less than $100,000.
(a) Global Capital Securities. The Initial Capital Securities are
being offered and sold by the Trust pursuant to the Purchase Agreement. Initial
Capital Securities offered and sold to Qualified Institutional Buyers ("QIBs"),
in reliance on Rule 144A as provided in the Purchase Agreement, shall be issued
in the form of one or more permanent global Trust Securities in definitive,
fully registered form without distribution coupons with the appropriate global
legends and Restricted Securities Legend set forth in Section 9.2(g) hereto
(each, a "Rule 144A Global Capital Security"), which shall be deposited on
behalf of the purchasers of the Initial Capital Securities represented thereby
with the Institutional Trustee, at its New York office, as custodian for the
Depositary, and registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Trust and authenticated by the Institutional
Trustee as hereinafter provided. The number of Initial Capital Securities
represented by the Rule 144A Global Capital Security may from time to time be
increased or decreased by adjustments made on the records of the Institutional
Trustee and the Depositary or its nominee as hereinafter provided.
In the event the Initial Global Capital Security is tendered in a
Registered Exchange Offer, it shall be exchanged for interests in a single
Exchange Global Capital Security in definitive, fully registered form without
distribution coupons. Upon issuance, such Exchange Global Capital Security shall
be deposited on behalf of the holders of the Exchange Capital Securities
represented thereby with the Depositary, pursuant to the Depositary's
instructions or with the Institutional Trustee, at its New York office, as
custodian for the Depositary, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Trust and authenticated by the
Institutional Trustee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only
to the Global Capital Securities. The Trust shall execute and the Institutional
Trustee shall, in accordance with this Section 7.3, authenticate and deliver one
or more Global Capital Securities that (a) shall be registered in the name of
Cede & Co. or other nominee of such Depositary and (b) shall be delivered by the
Institutional Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Institutional Trustee as custodian for the
Depositary. Clearing Agency
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Participants shall have no rights under this Declaration with respect to any
Global Capital Security held on their behalf by the Depositary or by the
Institutional Trustee as the custodian of the Depositary or under such Global
Capital Security, and the Depositary may be treated by the Trust, the
Institutional Trustee and any agent of the Trust or the Institutional Trustee as
the absolute owner of such Global Capital Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trust, the
Institutional Trustee or any agent of the Trust or the Institutional Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and the
Clearing Agency Participants, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Capital Security.
(c) Definitive Capital Securities. Except as provided in Section
7.5, Section 9.2(e) and Section 9.2(f), owners of beneficial interests in Global
Capital Securities will not be entitled to receive physical delivery of
Definitive Capital Securities. Purchasers of the Initial Capital Securities who
are institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act) ("IAIs"), but are not QIBs, will receive
Initial Capital Securities in the form of individual certificates in definitive,
fully registered form without distribution coupons and with the Restricted
Securities Legend set forth in Section 9.2(g) ("Restricted Definitive Capital
Securities"); provided, however, that upon registration of transfer of such
Restricted Definitive Capital Securities to a QIB, such Restricted Definitive
Capital Securities will, unless the Rule 144A Global Capital Security has
previously been exchanged, be exchanged for an interest in a Rule 144A Global
Capital Security pursuant to the provisions set forth in Section 9.2. Restricted
Definitive Capital Securities will bear the Restricted Securities Legend set
forth in Section 9.2(g) unless removed in accordance with this Section 7.3 or
Section 9.2.
In the event Initial Definitive Capital Securities are tendered
in a Registered Exchange Offer, they will be exchanged for Exchange Definitive
Capital Securities in definitive, fully registered form without coupons and
without the Restricted Securities Legend or, at the option of the Holder, as an
interest in the Exchange Global Capital Security issued pursuant to Section
7.1(a).
SECTION 7.4 Mutilated, Destroyed, Lost or Stolen Certificates.
If: (a) any mutilated Certificates should be surrendered to the Registrar, or if
the Registrar shall receive evidence to their satisfaction of the destruction,
loss or theft of any Certificate; and (b) there shall be delivered to the
Registrar and the Administrators such security or indemnity as may be required
by them to keep each of them harmless; then, in the absence of notice that such
Certificate shall have been acquired by a bona fide purchaser, an Administrator
on behalf of the Trust shall execute (and, in the case of a Capital Security
Certificate, the Institutional Trustee shall authenticate) and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In connection with the
issuance of any new Certificate under this Section 7.4, the Registrar or the
Administrators may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Trust Securities,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
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SECTION 7.5 Temporary Trust Securities.
Until definitive Trust Securities are ready for delivery, the
Administrators may prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate temporary Trust Securities. Temporary
Trust Securities shall be substantially in form of definitive Trust Securities
but may have variations that the Administrators consider appropriate for
temporary Trust Securities. Without unreasonable delay, the Administrators shall
prepare and, in the case of the Capital Securities, the Institutional Trustee
shall authenticate definitive Trust Securities in exchange for temporary Trust
Securities.
SECTION 7.6 Cancellation.
The Administrators at any time may deliver Trust Securities to
the Institutional Trustee for cancellation. The Registrar shall forward to the
Institutional Trustee any Trust Securities surrendered to them for registration
of transfer, redemption or payment. The Institutional Trustee shall promptly
cancel all Trust Securities surrendered for registration of transfer, payment,
replacement or cancellation and shall dispose such canceled Trust Securities as
the Administrators direct. The Administrators may not issue new Trust Securities
to replace Trust Securities that have been paid or that have been delivered to
the Institutional Trustee for cancellation.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust. (a) The Trust
shall dissolve:
(i) unless earlier dissolved, on November 15, 2052, the
expiration of the term of the Trust;
(ii) upon a Bankruptcy Event with respect to the Sponsor; or the
Debenture Issuer
(iii) (other than in connection with a merger, consolidation or
similar transaction not prohibited by the Indenture, this Declaration or
the Securities Guarantees, as the case may be) upon the filing of a
certificate of dissolution or its equivalent with respect to the Sponsor
or the Trust, or the revocation of the charter of the Sponsor and the
expiration of 90 days after the date of revocation without a
reinstatement thereof;
(iv) upon the distribution of the Debentures to the Holders of
the Trust Securities, upon exercise of the right of the Holder of all of
the outstanding Common Securities to dissolve the Trust as provided in
Annex I hereto;
(v) upon the entry of a decree of judicial dissolution of the
Sponsor, the Trust or the Debenture Issuer;
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(vi) when all of the Trust Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Trust
Securities; or
(vii) before the issuance of any Trust Securities, with the
consent of all of the Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and after satisfaction of liabilities to
creditors of the Trust, and subject to the terms set forth in Annex I, the
Trustees shall terminate the Trust by filing a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 General. (a) Where Capital Securities are presented
to the Registrar or a co-registrar with a request to register a transfer or to
exchange them for an equal number of Capital Securities represented by different
certificates, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfer and exchanges, the Trust shall issue and the Institutional Trustee
shall authenticate Capital Securities at the Registrar's request.
(b) Upon issuance of the Common Securities, the Sponsor shall
acquire and retain beneficial and record ownership of the Common Securities and,
for so long as the Trust Securities remain outstanding, the Sponsor shall
maintain 100% ownership of the Common Securities, provided, however, that any
permitted successor of the Sponsor under the Indenture may succeed to the
Sponsor's ownership of the Common Securities.
(c) Capital Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Declaration
and in the terms of the Trust Securities, provided, however, that Capital
Securities may be transferred only in blocks having a stated liquidation amount
of not less than $100,000 (i.e., 100 Capital Securities). Any transfer or
purported transfer of any Trust Security not made in accordance with this
Declaration shall be null and void and will be deemed to be of no legal effect
whatsoever and any such transferee shall be deemed not to be the holder of such
Capital Securities for any purpose, including but not limited to the receipt of
Distributions on such Capital Securities, and such transferee shall be deemed to
have no interest whatsoever in such Capital Securities.
(d) The Registrar shall provide for the registration of Trust
Securities and of transfers of Trust Securities, which will be effected without
charge but only upon payment (with such indemnity as the Trust or Sponsor may
require) in respect of any tax or other governmental charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any Trust
Securities, the Registrar shall cause one or more new Trust Securities to be
issued in the name of the designated transferee or transferees. Every Trust
Security surrendered for
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registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Trust Security
surrendered for registration of transfer shall be canceled by the Institutional
Trustee pursuant to Section 7.6. A transferee of a Trust Security shall be
entitled to the rights and subject to the obligations of a Holder hereunder upon
the receipt by such transferee of a Trust Security. By acceptance of a Trust
Security or any interest therein, each transferee shall be deemed to have agreed
to be bound by this Declaration.
(e) The Trust shall not be required (i) to issue, register the
transfer of or exchange any Capital Securities during a period beginning at the
opening of business 15 days before the day of any selection of Capital
Securities for redemption and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to
all Holders of Capital Securities to be redeemed, or (ii) to register the
transfer or exchange of any Capital Security so selected for redemption in whole
or in part, except the unredeemed portion of any Capital Security being redeemed
in part.
SECTION 9.2 Transfer Procedures and Restrictions.
(a) General. (i) If Initial Capital Securities are issued upon
the transfer, exchange or replacement of Initial Capital Securities bearing the
Restricted Securities Legend set forth in Section 9.2(g), or if a request is
made to remove such Restricted Securities Legend on Initial Capital Securities,
the Initial Capital Securities so issued shall bear the Restricted Securities
Legend, or the Restricted Securities Legend shall not be removed, as the case
may be, unless there is delivered to the Trust such satisfactory evidence, which
may include an opinion of counsel licensed to practice law in the State of New
York, as may be reasonably required by the Trust, that neither the Restricted
Securities Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A or Rule 144 under the Securities Act or, with respect to Restricted Capital
Securities, that such securities are not "restricted" within the meaning of Rule
144 under the Securities Act. Upon provision of such satisfactory evidence, the
Institutional Trustee, at the written direction of the Trust, shall authenticate
and deliver Capital Securities that do not bear the Restricted Securities
Legend.
(ii) If a transfer of Initial Capital Securities is made
pursuant to an effective Shelf Registration Statement (as such
term is defined in the Registration Rights Agreement), the
Restricted Securities Legend shall be removed from such Initial
Capital Securities so transferred at the request of the Holder.
(iii) Any Initial Capital Securities which are presented
to the Registrar for exchange pursuant to a Registered Exchange
Offer or pursuant to Section 2(d)(iii) of the Registration Rights
Agreement shall be exchanged for Exchange Capital Securities of
equal liquidation amount upon surrender to the Registrar of the
Initial Capital Securities to be exchanged in accordance with the
terms of the Registered Exchange Offer; provided that the Initial
Capital Securities so surrendered for exchange are duly endorsed
and accompanied by a letter of transmittal or written instrument
of transfer in form satisfactory to the Institutional Trustee and
the Registrar and duly executed by the Holder thereof or
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such Holder's attorney who shall be duly authorized in writing to
execute such document on the behalf of such Holder.
(b) Transfer and Exchange of Definitive Capital Securities. When
Definitive Capital Securities are presented to the Registrar (x) to register the
transfer of such Definitive Capital Securities, or (y) to exchange such
Definitive Capital Securities for an equal number of such Definitive Capital
Securities of another number, the Registrar shall register the transfer or make
the exchange as requested if its reasonable requirements for such transaction
are met; provided, however, that the Definitive Capital Securities surrendered
for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Trust and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(ii) shall be, in the case of Initial Definitive Capital
Securities that are Restricted Definitive Capital Securities
being transferred or exchanged pursuant to an effective
registration statement under the Securities Act or pursuant to
clause (A), (B), (C) or (D) below, accompanied by the following
additional information and documents, as applicable:
(A) if such Restricted Definitive Capital
Securities are being delivered to the Registrar by a
Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that
effect;
(B) if such Restricted Definitive Capital
Securities are being transferred pursuant to an exemption
from registration in accordance with Rule 144 under the
Securities Act: (i) a certification to that effect from
the transferor and (ii) if the Trust so requests, evidence
reasonably satisfactory to the Trust as to the compliance
with the restrictions set forth in the Restricted
Securities Legend;
(C) if such Restricted Definitive Capital
Securities are transferred to QIBs in accordance with Rule
144A under the Securities Act, the transferee QIBs must
take delivery of their interests in the Capital Securities
in the form of a beneficial interest in the Rule 144A
Global Capital Security in accordance with Section 9.2(c);
or
(D) if such Restricted Definitive Capital
Securities are being transferred to a Person who is an
IAI, but it is not a QIB, upon the delivery of a
certificate by the transferee IAI substantially in the
form of Exhibit B hereto and such other opinions,
certifications and/or other information as may be
reasonably required by the Trust or the Sponsor.
If the above conditions are satisfied, the Institutional Trustee
shall cancel or cause to be canceled such Restricted Definitive
Securities being transferred and concurrently therewith, the
Trust shall issue and the Institutional Trustee shall
authenticate, upon written order of any Administrator, an
appropriate number of Restricted Definitive Capital Securities.
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(c) Restrictions on Transfer of an Initial Definitive Capital
Security for a Beneficial Interest in an Initial Global Capital Security. An
Initial Definitive Capital Security may not be exchanged for a beneficial
interest in an Initial Global Capital Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Institutional Trustee of an
Initial Definitive Capital Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Trust, together with:
(i) if such Initial Definitive Capital Security is a Restricted
Capital Security, certification, substantially in the form set forth of
Exhibit C hereto, that such Definitive Capital Security is being
transferred to a QIB in accordance with Rule 144A under the Securities
Act, and
(ii) whether or not such Initial Definitive Capital Security is a
Restricted Capital Security, written instructions directing the
Institutional Trustee to make, or to direct the Depositary to make, an
adjustment on its books and records with respect to such Initial Global
Capital Security to reflect an increase in the number of the Initial
Capital Securities represented by the Initial Global Capital Security,
then the Institutional Trustee shall cancel such Initial Definitive Capital
Security and cause, or direct the Depositary to cause, the aggregate number of
Initial Capital Securities represented by the Global Capital Security to be
increased accordingly. If no Initial Global Capital Securities are then
outstanding, the Trust shall issue and the Institutional Trustee shall
authenticate, upon written order of any Administrator, an appropriate number of
Initial Capital Securities in global form.
(d) Transfer and Exchange of Global Capital Securities. Subject
to Section 9.2(e), the transfer and exchange of Initial Global Capital
Securities or Exchange Global Capital Securities or beneficial interests therein
shall be effected through the Depositary in accordance with this Declaration
(including applicable restrictions on transfer set forth in the Restricted
Securities Legend set forth in Section 9.2(g)) and the procedures of the
Depositary therefor. Notwithstanding any other provisions of this Declaration, a
Global Capital Security may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
(e) Transfer of a Beneficial Interest in a Global Capital
Security for a Definitive Capital Security.
(i) Any Person having a beneficial interest in a Global Capital
Security that is being transferred or exchanged pursuant to an effective
registration statement under the Securities Act or pursuant to clause
(A) or (B) below may upon request, and if accompanied by the information
specified below, exchange such beneficial interest for an Initial
Definitive Capital Security or an Exchange Definitive Capital Security,
as the case
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may be, representing the same number of Initial Global Capital
Securities or Exchange Global Capital Securities, as the case may be.
Upon receipt by the Institutional Trustee from the Depositary or its
nominee on behalf of any Person having a beneficial interest in an
Initial Global Capital Security or an Exchange Global Capital Security,
as the case may be, of written instructions or such other form of
instructions as is customary for the Depositary or the Person designated
by the Depositary as having such a beneficial interest in such Global
Capital Security and, in the case of an Initial Global Security, the
following additional information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being transferred
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act: (i) a certification to that
effect from the transferor and (ii) if the Trust so requests,
additional evidence reasonably satisfactory to the Trust as to
the compliance with the restrictions set forth in the legend set
forth in Section 9.2(g); or
(B) if such beneficial interest is being transferred to a
Person who is an IAI, but is not a QIB, upon the delivery of a
certificate by the transferee IAI substantially in the form of
Exhibit B hereto and such other opinions, certifications and/or
other information as may be reasonably required by the Trust or
the Sponsor,
then the Institutional Trustee will cause, in accordance with the
standing instructions and procedures of the Depositary, the aggregate
liquidation amount of the Global Capital Security to be reduced on its
books and records and, following such reduction, the Trust will issue
and the Institutional Trustee will authenticate and deliver, upon
written order of the Trust signed by any Administrator, an appropriate
number of Definitive Capital Securities.
(ii) Definitive Capital Securities issued in exchange for a
beneficial interest in a Global Capital Security pursuant to this
Section 9.2(e) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from Clearing
Agency Participants or indirect participants or otherwise, shall
instruct the Institutional Trustee. The Institutional Trustee shall
deliver such Capital Securities to the Persons in whose names such
Capital Securities are so registered in accordance with the instructions
of the Depositary.
(f) Authentication of Definitive Capital Securities.
If at any time:
(i) the Depositary notifies the Institutional Trustee and the
Administrators that the Depositary is unwilling or unable to continue as
Depositary for the Global Capital Securities and a successor Depositary
for the Global Capital Securities is not appointed by the Trust at the
direction of the Sponsor within 90 days after delivery of such notice;
or
(ii) the Administrators (with the consent of the Sponsor) notify
the Institutional Trustee in writing to issue Definitive Capital
Securities under this Declaration,
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then the Institutional Trustee will cause, in accordance with the standing
instructions and procedures of the Depositary, the aggregate principal amount of
the Global Capital Security to be reduced on its books and records and,
following such reduction, the Trust will issue and the Institutional Trustee
will authenticate, upon written order of any Administrator, an appropriate
number of Definitive Capital Securities.
(g) Legend.
Except as permitted by Section 9.2(a), each Initial Capital
Security certificate evidencing the Rule 144A Global Capital Securities or the
Restricted Definitive Capital Securities (and all Initial Capital Securities
issued in exchange therefor or substitution thereof) shall bear a legend (the
"Restricted Securities Legend") in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH TRANSAMERICA
CORPORATION (THE "COMPANY") OR TRANSAMERICA CAPITAL III (THE "TRUST") OR ANY
AFFILIATE OF THE COMPANY OR THE TRUST WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY
(A) TO THE COMPANY OR THE TRUST, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUST'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (X) PURSUANT TO CLAUSE (D), TO REQUIRE THAT THE TRANSFEROR
DELIVER TO THE TRUST A LETTER SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE
OFFERING MEMORANDUM DATED NOVEMBER 7, 1997 FROM THE
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TRANSFEREE AND (Y) PURSUANT TO CLAUSES (D) OR (E), TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY OR THE TRUST. THE HOLDER OF THIS SECURITY AGREES THAT
IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS. SECURITIES OWNED BY A PURCHASER
THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
(h) Cancellation or Adjustment of Global Capital Security. At
such time as all beneficial interests in a Global Capital Security have either
been exchanged for Definitive Capital Securities to the extent permitted by this
Declaration or redeemed, repurchased or canceled in accordance with the terms of
this Declaration, such Global Capital Security shall be returned to the
Depositary for cancellation or retained and canceled by the Institutional
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Capital Security is exchanged for Definitive Capital Securities, Capital
Securities represented by such Global Capital Security shall be reduced and an
adjustment shall be made on the books and records of the Institutional Trustee
(if it is then the Trust Securities custodian for such Global Capital Security)
with respect to such Global Capital Security, by the Institutional Trustee to
reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of
Capital Securities.
(A) To permit registrations of transfers and exchanges, the Trust
shall execute and the Institutional Trustee shall authenticate
Definitive Capital Securities and Global Capital Securities at the
Registrar's request.
(B) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the
Registrar or the Sponsor may require) in respect of any tax or other
governmental charge that may be imposed in relation to it.
(C) The Registrar shall not be required to register the transfer
of or exchange of any Capital Security during a period beginning at the
opening of business 15 days before the day of any selection of any
Capital Security for redemption set forth in the terms and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of Capital
Securities to be redeemed, or
(D) All Capital Securities issued upon any transfer or exchange
pursuant to the terms of this Declaration shall evidence the same
security and shall be entitled to the same benefits under this
Declaration as the Capital Securities surrendered upon such transfer or
exchange.
SECTION 9.3 Deemed Trust Security Holders. The Trust, the
Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
Registrar may treat the Person in
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whose name any Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the Trust Securities
represented by such Certificate for purposes of receiving Distributions and for
all other purposes whatsoever and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such Certificate or in the Trust
Securities represented by such Certificate on the part of any Person, whether or
not the Trust, the Administrators, the Trustees, the Paying Agent, the Transfer
Agent or the Registrar shall have actual or other notice thereof; provided, that
solely for the purposes of determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided for in this
Declaration, with respect to Global Capital Securities, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing Agency
setting forth the Capital Security Beneficial Owners' votes or assigning such
Capital Securities Beneficial Owners' right to vote on any manner to any other
Persons either in whole or in part.
SECTION 9.4 Notices to Clearing Agency. Whenever a notice or
other communication to the Capital Security Holders is required under this
Declaration, unless and until Definitive Capital Securities shall have been
issued to the beneficial owners of Capital Securities pursuant to Section 9.2(e)
or Section 9.2(f), the Administrators shall give all such notices and
communications specified herein to be given to the Capital Security Holders to
the Clearing Agency, and shall have no notice obligations to the beneficial
owners of Capital Securities.
SECTION 9.5 Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary with
respect to the Capital Securities, the Institutional Trustee, in its sole
discretion, appoint a successor Clearing Agency with respect to such Capital
Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability. (a) Except as expressly set forth in this
Declaration, the Securities Guarantees and the terms of the Trust Securities,
the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Trust Securities which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of Trust
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all
of the debts and obligations of the Trust (other than with respect to the Trust
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Capital Securities shall be entitled to the same limitation of
personal liability extended to stockholders of
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private corporations for profit organized under the General Corporation Law of
the State of Delaware.
SECTION 10.2 Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and, if selected by such Indemnified Person,
has been selected by such Indemnified Person with reasonable care by or on
behalf of the Trust, including information, opinions, reports or statements as
to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Trust Securities might properly be paid.
SECTION 10.3 Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of the Indemnified Person.
(b) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 10.4 Indemnification. (a) (i) The Sponsor shall
indemnify, to the full extent permitted by law, any Indemnified Person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was an Indemnified Person against expenses (including
attorneys'
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fees and expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the Indemnified Person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by
law, any Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by
or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was an Indemnified Person against
expenses (including attorneys' fees and expenses) actually and
reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in respect
of any claim, issue or matter as to which such Indemnified Person shall
have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which such Court of Chancery or such
other court shall deem proper.
(iii) Any indemnification of an Administrator under paragraphs
(i) and (ii) of this Section 10.4(a) (unless ordered by a court) shall
be made by the Sponsor only as authorized in the specific case upon a
determination that indemnification of the Indemnified Person is proper
in the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall
be made (1) by the Administrators by a majority vote of a Quorum
consisting of such Administrators who were not parties to such action,
suit or proceeding, (2) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion, or (3) by the Common
Security Holder of the Trust.
(iv) To the fullest extent permitted by law, expenses (including
attorneys' fees and expenses) incurred by an Indemnified Person in
defending a civil, criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4 (a) shall be paid by the Sponsor in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Indemnified Person to repay such
amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Sponsor as authorized in this Section 10.4 (a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor
if a determination is reasonably and promptly made (i) by the
Administrators by a majority vote of a Quorum of disinterested
Administrators, (ii) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrators so directs, by
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independent legal counsel in a written opinion or (iii) by the Common
Security Holder of the Trust, that, based upon the facts known to the
Administrators, counsel or the Common Security Holder at the time such
determination is made, such Indemnified Person acted in bad faith or in
a manner that such Person did not believe to be in or not opposed to the
best interests of the Trust, or, with respect to any criminal
proceeding, that such Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall any advance
be made in instances where the Administrators, independent legal counsel
or the Common Security Holder reasonably determine that such Person
deliberately breached his duty to the Trust or its Common or Capital
Security Holders.
(v) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 10.4 (a)
shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the
Sponsor or Capital Security Holders of the Trust or otherwise, both as
to action in his official capacity and as to action in another capacity
while holding such office. All rights to indemnification under this
Section 10.4(a) shall be deemed to be provided by a contract between the
Sponsor and each Indemnified Person who serves in such capacity at any
time while this Section 10.4 (a) is in effect. Any repeal or
modification of this Section 10.4(a) shall not affect any rights or
obligations then existing.
(vi) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any Person who is or was an Indemnified Person against any
liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the Sponsor would
have the power to indemnify him against such liability under the
provisions of this Section 10.4 (a).
(vii) For purposes of this Section 10.4 (a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any Person who is or was
a director, trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section 10.4 (a)
with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had
continued.
(viii) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 10.4(a) shall, unless otherwise
provided when authorized or ratified, continue as to a Person who has
ceased to be an Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a Person. The provisions of
this Section 10.4 shall survive the termination of this Declaration or
the resignation or removal of any Administrator or Trustee.
SECTION 10.5 Outside Businesses. Any Covered Person, the Sponsor,
the Delaware Trustee and the Institutional Trustee (subject to Section 5.3(c))
may engage in or possess an interest in other business ventures of any nature or
description, independently or with
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others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Trust Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor, the Delaware Trustee, or the Institutional Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware
Trustee and the Institutional Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Institutional Trustee may engage or be interested in
any financial or other transaction with the Sponsor or any Affiliate of the
Sponsor, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the Sponsor
or its Affiliates.
SECTION 10.6 Compensation; Fee. The Sponsor agrees:
(a) to pay to the Trustees from time to time such compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) in an amount mutually agreed upon.
(b) No Trustee may claim any lien or charge on any property of
the Trust as a result of any amount due pursuant to this Section 10.6.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year. The fiscal year ("Fiscal Year") of the
Trust shall be the calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters. (a) At all times during
the existence of the Trust, the Administrators shall keep, or cause to be kept,
full books of account, records and supporting documents, which shall reflect in
reasonable detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The books of account and
the records of the Trust shall be examined by and reported upon as of the end of
each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrators.
(b) The Administrators shall cause to be prepared and delivered
to each of the Holders of Trust Securities, within 90 days after the end of each
Fiscal Year of the Trust, annual financial statements of the Trust, including a
balance sheet of the Trust as of the end of such Fiscal Year, and the related
statements of income or loss which shall be examined by and reported upon by a
firm of independent certified public accountants selected by the Administrators.
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(c) The Administrators shall cause to be duly prepared and
delivered to each of the Holders of Trust Securities any annual United States
federal income tax information statement required by the Code, containing such
information with regard to the Trust Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Administrators
shall endeavor to deliver all such statements within 30 days after the end of
each Fiscal Year of the Trust.
(d) The Administrators shall cause to be duly prepared and filed
an annual United States federal income tax return on a Form 1041 or such other
form required by United States federal income tax law, and any other annual
income tax returns required to be filed by the Administrators on behalf of the
Trust with any state or local taxing authority.
SECTION 11.3 Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the
Institutional Trustee shall be made directly to the Property Account and no
other funds of the Trust shall be deposited in the Property Account. The sole
signatories for such accounts (including the Property Account) shall be
designated by the Institutional Trustee.
SECTION 11.4 Withholding. The Institutional Trustee or any Paying
Agent and the Administrators shall comply with all withholding requirements
under United States federal, state and local law. The Institutional Trustee or
any Paying Agent shall request, and the Holders shall provide to the
Institutional Trustee or any Paying Agent, such forms or certificates as are
necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Institutional Trustee or any Paying Agent to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrators
shall file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Institutional Trustee or any Paying Agent is required to withhold and
pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to the Holder. In the event of any
claimed overwithholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Institutional Trustee or any Paying Agent
may reduce subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Trust Securities, this Declaration
may only be amended by a written instrument approved and executed by
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(i) the Institutional Trustee and the Holder of a Majority of the
liquidation amount of the Common Securities; and
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, also by the Delaware
Trustee.
(b) Notwithstanding any other provision of this Article XII, no
amendment shall be made, and any such purported amendment shall be void and
ineffective:
(i) unless the Institutional Trustee shall have first received
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Trust
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms
of the Trust Securities); and
(ii) if the result of such amendment would be to
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a
grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act.
(c) Except as otherwise provided herein, no amendment shall be
made, and any such purported amendment shall be void and ineffective, unless the
Holders of a Majority in liquidation amount of the Capital Securities shall have
consented to such amendment.
(d) In addition to and notwithstanding any other provision in
this Declaration, without the consent of each affected Holder, this Declaration
may not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date.
(e) Section 9.1(b) and 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the Trust Securities.
(f) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities.
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(g) The rights of the Holders of the Capital Securities under
Article V to increase or decrease the number of, and appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Capital Securities.
(h) Notwithstanding Section 12.1(c), this Declaration may be
amended by the Institutional Trustee and the Holders of a Majority in the
liquidation amount of the Common Securities without the consent of the Holders
of the Capital Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) modify, eliminate or add to any provision of this
Declaration to such extent as may be necessary to ensure that the Trust
will be classified for United States federal income tax purposes at all
times as a grantor trust and will not be required to register as an
Investment Company under the Investment Company Act;
(v) modify, eliminate or add to any provision of the Declaration
to such an extent as may be necessary to ensure that the Declaration
will be qualified under the Trust Indenture Act upon the effectiveness
of the Exchange Offer Registration Statement with respect to the Capital
Securities; and
(vi) modify, eliminate and add to any provision of this
Declaration;
provided, however, that no such modification, elimination or addition referred
to in clauses (i), (ii), (iii) and (vi) shall adversely affect the powers,
preferences or special rights of Holders of the Capital Securities as long as
the Capital Securities remain outstanding.
SECTION 12.2 Meetings of the Holders of Trust Securities; Action
by Written Consent. (a) Meetings of the Holders of any class of Trust Securities
may be called at any time by the Administrators (or as provided in the terms of
the Trust Securities) to consider and act on any matter on which Holders of such
class of Trust Securities are entitled to act under the terms of this
Declaration, the terms of the Trust Securities or the rules of any stock
exchange on which the Capital Securities are listed or admitted for trading, if
any. The Administrators shall call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10% in liquidation amount of such
class of Trust Securities. Such direction shall be given by delivering to the
Administrators one or more calls in a writing stating that the signing Holders
of Trust Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of Trust
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Trust Securities exercising the right to call a meeting and only
those Trust Securities represented by such Certificates shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
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(b) Except to the extent otherwise provided in the terms of the
Trust Securities, the following provisions shall apply to meetings of Holders of
Trust Securities:
(i) notice of any such meeting shall be given to all the Holders
of Trust Securities having a right to vote thereat at least 7 days and
not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Trust Securities is permitted or
required under this Declaration or the rules of any stock exchange on
which the Capital Securities are listed or admitted for trading, if any,
such vote, consent or approval may be given at a meeting of the Holders
of Trust Securities. Any action that may be taken at a meeting of the
Holders of Trust Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Trust Securities owning not less than the minimum amount of Trust
Securities in liquidation amount that would be necessary to authorize or
take such action at a meeting at which all Holders of Trust Securities
having a right to vote thereon were present and voting. Prompt notice of
the taking of action without a meeting shall be given to the Holders of
Trust Securities entitled to vote who have not consented in writing. The
Administrators may specify that any written ballot submitted to the
Holders of Trust Securities for the purpose of taking any action without
a meeting shall be returned to the Trust within the time specified by
the Administrators;
(ii) each Holder of a Trust Security may authorize any Person to
act for it by proxy on all matters in which a Holder of Trust Securities
is entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Trust Securities executing it. Except as otherwise provided
herein, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder,
as if the Trust were a Delaware corporation and the Holders of the Trust
Securities were stockholders of a Delaware corporation; each meeting of
the Holders of the Trust Securities shall be conducted by the
Administrators or by such other Person that the Administrators may
designate; and
(iii) unless the Business Trust Act, this Declaration, the terms
of the Trust Securities, the Trust Indenture Act or the listing rules of
any stock exchange on which the Capital Securities are then listed for
trading, if any, otherwise provides, the Administrators, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders of Trust Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of Trust Securities, waiver of any such notice, action by
consent without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
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ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional
Trustee. The Trustee that acts as initial Institutional Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Institutional Trustee represents and warrants to the Trust and
the Sponsor at the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a national banking association
with trust powers, duly organized, validly existing and in good standing under
the laws of the United States with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Institutional Trustee. This Declaration has been duly
executed and delivered by the Institutional Trustee, and it constitutes a legal,
valid and binding obligation of the Institutional Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity (regardless of
whether considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Declaration
by the Institutional Trustee does not conflict with or constitute a breach of
the charter or by-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee of this
Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee, that:
(a) The Delaware Trustee is duly organized, validly existing and
in good standing under the laws of the State of Delaware, with corporate power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) The execution, delivery and performance by the Delaware
Trustee of the Declaration and the Certificate of Trust have been duly
authorized by all necessary and corporate action on the part of the Delaware
Trustee. This Declaration constitutes a legal, valid and binding obligation of
the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws
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affecting creditors' rights generally and to general principles of equity
(regardless of whether considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of this Declaration
by the Delaware Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Delaware Trustee;
(d) no consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration;
and
(e) the Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware and, in either case, a
Person that satisfies for the Trust the requirements of Section 3807 of the
Business Trust Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices. All notices provided for in this
Declaration shall be in writing, duly signed by the party giving such notice,
and shall be delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrators at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Trust Securities:
Transamerica Capital III
c/o Transamerica Corporation
600 Montgomery Street
San Francisco, California 94111
Attention: Secretary
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Holders of the Trust Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Attention: Michael J. Majchrzak
(c) if given to the Institutional Trustee, at the Institutional
Trustee's mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Trust
Securities):
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The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice of to the Trust):
Transamerica Corporation
600 Montgomery Street
San Francisco, California 94111
Attention: Secretary
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law. This Declaration and the rights of
the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware and all rights and remedies shall be governed
by such laws without regard to the principles of conflict of laws of the State
of Delaware or any other jurisdiction that would call for the application of the
law of any jurisdiction other than the State of Delaware; provided, however,
that there shall not be applicable to the Trust, the Trustees or this
Declaration any provision of the laws (statutory or common) of the State of
Delaware pertaining to trusts (other than the Business Trust Act) that relate to
or regulate, in a manner inconsistent with the terms hereof, (a) the filing with
any court or governmental body or agency of trustee accounts or schedules of
trustee fees and charges, (b) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (c) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (d) fees or other sums
payable to trustees, officers, agents or employees of a trust, (e) the
allocation of receipts and expenditures to income or principal, (f) restrictions
or limitations on the permissible nature, amount or concentration of trust
investments or requirements relating to the titling, storage or other manner of
holding or investing trust assets or (g) the establishment of fiduciary or other
standards of responsibility or limitations on the acts or powers of trustees
that are inconsistent with the limitations or liabilities or authorities and
powers of the Trustees as set forth or referenced in this Declaration. Section
3540 of Title 12 of the Delaware Code shall not apply to the Trust.
SECTION 14.3 Intention of the Parties. It is the intention of the
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
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SECTION 14.4 Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
SECTION 14.6 Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.7 Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the signature of each of the Trustees and Administrators to any
of such counterpart signature pages. All of such counterpart signature pages
shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned have caused these presents to
be executed as of the day and year first above written.
FIRST CHICAGO DELAWARE INC.
as Delaware Trustee
By: /s/Steven M. Wagner
--------------------------------
Name: Steven M. Wagner
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
as Institutional Trustee
By: /s/ Janice Ott Rotunno
--------------------------------
Name: Janice Ott Rotunno
Title: Vice President
TRANSAMERICA CORPORATION
as Sponsor
By: /s/ David Hawkins
--------------------------------
Name: David Hawkins
Title: Vice President
By: /s/ David C. Thomas
--------------------------------
David C. Thomas, as Administrator
By: /s/ Mark A. McEachen
--------------------------------
Mark A. McEachen, as Administrator
By: /s/ Joseph Martinetto
--------------------------------
Joseph Martinetto, as Administrator
<PAGE> 62
ANNEX I
TERMS OF
7 5/8 % CAPITAL TRUST PASS-THROUGH SECURITIES(R) (TRUPS(R))*
Pursuant to Section 7.1 of the Amended and Restated Declaration
of Trust, dated as of November 14, 1997 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in the
Declaration, as defined in the Offering Memorandum referred to below):
1. Designation and Number. (a) Capital Securities. 190,000
Capital Securities of Transamerica Capital III (the "Trust"), with an aggregate
stated liquidation amount with respect to the assets of the Trust of $190
million dollars ($190,000,000) and a stated liquidation amount with respect to
the assets of the Trust of $1,000 per Capital Security, are hereby designated
for the purposes of identification only as the 7 5/8 % Capital Trust
Pass-through Securities"(R) (the "Capital Securities"). The Capital Security
Certificates evidencing the Capital Securities shall be substantially in the
form of Exhibit A-1 or A-2, as applicable, to the Declaration, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice or to conform to the rules of any stock exchange on
which the Capital Securities are listed, if any.
(b) Common Securities. 5,877 Common Securities of the Trust (the
"Common Securities"). The Common Security Certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-3 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2. Distributions. (a) Distributions payable on each Trust
Security will be fixed at a rate per annum of 7 5/8 % (the "Coupon Rate") of the
stated liquidation amount of $1,000 per Trust Security, such rate being the rate
of interest payable on the Debentures to be held by the Institutional Trustee.
Except as set forth below in respect of an Extension Period, Distributions in
arrears for more than one semiannual period will bear interest thereon
compounded semiannually at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used herein includes cash
distributions and any such compounded distributions payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Institutional Trustee and to the extent
the Institutional Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. The amount of Distributions payable for any period
shorter than a full semiannual Distribution period will be computed on the basis
of the actual number of days elapsed per 30-day month.
- ----------
* Salomon Brothers Inc has filed applications with the United States Patent
and Trademark Office for the registration of the "Capital Trust
Pass-through Securities" and the "TRUPS" service marks.
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(b) Distributions on the Trust Securities will be cumulative,
will accrue from November 14, 1997, and will be payable, subject to extension of
distribution payment periods as described herein, semiannually in arrears on
November 15 and May 15 of each year, commencing on May 15, 1998 (each a
"Distribution Payment Date") when, as and if available for payment. The
Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures by extending the interest payment period (each an "Extension
Period") at any time and from time to time on the Debentures, subject to the
conditions described below, although such interest would continue to accrue on
the Debentures at a rate of 7 5/8 % per annum, compounded semiannually (to the
extent permitted by law) during any Extension Period. If such right is
exercised, semiannual distributions on the Trust Securities will also be
deferred (though such distributions would continue to accrue at the distribution
rate of 7 5/8 % per annum, compounded semiannually (to the extent permitted by
law) during any Extension Period. Such right to extend any interest payment
period in respect of the Debentures is limited to Extension Periods, each not
exceeding 10 consecutive semiannual periods, provided, however, that no
Extension Period shall be initiated while accrued interest from a prior,
completed Extension Period is unpaid or while the Debenture Issuer is in default
in the payment of interest that has become due and payable on the Debentures;
and, provided, further, that no Extension Period shall extend beyond the
Maturity Date of the Debentures. In the event that the Debenture Issuer
exercises this right, then, during any Extension Period (a) the Debenture Issuer
shall not declare or pay dividends on, make a distribution with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its capital stock or rights to acquire such capital stock (other than (i)
purchases or acquisitions of shares of any such capital stock or rights to
acquire such capital stock in connection with the satisfaction by the Debenture
Issuer of its obligations under any employee benefit plans, (ii) as a result of
a reclassification of the Debenture Issuer's capital stock or rights to acquire
such capital stock or the exchange or conversion of one class or series of the
Debenture Issuer's capital stock or rights to acquire such capital stock for
another class or series of the Debenture Issuer's capital stock or rights to
acquire such capital stock, (iii) the purchase of fractional interests in shares
of the Debenture Issuer's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged or
(iv) dividends and distributions made on the Debenture Issuer's capital stock or
rights to acquire such capital stock with the Debenture Issuer's capital stock
or rights to acquire such capital stock), or make guarantee payments with
respect to the foregoing, and (b) the Debenture Issuer shall not make any
payment of interest or principal on or repay, repurchase or redeem any debt
securities issued by the Debenture Issuer that rank pari passu with or junior to
such Debentures. Prior to the termination of any such Extension Period in
respect of the Debentures, the Debenture Issuer may further extend the interest
payment period; provided that each such Extension Period in respect of the
Debentures, together with all such previous and further extensions thereof, may
not exceed 10 consecutive semiannual periods or extend beyond the Maturity Date
of the Debentures. Upon the termination of any Extension Period in respect of
the Debentures and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements. As a
consequence of such deferral, Distributions shall also be deferred. If
Distributions are deferred, the Distributions due shall be paid on the date that
the related Extension Period terminates, or, if such date is not a Distribution
Payment Date, on the immediately following Distribution Payment Date, to Holders
of the Trust Securities as they appear on the books and records of the Trust on
the record date immediately preceding such date. Distributions on the Trust
Securities
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must be paid on the dates payable (after giving effect to any Extension Period)
to the extent that the Trust has funds available for the payment of such
distributions in the Property Account of the Trust. The Trust's funds available
for Distribution to the Holders of the Trust Securities will be limited to
payments received from the Debenture Issuer. The payment of Distributions out of
moneys held by the Trust is guaranteed by the Guarantor pursuant to the
Securities Guarantees.
(c) Distributions on the Trust Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. With respect to the Capital Securities that are held
solely in book-entry only form, the relevant record dates shall be one Business
Day prior to the relevant payment dates which payment dates correspond to the
interest payment dates on the Debentures. Such Distributions will be paid
through the Institutional Trustee who will hold amounts received in respect of
the Debentures in the Property Account for the benefit of the Holders of the
Trust Securities. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Capital
Securities will be made as described under the heading "Description of the
Capital Securities -- Book-Entry Only Issuance -- The Depository Trust Company"
in the Offering Memorandum dated November 7, 1997 of the Trust (the "Offering
Memorandum"). The relevant record dates for the Common Securities shall be the
same record dates as for the Capital Securities. With respect to the Capital
Securities that are not held solely in book-entry only form, the relevant record
dates shall be selected by the Administrators, which dates shall be 15 days
before the relevant payment dates. Distributions payable on any Trust Securities
that are not punctually paid on any Distribution Payment Date, as a result of
the Debenture Issuer having failed to make a payment under the Debentures, as
the case may be, when due (taking into account any Extension Period), will cease
to be payable to the Person in whose name such Trust Securities are registered
on the relevant record date, and such defaulted Distributions will instead be
payable to the Person in whose name such Trust Securities are registered on the
special record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Trust
Securities is not a Business Day, then payment of the Distribution payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) with the
same force and effect as if made on such payment date.
(d) In the event that there is any money or other property held
by or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Trust
Securities.
3. Liquidation Distribution Upon Dissolution. In the event of any
voluntary or involuntary liquidation, dissolution, winding-up or termination of
the Trust (each a "Liquidation") other than in connection with a redemption of
the Debentures, the Holders of the Capital Securities will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
the Capital Securities, after satisfaction of liabilities to creditors of the
Trust (to the extent not satisfied by the Sponsor), distributions equal to the
aggregate of the stated liquidation amount of $1,000 per Capital Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless in connection with such
Liquidation, the Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Capital Securities, after paying or
making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business
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Trust Act, shall be distributed on a Pro Rata basis to the Holders of the
Capital Securities in exchange for such Capital Securities.
The Sponsor, as the Holder of all of the outstanding Common
Securities, has the right at any time to dissolve the Trust (including without
limitation upon the occurrence of a Tax Event and receipt of a Redemption Tax
Opinion) after satisfaction of liabilities to creditors of the Trust (to the
extent not satisfied by the Sponsor), cause the Debentures to be distributed to
the Holders of the Trust Securities on a Pro Rata basis in accordance with the
aggregate stated liquidation amount thereof.
The Trust shall dissolve on the first to occur of (i) November
15, 2052, the expiration of the term of the Trust, (ii) a Bankruptcy Event with
respect to the Sponsor, (iii) (other than in connection with a merger,
consolidation or similar transaction not prohibited by the Indenture, this
Declaration or the Securities Guarantees, as the case may be) upon the filing of
a certificate of dissolution or its equivalent with respect to the Sponsor or
the Trust, or upon the revocation of the charter of the Sponsor and the
expiration of 90 days after the date of revocation without a reinstatement
thereof, (iv) the distribution to the Holders of the Trust Securities of the
Debentures, upon exercise of the right of the Holder of all of the outstanding
Common Securities to dissolve the Trust as described above, (v) the entry of a
decree of a judicial dissolution of the Sponsor or the Trust, (vi) when all of
the Trust Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Trust Securities or (vii) before the issuance
of any Trust Securities, with the consent of the Trustees and the Sponsor. As
soon as practicable after the dissolution of the Trust and upon completion of
the winding up of the Trust, the Trust shall terminate upon the filing of a
certificate of cancellation with the Secretary of State of the State of
Delaware.
If a Liquidation of the Trust occurs as described in clause (i),
(ii), (iii) or (v) in the immediately preceding paragraph, the Trust shall be
liquidated by the Institutional Trustee as expeditiously as such Trustee
determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied by the Sponsor), to the
Holders of the Trust Securities, the Debentures on a Pro Rata basis, unless such
distribution is determined by the Institutional Trustee not to be practical, in
which event such Holders will be entitled to receive out of the assets of the
Trust available for distribution to the Holders, after satisfaction of
liabilities of creditors of the Trust (to the extent not satisfied by the
Sponsor), an amount equal to the Liquidation Distribution. An early Liquidation
of the Trust pursuant to clause (iv) above shall occur if the Institutional
Trustee determines that such Liquidation is possible by distributing, after
satisfaction of liabilities to creditors of Trust (to the extent not satisfied
by the Sponsor), to the Holders of the Trust Securities on a Pro Rata basis the
Debentures, and such distribution occurs.
If, upon any such Liquidation the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Trust Securities shall be paid to the Holders of the Trust
Securities on a Pro Rata basis, except that if an Event of Default has occurred
and is continuing, the Capital Securities shall have a preference over the
Common Securities with regard to such amounts.
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Upon any such Liquidation of the Trust involving a distribution
of the Debentures, if at the time of such Liquidation, the Capital Securities
were rated by at least one nationally-recognized statistical rating
organization, the Debenture Issuer will use its reasonable best efforts to
obtain from at least one such or other rating organization a rating for the
Debentures.
After the date for any distribution of the Debentures upon
dissolution of the Trust, (i) the Trust Securities of the Trust will be deemed
to be no longer outstanding, (ii) the Depositary or its nominee, as the record
holder of the Global Capital Securities, will receive a registered security in
global form or certificates representing the Debentures to be delivered upon
such distribution, and (iii) any certificates representing the Capital
Securities not held by the Depositary or its nominee will be deemed to represent
undivided beneficial interests in such of the Debentures as have an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the distribution rate of, and bearing accrued and
unpaid interest equal to accrued and unpaid distributions on, the Trust
Securities until such certificates are presented to the Debenture Issuer or its
agent for transfer or reissuance.
4. Redemption and Distribution. (a) The Debentures are scheduled
to mature on November 15, 2037. The Debentures may be redeemed by the Debenture
Issuer at par, together with accrued and unpaid interest thereon to the date of
redemption, in whole or in part, at any time in certain circumstances upon the
occurrence of a Tax Event (as defined below), but are not otherwise redeemable
at the option of the Debenture Issuer prior to maturity.
Upon the repayment or payment of the Debentures (other than
following the distribution of the Debentures to the Holders of the Trust
Securities), whether at maturity or upon redemption, the proceeds from such
repayment or payment shall simultaneously be applied to redeem on a Pro Rata
basis at a price (the "Redemption Price") equal to $1,000 per Trust Security,
plus accrued and unpaid distributions to the date of repayment (in the case of
repayment at maturity) or to the date of redemption (in the case of payment on
redemption), Trust Securities having an aggregate stated liquidation amount
equal to the aggregate principal amount of the Subordinated Debt Securities so
repaid or redeemed; provided, however, that holders of such Trust Securities
shall be given not less than 30 nor more than 60 days' notice of such redemption
(other than at the scheduled maturity of the Subordinated Debt Securities).
(b) If fewer than all the outstanding Trust Securities are to be
so redeemed, the Common Securities and the Capital Securities will be redeemed
Pro Rata and the Capital Securities to be redeemed will be as described in
Section 4(e)(ii) below.
(c) If, at any time, a Tax Event shall occur and be continuing,
and the Debenture Issuer receives an opinion (a "Redemption Tax Opinion") of a
nationally recognized independent tax counsel experienced in such matters that,
as a result of a Tax Event, there is more than an insubstantial risk that the
Debenture Issuer would be precluded from deducting the interest on the
Debentures for United States federal income tax purposes even if the Debentures
were distributed to the Holders of Trust Securities in liquidation of such
Holders' interests in the Trust as described in this Section 4(c), the Debenture
Issuer shall have the right within 90 days following the occurrence of such Tax
Event (the "90 Day Period"), upon not less than 30 nor more than 60 days'
notice, to redeem the Debentures in whole or in part for cash so long as such
Tax Event is
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continuing at par plus any accrued and unpaid interest thereon to the dates of
redemption, and, following such redemption, Trust Securities with and aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata
basis; provided, however, that, if (i) at the time there is available to the
Debenture Issuer or the Trust the opportunity to eliminate, within the 90 Day
Period, the adverse effects of the Tax Event by taking some ministerial action,
such as filing a form or making an election or pursuing some other similar
reasonable measure that will have no adverse effect on the Trust, the Debenture
Issuer or the Holders of the Trust Securities and (ii) if such notice has not
been given, the Trust or the Debenture Issuer will pursue such measure in lieu
of redemption.
"Tax Event" means that the Trustees shall have received an
opinion of a nationally recognized independent tax counsel to the Debenture
Issuer experienced in such matters (a "Dissolution Tax Opinion") to the effect
that, as a result of (a) any amendment to, clarification of 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 judicial decision, official administrative pronouncement,
ruling, regulatory procedure, notice or announcement, including any notice or
announcement of intent to adopt such procedures or regulations (an
"Administrative Action"), or (c) any amendment to, clarification of, or change
in the official position or the interpretation of any Administrative Action or
judicial decision that differs from the theretofore generally accepted position,
in each case, by any legislative body, court, governmental authority or
regulatory body, irrespective of the manner in which such amendment,
clarification or change is made known, which amendment, clarification, or change
is effective or such Administrative Action or decision is announced, in each
case, on or after the date of the Offering Memorandum, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to interest
accrued or received on the Debentures or subject to more than a de minimus
amount of other taxes, duties or other governmental changes, (ii) any portion of
interest payable by the Debenture Issuer to the Trust on the Debentures is not,
or within 90 days of the date thereof will not be, deductible by the Debenture
Issuer for United States federal income tax purposes or (iii) the Debenture
Issuer could become liable to pay, on the next date on which any amount would be
payable with respect to the Debentures, any Additional Interest (as defined in
the Indenture).
(d) The Trust may not redeem fewer than all the outstanding
Capital Securities unless all accrued and unpaid Distributions have been paid on
all Capital Securities for all semiannual Distribution periods terminating on or
before the date of redemption. The rights of the Debenture Issuer described
above if a Tax Event occurs are in addition to the right of the Debenture
Issuer, as the holder of the Common Securities, at any time to dissolve the
Trust, after satisfaction of liabilities to creditors of the Trust and cause the
Debentures to be distributed to holders of the Trust Securities as described
above.
(e) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Trust Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail to
each Holder of Trust Securities to be redeemed or exchanged not
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fewer than 30 nor more than 60 days before the date fixed for redemption
or exchange thereof which, in the case of a redemption, will be the date
fixed for redemption of the Debentures. For purposes of the calculation
of the date of redemption or exchange and the dates on which notices are
given pursuant to this Section 4(e)(i), a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of such Trust Securities.
Each Redemption/Distribution Notice shall be addressed to the Holders of
such Trust Securities at the address of each such Holder appearing on
the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing thereof with respect to
any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Trust Securities are to be redeemed, the Trust Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Capital Securities;
provided, however, that, in respect of Capital Securities registered in
the name of and held of record by the Depositary or its nominee (or any
successor Clearing Agency or its nominee), the Capital Securities shall
be redeemed in accordance with the procedures of the Depositary (which
may include redemption by lot), and the distribution of the proceeds of
such redemption will be made to each Clearing Agency Participant (or
Person on whose behalf such nominee holds such Trust Securities) in
accordance with the procedures applied by such Clearing Agency or
nominee.
(iii) If Trust Securities are to be redeemed and the Trust
gives a Redemption/ Distribution Notice, which notice may only be issued
if the Debentures are redeemed as set out in this Section 4 (which
notice will be irrevocable), then (A) with respect to the Capital
Securities, while the Capital Securities are in book-entry only form,
provided that the Debenture Issuer has paid the Institutional Trustee a
sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Institutional Trustee will deposit
irrevocably with the Depositary or its nominee (or successor Clearing
Agency or its nominee), by 12:00 noon, New York city time, on the
redemption date, funds sufficient to pay the applicable Redemption Price
with respect to the Capital Securities and will give the Depositary
irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Capital Securities, and (B) with respect to Capital
Securities issued in definitive form and Common Securities, provided
that the Debenture Issuer has paid the Institutional Trustee a
sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Institutional Trustee will pay the
relevant Redemption Price to the Holders of such Trust Securities by
check mailed to the address of each such Holder appearing on the books
and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited
as required then immediately prior to the close of business on the date
of such deposit Distributions will cease to accrue on the Trust
Securities so called for redemption and all rights of Holders of such
Trust Securities so called for redemption will cease, except the right
of the Holders of such Trust Securities to receive the applicable
Redemption Price specified in Section 4(a), but without interest on such
Redemption Price. If any date fixed for redemption of Trust Securities
is not a Business Day, then payment of any such redemption price payable
on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment
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in respect of any such delay) except that, if such Business Day falls in
the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as
if made on such date fixed for redemption. If payment of the Redemption
Price in respect of any Trust Securities is improperly withheld or
refused and not paid either by the Institutional Trustee or by the
Debenture Issuer as guarantor pursuant to the relevant Securities
Guarantee, Distributions on such Trust Securities will continue to
accrue at the then applicable rate from the original redemption date to
the actual 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. In the event of any redemption of Capital
Securities issued by the Trust in part, the Trust shall not be required
to (i) issue, register the transfer of or exchange any Trust Security
during a period beginning at the opening of business 15 days before any
selection for redemption of Capital Securities and ending at the close
of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of Capital
Securities to be so redeemed or (ii) register the transfer of or
exchange any Capital Securities so selected for redemption, in whole or
in part, except for the unredeemed portion of any Capital Securities
being redeemed in part.
(iv) Redemption/Distribution Notices shall be sent by the
Administrators on behalf of the Trust to (A) in respect of the Capital
Securities, the Depositary or its nominee (or any successor Clearing
Agency or its nominee) if the Global Capital Securities have been issued
or, if Definitive Capital Securities have been issued, to the Holders
thereof, and (B) in respect of the Common Securities, to the Holder
thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities laws),
the Sponsor or any of its subsidiaries may at any time and from time to
time purchase outstanding Capital Securities by tender, in the open
market or by private agreement.
5. Voting Rights - Capital Securities. (a) Except as provided
under Sections 5(b) and 7 and as otherwise required by law and the Declaration,
the Holders of the Capital Securities will have no voting rights. The
Administrators are required to call a meeting of the Holders of the Capital
Securities if directed to do so by Holders of at least 10% in liquidation amount
of the Capital Securities.
(b) Subject to the requirement that the Institutional Trustee
obtain a tax opinion in certain circumstances set forth in the last sentence of
this paragraph, the Holders of a Majority in liquidation amount of the Capital
Securities, voting separately as a class, may direct the time, method, and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee, as holder of the Debentures, to (i) exercise the remedies available
under the Indenture as the holder of the Debentures, (ii) waive any past default
that is waivable under the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent on behalf of all the holders of the Capital Securities
to any amendment, modification or termination of the Indenture or the Debentures
where such consent shall be required, provided, however, that, where a consent
or action under the Indenture would require the consent or act of
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the holders of greater than a majority in principal amount of Debentures (a
"Super Majority") affected thereby, the Institutional Trustee may only give such
consent or take such action at the written direction of the Holders of at least
the proportion in aggregate liquidation amount of the Capital Securities
outstanding which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. If the Institutional Trustee
fails to enforce its rights under the Debentures after the Holders of a Majority
in liquidation amount of such Capital Securities (or Super Majority, as the case
may be) have so directed the Institutional Trustee, to the fullest extent
permitted by law, a Holder of the Capital Securities may institute a legal
proceeding directly against the Debenture Issuer to enforce the Institutional
Trustee's rights under the Debentures without first instituting any legal
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest or principal on the Debentures on the date the interest or
principal is payable (or in the case of redemption, the redemption date), then a
Holder of record of Capital Securities may directly institute a legal proceeding
against the Debenture Issuer for enforcement of payment, on or after the
respective due dates specified in the Debentures, to such Holder directly of the
principal of or interest on the Debentures having an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Securities of such
Holder. The Institutional Trustee shall notify all Holders of the Capital
Securities of any default actually known to the Institutional Trustee with
respect to the Debentures unless (x) such defaults have been cured prior to the
giving of such notice or (y) the Institutional Trustee determines in good faith
that the withholding of such notice is in the interest of the Holders of the
Capital Securities, except where the default relates to the payment of principal
of or interest on any of the Debentures. Such notice shall state that such
Indenture Event of Default also constitutes an Event of Default hereunder.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clauses (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that, as a result
of such action, the Trust will not be classified as other than a grantor trust
for United States federal income tax purposes.
In the event the consent of the Institutional Trustee, as holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture, the Institutional
Trustee shall request the direction of the Holders of the Trust Securities with
respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a Majority
in liquidation amount of the Trust Securities voting together as a single class;
provided, however, that where a consent under the Indenture would require the
consent of a Super-Majority, the Institutional Trustee may only give such
consent at the direction of the Holders of at least the proportion in
liquidation amount of such Trust Securities outstanding which the relevant
Super-Majority represents of the aggregate principal amount of the Debentures
outstanding. The Institutional Trustee shall not take any such action in
accordance with the directions of the Holders of the Trust Securities unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a
waiver of the corresponding Event of Default hereunder. Any required approval or
direction of Holders of
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Capital Securities may be given at a separate meeting of Holders of Capital
Securities convened for such purpose, at a meeting of all of the Holders of
Trust Securities in the Trust or pursuant to written consent. The Institutional
Trustee will cause a notice of any meeting at which Holders of Capital
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 Capital
Securities. Each such notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents. No
vote or consent of the Holders of the Capital Securities will be required for
the Trust to redeem and cancel Capital Securities or to distribute the
Debentures in accordance with the Declaration and the terms of the Trust
Securities.
Notwithstanding that Holders of Capital Securities are entitled
to vote or consent under any of the circumstances described above, the Capital
Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall
not entitle the Holder thereof to vote or consent and shall, for purposes of
such vote or consent, be treated as if such Capital Securities were not
outstanding.
In no event will Holders of the Capital Securities have the right
to vote to appoint, remove or replace the Administrators, which voting rights
are vested exclusively in the Sponsor as the Holder of all of the Common
Securities of the Trust. Under certain circumstances as more fully described in
the Declaration, Holders of a Majority in liquidation amount of the Capital
Securities have the right to vote to appoint, remove or replace the
Institutional Trustee and the Delaware Trustee.
6. Voting Rights - Common Securities. (a) Except as provided
under Sections 6(b), 6(c) and 7 and as otherwise required by law and the
Declaration, the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Administrators.
(c) Subject to Section 2.6 of the Declaration and only after each
Event of Default (if any) with respect to the Capital Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under the Indenture, or (iii) exercise any right
to rescind or annul a declaration that the principal of all the Debentures shall
be due and payable, provided, however, that, where a consent or action under the
Indenture would require a Super Majority, the Institutional Trustee may only
give such consent or take such action at the written direction of the Holders of
at least the proportion in liquidation amount of the Common Securities which the
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relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding. Notwithstanding this Section 6(c), the Institutional
Trustee shall not revoke any action previously authorized or approved by a vote
or consent of the Holders of the Capital Securities. Other than with respect to
directing the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action described in (i),
(ii) or (iii) above, unless the Institutional Trustee has obtained an opinion of
tax counsel to the effect that for the purposes of United States federal income
tax the Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may institute a legal proceeding
directly against any Person to enforce the Institutional Trustee's rights under
the Declaration, without first instituting a legal proceeding against the
Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Trust Securities in the Trust or
pursuant to written consent. The Administrators will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Trust Securities.
7. Amendments to Declaration and Indenture. (a) In addition to
any requirements under Section 12.1 of the Declaration, if any proposed
amendment to the Declaration provides for, or any authorized Trustee otherwise
proposes to effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Trust Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the Liquidation of the Trust,
other than as described in Section 8.1 of the Declaration, then the Holders of
outstanding Trust Securities, voting together as a single class, will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Trust Securities affected thereby;
provided, however, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Capital Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Trust Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or
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termination of the Indenture, the Debentures, the Institutional Trustee shall
request the written direction of the Holders of the Trust Securities with
respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification, or termination as directed by a
Majority in liquidation amount of the Trust Securities voting together as a
single class; provided, however, that where a consent under the Indenture would
require a Super Majority, the Institutional Trustee may only give such consent
at the direction of the Holders of at least the proportion in liquidation amount
of the Trust Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
(c) Notwithstanding the foregoing, no amendment or modification
may be made to a Declaration if such amendment or modification would (i) cause
the Trust to be classified for purposes of United States federal income taxation
as other than a grantor trust, (ii) reduce or otherwise adversely affect the
powers of the Institutional Trustee or (iii) cause the Trust to be deemed an
"investment company" which is required to be registered under the Investment
Company Act.
(d) Notwithstanding any provision of the Declaration, the right
of any Holder of Capital Securities to receive payment of Distributions and
other payments upon redemption or otherwise, on or after their respective due
dates, or to institute a suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder. For the protection and enforcement of the foregoing
provision, each and every Holder of Capital Securities shall be entitled to such
relief as can be given either at law or equity.
8. Pro Rata. A reference in these terms of the Trust Securities
to any payment, distribution or treatment as being "Pro Rata" shall mean pro
rata to each Holder of Trust Securities according to the aggregate liquidation
amount of the Trust Securities held by the relevant Holder in relation to the
aggregate liquidation amount of all Trust Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Capital Securities Pro Rata according to the aggregate liquidation
amount of Capital Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Capital Securities outstanding, and only
after satisfaction of all amounts owed to the Holders of the Capital Securities,
to each Holder of Common Securities Pro Rata according to the aggregate
liquidation amount of Common Securities held by the relevant Holder relative to
the aggregate liquidation amount of all Common Securities outstanding.
9. Ranking. The Capital Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except that, where an
Event of Default has occurred and is continuing, the rights of Holders of the
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to payment
of the Holders of the Capital Securities with the result that no payment of any
Distribution on, or Redemption Price of, any Common Security, and no other
payment on account of redemption, liquidation or otherwise in respect of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all outstanding Capital Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all outstanding
Capital Securities then called for redemption, shall have been made or provided
for, and all funds
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immediately available to the Institutional Trustee shall first be applied to he
payment in full in cash of all Distributions on, or the Redemption Price of,
Capital Securities then due and payable.
10. Registration Rights Agreement. Subject to certain terms and
conditions set forth in the Registration Rights Agreement, Holders of Initial
Capital Securities, under certain circumstances described in the Registration
Rights Agreement, will be entitled to receive Special Payments (as defined in
the Registration Rights Agreement).
11. Acceptance of Securities Guarantee and Indenture. Each Holder
of Capital Securities and Common Securities, by the acceptance of such Trust
Securities, agrees to the provisions of the Capital Securities Guarantee and the
Common Securities Guarantee, respectively, including the respective
subordination provisions contained therein.
12. No Preemptive Rights. The Holders of the Trust Securities
shall have no preemptive or similar rights to subscribe for any additional
securities.
13. Miscellaneous. These terms constitute a part of the
Declaration. The Sponsor will provide a copy of the Declaration, the Capital
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
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EXHIBIT A-1
FORM OF INITIAL CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include the following Restricted Securities Legend on all
Initial Capital Securities, including Rule 144A Global Capital Securities and
Restricted Definitive Capital Securities, unless otherwise determined by the
Sponsor in accordance with applicable law ----THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH TRANSAMERICA CORPORATION (THE "COMPANY") OR
TRANSAMERICA CAPITAL III (THE "TRUST") OR ANY AFFILIATE OF THE COMPANY OR THE
TRUST WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY OR THE TRUST, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUST'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (X) PURSUANT TO
CLAUSE (D), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A LETTER
SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED NOVEMBER
7, 1997 FROM THE TRANSFEREE AND (Y) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY
OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUST. THE HOLDER OF THIS
SECURITY AGREES THAT IT
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WILL COMPLY WITH THE FOREGOING RESTRICTIONS. SECURITIES OWNED BY A PURCHASER
THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.]
[Include if Capital Security is in the form of a Restricted
Definitive Capital Security -- IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL
DELIVER TO THE REGISTRAR AND TRUST AS SUCH CERTIFICATE AND OTHER INFORMATION AS
MAY BE REQUIRED BY THE DECLARATION TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.]
[Include if Capital Security is the global form and The
Depository Trust Company is the Clearing Agency -- UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OF TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
DECLARATION REFERRED TO BELOW.]
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Certificate Number Number of Capital Securities
CUSIP NO ___________
Certificate Evidencing Capital Securities
of
TRANSAMERICA CAPITAL III
7 5/8% Capital Trust Pass-through Securities(R)(TRUPS(R))
(liquidation amount $1,000 per Capital Security)
TRANSAMERICA CAPITAL III, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of securities of the Trust
representing undivided beneficial interests in the assets of the Trust,
designated the 7 5/8% Capital Trust Pass-through Securities(R) (liquidation
amount $1,000 per Capital Security) (the "Capital Securities"). Subject to the
Declaration (as defined below), the Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this Certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities represented hereby are issued pursuant to,
and shall in all respects be subject to, the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of November 14, 1997, among
David C. Thomas, Mark A. McEachen and Joseph Martinetto as Administrators, First
Chicago Delaware Inc., as Delaware Trustee, The First National Bank of Chicago,
as Institutional Trustee, Transamerica Corporation, as Sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the Trust,
including the designation of the terms of the Capital Securities as set forth in
Annex I to the Declaration, as the same may be amended from time to time (the
"Declaration"). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Capital Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Capital Securities Guarantee and the
Indenture to the Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this Capital Security, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Capital Security, the Holder agrees to
treat, for United States federal income tax purposes, the Debentures as
indebtedness and the Capital Securities as evidence of beneficial ownership in
the Debentures.
This Capital Security is governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to principles of
conflict of laws.
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<PAGE> 78
IN WITNESS WHEREOF, the Trust has executed this certificate this
___th day of ------,------.
TRANSAMERICA CAPITAL III
By:______________________________
Name:
Title: Administrator
A-1-4
<PAGE> 79
CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Dated:_________________
THE FIRST NATIONAL BANK OF CHICAGO, as the
Institutional Trustee
By:___________________________________
Name:
Title:
A-1-5
<PAGE> 80
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a
rate per annum of 7 5/8 % (the "Coupon Rate") of the stated liquidation amount
of $1,000 per Capital Security, such rate being the rate of interest payable on
the Debentures to be held by the Institutional Trustee. Except as set forth
below in respect of an Extension Period, Distributions in arrears for more than
a semiannual period will bear interest thereon compounded semiannually at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months. The amount of Distributions payable for any period shorter than a
full semiannual Distribution period will be computed on the basis of the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original issuance
and will be payable semiannually in arrears on November 15 and May 15 of each
year, commencing on May 15, 1998. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
(each an "Extension Period") at any time and from time to time on the
Debentures, subject to certain conditions, although such interest would continue
to accrue on the Debentures at a rate of 7 5/8 % per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual Distributions on the Capital Securities will also
be deferred (though such Distributions would continue to accrue at the
distribution rate of 7 5/8 % per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any interest
payment period in respect of the Debentures is limited to one or more Extension
Periods, each not exceeding 10 consecutive semiannual periods, provided,
however, that no Extension Period shall be initiated while accrued interest from
a prior, completed Extension Period is unpaid or while the Debenture Issuer is
in default in the payment of interest that has become due and payable on the
Debentures, and, provided, further, that no Extension Period shall extend beyond
the Maturity Date of the Debentures. Prior to the termination of any such
Extension Period in respect of the Debentures, the Debenture Issuer may further
extend the interest payment period; provided that each such Extension Period in
respect of the Debentures, together with all such previous and further
extensions thereof, may not exceed 10 consecutive semiannual periods or extend
beyond the Maturity Date of the Debentures. Upon the termination of any
Extension Period of the Debentures and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements. As a consequence of such deferral, Distributions will also be
deferred. If Distributions are deferred, the Distributions due shall be paid on
the date that the related Extension Period terminates, or, if such date is not a
Distribution Payment Date, on the immediately following Distribution Payment
Date, to Holders of the Capital Securities as they appear on the books and
records of the Trust on the record date immediately preceding such date.
Distributions on the Capital Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such Distributions in the Property Account of the
Trust. The Trust's funds available for distribution to the Holders of the Trust
Securities will be limited to payments
A-1-6
<PAGE> 81
received from the Debenture Issuer. The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the Capital
Securities Guarantee.
The Capital Securities shall be redeemable as provided in the
Declaration.
Subject to certain terms and conditions set forth in the
Registration Rights Agreement (as defined in the Declaration), Holders of
Capital Securities, under certain circumstances described in the Registration
Rights Agreement, will be entitled to receive Special Payments (as defined in
the Registration Rights Agreement).
A-1-7
<PAGE> 82
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Insert assignee's social security or tax identification number)
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Insert address and zip code of assignee) and irrevocably appoints
___________________________________________________________
___________________________________________________________
___________________________________________________________
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:_________________________________________________
Signature:____________________________________________
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
Signature Guarantee:(*)_______________________________
* Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Security registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
A-1-8
<PAGE> 83
[Include the following if the Capital Security bears a Restricted Securities
Legend --
In connection with any transfer of any of the Capital Securities evidenced by
this Certificate, the undersigned confirms that such Capital Securities are
being:
CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without transfer;
or
(2) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
(3) [ ] to an institutional "accredited investor" within the meaning
of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act of 1933 that is acquiring the Capital
Securities for its own account, or for the account of such an
institutional "accredited investor," for investment purposes
and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act of
1933; or
(4) [ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933; or
(5) [ ] transferred pursuant to an effective registration statement.
Unless one of the boxes is checked, the Transfer Agent will refuse to register
any of the Capital Securities evidenced by this Certificate in the name of any
person other than the Holder hereof; provided, however, that if box (3) or (4)
is checked, the Transfer Agent may require, prior to registering any such
transfer of Capital Securities, such legal opinions, certifications and other
information as the Trust has reasonably requested to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act; provided, further, that (i) if
box (2) is checked, the transferee shall be deemed to have certified that it has
been notified that such transfer is being made in reliance upon Rule 144A and
that it is qualified institutional buyer, as defined in Rule 144A, purchasing
such Capital Securities for its own account or for one or more accounts over
which it exercises sole investment discretion or (ii) if box (3) is checked, the
transferee must also provide to the Transfer Agent an Accredited Investor Letter
in the form attached as Annex A to the Offering Memorandum of the Trust dated
November 7, 1997; provided, further, that after the date on which a registration
statement has been filed and declared effective by the Securities and Exchange
Commission, and so long as such registration statement continues to be
effective, only then may the Transfer Agent permit transfers for which box (5)
has been checked.
Signature______________________________
A-1-9
<PAGE> 84
EXHIBIT A-2
FORM OF EXCHANGE CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include if Capital Security is in the form of an Exchange Global
Capital Security and The Depository Trust Company is the Clearing Agency --
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OF TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
DECLARATION REFERRED TO BELOW.]
Certificate Number Number of Capital Securities
CUSIP NO ___________
Certificate Evidencing Capital Securities
of
TRANSAMERICA CAPITAL III
7 5/8 % Capital Trust Pass-through Securities(R) (TRUPS(R))
(liquidation amount $1,000 per Capital Security)
TRANSAMERICA CAPITAL III, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of securities of the Trust
representing undivided beneficial interests in the assets of the Trust,
designated the 7 5/8 % Capital Trust Pass-through SecuritiesR (liquidation
amount $1,000 per Capital Security) (the "Capital Securities"). Subject to the
Declaration (as defined below), the Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this Certificate duly endorsed and in
A-2-1
<PAGE> 85
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities represented
hereby are issued pursuant to, and shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of November 14, 1997, among David C. Thomas, Mark A. McEachen and Joseph
Martinetto as Administrators, First Chicago Delaware Inc., as Delaware Trustee,
The First National Bank of Chicago, as Institutional Trustee, Transamerica
Corporation, as Sponsor, and the holders from time to time of undivided
beneficial interests in the assets of the Trust, including the designation of
the terms of the Capital Securities as set forth in Annex I to the Declaration,
as the same may be amended from time to time (the "Declaration"). Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Capital Securities
Guarantee to the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Capital Securities Guarantee and the Indenture to the Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this Capital Security, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Capital Security, the Holder agrees to
treat, for United States federal income tax purposes, the Debentures as
indebtedness and the Capital Securities as evidence of beneficial ownership in
the Debentures.
This Capital Security is governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this certificate this
___th day of --------, -------.
TRANSAMERICA CAPITAL III
By:________________________________
Name:
Title: Administrator
A-2-2
<PAGE> 86
CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the
within-mentioned Declaration.
Dated:_________________
THE FIRST NATIONAL BANK OF CHICAGO,
as the Institutional Trustee
By:_________________________________
Name:
Title:
A-2-3
<PAGE> 87
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a
rate per annum of 7 5/8 % (the "Coupon Rate") of the stated liquidation amount
of $1,000 per Capital Security, such rate being the rate of interest payable on
the Debentures to be held by the Institutional Trustee. Except as set forth
below in respect of an Extension Period, Distributions in arrears for more than
a semiannual period will bear interest thereon compounded semiannually at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months. The amount of Distributions payable for any period shorter than a
full semiannual Distribution period will be computed on the basis of the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original issuance
and will be payable semiannually in arrears on November 15 and May 15 of each
year, commencing on May 15, 1998. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
(each an "Extension Period") at any time and from time to time on the
Debentures, subject to certain conditions, although such interest would continue
to accrue on the Debentures at a rate of 7 5/8 % per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual Distributions on the Capital Securities will also
be deferred (though such Distributions would continue to accrue at the
distribution rate of 7 5/8 % per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any interest
payment period in respect of the Debentures is limited to one or more Extension
Periods, each not exceeding 10 consecutive semiannual periods, provided,
however, that no Extension Period shall be initiated while accrued interest from
a prior, completed Extension Period is unpaid or while the Debenture Issuer is
in default in the payment of interest that has become due and payable on the
Debentures and, provided, further, that no Extension Period shall extend beyond
the Maturity Date of the Debentures. Prior to the termination of any such
Extension Period in respect of the Debentures, the Debenture Issuer may further
extend the interest payment period; provided that each such Extension Period in
respect of the Debentures, together with all such previous and further
extensions thereof, may not exceed 10 consecutive semiannual periods or extend
beyond the Maturity Date of the Debentures. Upon the termination of any
Extension Period of the Debentures and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements. As a consequence of such deferral, Distributions will also be
deferred. If Distributions are deferred, the Distributions due shall be paid on
the date that the related Extension Period terminates, or, if such date is not a
Distribution Payment Date, on the immediately following Distribution Payment
Date, to Holders of the Capital Securities as they appear on the books and
records of the Trust on the record date immediately preceding such date.
Distributions on the Capital Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such Distributions in the Property Account of the
Trust. The Trust's funds available for distribution to the Holders of the Trust
Securities will be limited to payments
A-2-4
<PAGE> 88
received from the Debenture Issuer. The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the Capital
Securities Guarantee.
The Capital Securities shall be redeemable as provided in the
Declaration.
A-2-5
<PAGE> 89
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
__________________________________________________
__________________________________________________
__________________________________________________
(Insert assignee's social security or tax identification number)
__________________________________________________
__________________________________________________
__________________________________________________
(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:_____________________________________________
Signature:________________________________________
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
Signature Guarantee:*_____________________________
* Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Security registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
A-2-6
<PAGE> 90
EXHIBIT A-3
FORM OF COMMON SECURITY CERTIFICATE
[THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN
EFFECTIVE REGISTRATION STATEMENT.]
[THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED.]
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
TRANSAMERICA CAPITAL III
TRANSAMERICA CAPITAL III, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Transamerica Corporation (the "Holder") is the registered holder of common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust (the "Common Securities"). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued pursuant to, and shall in all
respects be subject to, the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of November 14, 1997, among David C. Thomas, Mark
A. McEachen and Joseph Martinetto, as Administrators, First Chicago Delaware
Inc., as Delaware Trustee, The First National Bank of Chicago, as Institutional
Trustee, Transamerica Corporation as Sponsor and the holders from time to time
of undivided beneficial interest in the assets of the Trust including the
designation of the terms of the Common Securities as set forth in Annex I to the
Declaration, as the same may be amended from time to time (the "Declaration").
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Sponsor will provide a
copy of the Declaration, the Common Securities Guarantee and the Indenture to
the Holder without charge upon written request to the Sponsor at its principal
place of business.
As set forth in the Declaration, where an Event of Default has
occurred and is continuing, the rights of Holders of Common Securities to
payment in respect of Distributions and payments upon Liquidation, redemption or
otherwise are subordinated to the rights of payment of Holders of the Capital
Securities.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
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<PAGE> 91
By acceptance of this Certificate, the Holder agrees to treat,
for United States federal income tax purposes, the Debentures as indebtedness
and the Common Securities as evidence of undivided beneficial ownership in the
Debentures.
This Common Security is governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this certificate this
th day of ________, 1997.
TRANSAMERICA CAPITAL III
By:______________________________
Name:
Title: Administrator
A-3-2
<PAGE> 92
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be identical
in amount to the Distributions payable on each Capital Security, which is at a
rate per annum of 7 5/8% (the "Coupon Rate") of the stated liquidation amount of
$1,000 per Capital Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Except as set forth below in
respect of an Extension Period, Distributions in arrears for more than one
semiannual period will bear interest thereon compounded semiannually at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded distribution payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months. The amount of Distributions payable for any period shorter than a
full semiannual Distribution period will be computed on the basis of the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable semiannually in arrears on November 15 and May 15 of each
year, commencing on May 15, 1998. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending interest payment period
(each an "Extension Period") at any time and from time to time on the
Debentures, subject to certain conditions, although such interest would continue
to accrue on the Debentures at a rate of 7 5/8% per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual distributions on the Common Securities will also
be deferred (though such Distributions would continue to accrue at the
Distribution rate of 7 5/8% per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any interest
payment period in respect of the Debentures is limited to one or more Extension
Periods, each not exceeding 10 consecutive semiannual periods, provided,
however, that no Extension Period shall be initiated while accrued interest from
a prior, completed Extension Period is unpaid or while the Debenture Issuer is
in default in the payment of interest that has become due and payable on the
Debentures; and, provided, further, that no Extension Period shall extend beyond
the Maturity Date of the Debentures. Prior to the termination of any such
Extension Period in respect of a series of Debentures, the Debenture Issuer may
further extend the interest payment period; provided that each such Extension
Period in respect of the Debentures, together with all such previous and further
extensions thereof, may not exceed 10 consecutive semiannual periods or extend
beyond the Maturity Date of the Debentures. Upon the termination of any
Extension Period of the Debentures and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements. As a consequence of such deferral, Distributions will also be
deferred. If Distributions are deferred, the Distributions due shall be paid on
the date that the related Extension Period terminates, or, if such date is not a
Distribution Payment Date, on the immediately following Distribution Payment
Date, to Holders of the Common Securities as they appear on the books and
records of the Trust on the record date immediately preceding such date.
Distributions on the Common Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such Distributions in the Property Account of the
Trust. The Trust's
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<PAGE> 93
funds available for distribution to the Holders of the Common Securities will be
limited to payments received from the Debenture Issuer. The payment of
Distributions out of moneys held by the Trust is guaranteed by the Guarantor
pursuant to the Common Securities Guarantee.
The Common Securities shall be redeemable as provided in the
Declaration.
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<PAGE> 94
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
___________________________________________________
___________________________________________________
___________________________________________________
(Insert assignee's social security or tax identification number)
___________________________________________________
___________________________________________________
___________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints___________________________
___________________________________________________
___________________________________________________
___________________________________________________
______________________________________________________ agent to
transfer this Common Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:______________________________________________
Signature:_________________________________________
(Sign exactly as your name appears on the other side of this
Common Security Certificate)
Signature:_________________________________________
(Sign exactly as your name appears on the other side of this
Common Security Certificate)
Signature Guarantee*:______________________________
* Signature must be guaranteed by an "eligible guarantor institution" that
is a bank, stockbroker, savings and loan association or credit union,
meeting the requirements of the Security registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
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<PAGE> 95
EXHIBIT B
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY IAIs
__________, 199__
Transamerica Corporation
Transamerica Capital III
c/o Transamerica Corporation
600 Montgomery Street
San Francisco, California 94111
Re: Purchase of $1,000 stated liquidation amount of 7 5/8% Capital Trust
Pass-through Securities R(TruPS) R (the "Capital Securities") of
Transamerica Capital III (the "Trust")
Ladies and Gentlemen:
In connection with our purchase of the Capital Securities we
confirm that:
1. We understand that the 7 5/8% Capital Trust Pass-through
SecuritiesSM (the "Capital Securities") (including the guarantee (the
"Guarantee") of Transamerica Corporation ("Transamerica") executed in connection
therewith) and the 7 5/8% Junior Subordinated Deferrable Interest Debentures due
2037 (the "Subordinated Debt Securities") of Transamerica, the Capital
Securities, the Guarantee, and Subordinated Debt Securities together being
referred to herein as "Offered Securities") have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered or sold except as permitted in the following sentence. We agree on our
own behalf and on behalf of any investor account for which we are purchasing the
Offered Securities that, if, prior to the date which is two years after the
later of the date of original issue of the Offered Securities and the last date
on which Transamerica, the Trust or any affiliate of Transamerica or the Trust
was the owner of such Offered Securities (the "Resale Restriction Termination
Date"), we decide to offer, sell or otherwise transfer any such Offered
Securities, such offer, sale or transfer will be made only (a) to Transamerica
or the Trust, (b) pursuant to an effective registration statement under the
Securities Act, (c) so long as the Offered Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) to an
institutional "accredited investor" with the meaning of subparagraph (a) (1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring Offered
Securities for its own account or for the account of such an institutional
accredited investor for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution thereof in violation of the
Securities Act, or (e) pursuant to another available exemption from the
registration requirements
B-1
<PAGE> 96
of the Securities Act, subject in each of the foregoing cases to any
requirements of law that the disposition of our property or the property of such
investor account or accounts be at all times within our or their control and to
compliance with any state securities laws. The foregoing restrictions on resale
will not apply subsequent to the Resale Restriction Termination Date. If any
resale or other transfer of the Offered Securities is proposed to be made
pursuant to clause (d) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee substantially in the
form of this letter to the Trust and Transamerica, which shall provide as
applicable, among other things, that the transferee is an institutional
"accredited investor" within the meaning of subparagraph (a) (1), (2), (3) or
(7) of Rule 501 under the Securities Act that is acquiring such Offered
Securities for investment purposes and not for distribution in violation of the
Securities Act. We acknowledge on our behalf and on behalf of any investor
account for which we are purchasing Offered Securities that the Trust and
Transamerica reserve the right prior to any offer, sale or other transfer
pursuant to clauses (d) or (e) prior to the Resale Restriction Termination Date
of the Offered Securities to require the delivery of any opinion of counsel,
certifications and/or other information satisfactory to the Trust and
Transamerica. We understand that the certificates for any Offered Security that
we receive will bear a legend substantially to the effect of the foregoing.
2. We are an institutional "accredited investor" with the meaning
of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the Securities Act
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Offered Securities for the
investment purposes and not with view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Offered Securities, and
we and any account for which we are acting are each able to bear the economic
risks of our or its investment.
3. We are acquiring the Offered Securities purchased by us for
our own account (or for one or more accounts as to each of which we exercise
sole investment discretion and have authority to make, and do make, the
statements contained in this letter) and not with a view to any distribution of
the Offered Securities, subject, nevertheless, to the understanding that the
disposition of our property will at all times be and remain within our or their
control.
4. We acknowledge that any information we desire concerning
Transamerica, the Trust and the Capital Securities or any other matter relevant
to our decision to purchase the Capital Securities is or has been made available
to us.
5. In the event that we purchase any Capital Securities or
exchange such Capital Securities for related Exchange Securities (or receive any
Subordinated Debt Securities or related Exchange Securities upon liquidation of
the Trust), we will acquire and hold such Capital Securities or related Exchange
Securities having an aggregate stated liquidation amount of not less than
$100,000 (or such Subordinated Debt Securities having an aggregate principal
amount not less than $100,000), for our own account and for each separate
account for which we are acting.
6. We acknowledge that we (A) are not ourselves, and are not
acquiring Offered Securities with "plan assets" of an employee benefit or other
plan subject to Title I of the
B-2
<PAGE> 97
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code")
(each, a "Plan"), or an entity whose underlying assets include "plan assets" by
reason of any Plan's investment in the entity (a "Plan Asset Entity") or (B) (1)
are ourselves, or are acquiring Offered Securities with the assets of an
"investment fund" (within the meaning of Part V(b) of PTCE 84-14) managed by a
"qualified professional asset manager" (within the meaning of Part V(a) of PTCE
84-14 which has made or properly authorized the decision for such fund to
purchase Offered Securities, under circumstances such that PTCE 84-14 is
applicable to the purchase and holding of such Offered Securities for so long as
we hold such securities, (2) are ourselves, or are acquiring Offered Securities
with the assets of, a Plan managed by an "in-house asset manager" (within the
meaning of Part IV(a) of PTCE 96-23) which has made or properly authorized the
decision for such Plan to purchase Offered Securities, under circumstances such
that PTCE 96-23 is applicable to the purchase and holding of such Offered
Securities for so long as we hold such securities, (3) are an insurance company
pooled separate account purchasing Offered Securities pursuant to Part 1 of PTCE
90-1 or a bank collective investment fund purchasing the Offered Securities
pursuant to Part 1 of PTCE 91-38, and in either case no Plan owns more than 10%
of the assets of such account or collective fund (when aggregated with other
Plans of the same employer (or its affiliates) or employee organization) or (4)
are an insurance company using the assets of its general account to purchase the
Offered Securities pursuant to Part I of PTCE 95-60, in which case the reserves
and liabilities for the general account contracts held by or on behalf of any
Plan, together with any other Plans maintained by the same employer (or its
affiliates) or employee organization, do not exceed 10% of the total reserves
and liabilities of the insurance company general account (exclusive of separate
account liabilities), plus surplus as set forth in the National Association of
Insurance Commissioners Annual Statement filed with the state of domicile of the
insurer.
B-3
<PAGE> 98
7. We acknowledge that Transamerica, the Trust, and others will
rely upon the truth and accuracy of the foregoing acknowledgments,
representations, warranties and agreements.
Very truly yours,
_______________________________________
(Name of Purchaser)
By:____________________________________
Date:__________________________________
Upon transfer of the Offered Securities would be registered in
the name of the new beneficial owner as follows:
Name:_________________________________________________________________________
Address:______________________________________________________________________
Taxpayer ID Number: _____________________
B-4
<PAGE> 99
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED FOR QIBs
__________, 199__
Transamerica Corporation
Transamerica Capital III
c/o Transamerica Corporation
600 Montgomery Street
San Francisco, California 94111
Re: Purchase of $1,000 stated liquidation amount of 7 5/8 % Capital Trust
Pass-through Securities R(TRUPS) R (the "Capital Securities") of
Transamerica Capital III (the "Trust")
Reference is hereby made to the Amended and Restated Declaration
of Trust dated as of November 14, 1997 (the "Declaration") among David C.
Thomas, Mark A. McEachen, and Joseph Martinetto, as Administrators, First
Chicago Delaware Inc., as the Delaware Trustee, The First National Bank of
Chicago, as the Institutional Trustee, Transamerica Corporation, as Sponsor, and
the holders from time to time of undivided beneficial interest in the assets of
the Trust. Capitalized terms used but not defined herein shall have the meanings
given them in the Declaration.
This letter relates to $________________ aggregate liquidation
amount of Capital Securities which are held in the name of [name of transferor]
(the "Transferor") to effect the transfer of such Capital Securities in exchange
for an equivalent beneficial interest in the Rule 144A Global Capital Security.
In connection with such request, and in respect to such Capital
Securities, the transferor does hereby certify that such Capital Securities are
being transferred in accordance with (i) the transfer restrictions set forth in
the Capital Securities and (ii) Rule 144A under the United States Securities Act
of 1933, as amended ("Rule 144A"), to a transferee that the Transferor
reasonably believes is purchasing the Capital Securities for its own account or
an account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws of
any state of the United States or any other jurisdiction.
C-1
<PAGE> 100
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
________________________________________
(Name of Transferor)
By:_____________________________________
Name:
Title:
Date:___________________________________
C-2
<PAGE> 101
EXHIBIT D
SPECIMEN OF INITIAL DEBENTURE
D-1
<PAGE> 102
EXHIBIT E
PURCHASE AGREEMENT
E-1
<PAGE> 103
EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
F-1
<PAGE> 1
Exhibit 4.7
================================================================================
CAPITAL SECURITIES GUARANTEE AGREEMENT
Transamerica Capital III
Dated as of November 14, 1997
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust Indenture Section of Capital Securities Guarantee
Act of 1939, as amended Agreement
<S> <C>
310(a) ................................................ 4.1(a)
310(b) ............................................... 4.1(c)
310(c) ......................................... Inapplicable
311(a) ............................................... 2.2(a)
311(b) ............................................... 2.2(b)
311(c) ......................................... Inapplicable
312(a) ............................................... 2.2(a)
312(b) ............................................... 2.2(b)
312(c) ............................................... 2.2(c)
313 ..................................................... 2.3
314(a) .................................................. 2.4
314(b) ......................................... Inapplicable
314(c) .................................................. 2.5
314(d) ......................................... Inapplicable
314(e) .................................................. 2.5
314(f) ......................................... Inapplicable
315(a) ............................................... 3.1(b)
315(b) .................................................. 2.7
315(c) ............................................... 3.1(c)
315(d) ............................................... 3.1(d)
316(a) .......................................... 5.4(a), 2.6
318(a) ............................................... 2.1(c)
</TABLE>
- -------------
* This Cross-Reference Table does not constitute part of this Capital Securities
Guarantee Agreement and shall not affect the interpretation of any of its terms
or provisions.
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
CROSS-REFERENCE TABLE.........................................................i
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation...................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................................4
SECTION 2.2 Lists of Holders of Securities...................................4
SECTION 2.3 Reports by the Guarantee Trustee.................................5
SECTION 2.4 Periodic Reports to Guarantee Trustee............................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................5
SECTION 2.6 Events of Default; Waiver........................................5
SECTION 2.7 Events of Default; Notice........................................5
SECTION 2.8 Conflicting Interests............................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.......................6
SECTION 3.2 Certain Rights of Guarantee Trustee..............................7
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital
Securities Guarantee ..........................................9
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility..................................10
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee.......10
ARTICLE V
GUARANTEE
SECTION 5.1 Capital Securities Guarantee....................................11
SECTION 5.2 Waiver of Notice and Demand.....................................11
SECTION 5.3 Obligations Not Affected........................................12
SECTION 5.4 Rights of Holders...............................................12
SECTION 5.5 Guarantee of Payment............................................13
SECTION 5.6 Subrogation.....................................................13
SECTION 5.7 Independent Obligations.........................................13
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions......................................14
SECTION 6.2 Ranking.........................................................14
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.....................................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.....................................................15
SECTION 8.2 Indemnification.................................................15
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns..........................................16
SECTION 9.2 Amendments......................................................16
SECTION 9.3 Notices.........................................................16
SECTION 9.4 Benefit.........................................................17
SECTION 9.5 Governing Law...................................................17
</TABLE>
iii
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities Guarantee"),
dated as of November 14, 1997, is executed and delivered by Transamerica
Corporation, a Delaware corporation (the "Guarantor"), and The First National
Bank of Chicago, a national banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of Transamerica Capital III, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of November 14, 1997, among the trustees and the
Administrators named therein of the Issuer, Transamerica Corporation, as
sponsor, and the holders from time to time of undivided beneficial interests in
the assets of the Issuer, the Issuer is issuing on the date hereof up to 190,000
securities, having an aggregate liquidation amount of up to $190,000,000,
designated the 7 5/8% Capital Trust Pass-through Securities(R) (the "Initial
Capital Securities") and may issue in the future, pursuant to the Registration
Rights Agreement (as defined in the Declaration), securities solely to be
exchanged for Initial Capital Securities, with terms that are substantially
identical to those of the Initial Capital Securities (the "Exchange Capital
Securities", and together with the Initial Capital Securities, the "Capital
Securities");
WHEREAS, as incentive for the Holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Capital Securities Guarantee, to pay to the Holders
of Capital Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Capital Securities Guarantee for the benefit of the
holders of the Common Securities (as defined in the Declaration) of the Issuer,
except that if a Declaration Event of Default (as defined herein), has occurred
and is continuing, the rights of holders of the Common Securities to receive
payments under the Common Securities Guarantee are subordinated to the rights of
Holders of Capital Securities to receive Guarantee Payments under this Capital
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Capital Securities Guarantee for the
benefit of the Holders.)
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Capital Securities Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Capital Securities Guarantee
but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
<PAGE> 6
(b) a term defined anywhere in this Capital Securities Guarantee
has the same meaning throughout;
(c) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities Guarantee
as modified, supplemented or amended from time to time;
(d) all references in this Capital Securities Guarantee to
Articles and Sections are to Articles and Sections of this Capital
Securities Guarantee, unless otherwise specified;
(e) terms defined in the Declaration as at the date of execution
of this Capital Securities Guarantee or in the Trust Indenture Act, as
the case may be, have the same meanings when used in this Capital
Securities Guarantee, unless otherwise defined in this Capital
Securities Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Corporate Trust Office" means the office of the Guarantee
Trustee at which the corporate trust business of the Guarantee Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
"Covered Person" means any Holder of Capital Securities.
"Debentures" means the series of junior subordinated debt
securities of the Transamerica Corporation designated the 7 5/8% Junior
Subordinated Deferrable Interest
Debentures due 2037.
"Declaration Event of Default" means an "Event of Default" as
defined in the Declaration.
"Event of Default" means the failure of the Guarantor to perform
any of its payment or other obligations under this Capital Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital Securities, to
the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Capital Securities to the extent the Issuer shall have funds available
therefor, (ii) the Redemption Price (as defined in the Declaration) to the
extent the Issuer has funds available therefor, with respect to any Capital
Securities called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, liquidation, winding-up or termination of the Issuer
(other than in connection with the distribution of Debentures to the Holders in
exchange for Capital Securities as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Capital Securities to the date of payment, to the extent
the Issuer shall have funds available therefor, and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of the
Issuer.
2
<PAGE> 7
"Guarantee Trustee" means the First National Bank of Chicago, a
national banking association, until a Successor Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the terms of this
Capital Securities Guarantee and thereafter means each such Successor Guarantee
Trustee.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Guarantee Trustee.
"Indenture" means the Indenture dated as of December 5, 1996,
among the Guarantor and The First National Bank of Chicago, not in its
individual capacity but solely as trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued to the Institutional
Trustee of the Issuer.
"Liquidation Distribution" has the meaning set forth in the
Declaration.
"Majority in liquidation amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of
outstanding Capital Securities, voting together as a class, but separately from
the holders of Common Securities, of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Capital Securities then
outstanding.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust,
3
<PAGE> 8
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the Guarantee Trustee,
including any vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means the Common Securities and the Capital
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Capital Securities Guarantee is subject to the
provisions of the Trust Indenture Act that would be required to be part
of this Capital Securities Guarantee if this Capital Securities
Guarantee were qualified under the Trust Indenture Act and shall, to the
extent applicable, be governed by such provisions; and
(b) this Capital Securities Guarantee will be qualified under the
Trust Indenture Act upon effectiveness of a Registration Statement with
respect to the Capital Securities; and
(c) if and to the extent that any provision of this Capital
Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Guarantee Trustee (i) within
14 days after each record date for payment of Distributions, a list, in
such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders ("List of Holders") as of such record date,
provided that the Guarantor shall not be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the Guarantor,
and (ii) at any other time within 30 days of receipt by the Guarantor of
a written request for a List of Holders as of a date no more than 14
days before such List of Holders is given to the Guarantee Trustee. The
Guarantee Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
4
<PAGE> 9
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
Within 60 days after May 15 of each year, the Guarantee Trustee
shall provide to the Holders such reports as are required by Section 313(a) of
the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also comply
with the requirements of Section 313(b), 313(c) and 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee
The Guarantor shall provide to the Guarantee Trustee such
documents, reports and information (if any) as required by Section 314 of the
Trust Indenture Act and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act, provided that such compliance
certificate shall be delivered on or before 120 days after the end of the fiscal
year of the Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with any conditions precedent provided for in this
Capital Securities Guarantee that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture
Act may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Capital
Securities may, voting or consenting as a class, on behalf of the Holders of all
of the Capital Securities, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist, and shall be
deemed to have been cured, for every purpose of this Capital Securities
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 2.7 Events of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a Responsible
Officer of the Guarantee Trustee, transmit by mail, first class postage
prepaid, to the Holders, notices of all such Events of Default, unless
such defaults have been cured before the giving of such notice,
provided, however, that the Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the
Guarantee Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Capital Securities.
5
<PAGE> 10
(b) The Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Guarantee Trustee shall have received
written notice thereof from the Guarantor or a Holder (except in the
case of a payment default), or a Responsible Officer of the Guarantee
Trustee charged with the administration of this Capital Securities
Guarantee shall have obtained actual knowledge, thereof.
SECTION 2.8 Conflicting Interests
The Indenture, the Debentures issued or to be issued thereunder,
the Declaration, the Trust Securities issued or to be issued thereunder and the
Common Securities Guarantee shall be deemed to be specifically described in this
Capital Securities Guarantee for the purposes of clause (i) of the proviso
contained in Section 310(b)(1) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
(a) This Capital Securities Guarantee shall be held by the
Guarantee Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Capital Securities Guarantee to any
Person except a Holder of Capital Securities exercising his or her
rights pursuant to Section 5.4 (b) or to a Successor Guarantee Trustee
on acceptance by such Successor Guarantee Trustee of its appointment to
act as Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the
Guarantee Trustee shall enforce this Capital Securities Guarantee for
the benefit of the Holders of the Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Capital Securities Guarantee, and no
implied covenants shall be read into this Capital Securities Guarantee
against the Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Guarantee Trustee, the
Guarantee Trustee shall exercise such of the rights and powers vested in
it by this Capital Securities Guarantee, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Capital Securities Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
6
<PAGE> 11
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that
may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express
provisions of this Capital Securities Guarantee, and the
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Capital Securities
Guarantee, and no implied covenants or obligations shall
be read into this Capital Securities Guarantee against the
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Capital
Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform
to the requirements of this Capital Securities Guarantee;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that such
Responsible Officer of the Guarantee Trustee or the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a Majority in liquidation amount of the Capital Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee
Trustee under this Capital Securities Guarantee; and
(iv) no provision of this Capital Securities Guarantee
shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds is not
reasonably assured to it under the terms of this Capital
Securities Guarantee or indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
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<PAGE> 12
(i) The Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Capital Securities Guarantee shall be sufficiently evidenced
by an Officers' Certificate.
(iii) Whenever, in the administration of this Capital
Securities Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Guarantee Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel with respect
to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or
opinion. Such counsel may be counsel to the Guarantor or any of
its Affiliates and may include any of its employees. The
Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee from
any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Capital
Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee
such security and indemnity, reasonably satisfactory to the
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Guarantee
Trustee's agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested
by the Guarantee Trustee; provided, however, that nothing
contained in this Section 3.2(a) (vi) shall be taken to relieve
the Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers
vested in it by this Capital Securities Guarantee.
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
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other evidence of indebtedness or other paper or document, but
the Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit.
(viii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or
attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(ix) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders of the Capital
Securities, and the signature of the Guarantee Trustee or its
agents alone shall be sufficient and effective to perform any
such action. No third party shall be required to inquire as to
the authority of the Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Capital
Securities Guarantee, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its agent's taking such
action.
(x) Whenever in the administration of this Capital
Securities Guarantee the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the
Guarantee Trustee (i) may request instructions from the Holders
of a Majority in liquidation amount of the Capital Securities,
(ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in
accordance with such instructions.
(xi) The Guarantee Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Capital Securities Guarantee.
(b) No provision of this Capital Securities Guarantee shall be
deemed to impose any duty or obligation on Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be
illegal or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law to perform any such act or
acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall
be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Securities
Guarantee
The recitals contained in this Capital Securities Guarantee shall
be taken as the statements of the Guarantor, and the Guarantee Trustee does not
assume any responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Capital Securities
Guarantee.
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ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission to act
as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(a) (ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor except
during an Event of Default.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office
until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
by an instrument in
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writing executed by such Successor Guarantee Trustee and delivered to
the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days
after delivery of an instrument of removal or resignation, the Guarantee
Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Capital Securities Guarantee or
removal or resignation of the Guarantee Trustee pursuant to this Section
4.2, the Guarantor shall pay to the Guarantee Trustee all amounts owing
to the Guarantee Trustee under Section 8.2 and for any compensation and
reimbursement of expenses in connection with this Capital Securities
Guarantee accrued to the date of such termination, removal or
resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Capital Securities Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. Such
obligations will not be discharged except by payment of the Guarantee Payments
in full. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders. The Guarantee Payments
shall rank pari passu with any guarantee payments made in respect of the Common
Securities; provided, however, if a Declaration Event of Default has occurred
and is continuing, the rights of holders of the Common Securities to receive
payments under the Common Securities Guarantee are subordinated to the right of
Holders of the Capital Securities to receive any Guarantee Payments under this
Capital Securities Guarantee.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Capital
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Capital Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Capital
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital
Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period
on the Debentures or any extension of the Maturity Date of the
Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Capital Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Capital Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of this Capital Securities Guarantee and to direct
the exercise of any trust or power conferred upon the Guarantee
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Trustee under this Capital Securities Guarantee; provided, however, that
(subject to Section 3.1) the Guarantee Trustee shall have the right to
decline to follow any such direction if the Guarantee Trustee shall
determine that the actions so directed would be unjustly prejudicial to
the Holders not taking part in such direction or if the Guarantee
Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Guarantor
Trustee in good faith by its board of directors or trustees, executive
committees or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceedings so
directed would involve the Guarantee Trustee in personal liability.
(b) Any Holder of Capital Securities may institute a legal
proceeding directly against the Guarantor to enforce the Guarantee
Trustee's rights under this Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Guarantee Trustee
or any other Person. The Guarantor waives any right or remedy to require
that any such action be brought first against the Issuer or any other
Person before so proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Capital Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Capital Securities against the Issuer in respect of any amounts paid
to such Holders by the Guarantor under this Capital Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Capital
Securities Guarantee, if, after giving effect to any such payment, any amounts
are due and unpaid under this Capital Securities Guarantee. If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Capital
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Capital
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding, if (i)
there shall have occurred and be continuing an Event of Default or Declaration
Event of Default, or (ii) there shall have been a selection by the Guarantor of
an Extension Period as provided in the Declaration and such period, or any
extension thereof, shall be continuing, then (a) the Guarantor shall not declare
or pay any dividend on, make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any of the Guarantor's
capital stock or rights to acquire such capital stock (other than (i) purchases
or acquisitions of shares of the Guarantor's capital stock or rights to acquire
such capital stock in connection with the satisfaction by the Guarantor of its
obligations under any employee benefit plans), (ii) as a result of a
reclassification of the Guarantor's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of the
Guarantor's capital stock or rights to acquire such capital stock of another
class or series of the Guarantor's capital stock or rights to acquire such
capital stock, (iii) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged or (iv)
dividends or distributions made on the Guarantor's capital stock or rights to
acquire such capital stock with the Guarantor's capital stock or rights to
acquire such capital stock), or make any guarantee payments with respect to the
foregoing and (b) the Guarantor shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Guarantor which rank pari passu with or junior to the
Debentures.
SECTION 6.2 Ranking
This Capital Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in right of
payment to all present and future Senior Indebtedness (as defined in the
Indenture) of the Guarantor on the same terms as set forth in the Indenture. By
their acceptance thereof, each Holder of Capital Securities agrees to the
foregoing provisions of this Capital Securities Guarantee and the other terms
set forth herein.
This Capital Securities Guarantee does not limit the incurrence
or issuance of other secured or unsecured debt of the Guarantor, including
Senior Indebtedness of the Guarantor, under any indenture that the Guarantor may
enter into in the future or otherwise.
If a Declaration Event of Default has occurred and is continuing,
the rights of holders of the Common Securities of the Issuer to receive payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Capital Securities to receive Guarantee Payments under this Capital
Securities Guarantee.
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ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Capital Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all Capital Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Capital Securities
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon dissolution of the Issuer. Notwithstanding the foregoing, this
Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Capital Securities
must restore payment of any sums paid under the Capital Securities or under this
Capital Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered
Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith
in accordance with this Capital Securities Guarantee and in a manner
that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Capital
Securities Guarantee or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Issuer or the Guarantor and upon such
information, opinions, reports or statements presented to the Issuer or
the Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional or
expert competence and who, if selected by such Indemnified Person, has
been selected with reasonable care by such Indemnified Person, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions
to Holders of Capital Securities might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad faith on
the part of the Indemnified Person, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of the
Indemnified Person's powers or duties hereunder. The provisions of
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this Section 8.2 shall survive the resignation or removal of the Guarantee
Trustee and termination of this Capital Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Capital
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Capital Securities then outstanding. Except in connection with any merger
or consolidation of the Guarantor with or into another entity or any sale,
transfer or lease of the Guarantor's assets to another entity, in each case, to
the extent permitted under the Indenture, the Guarantor may not assign its
rights or delegate its obligations under this Capital Securities Guarantee.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect
the rights of Holders of Capital Securities in any material respect (in which
case no vote of Holders will be required), this Capital Securities Guarantee may
only be amended with the prior approval of the Holders of at least a Majority in
liquidation amount of the Capital Securities. The provisions of the Declaration
with respect to amendments thereof apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Capital Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee
Trustee may give notice of to the Holders of the Capital Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Capital Securities and to the Guarantee
Trustee):
Transamerica Corporation
600 Montgomery Street
San Francisco, California 94111
Attention: Secretary
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(c) If given to any Holder of Capital Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Capital Securities Guarantee is solely for the benefit of
the Holders of the Capital Securities and, subject to Section 3.1(a), is not
separately transferable from the Capital Securities.
SECTION 9.5 Governing Law
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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THIS CAPITAL SECURITIES GUARANTEE is executed as of the day and
year first above written.
TRANSAMERICA CORPORATION,
as Guarantor
By: /s/ Joseph R. Martinetto
--------------------------------------
Name: Joseph R. Martinetto
Title: Senior Assistant Treasurer
THE FIRST NATIONAL BANK
OF CHICAGO, as Guarantee Trustee
By: /s/ Janice Ott Rotunno
--------------------------------------
Name: Janice Ott Rotunno
Title: Vice President
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<PAGE> 1
Exhibit 4.8
TRANSAMERICA CAPITAL III
$190,000,000 7 5/8% CAPITAL TRUST PASS-THROUGH SECURITIES(R) (TRUPS(R))
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
TRANSAMERICA CORPORATION
REGISTRATION RIGHTS AGREEMENT
New York, New York
November 14, 1997
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Transamerica Capital III (the "Trust"), a statutory business
trust created under the laws of the state of Delaware by Transamerica
Corporation (the "Company"), proposes to issue and sell to the Initial
Purchasers (the "Initial Purchasers") named in the Purchase Agreement of even
date herewith (the "Purchase Agreement"), for whom you are acting as
representative (the "Representative"), the 7 5/8% Capital Trust Pass-through
Securities (the "Capital Securities") of the Trust. The issue and sale of the
Capital Securities pursuant to the Purchase Agreement is referred to herein as
the "Initial Placement." The Capital Securities, together with the guarantee of
the Company with respect thereto (the "Guarantee") and the 7 5/8% Junior
Subordinated Deferrable Interest Debentures due 2037 of the Company (the
"Subordinated Debt Securities"), are collectively referred to herein as the
"Registrable Securities." As an inducement to the Initial Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Initial Purchasers thereunder, the Company and the Trust
agree with you, (i) for your benefit and the benefit of the other Initial
Purchasers and (ii) for the benefit of the holders from time to time of the
Registrable Securities and the Exchange Securities (as defined below), including
the Initial Purchasers (each of the foregoing a "Holder" and together the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
<PAGE> 2
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Securities" has the meaning set forth in the preamble
hereto.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"DTC" means The Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Prospectus" means the Prospectus contained in the
Exchange Offer Registration Statement, as it may be amended or supplemented from
time to time.
"Exchange Offer Registration Period" means the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement or the Company
otherwise fails to maintain continuous effectiveness of the Exchange Offer
Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Company and the Trust on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" means the securities of the Company and the
Trust issued pursuant to a Registered Exchange Offer in the same aggregate
principal amount or in the same number or liquidation amount, as the case may
be, and containing terms that are identical in all material respects to the
terms of the Registrable Securities except (i) the Exchange Securities shall
have been registered for sale under the Act to Holders and (ii) the interest
rate step-up provisions and transfer restrictions under the Act in the
Registrable Securities shall have been eliminated in the Exchange Securities.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) which is a broker-dealer electing to exchange Registrable
Securities, acquired for its
2
<PAGE> 3
own account as a result of market-making activities or other trading
activities, for Exchange Securities.
"Final Offering Memorandum" means the Offering Memorandum issued
in connection with the Initial Placement and dated as of November 7, 1997
relating to the Registrable Securities (including any and all exhibits thereto
and any information incorporated by reference therein).
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchasers" has the meaning set forth in the preamble
hereto.
"Interest Payment Date" has the meaning set forth in Section 3(c)
hereof.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities or the Exchange
Securities, covered by such Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the offer to the Holders to
issue and deliver to such Holders, in exchange for the Registrable Securities, a
like principal amount, stated liquidation preference or number, as the case may
be, of the Exchange Securities.
"Registrable Securities" has the meaning set forth in the
preamble hereto.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Representative" has the meaning set forth in the preamble
hereto.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
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"Shelf Registration Event" has the meaning set forth in Section
2(g) hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company and the Trust pursuant to the provisions of Section 3
hereof which covers some or all of the Registrable Securities or Exchange
Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Special Payment" has the meaning set forth in Section 3(c)
hereof.
"Subordinated Debt Securities" has the meaning set forth in the
preamble hereto.
"Suspension Period" has the meaning set forth in Section 2(f)
hereof.
"Tax Event" has the meaning set forth in the Final Offering
Memorandum.
"Trust" has the meaning set forth in the preamble hereto.
"underwriter" means any underwriter of Registrable Securities or
Exchange Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by
Exchanging Dealers; Private Exchange. (a) Except as otherwise provided herein,
the Company and the Trust shall prepare and, not later than 150 days following
the Closing Date, shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Company and the
Trust shall use their best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the Act within 180 days of the Closing
Date. The Company and the Trust shall use their best efforts to consummate the
Registered Exchange Offer within 225 days of the Closing Date.
(b) Promptly after the date the Exchange Offer Registration
Statement is declared effective, the Company and the Trust shall commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of the Act, acquires the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in a public distribution (within the meaning of the Act)
of the Exchange Securities) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Act (other than
as a result of a Holder being an Exchanging Dealer) and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States. The Registered Exchange Offer shall be
deemed to have been completed upon the earlier to occur of (i) the Company and
the Trust having exchanged the Exchange Securities for all outstanding
Registrable Securities pursuant to the Registered Exchange Offer and (ii) the
Company having exchanged pursuant to the Registered Exchange Offer, Exchange
Securities for
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<PAGE> 5
all Registrable Securities that have been properly tendered and
not validly withdrawn before the expiration of the Registered Exchange Offer.
(c) In connection with the Registered Exchange Offer, the Company
and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 30 days (or longer if required by applicable law) after the
date notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all Registrable
Securities tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(ii) issue Exchange Securities to each Holder in a
principal amount or liquidation amount, as the case may be, equal
to the Registrable Securities accepted for exchange and canceled
pursuant to the Registered Exchange Offer; and
(iii) issue Exchange Securities to each Initial Purchaser
at its request in exchange for Registrable Securities acquired by
it as part of the Initial Placement having the status of an
unsold allotment in the initial distribution, containing terms
that are identical to the Exchange Securities issued to Holders
in the Registered Exchange Offer and use their best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for
such Exchange Securities as is issued for the Exchange Securities
issued in the Registered Exchange Offer.
(e) The Company, the Trust and the Initial Purchasers on behalf
of the Holders hereby acknowledge that, in order to effect a Registered Exchange
Offer and to comply with clause (d)(iii) above, (i) the Company will be required
to issue new subordinated debt securities to the Trust in exchange for a like
principal amount of Subordinated Debt Securities and (ii) the Trust will be
required to issue new capital securities in exchange for a like liquidation
amount of Capital Securities. The parties hereto acknowledge that the Guarantee
by its express terms covers the Exchange Securities corresponding to the Capital
Securities as well as such Capital Securities. The parties hereto further
acknowledge that the new subordinated debt securities and capital securities
issuable as described in this paragraph, which collectively constitute the
Exchange Securities, shall be identical in all material respects to the
securities they replace,
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<PAGE> 6
except that (x) such Exchange Securities issued pursuant to the Registered
Exchange Offer shall be registered for sale under the Act to Holders and (y) the
interest and distribution rate step-up provisions and transfer restrictions
under the Act in the securities being replaced by the Exchange Securities will
be eliminated in the Exchange Securities.
(f) The Initial Purchasers, the Company and the Trust acknowledge
that, pursuant to current interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer may be deemed an "underwriter" within the meaning of the
Act and, therefore, is required to deliver a Prospectus in connection with any
resales of any Exchange Securities received by such Exchanging Dealer pursuant
to the Registered Exchange Offer in exchange for Registrable Securities acquired
for its own account as a result of market-making activities or other trading
activities. Accordingly, the Company and the Trust shall:
(i) include the information substantially in the form set
forth in Annex A hereto on the cover of the Prospectus forming a
part of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Prospectus forming a part of the
Exchange Offer Registration Statement in a section setting forth
details of the Registered Exchange Offer, and in Annex C hereto
in the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration
Statement, and such other information with respect to resales of
the Exchange Securities by Exchanging Dealers that the Commission
may require in connection therewith and include the information
substantially in the form set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act
during the Exchange Offer Registration Period for delivery by
Exchanging Dealers in connection with sales of Exchange
Securities received pursuant to the Registered Exchange Offer, as
contemplated by Section 4(h) below; provided, however, that
during the Exchange Offer Registration Period, the Company or the
Trust may elect to suspend the right of the Initial Purchasers,
Exchanging Dealers or other Holders to utilize the Prospectus for
purposes of effecting resales of any Exchange Securities for no
more than a total of two periods, each of which shall not exceed
30 days (each a "Suspension Period"). The Company or the Trust
shall promptly notify the Initial Purchasers, Exchanging Dealers
or other Holders in writing of any such election. The exercise of
the right to effect a Suspension Period shall not be deemed to
extend the length of time of the Exchange Offer Registration
Period and shall not, for the purposes of this Agreement, be
deemed to constitute a suspension of the effectiveness of the
Exchange Offer Registration Statement.
(g) (i) In the event that the Company and the Trust
determine upon the advice of outside counsel that the applicable
law or applicable interpretations of the staff of the Commission
do not permit them to effect the Registered Exchange Offer, or
(ii) if (x) as a result of the consummation of the Registered
Exchange Offer, a Tax Event shall have occurred and in the
opinion of a nationally
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<PAGE> 7
recognized independent tax counsel to the Company experienced in
such matters, as a result of the consummation of the Registered
Exchange Offer, there will be more than an insubstantial risk
that the Company would be precluded from deducting interest on
the Subordinated Debt Securities for United States federal income
tax purposes, even if the Subordinated Debt Securities were
distributed to the holders of Capital Securities in liquidation
of such holders' interests in the Trust, or (y) the Company shall
determine in good faith that there is a reasonable likelihood
that, or a material uncertainty exists as to whether,
consummation of the Registered Exchange Offer would result in a
material adverse tax consequence to the Company (each of the
events described in this clause (ii) a "Tax Contingency" and
together with the event described in clause (i) of this
paragraph, a "Shelf Registration Event"), the Company and the
Trust may elect, in lieu of the commencement of such Registered
Exchange Offer, to effect a Shelf Registration of the Registrable
Securities pursuant to Section 3 hereof.
3. Shelf Registration. (i) In the event of a Shelf Registration
Event, (ii) if for any other reason the Exchange Offer Registration Statement is
not declared effective by the Commission within 180 days of the Closing Date,
(iii) if any Initial Purchaser so requests with respect to Registrable
Securities acquired prior to the completion of the Registered Exchange Offer
that are held by it following consummation of the Registered Exchange Offer (or
Exchange Securities issued to the Initial Purchasers pursuant to Section
2(d)(iii) of this Agreement) and that are not "freely tradable" Exchange
Securities or (iv) if any Holder that is a broker-dealer, is not an affiliate of
the Company or the Trust and is not eligible to participate in the Registered
Exchange Offer so requests with respect to Registrable Securities held by it
following the consummation of the Registered Exchange Offer that are not "freely
tradable" Exchange Securities (it being understood that, for purposes of this
Section 3, (x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Act in connection with sales of Exchange Securities acquired in
exchange for such Registrable Securities shall result in such Exchange
Securities being not "freely tradable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Registered Exchange Offer in exchange for Registrable
Securities acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
tradable"), the following provisions shall apply:
(a) The Company and the Trust shall, as promptly as practicable,
file with the Commission the Shelf Registration Statement covering resales of
the Registrable Securities (except that in the case of clause (iii) or (iv) of
the preceding paragraph, such registration statement shall cover only the
securities referred to in such clauses, respectively) or the Exchange
Securities, as applicable, by the Holders from time to time in accordance with
the methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement, and use their best efforts to cause the Shelf
Registration Statement to be declared effective under the Act by the 225th day
(or, if a Tax Contingency exists on the 225th day following the Closing Date, by
the 280th day) after the Closing Date; provided that with respect to Exchange
Securities received by an Initial Purchaser in exchange for Registrable
Securities constituting any portion of an unsold allotment, the Company and the
Trust may, if permitted by current interpretations by the Commission's staff,
file a post-effective amendment to the Exchange Offer Registration
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<PAGE> 8
Statement containing the information required by Regulation S-K Items 507 and/or
508, as applicable, in satisfaction of their obligations under this paragraph
(a) with respect thereto, and any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement; and provided further, that
with respect to a Shelf Registration Statement required pursuant to clause (iii)
of the preceding paragraph, the consummation of a Registered Exchange Offer
shall relieve the Company and the Trust of their obligations under this Section
3(a) but only in respect of their obligations under such clause (iii).
(b) The Company and the Trust shall each use its best efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared effective by
the Commission, or such shorter period that will terminate upon the earlier of
the following: (A) when all the Registrable Securities or Exchange Securities,
as applicable, covered by such Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, (B) when all the Subordinated Debt
Securities or the Exchange Securities relating to such Subordinated Debt
Securities or the Exchange Securities relating to such Subordinated Debt
Securities issued to Holders in respect of Capital Securities or Exchange
Securities that had not been sold pursuant to the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or (C) when in the
written opinion of counsel to the Company and the Trust, all outstanding
Registrable Securities or Exchange Securities held by persons that are not
affiliates of the Company or the Trust may be resold without registration under
the Act pursuant to Rule 144(k) under the Act or any successor provision (in any
such case, such period being called the "Shelf Registration Period").
Furthermore, the Company and the Trust shall each use its best efforts, upon the
effectiveness of the Shelf Registration Statement, to promptly upon the request
of any Holder take any action reasonably necessary to register the sale of any
Registrable Securities or Exchange Securities held pursuant to Section 2(d)(iii)
hereof of such Holder and compliance by such Holder with the terms hereof and to
identify such Holder as a selling securityholder and identify any specified
method of distribution, provided that such Holder provides the Company with all
information reasonably necessary to effect such registration. The Company and
the Trust shall be deemed not to have used their best efforts to keep the Shelf
Registration Statement effective during the requisite period if either the
Company or the Trust voluntarily takes any action that would result in Holders
of securities covered thereby not being able to offer and sell such securities
during that period, unless (i) such action is required by applicable law, or
(ii) such action is taken by the Company in good faith and for valid business
reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as the Company
promptly thereafter complies with the requirements of Section 4(k) hereof, if
applicable.
(c) Except as described below, in the event that either (a) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 150th day following the Closing Date, (b) the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th day
following the Closing Date or (c) the Registered Exchange Offer is not
consummated or a Shelf Registration Statement with respect to the Registrable
Securities is not declared effective by the Commission on or prior to the 225th
day following the Closing Date, then, as liquidated damages (which shall be the
sole remedy of the Holders for the failure to comply with clauses (a), (b) or
(c) of this Section 3(c)), interest will accrue (in addition to the
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<PAGE> 9
stated interest on the Registrable Securities) from and including the next day
following each of (i) such 150-day period in the case of clause (a) above, (ii)
such 180-day period in the case of clause (b) above, and (iii) such 225-day
period in the case of clause (c) above. In each case such additional interest
(the "Special Payment") will be payable in cash semiannually in arrears on each
November 15 and May 15 of each year (each an "Interest Payment Date"), at a rate
per annum equal to 0.25% of the principal amount or liquidation amount, as
applicable, of the Registrable Securities. The aggregate amount of Special
Payments payable pursuant to the above provisions will in no event exceed 0.25%
per annum of the principal amount or the liquidation amount, as applicable, of
the Registrable Securities.
(d) If a Shelf Registration Event shall exist on or before the
150th day following the Closing Date, clauses (a) and (i) of the preceding
paragraph shall not apply. To the extent such a Shelf Registration Event exists
and the Company has filed a Shelf Registration Statement covering resales of the
Registrable Securities by the 180th day following the Closing Date, clauses (b)
and (ii) of the preceding paragraph shall not apply, and to the extent a Tax
Contingency exists on the 225th day following the Closing Date, the period
specified in clauses (c) and (iii) of the preceding paragraph will be 280 days.
Upon (x) the filing of the Exchange Offer Registration Statement or the
occurrence of a Shelf Registration Event, if applicable, as described above,
after the 150-day period described in clause (a) of the preceding paragraph, (y)
the effectiveness of the Exchange Offer Registration Statement (if applicable)
(or the filing of a Shelf Registration Statement in the event of a Shelf
Registration Event, if applicable, as described above) after the 180-day period
described in clause (b) of the preceding paragraph or (z) the consummation of
the Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement after the 225-day period described in clause (c) of the preceding
paragraph (or the effectiveness of a Shelf Registration Statement after the 280
day period specified above, in the event of a Tax Contingency, if applicable, as
described above), the Special Payment payable on the Registrable Securities from
the date of such filing, effectiveness or consummation, as the case may be,
shall cease to accrue and all accrued and unpaid Special Payments as of the
occurrence of (x), (y) or (z) shall be paid to the holders of the Registrable
Securities on the next Interest Payment Date.
(e) In the event that a Shelf Registration Statement is declared
effective hereunder, if the Company or the Trust fails to fulfill its
obligations set forth in Section 3(b) to keep such Shelf Registration Statement
continuously effective for the period required hereby, then from the next day
following such time as the Shelf Registration Statement is no longer effective
until the earlier of (i) the date that the Shelf Registration Statement is again
deemed effective, (ii) the date that is the second anniversary of the date of
the original issuance of the Registrable Securities or (iii) the date as of
which all of the Registrable Securities covered by the Shelf Registration
Statement are sold pursuant thereto or may be sold without registration pursuant
to Rule 144(k) under the Securities Act, then, as liquidated damages (which
shall be the sole remedy of the Holders for the failure by the Company or the
Trust to fulfill its obligations set forth in Section 3(b) to keep such Shelf
Registration Statement continuously effective for the period required hereby),
Special Payments shall accrue at a rate per annum equal to 0.25% of the
principal amount or liquidation amount, as applicable, of the Registrable
Securities covered by the Shelf Registration Statement and shall be payable in
cash, semiannually in arrears on each Interest Payment Date.
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<PAGE> 10
(f) The Company and the Trust may require each Holder of
Registrable Securities as to which any registration pursuant to Section 3(b) is
being effected to furnish to the Company such information regarding such Holder
and such Holder's intended method of distribution of such Registrable Securities
as the Company and the Trust may from time to time reasonably request in
writing, but only to the extent that such information is required in order to
comply with the Act. Each such Holder agrees to notify the Company and the Trust
as promptly as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company and the Trust or of the occurrence of
any event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of disposition of such
Registrable Securities or omits to state any material fact regarding such Holder
or such Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company and the Trust any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company and the Trust shall furnish to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use their best
efforts to reflect in each such document, when so filed with the Commission,
such comments as such Initial Purchasers reasonably may propose.
(b) The Company and the Trust shall ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto (and each document incorporated
therein by reference) complies in all material respects with the Act and the
Exchange Act and the respective rules and regulations thereunder, (ii) any
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any Registration
Statement, and any amendment or supplement to such Prospectus, does not as of
the date thereof include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) (1) The Company and the Trust shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, if requested by the Initial Purchasers or any
such Holder, confirm such advice in writing:
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<PAGE> 11
(i) when the Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company and the Trust shall advise the Initial Purchasers
and, in the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of an Exchange Offer Registration Statement,
any Exchanging Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the Initial
Purchasers or any such Holder or Exchanging Dealer, confirm such advice in
writing of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) the receipt by the Company or the Trust of any
notification with respect to the suspension of the qualification
of the securities included therein for sale in any jurisdiction
or the initiation or overtly threatening of any proceeding for
such purpose;
(iii) the happening of any event that requires the making
of any changes in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not misleading
and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied by
an instruction to suspend the use of the Prospectus until the
requisite changes have been made);
(iv) the Company's or the Trust's determination that a
post-effective amendment to a Registration Statement would be
appropriate; and
(v) the Company's election to effect any Suspension
Period.
(d) The Company and the Trust shall use their best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Registration Statement at the earliest
practicable time.
(e) The Company and the Trust shall, upon request, furnish to
each Holder of securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits filed therewith (including those incorporated by reference).
(f) The Company and the Trust shall during the Shelf Registration
Period, deliver to each Holder of securities included within the coverage of any
Shelf Registration Statement,
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<PAGE> 12
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request in connection with
resales of Registrable or Exchange Securities; and the Company and the Trust
each consent to the use of the Prospectus or any amendment or supplement thereto
by each of the selling Holders of securities in connection with the offering and
sale of the securities covered by the Prospectus or any amendment or supplement
thereto.
(g) The Company and the Trust shall furnish to each Exchanging
Dealer that so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
filed therewith (including those incorporated by reference).
(h) The Company and the Trust shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without charge,
as many copies of the final Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer; and the Company and the Trust each consent to the use
of the Prospectus or any amendment or supplement thereto by any such Exchanging
Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other offering
of securities pursuant to any Registration Statement, the Company and the Trust
shall register or qualify or cooperate with the Holders of securities included
therein and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holders reasonably request in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the securities covered by such
Registration Statement; provided, however, that in no event shall the Company or
the Trust be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it is
not then so subject.
(j) The Company and the Trust shall cooperate with the Holders of
Registrable Securities or Exchange Securities, as the case may be, to facilitate
the timely preparation and delivery within the times required by normal-way
settlement of certificates representing securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such authorized
denominations and registered in such names as Holders may request prior to sales
of securities pursuant to such Registration Statement; provided that, so long as
certificates are held in book-entry form by DTC or a successor depositary, the
Company will not be required to deliver physical certificates except in
accordance with the rules and procedures of DTC or a successor depositary.
(k) If (a) a Shelf Registration is filed pursuant to Section 3
hereof, or (b) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Act by any Exchanging Dealer who seeks to sell
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Registrable Securities or Exchange Securities during the Shelf Registration
Period or the Exchange Offer Registration Period, as the case may be, upon the
occurrence of any event contemplated by paragraph 4(c)(2)(iii), 4(c)(2)(iv) or
4(c)(2)(v) hereof, the Company and the Trust as promptly as practicable,
consistent with the advice of outside counsel to the Company regarding other
legal obligations relating to such filing, prepare and file with the Commission,
at the sole expense of the Company, a supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered by an Exchanging
Dealer, any such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Notwithstanding any contrary provisions hereof,
during the Exchange Offer Registration Period the Company or the Trust may elect
to effect a Suspension Period. The Company or the Trust shall promptly notify
the Initial Purchasers, Exchanging Dealers or other Holders in writing of any
such election. The exercise of the right to effect a Suspension Period shall not
be deemed to extend the length of time of the Exchange Offer Registration Period
and shall not, for the purposes of this Agreement, be deemed to constitute a
suspension of the effectiveness of the Exchange Offer Registration Statement.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company and the Trust shall provide a CUSIP number for
the Capital Securities or the Exchange Securities corresponding to the Capital
Securities, as the case may be, registered under such Registration Statement. In
the event of and at the time of any distribution of the Subordinated Debt
Securities to Holders, the Company and the Trust shall provide a CUSIP number
for the Subordinated Debt Securities or the Exchange Securities corresponding to
the Subordinated Debt Securities and provide the applicable trustee with
certificates for such securities, in a form eligible for deposit with DTC. The
Company and the Trust shall use their reasonable best efforts to cause the CUSIP
Service Bureau to issue the same CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, delivered pursuant to a Registration
Statement as was originally issued for the Registrable Securities.
(m) The Company and the Trust shall use their best efforts to
comply with all applicable rules and regulations of the Commission to the extent
and so long as they are applicable to the Registered Exchange Offer, the
Exchange Offer Registration Statement or the Shelf Registration Statement and
shall make generally available to their security holders as soon as practicable
after the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act (including, at
the option of the Company, Rule 158 thereunder).
(n) The Company and the Trust shall cause the indenture relating
to the Subordinated Debt Securities, the Guarantee and the declaration of trust
of the Trust pursuant to which the terms of the Capital Securities are
established, or any corresponding documents in respect of the Exchange
Securities, as the case may be, to be qualified under the Trust Indenture Act in
a timely manner.
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<PAGE> 14
(o) The Company and the Trust shall, if requested, promptly
incorporate in a Prospectus supplement or post effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters reasonably
agree with the Company should be included therein and shall make all required
filings of such Prospectus supplement or post effective amendment as soon as
reasonably practicable after they are notified of the matters to be incorporated
in such Prospectus supplement or post effective amendment.
(p) In the case of any Shelf Registration Statement, the Company
and the Trust shall enter into such customary agreements (including an
underwriting agreement) and take all other appropriate actions, if any, in order
to facilitate the registration or the disposition of the Registrable Securities
or the Exchange Securities, as the case may be, to be registered thereunder.
(q) In connection therewith, if an underwriting agreement is
entered into, the Company and the Trust shall cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 6 (or such other provisions and procedures acceptable to the Managing
Underwriters, if any), with respect to all parties to be indemnified pursuant to
Section 6.
(r) In the case of any underwritten offering under a Shelf
Registration Statement or at the request of an Initial Purchaser to the extent
that an Initial Purchaser has Registrable Securities or Exchange Securities
eligible for resale thereunder, the Company and the Trust shall (i) make
reasonably available for inspection by a representative of the Holders of a
majority of the securities to be registered thereunder, any Initial Purchaser
(if applicable) and any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney, accountant or other agent
retained by any such Holders, Initial Purchaser or underwriter such relevant
financial and other records, pertinent corporate documents and properties of the
Company, its subsidiaries and the Trust as shall be necessary to conduct a
reasonable investigation within the meaning of Section 11 of the Act; (ii) cause
the Company's officers, directors and employees and the trustees of the Trust to
supply all relevant information reasonably requested by the representative of
the Holders, the Initial Purchaser (if applicable) or any such underwriter,
attorney, accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; provided, however, that
any information that is designated in writing by the Company and the Trust, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders (and their representative), the Initial
Purchaser (if applicable) or any such underwriter, attorney, accountant or
agent, unless such disclosure is required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality; (iii) make such representations and
warranties to the Holders of securities registered thereunder, the Initial
Purchaser (if applicable) and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary underwritten
offerings and covering matters including , but not limited to, those set forth
in the Purchase Agreement; (iv) obtain opinions of counsel to the Company and
the Trust (who may be the general counsel of the Company) and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) in customary form and scope
addressed to the representative of the Holders of a majority of the securities
to be registered thereunder, each Initial Purchaser (if applicable) and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten
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<PAGE> 15
offerings and such other matters as may be reasonably requested by such Holders,
Initial Purchasers (if applicable) and underwriters; (v) obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and if necessary, any other independent certified accountants of
any subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the representative of the
Holders of a majority of the securities to be registered thereunder, each
Initial Purchaser (if applicable) and the underwriters, if any, and covering
matters of the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings; and (vi) deliver such customary documents
and certificates as may be reasonably requested by any such Holders, the Initial
Purchaser (if applicable) or the Managing Underwriters, if any, including those
to evidence compliance with Section 4(k) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company and the Trust. The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 4(r) shall be performed at (A) the effectiveness of
such Registration Statement and each post effective amendment thereto and (B)
each closing under any underwriting or similar agreement as and to the extent
required thereunder.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm of
counsel designated by the majority of the Holders of the Registrable Securities
or Exchange Securities, as the case may be, covered by such Shelf Registration
Statement to act as counsel for the Holders in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless the
Trust, each Holder of securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (including all documents
incorporated by referenced therein) as originally filed or in any amendment
thereof, or in any preliminary prospectus or Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of circumstances under which they were made,
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on
15
<PAGE> 16
behalf of any such Holder specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
The Company also agrees to indemnify or contribute to Losses (as
defined herein) of, as provided in Section 6(d), any underwriters of Securities
registered under a Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Initial Purchasers and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement, as provided in Section 4(q)
hereof.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant hereto, that
the Company shall have received an undertaking reasonably satisfactory to it
from each Holder of securities covered by a Registration Statement (including
each Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) and from each
underwriter named in any underwriting agreement entered into pursuant to Section
4(p) to severally and not jointly indemnify and hold harmless the Company, the
Trust, each of their directors, trustees, administrators, officers and each
person who controls the Company or the Trust within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each such person, but only with reference to written information
relating to such person furnished to the Company by or on behalf of such person
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 or notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent the indemnifying party did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
one such separate counsel (in addition to local counsel) designated by the
indemnified parties if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the
16
<PAGE> 17
indemnifying party and the indemnified party shall have reasonably concluded,
based upon written advice of counsel, that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or out of the portion of
such claim, action, suit or proceeding which is the subject of the settlement,
compromise or consent.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Registrable
Security or Exchange Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such security, or
in the case of an Exchange Security, applicable to the Registrable Security
which was exchangeable into such Exchange Security, as set forth on the cover
page of the Final Offering Memorandum, nor shall any underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set forth on
the cover page of the Final Offering Memorandum and (y) the total amount of
additional interest which the Company is not required to pay as a result of
registering the securities covered by the Registration Statement which resulted
in such Losses. Benefits received by the Initial Purchasers shall be deemed to
be equal to the total purchase discounts and commissions as set forth on the
cover page of the Final Offering Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Registrable
Securities or Exchange Securities, as applicable, registered under the Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and
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<PAGE> 18
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company and the Trust within the meaning of either the
Act or the Exchange Act, each officer of the Company or trustee of the Trust who
shall have signed the Registration Statement and each director of the Company or
trustee of the Trust shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
(e) An indemnifying party shall not be liable under this Section
6 to any indemnified party regarding any settlement or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(f) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Company or the Trust any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Trust have
not, as of the date hereof, entered into, nor shall they, on or after the date
hereof, enter into, any agreement with respect to their securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and the Trust have
obtained the written consent of the Holders of at least a majority in
liquidation amount of the Capital Securities then outstanding (or, after the
consummation of any Registered Exchange Offer in accordance with Section 2
hereof, of Exchange Securities then outstanding); provided that, with respect to
any matter that directly or indirectly affects the rights of any Initial
Purchaser hereunder, the Company shall obtain the written consent of each such
Initial Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or
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<PAGE> 19
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the majority of such affected
Holders, determined on the basis of securities being sold rather than registered
under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by
such Holder to the Company;
(ii) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at their
addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received. The Initial Purchasers, the Company or the Trust by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company and the Trust thereto, subsequent Holders of Registrable Securities
and/or Exchange Securities. The Company and the Trust hereby agree to extend the
benefits of this Agreement to any Holder of Registrable Securities and/or
Exchange Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected
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<PAGE> 20
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified number, or percentage of principal amount or
liquidation amount, as the case may be, of, Registrable Securities or Exchange
Securities is required hereunder, Registrable Securities or Exchange Securities,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Registrable Securities or Exchange Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Registrable Securities or Exchange Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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<PAGE> 21
Please confirm your agreement by having your authorized officer
sign a copy of this Registration Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
TRANSAMERICA CORPORATION
By: /s/ David Hawkins
-------------------------------------
Name: David Hawkins
Title: Vice President
TRANSAMERICA CAPITAL III
By: TRANSAMERICA CORPORATION.,
as Sponsor
By: /s/ Joseph R. Martinetto
-------------------------------------
Name: Joseph R. Martinetto
Title: Senior Assistant Treasurer
Accepted:
SALOMON BROTHERS INC
By: /s/ John H. Barry
-------------------------------
Name: John H. Barry
Title: Director
Date: November 14, 1997
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<PAGE> 22
Exhibit 4.8
ANNEX A
Based on interpretations by the staff of the Securities and
Exchange Commission (the "Commission"), as set forth in no-action letters issued
to third parties, the Company and the Trust believe that the Exchange Securities
issued pursuant to the Registered Exchange Offer may be offered for resale,
resold or otherwise transferred by holders thereof (other than any holder that
is an "affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act), provided that such Exchange Securities are acquired in the
ordinary course of such holders' business and such holders are not engaged in,
and do not intend to engage in, a distribution of such Exchange Securities and
have no arrangement or understanding with any person to participate in the
distribution of such Exchange Securities. However, the staff of the Commission
has not considered the Registered Exchange Offer in the context of a no-action
letter, and there can be no assurance that the staff of the Commission would
make a similar determination with respect to the Registered Exchange Offer as in
such other circumstances. By tendering the Registrable Securities in exchange
for Exchange Securities, each holder, other than a broker-dealer, will represent
to the Company and the Trust that: (i) it is not an affiliate of the Company or
the Trust (as defined under Rule 405 of the Securities Act); (ii) any Exchange
Securities to be received by it were acquired in the course of its ordinary
business; and (iii) it is not engaged in, and does not intend to engage in, a
distribution of the Exchange Securities and has no arrangement or understanding
to participate in a distribution of the Exchange Securities.
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Registrable Securities where such Registrable Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company and the Trust have agreed that, starting on the date on
which the Registered Exchange Offer is consummated and ending on the close of
business 180 days after such date, they will make this Prospectus available to
any broker-dealer for use in connection with any such resale.
See "Plan of Distribution."
<PAGE> 23
ANNEX B
Based on interpretations by the staff of the Commission as set
forth in no-action letters issued to third parties, the Company and the Trust
believe that holders of Registrable Securities (other than any holder that is an
"affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act) who exchange their Registrable Securities for Exchange
Securities pursuant to the Registered Exchange Offer may offer such Exchange
Securities for resale, resell such Exchange Securities and otherwise transfer
such Exchange Securities without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Exchange
Securities are acquired in the ordinary course of such holders' business and
such holders are not engaged in, and do not intend to engage in, a distribution
of such Exchange Securities and have no arrangement or understanding with any
person to participate in the distribution of such Exchange Securities. However,
the staff of the Commission has not considered the Registered Exchange Offer in
the context of a no-action letter, and there can be no assurance that the staff
of the Commission would make a similar determination with respect to the
Registered Exchange Offer. Each broker-dealer that receives Exchange Securities
for its own account in exchange for Registrable Securities, where such
Registrable Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. See "Plan of Distribution."
<PAGE> 24
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Registrable Securities where such Registrable
Securities were acquired as a result of market-making activities or other
trading activities. The Company and the Trust have agreed that, starting on the
date on which the Registered Exchange Offer is consummated and ending on the
close of business 180 days after such date, they will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until ______, 199__ , all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
The Company and the Trust will not receive any proceeds from any
sale of Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Registered Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed to
be an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Securities and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 180 days after the date on which the Registered
Exchange Offer is consummated, the Company and the Trust will promptly send
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal, subject to the Company's election to exercise its right to effect
any Suspension Period. The Company and the Trust have agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Registrable Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the Holders of the
Registrable Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items
507 and/or 508.]
<PAGE> 25
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ___________________________________
Address: ___________________________________
___________________________________
Rider B
The undersigned acknowledges that this Registered Exchange Offer
is being made by the Company and the Trust based upon the Company's and Trust's
understanding of an interpretation by the staff of the Securities and Exchange
Commission (the "Commission") as set forth in no-action letters issued to third
parties, that the Exchange Securities issued in exchange for Registrable
Securities by holders thereof (other than to holders that are "affiliates" of
the Company or the Trust within the meaning of Rule 405 under the Securities
Act), may be so issued without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that: (i) such holders are
not affiliates of the Company or the Trust within the meaning of Rule 405 under
the Securities Act; (ii) such Exchange Securities are acquired in the ordinary
course of such holders' business; and (iii) such holders are not engaged in, and
do not intend to engage in, a distribution of such Exchange Securities and have
no arrangement or understanding with any person to participate in the
distribution of such Exchange Securities. However, the staff of the Commission
has not considered the Registered Exchange Offer in the context of a no-action
letter and there can be no assurance that the staff of the Commission would make
a similar determination with respect to the Registered Exchange Offer as in
other circumstances. If a holder of Registrable Securities is an affiliate of
the Company, or is engaged in or intends to engage in a distribution of the
Exchange Securities or has any arrangement or understanding with respect to the
distribution of the Exchange Securities to be acquired pursuant to the
Registered Exchange Offer, such holder could not rely on the applicable
interpretations of the staff of the Commission and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account in
exchange for Registrable Securities, it represents that the Registrable
Securities to be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
<PAGE> 1
Exhibit 5.1
[LETTERHEAD OF ORRICK, HERRINGTON & SUTCLIFFE LLP]
March 30, 1998
Transamerica Corporation
600 Montgomery Street
San Francisco, CA 94111
Ladies and Gentlemen:
This opinion is delivered in connection with the Registration
Statement on Form S-4 (the "Registration Statement") filed under the Securities
Act of 1933, as amended (the "Act"), by Transamerica Corporation, a Delaware
corporation (the "Company"), and Transamerica Capital III, a business trust
formed under the Business Trust Act of the State of Delaware (the "Issuer Trust"
and together with the Company, the "Registrants"), with the Securities and
Exchange Commission (the "Commission") in connection with the registration by
the Registrants under the Act, of an aggregate of $190,000,000 of (i) 7-5/8%
Junior Subordinated Deferrable Interest Debentures of the Company (the "Junior
Subordinated Debentures"), (ii) 7-5/8% Capital Securities of the Issuer Trust
(the "Capital Securities") and (iii) the Guarantee of the Company of obligations
of the Issuer Trust under the Capital Securities (the "Guarantee").
We have examined (i) the Registration Statement, (ii) the
Indenture, as supplemented by the Second Supplemental Indenture (as so
supplemented, the "Indenture") between the Company and The First National Bank
of Chicago, as Indenture Trustee (the "Indenture Trustee"), pursuant to which
the Junior Subordinated Debentures are to be issued, (iii) the Guarantee
Agreement (the "Guarantee Agreement") executed by the Company and The First
National Bank of Chicago, as Guarantee Trustee (the "Guarantee Trustee"), (iv)
the Registration Rights Agreement (the "Registration Rights Agreement") among
the Company, the Issuer Trust and Salomon Brothers Inc, and (v) the Amended and
Restated Declaration of Trust (the "Declaration") between the Company and The
First National Bank of Chicago, as Institutional Trustee. In addition, we have
examined such other instruments, documents and records as we deemed relevant and
necessary as a basis for our opinion hereinafter expressed. In such examination,
we have assumed the following: (a) the authenticity of original documents and
the genuineness of all signatures; (b) the conformity to the originals of all
documents submitted to us as copies; and (c) the truth, accuracy and
completeness of the information, representations and warranties contained in the
records, documents, instruments and certificates we have reviewed. We have also
assumed that the Registration Statement, and any applicable amendments thereto
(including post-effective amendments), will have become effective under the Act
at the time of issuance, offering and sale of any such Junior Subordinated
Debentures, Capital Securities or the Guarantee.
<PAGE> 2
Transamerica Corporation
March 30, 1998
Page 2
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. With respect to the Junior Subordinated Debentures to be
issued under the Indenture, when such Junior Subordinated Debentures have been
duly executed and authenticated in accordance with the Indenture and issued and
delivered as contemplated by the Registration Statement, such Junior
Subordinated Debentures will constitute valid and legally binding obligations of
the Company, and the holders of such Junior Subordinated Debentures will be
entitled to the benefits of the Indenture.
2. With respect to the Guarantee evidenced by the Guarantee
Agreement, when the Capital Securities of the Issuer Trust have been duly
executed, issued and delivered in accordance with the Declaration, such
Guarantee will constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms.
Our opinions set forth in paragraphs 1 and 2 above are qualified
as to (i) limitations imposed by applicable bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium, or other laws
relating to or affecting the rights of creditors generally and (ii) general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing, and the possible unavailability of specific performance
or injunctive relief, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our name wherever it appears in the
Registration Statement and the prospectus contained therein. In giving such
consent, we do not consider that we are "experts," within the meaning of the
term as used in the Act or the rules and regulations of the Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE> 1
Exhibit 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
March 27, 1998
Transamerica Capital III
c/o Transamerica Corporation
600 Montgomery Street
San Francisco, CA 94111
Re: Transamerica Capital III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Transamerica
Corporation, a Delaware corporation (the "Company"), and Transamerica Capital
III, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated October 31, 1997
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on October 31, 1997;
(b) The Declaration of Trust of the Trust, dated as of October
31, 1997, by and among the Company and the trustees of the Trust named therein;
(c) The Amended and Restated Declaration of Trust of the Trust,
dated as of November 14, 1997 (including Annex I and Exhibits A-1, A-2 and A-3
thereto) (the "Declaration"), among the Company, as sponsor, the trustees of the
Trust named therein, the administrators named therein and the holders, from time
to time, of undivided beneficial interests in the assets of the Trust;
(d) The Registration Statement on Form S-4 (the "Registration
Statement"), including a preliminary prospectus (the "Prospectus"), relating to
the 7-5/8% Capital Trust Pass-
<PAGE> 2
Transamerica Capital III
March 27, 1998
Page 2
through Securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, an "Exchange Capital Security" and collectively,
the "Exchange Capital Securities"), as proposed to be filed by the Company and
the Trust with the Securities and Exchange Commission on or about March 27,
1998; and
(e) A Certificate of Good Standing for the Trust, dated March 27,
1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Declaration and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
an Exchange Capital Security is to be issued by the Trust (collectively, the
"Exchange Capital Security Holders") of a Capital Securities Certificate, in
accordance with the Declaration and the Registration Statement, and (vii) that
the Exchange Capital Securities are issued to the Exchange Capital Security
Holders in accordance with the Declaration and the Registration Statement. We
have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
<PAGE> 3
Transamerica Capital III
March 27, 1998
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Exchange Capital Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Exchange Capital Security Holders, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Exchange
Capital Security Holders may be obligated to make payments as set forth in the
Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARD, LAYTON & FINGER, P.A.
Richards, Layton & Finger, P.A.
BJK/BJ
<PAGE> 1
Exhibit 8.1
[LETTERHEAD OF ORRICK, HERRINGTON & SUTCLIFFE LLP]
March 30, 1998
Transamerica Corporation
600 Montgomery Street
San Francisco, CA 94111
Ladies and Gentlemen:
As special counsel to Transamerica Capital III (the "Issuer
Trust") and Transamerica Corporation in connection with the exchange offer by
the Issuer Trust of $190,000,000 of its 7-5/8% Capital Securities (the "Capital
Securities"), pursuant to a Prospectus (the "Prospectus") included in a
Registration Statement on Form S-4 filed on or about the date hereof (the
"Registration Statement"), and assuming that the operative documents described
in the Prospectus are enforceable and have been or will be performed in
accordance with the terms described therein, we hereby confirm to you our
opinion as set forth under the heading "Certain Federal Income Tax Consequences"
in the Prospectus, subject to the limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to us under the heading "Certain
Federal Income Tax Consequences" in the Prospectus. In giving this consent, we
do not thereby admit that we came within the category of a person whose consent
is required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement Form S-4 and related Prospectus of Transamerica
Corporation for the registration of $190 million of Transamerica Capital III
Trust Pass-Through Securities and to the incorporation by reference therein of
our report dated January 23, 1998, with respect to the consolidated financial
statements and schedules of Transamerica Corporation incorporated by reference
in its Annual Report (Form 10-K) for the year ended December 31, 1997 and the
related financial statement schedules included therein, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Francisco, California
March 25, 1998
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Frank C. Herringer
---------------------------------
Name: Frank C. Herringer
Title: Chairman, Chief Executive
Officer and Director
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Edgar H. Grubb
---------------------------------
Name: Edgar H. Grubb
Title: Executive Vice President and
Chief Financial Officer
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Burton E. Broome
---------------------------------
Name: Burton E. Broome
Title: Vice President and
Controller
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Robert W. Matschullat
-----------------------------
Name: Robert W. Matschullat
Title: Director
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Samuel L. Ginn
------------------------
Name: Samuel L. Ginn
Title: Director
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Gordon E. Moore
----------------------
Name: Gordon E. Moore
Title: Director
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Toni Rembe
---------------------------------
Name: Toni Rembe
Title: Director
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Condoleezza Rice
-----------------------
Name: Condoleezza Rice
Title: Director
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Charles R. Schwab
--------------------------
Name: Charles R. Schwab
Title: Director
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Forrest N. Shumway
---------------------------
Name: Forrest N. Shumway
Title: Director
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director and/or
officer of Transamerica Corporation, a Delaware corporation ("Transamerica"),
hereby constitutes and appoints SHIRLEY H. BUCCIERI, BURTON E. BROOME and AUSTIN
D. KIM, or any of them with power to act alone, his or her true and lawful
attorneys and agents, in the name and on behalf of the undersigned, to do any
and all acts and things and execute any and all instruments that said attorneys
and agents, or any one of them, may deem necessary or advisable to enable
Transamerica to comply with the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable rules, regulations and requirements of the
Securities and Exchange Commission (the "Commission") thereunder, in connection
with the registration under the Securities Act of (a) 7-5/8% Capital Securities
of Transamerica Capital III, (b) 7-5/8% Junior Subordinated Debentures of
Transamerica Corporation and (c) the Guarantee of Transamerica Corporation with
respect to the Capital Securities, each to be issued in connection with a
registered exchange offer, including, without limitation, the power and
authority to sign the name of the undersigned in his or her capacity as a
director and/or officer of Transamerica (either manually or electronically
through the EDGAR System of the Commission) to (i) a Registration Statement on
Form S-4 and/or such other forms as may be appropriate to be filed with the
Commission in respect of said securities, (ii) any and all amendments to said
Registration Statement, including post effective amendments, and (iii) any and
all instruments and documents filed as a part of or in connection with said
Registration Statement or amendments thereto, hereby ratifying and confirming
all that said attorneys or agents, or any one of them, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney
this 13th day of March, 1998.
By: /s/ Peter V. Ueberroth
---------------------------
Name: Peter V. Ueberroth
Title: Director
<PAGE> 1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------
TRANSAMERICA CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-0932740
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
TRANSAMERICA PYRAMID
600 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF
THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
------------------------
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Transamerica Corporation and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Page RC-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400
THOUSANDS RCFD BIL MIL THOU
------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Page RC-2
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D) RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b.
c. With a remaining maturity of more than three years A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
bank by independent external auditors as of any date during 1996 .................... RCFD 6724 ..... N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4.= Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------
TRANSAMERICA CAPITAL III
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE TO BE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
TRANSAMERICA PYRAMID
600 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CAPITAL SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
------------------------
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Transamerica Capital III and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Page RC-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400
THOUSANDS RCFD BIL MIL THOU
--------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Page RC-2
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D) RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b.
c. With a remaining maturity of more than three years A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
bank by independent external auditors as of any date during 1996 ............. RCFD 6724 ...... N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4.= Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------
TRANSAMERICA CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-0932740
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
TRANSAMERICA PYRAMID
600 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF CAPITAL SECURITIES
OF TRANSAMERICA CAPITAL III
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 25th day of March, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
------------------------
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 25, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee between
Transamerica Corporation and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
-----------------------
John R. Prendiville
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Call Date: 12/31/97 ST-BK: 17-1630 FFIEC 031
Page RC-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400
THOUSANDS RCFD BIL MIL THOU
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 4,267,336 1.a.
b. Interest-bearing balances(2) 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D) 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases) 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M) 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding 2155 644,340 9.
10. Intangible assets (from Schedule RC-M) 2143 268,501 10.
11. Other assets (from Schedule RC-F) 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11) 2170 58,483,415 12.
</TABLE>
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0303
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Page RC-2
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1) RCON 6631 9,197,227 13.a.1
(2) Interest-bearing RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing RCFN 6631 332,801 13.b.1
(2) Interest-bearing RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D) RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through three years A547 576,492 16.b.
c. With a remaining maturity of more than three years A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 644,341 18
19. Subordinated notes and debentures (2) RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G) RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20) RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23
24. Common stock RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21 and 28) RCFD 3300 58,483,415 29
</TABLE>
Memorandum
<TABLE>
<S> <C> <C> <C>
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
bank by independent external auditors as of any date during 1996 .............. RCFD 6724 ........... N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4.= Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 99.1
TRANSAMERICA CAPITAL III
OFFER TO EXCHANGE ITS
7 5/8% CAPITAL TRUST PASS-THROUGH SECURITIES
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
7 5/8% CAPITAL TRUST PASS-THROUGH SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS DATED ___________, 1998.
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ________, 1998 UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
<PAGE> 2
The Exchange Agent for the Exchange Offer is:
THE FIRST NATIONAL BANK OF CHICAGO
<TABLE>
<CAPTION>
By: Mail Facsimile Transmissions: By Hand or Overnight Delivery
<S> <C> <C>
(Registered or Certified Mail (Eligible Institutions Only) The First National Bank of Chicago
Recommended) (212) 240-8938 c/o First Chicago Trust Company
The First National Bank of Chicago of New York
c/o First Chicago Trust Company of 14 Wall Street
New York 8th Floor, Window 2
14 Wall Street To Confirm by Telephone New York, New York 10005
8th Floor, Window 2 or for Information Call:
New York, New York 10005 (212) 240-8801
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE SAME
MEANING GIVEN THEM IN THE PROSPECTUS (AS DEFINED BELOW). YOU ARE ENCOURAGED TO
REVIEW THE SECTION ENTITLED "CERTAIN DEFINED TERMS" IN THE PROSPECTUS.
The undersigned acknowledges that he or she has received the
Prospectus, dated _________, 1998 (as the same may be amended or supplemented
from time to time, the "Prospectus"), of Transamerica Corporation, a Delaware
corporation ("Transamerica"), and Transamerica Capital III, a Delaware business
trust (the "Trust"), and this Letter of Transmittal, which together constitute
Transamerica's and the Trust's offer (the "Exchange Offer") to exchange an
aggregate liquidation amount of up to $190,000,000 of the Trust's 7-5/8% Capital
Trust Pass-through Securities (the "Old Capital Securities") for a like
aggregate liquidation amount of the Trust's 7-5/8% Capital Trust Pass-through
Securities (the "New Capital Securities") which have been registered under the
Securities Act of 1933 (the "Securities Act").
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Old Capital
Securities either if Old Capital Securities are to be forwarded herewith or if
tenders of Old Capital Securities are to be made by book-entry transfer to an
account maintained by The First National Bank of Chicago (the "Exchange Agent")
at The Depository Trust Company ("DTC") pursuant
<PAGE> 3
to the procedures set forth in "The Exchange Offer--Procedures for Tendering Old
Capital Securities" in the Prospectus.
Holders of Old Capital Securities whose certificates (the
"Certificates") for such Old Capital Securities are not immediately available or
who cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date (as defined in the Prospectus)
or who cannot complete the procedures for book-entry transfer on a timely basis,
must tender their Old Capital Securities according to the guaranteed delivery
procedures set forth in "The Exchange Offer -- Procedures for Tendering Old
Capital Securities" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
The undersigned has completed the appropriate boxes below and signed this Letter
of Transmittal to indicate the action the undersigned desires to take with
respect to the Exchange Offer.
2
<PAGE> 4
ALL TENDERING HOLDERS COMPLETE THIS BOX:
- --------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
Name(s) and Address(es) of Registered Holder(s): (Please fill in, if blank)
Certificate Number(s)*
Aggregate Liquidation Amount of Old Capital Securities
Liquidation Amount of Old Capital Securities Tendered**
Total Amount Tendered:
- --------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Old Capital Securities may be tendered in whole or in part in a
liquidation amount of not less than $100,000 and integral multiples of
$1,000 in excess thereof, provided that if any Old Capital Securities are
tendered for exchange in part, the untendered liquidation amount thereof
must be $100,000 or any integral multiple of $1,000 in excess thereof.
All Old Capital Securities held shall be deemed tendered unless a lesser
number is specified in this column.
- --------------------------------------------------------------------------------
3
<PAGE> 5
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
/ / CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE
AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
DTC Account Number:
Transaction Code Number:
/ / CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY
IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name of Registered Holders(s):
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution which Guaranteed Delivery:
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution:
DTC Account Number:
Transaction Code Number:
/ / CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD CAPITAL SECURITIES ARE TO BE
RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
/ / CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
4
<PAGE> 6
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer,
the undersigned hereby tenders to Transamerica and the Trust the above described
aggregate liquidation amount of Old Capital Securities in exchange for a like
aggregate liquidation amount of New Capital Securities.
Subject to and effective upon the acceptance for exchange of all or
any portion of the Old Capital Securities tendered herewith in accordance with
the terms and conditions of the Exchange Offer (including, if the Exchange Offer
is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Old Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of
Transamerica and the Trust in connection with the Exchange Offer) with respect
to the tendered Old Capital Securities, with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest), subject only to the right of withdrawal described in the Prospectus,
to: (i) deliver Certificates for Old Capital Securities to Transamerica or the
Trust together with all accompanying evidences of transfer and authenticity to,
or upon the order of, the Trust, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Capital Securities to be issued in exchange for
such Old Capital Securities; (ii) present Certificates for such Old Capital
Securities for transfer, and to transfer the Old Capital Securities on the books
of the Trust; and (iii) receive for the account of the Trust all benefits and
otherwise exercise all rights of beneficial ownership of such Old Capital
Securities, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED
HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE
OLD CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR
EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY TRANSAMERICA, THE TRUST OR THE
EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT
AND TRANSFER OF THE OLD CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED
WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT. THE
UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old
Capital Securities tendered hereby should be printed above, if they are not
already set forth above, as they appear on the Certificates representing such
Old Capital Securities. The Certificate number(s) and the Old Capital Securities
that the undersigned wishes to tender should be
5
<PAGE> 7
indicated in the appropriate boxes above.
If any tendered Old Capital Securities are not exchanged pursuant to
the Exchange Offer for any reason, or if Certificates are submitted for more Old
Capital Securities than are tendered or accepted for exchange, Certificates for
such nonexchanged or nontendered Old Capital Securities will be returned (or, in
the case of Old Capital Securities tendered by book-entry transfer, such Old
Capital Securities will be credited to an account maintained at DTC), without
expense to the tendering holder, promptly following the expiration or
termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital Securities
pursuant to any one of the procedures described in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus and in
the instructions attached hereto will, upon Transamerica's and the Trust's
acceptance for exchange of such tendered Old Capital Securities, constitute a
binding agreement among the undersigned, Transamerica and the Trust upon the
terms and subject to the conditions of the Exchange Offer. The undersigned
recognizes that, under certain circumstances set forth in the Prospectus,
Transamerica and the Trust may not be required to accept for exchange any of the
Old Capital Securities tendered hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the New
Capital Securities be issued in the name(s) of the undersigned or, in the case
of a book-entry transfer of Old Capital Securities, that such New Capital
Securities be credited to the account indicated above maintained at DTC. If
applicable, substitute Certificates representing Old Capital Securities not
exchanged or not accepted for exchange will be issued to the undersigned or, in
the case of a book-entry transfer of Old Capital Securities, will be credited to
the account indicated above maintained at DTC. Similarly, unless otherwise
indicated under "Special Delivery Instructions", please deliver New Capital
Securities to the undersigned at the address shown below the undersigned's
signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (A) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF TRANSAMERICA OR THE TRUST WITHIN THE
MEANING OF RULE 405 UNDER THE SECURITIES ACT, (B) ANY NEW CAPITAL SECURITIES TO
BE RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS
BUSINESS, (C) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY
PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF NEW CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER, AND (D) IF
THE UNDERSIGNED IS NOT A BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN, AND
DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH NEW CAPITAL SECURITIES. BY TENDERING OLD CAPITAL
SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING THIS LETTER OF
TRANSMITTAL, A HOLDER OF OLD CAPITAL SECURITIES WHICH IS A BROKER-DEALER
REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY
THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE
COMMISSION TO THIRD PARTIES, THAT (X) SUCH OLD CAPITAL
6
<PAGE> 8
SECURITIES HELD BY THE BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR (Y) SUCH OLD
CAPITAL SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A
RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL
DELIVER THE PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME) IN
CONNECTION WITH ANY RESALE OF SUCH NEW CAPITAL SECURITIES (PROVIDED THAT, BY SO
ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE
DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES
ACT).
THE UNDERSIGNED ACKNOWLEDGES THAT THIS EXCHANGE OFFER IS BEING MADE
BY TRANSAMERICA AND THE TRUST BASED UPON TRANSAMERICA'S AND TRUST'S
UNDERSTANDING OF AN INTERPRETATION BY THE STAFF OF THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") AS SET FORTH IN NO-ACTION LETTERS ISSUED TO THIRD
PARTIES, THAT THE NEW CAPITAL SECURITIES ISSUED IN EXCHANGE FOR OLD CAPITAL
SECURITIES BY HOLDERS THEREOF (OTHER THAN TO HOLDERS THAT ARE "AFFILIATES" OF
TRANSAMERICA OR THE TRUST WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES
ACT), MAY BE SO ISSUED WITHOUT COMPLIANCE WITH THE REGISTRATION AND PROSPECTUS
DELIVERY PROVISIONS OF THE SECURITIES ACT, PROVIDED THAT: (i) SUCH HOLDERS ARE
NOT AFFILIATES OF TRANSAMERICA OR THE TRUST WITHIN THE MEANING OF RULE 405 UNDER
THE SECURITIES ACT; (ii) SUCH NEW CAPITAL SECURITIES ARE ACQUIRED IN THE
ORDINARY COURSE OF SUCH HOLDERS' BUSINESS; AND (iii) SUCH HOLDERS ARE NOT
ENGAGED IN, AND DO NOT INTEND TO ENGAGE IN, A DISTRIBUTION OF SUCH NEW CAPITAL
SECURITIES AND HAVE NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO
PARTICIPATE IN THE DISTRIBUTION OF SUCH NEW CAPITAL SECURITIES. HOWEVER, THE
STAFF OF THE COMMISSION HAS NOT CONSIDERED THE EXCHANGE OFFER IN THE CONTEXT OF
A NO-ACTION LETTER AND THERE CAN BE NO ASSURANCE THAT THE STAFF OF THE
COMMISSION WOULD MAKE A SIMILAR DETERMINATION WITH RESPECT TO THE EXCHANGE OFFER
AS IN OTHER CIRCUMSTANCES. IF A HOLDER OF OLD CAPITAL SECURITIES IS AN AFFILIATE
OF TRANSAMERICA OR THE TRUST, OR IS ENGAGED IN OR INTENDS TO ENGAGE IN A
DISTRIBUTION OF THE NEW CAPITAL SECURITIES OR HAS ANY ARRANGEMENT OR
UNDERSTANDING WITH RESPECT TO THE DISTRIBUTION OF THE NEW CAPITAL SECURITIES TO
BE ACQUIRED PURSUANT TO THE EXCHANGE OFFER, SUCH HOLDER COULD NOT RELY ON THE
APPLICABLE INTERPRETATIONS OF THE STAFF OF THE COMMISSION AND MUST COMPLY WITH
THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT IN
CONNECTION WITH ANY SECONDARY RESALE TRANSACTION.
TRANSAMERICA AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING
BROKER-DEALER (AS DEFINED BELOW) IN CONNECTION WITH RESALES OF NEW CAPITAL
SECURITIES RECEIVED IN EXCHANGE FOR OLD
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<PAGE> 9
CAPITAL SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH
PARTICIPATING BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING
ACTIVITIES OR OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING 180 DAYS AFTER THE
EXPIRATION DATE OR, IF EARLIER, WHEN ALL SUCH NEW CAPITAL SECURITIES HAVE BEEN
DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. IN THAT REGARD, EACH
BROKER-DEALER WHO ACQUIRED OLD CAPITAL SECURITIES FOR ITS OWN ACCOUNT AS A
RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A "PARTICIPATING
BROKER-DEALER"), BY TENDERING SUCH OLD CAPITAL SECURITIES AND EXECUTING THIS
LETTER OF TRANSMITTAL, AGREES THAT, UPON RECEIPT OF NOTICE FROM TRANSAMERICA OR
THE TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH
MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS
UNTRUE IN ANY MATERIAL RESPECT OR WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A
MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED OR
INCORPORATED BY REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH
THEY WERE MADE, NOT MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS
SPECIFIED IN THE REGISTRATION RIGHTS AGREEMENT, SUCH PARTICIPATING BROKER-DEALER
WILL SUSPEND THE SALE OF NEW CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL
(A) TRANSAMERICA AND THE TRUST HAVE AMENDED OR SUPPLEMENTED THE PROSPECTUS TO
CORRECT SUCH MISSTATEMENT OR OMISSION AND HAVE FURNISHED COPIES OF THE AMENDED
OR SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR (B)
TRANSAMERICA OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF THE NEW CAPITAL
SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated Distributions on such Old
Capital Securities for any period from and after the last Distribution Payment
Date to which Distributions have been paid or duly provided or on such Old
Capital Securities prior to the original issue date of the New Capital
Securities or, if no such Distributions have been paid or duly provided for,
will not receive any accumulated Distributions on such Old Capital Securities,
and the undersigned waives the right to receive any Distributions on such Old
Capital Securities accumulated from and after such Distribution Payment Date or,
if no such Distributions have been paid or duly provided for, from and after
November 14, 1997.
All authority herein conferred or agreed to be conferred in this
Letter of Transmittal shall survive the death, dissolution, or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the undersigned.
Except as stated in the Prospectus, this tender is irrevocable.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD
CAPITAL SECURITIES" ABOVE AND BY SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE OLD CAPITAL SECURITIES AS SET FORTH IN SUCH BOX HOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND
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<PAGE> 10
6) (PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE ___) (NOTE: SIGNATURE(S) MUST BE
GUARANTEED IF REQUIRED BY INSTRUCTION 2):
Must be signed by registered holder(s) exactly as name(s) appear(s)
on Certificate(s) for the Old Capital Securities hereby tendered or on a
security position listing, or by any person(s) authorized to become the
registered holder(s) by endorsements and documents transmitted herewith
(including such opinions of counsel, certifications and other information as may
be required by the Trust or the Exchange Agent for the Old Capital Securities to
comply with the restrictions on transfer applicable to the Old Capital
Securities). If signature is by an attorney-in-fact, executor, administrator,
trustee, guardian, officer of a corporation or another acting in a fiduciary
capacity or representative capacity, please set forth the signer's full title.
See Instruction 5.
(SIGNATURE(S) OF HOLDER(S))
Date: , 1998
Name(s):
(PLEASE PRINT)
Capacity (full title):
Address:
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBERS(S))
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<PAGE> 11
GUARANTEE OF SIGNATURE(S) (SEE INSTRUCTIONS 2 AND 5):
(AUTHORIZED SIGNATURE)
Date: , 1998
Name of Firm:
Capacity (full title):
(PLEASE PRINT)
Address:
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
SPECIAL ISSUANCE INSTRUCTIONS: (SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if New Capital Securities or Old Capital Securities that
are not tendered are to be issued in the name of someone other than the
registered holder(s) of the Old Capital Securities whose name(s) appear(s)
above.
Issue
/ / Old Capital Securities not tendered to:
/ / New Capital Securities, to:
Address:
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBERS(S))
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<PAGE> 12
SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5 AND 6):
To be completed ONLY if New Capital Securities or Old Capital Securities that
are not tendered are to be sent to someone other than the registered holder(s)
of the Old Capital Securities whose name(s) appear(s) above, or such registered
holder(s) at an address other than that shown above.
Mail
/ / Old Capital Securities not tendered to:
/ / New Capital Securities, to:
Address:
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
(TAX IDENTIFICATION OR SOCIAL SECURITY NUMBERS(S))
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<PAGE> 13
INSTRUCTIONS
FORMING PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus.
Certificates, or timely book-entry confirmation of a book-entry transfer of such
Old Capital Securities into the Exchange Agent's account at DTC, as well as this
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
at its address set forth herein on or prior to the Expiration Date. The term
"book-entry confirmation" means a timely written confirmation from DTC of
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. Old Capital Securities may be tendered in whole or in part in the
aggregate liquidation amount of $100,000 (100 Capital Securities) and integral
multiples of $1,000 in excess thereof, provided that, if any Old Capital
Securities are tendered for exchange in part, the untendered aggregate
liquidation amount thereof must be $100,000 (100 Capital Securities) or any
integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose
Old Capital Securities are not immediately available or (ii) who cannot deliver
their Old Capital Securities, this Letter of Transmittal and all other required
documents to the Exchange Agent on or prior to the Expiration Date or (iii) who
cannot complete the procedures for delivery by book-entry transfer on a timely
basis, may tender their Old Capital Securities by properly completing and duly
executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offer--Procedures for Tendering Old
Capital Securities" in the Prospectus. Pursuant to such procedures: (a) such
tender must be made by or through an Eligible Institution (as defined below);
(b) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form made available by Transamerica, must be received by
the Exchange Agent on or prior to the Expiration Date; and (c) the Certificates
(or a book-entry confirmation (as defined in the Prospectus)) representing all
tendered Old Capital Securities, in proper form for transfer, together with a
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees and any other documents
required by this Letter of Transmittal, must be received by the Exchange Agent
within three New York Stock Exchange, Inc. trading days after the date of
execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice. For
Old Capital Securities to be properly tendered pursuant to the guaranteed
delivery procedure, the Exchange Agent must receive a Notice of Guaranteed
Delivery on or prior to the Expiration Date. As used herein and in the
Prospectus, "Eligible Institution" means a firm or other entity identified in
Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein) (i) a bank; (ii) a
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<PAGE> 14
broker, dealer, municipal securities broker or dealer or government securities
broker or dealer; (iii) a credit union; (iv) a national securities exchange,
registered securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer Association. THE
METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE
AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED,
PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Neither Transamerica nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof), waives any right to receive any
notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered holder
(which term, for purposes of this document, shall include any participant in DTC
whose name appears on a security position listing as the owner of the Old
Capital Securities) of Old Capital Securities tendered herewith, unless such
holder(s) has completed either the box entitled "Special Issuance Instructions"
or the box entitled "Special Delivery Instructions" above; or
(ii) such Old Capital Securities are tendered for the account of a firm
that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities" is inadequate, the Certificate number(s)
and/or the principal amount of Old Capital Securities and any other required
information should be listed on a separate signed schedule which is attached to
this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the aggregate liquidation amount of $100,000
(100 Capital Securities) and integral multiples of $1,000 in excess thereof,
provided that if any Old Capital Securities are tendered for exchange in part,
the untendered aggregate liquidation amount thereof must be $100,000 (100
Capital Securities) or any integral multiple of $1,000 in excess thereof. If
less than all the Old Capital Securities evidenced by any Certificate submitted
are to be tendered, fill in the principal amount of Old Capital Securities which
are to be tendered in the box entitled "Principal Amount of Old Capital
Securities Tendered (if less than all)." In such case, new Certificate(s) for
the remainder of the Old Capital Securities that were evidenced by your old
Certificate(s) will only be sent to the holder of the Old Capital Security,
promptly after the Expiration Date unless the appropriate boxes on this Letter
of Transmittal are completed. All
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<PAGE> 15
Old Capital Securities represented by Certificates delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Capital Securities
may be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written, telegraphic,
telex or facsimile transmission of such notice of withdrawal must be timely
received by the Exchange Agent at one of its addresses set forth above or in the
Prospectus on or prior to the Expiration Date. Any such notice of withdrawal
must specify the name of the person who tendered the Old Capital Securities to
be withdrawn, the aggregate liquidation amount of Old Capital Securities to be
withdrawn, and (if Certificates for Old Capital Securities have been tendered)
the name of the registered holder of the Old Capital Securities as set forth on
the Certificate for the Old Capital Securities, if different from that of the
person who tendered such Old Capital Securities. If Certificates for the Old
Capital Securities have been delivered or otherwise identified to the Exchange
Agent, then prior to the physical release of such Certificates for the Old
Capital Securities, the tendering holder must submit the serial numbers shown on
the particular Certificates for the Old Capital Securities to be withdrawn and
the signature on the notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Old Capital Securities tendered for the
account of an Eligible Institution. If Old Capital Securities have been tendered
pursuant to the procedures for book-entry transfer set forth in "The Exchange
Offer--Procedures for Tendering Old Capital Securities," the notice of
withdrawal must specify the name and number of the account at DTC to be credited
with the withdrawal of Old Capital Securities, in which case a notice of
withdrawal will be effective if delivered to the Exchange Agent by written or
facsimile transmission. Withdrawals of tenders of Old Capital Securities may not
be rescinded. Old Capital Securities properly withdrawn will not be deemed
validly tendered for purposes of the Exchange Offer, but may be retendered at
any subsequent time on or prior to the Expiration Date by following any of the
procedures described in the Prospectus under "The Exchange Offer--Procedures for
Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by Transamerica and
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. Transamerica and the Trust, any affiliates or assigns of
Transamerica and the Trust, the Exchange Agent or any other person shall not be
under any duty to give any notification of any irregularities in any notice of
withdrawal or incur any liability for failure to give any such notification. Any
Old Capital Securities which have been tendered but which are withdrawn on or
prior to the Expiration Date will be returned to the holder thereof without cost
to such holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the Old
Capital Securities tendered hereby, the signature(s) must correspond exactly
with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
If any of the Old Capital Securities tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
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<PAGE> 16
If any tendered Old Capital Securities are registered in different
name(s) on several Certificates, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal (or facsimiles thereof) as there
are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to Transamerica and the Trust, in their sole discretion,
of each such person's authority to so act.
When this Letter of Transmittal is signed by the registered owner(s) of
the Old Capital Securities listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) are required unless New Capital
Securities are to be issued in the name of a person other than the registered
holder(s). Signature(s) on such Certificate(s) or bond power(s) must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Old Capital Securities listed, the Certificates must
be endorsed or accompanied by appropriate bond powers, signed exactly as the
name or names of the registered owner(s) appear(s) on the Certificates, and also
must be accompanied by such opinions of counsel, certifications and other
information as Transamerica, the Trust or the Exchange Agent may require in
accordance with the restrictions on transfer applicable to the Old Capital
Securities. Signatures on such Certificates or bond powers must be guaranteed by
an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Capital
Securities are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if New Capital Securities are to be sent to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Certificates for Old Capital Securities not exchanged will
be returned by mail or, if tendered by book-entry transfer, by crediting the
account indicated above maintained at DTC unless the appropriate boxes on this
Letter of Transmittal are completed. See Instruction 4.
7. IRREGULARITIES. Transamerica and the Trust will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Capital Securities, which determination shall be final and binding
on all parties. Transamerica and the Trust reserve the absolute right to reject
any and all tenders determined by either of them not to be in proper form or the
acceptance of which, or exchange for, may, in the view of counsel to
Transamerica and the Trust, be unlawful. Transamerica and the Trust also reserve
the absolute right, subject to applicable law, to waive any of the conditions of
the Exchange Offer set forth in the Prospectus under "The Exchange
Offer--Conditions to the Exchange Offer" or any conditions or irregularity in
any tender of Old Capital Securities of any particular holder whether or not
similar conditions or irregularities are waived in the case of other holders.
Transamerica's and the Trust's interpretation of the terms and conditions of the
Exchange Offer (including this Letter of Transmittal and the instructions
hereto) will be final and binding. No tender of Old Capital Securities will be
deemed to have been validly made until all irregularities with respect to such
15
<PAGE> 17
tender have been cured or waived. Transamerica, the Trust, any affiliates or
assigns of Transamerica, the Trust, the Exchange Agent, or any other person
shall not be under any duty to give notification of any irregularities in
tenders or incur any liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Exchange Agent at its address
and telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal
income tax law, a holder whose tendered Old Capital Securities are accepted for
exchange is required to provide the Exchange Agent with such holder's correct
taxpayer identification number ("TIN") on the Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the holder or other payee to a $50 penalty. In
addition, payments to such holders or other payees with respect to Old Capital
Securities exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 2 is checked, the
holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-9.
If the holder furnishes the Exchange Agent with its TIN within 60 days after the
date of the Substitute Form W-9, the amounts retained during the 60 day period
will be remitted to the holder and no further amounts shall be retained or
withheld from payments made to the holder thereafter. If, however, the holder
has not provided the Exchange Agent with its TIN within such 60 day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Old Capital Securities or of the last transferee appearing on the transfers
attached to, or endorsed on, the Old Capital Securities. If the Old Capital
Securities are registered in more than one name or are not in the name of the
actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting
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<PAGE> 18
requirements. Such holders should nevertheless complete the attached Substitute
Form W-9 below, and write "exempt" on the face thereof, to avoid possible
erroneous backup withholding. A foreign person may qualify as an exempt
recipient by submitting a properly completed IRS Form W-8, signed under
penalties of perjury, attesting to that holder's exempt status. Please consult
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which holders are exempt from
backup withholding.
Backup withholding is not an additional U.S. Federal income tax.
Rather, the U.S. Federal income tax liability of a person subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
10. WAIVER OF CONDITIONS. Transamerica and the Trust reserve the
absolute right to waive satisfaction of any or all conditions enumerated in the
Prospectus.
11. NO CONDITIONAL TENDERS. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering holders of Old Capital
Securities, by execution and delivery of this Letter of Transmittal, shall waive
any right to receive notice of the acceptance of their Old Capital Securities
for exchange.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Old Capital Securities have been lost, destroyed or stolen, the
holder should promptly notify the Exchange Agent. The holder will then be
instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
13. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to be delivered
to, or are to be issued in the name of, any person other than the registered
holder of the Old Capital Securities tendered, or if a transfer tax is imposed
for any reason other than the exchange of Old Capital Securities in connection
with the Exchange Offer, then the amount of any such transfer tax (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO 5:00
P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
-------------------------
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TO BE COMPLETED BY ALL TENDERING SECURITYHOLDERS
(SEE INSTRUCTION 9)
PAYER'S NAME: THE FIRST NATIONAL BANK OF CHICAGO
SUBSTITUTE FORM W-9 DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
PAYER'S REQUEST FOR TAXPAYER IDENTIFICATION NUMBER (TIN)
AND CERTIFICATION
PART 1 - PLEASE PROVIDE YOUR TIN ON THE LINE AT RIGHT
AND CERTIFY BY SIGNING AND DATING BELOW
TIN:
Social Security Number or Employer
Identification Number
PART 2 - Awaiting TIN / /
CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
(1) the number shown on this form is my correct taxpayer identification
number (or I am waiting for a number to be issued to me);
(2) I am not subject to backup withholding either because (i) I am exempt
from backup withholding, (ii) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (iii) the
IRS has notified me that I am no longer subject to backup withholding,
and
(3) any other information provided on this form is true and correct.
Signature: _____________________________
Date: , 1998
You must cross out item (iii) in Part (b) above if you have been notified by the
IRS that you are subject to backup withholding because of underreporting
interest or dividends on your tax return and you have not been notified by the
IRS that you are no longer subject to backup withholding.
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<PAGE> 20
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY IN CERTAIN CIRCUMSTANCES
RESULT IN BACKUP WITHHOLDING OF 31% OF ANY AMOUNTS PAID TO YOU PURSUANT TO THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 2 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (i) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (ii)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all payments made to me on account of the New Capital Securities shall be
retained until I provide a taxpayer identification number to the Exchange Agent
and that, if I do not provide my taxpayer identification number within 60 days,
such retained amounts shall be remitted to the Internal Revenue Service as
backup withholding and 31% of all reportable payments made to me thereafter will
be withheld and remitted to the Internal Revenue Service until I provide a
taxpayer identification number.
Signature:
Date: , 1998
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<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY FOR TENDER OF ANY AND ALL OF THE OUTSTANDING
7 5/8% CAPITAL TRUST PASS-THROUGH SECURITIES (LIQUIDATION AMOUNT $1,000 PER
CAPITAL SECURITY) OF TRANSAMERICA CAPITAL III FULLY AND UNCONDITIONALLY
GUARANTEED BY TRANSAMERICA CORPORATION
This Notice of Guaranteed Delivery, or one substantially equivalent to
this form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Trust's (as defined below) 7 5/8% Capital Trust
Pass-through Securities (the "Old Capital Securities") are not immediately
available, (ii) Old Capital Securities, the Letter of Transmittal and all other
required documents cannot be delivered to The First National Bank of Chicago
(the "Exchange Agent") on or prior to the Expiration Date (as defined in the
Prospectus referred to below) or (iii) the procedures for delivery by book-entry
transfer cannot be completed on a timely basis. This Notice of Guaranteed
Delivery may be delivered by hand, overnight courier or mail, or transmitted by
facsimile transmission, to the Exchange Agent on or prior to the Expiration
Date. See "The Exchange Offer--Procedures for Tendering Old Capital Securities"
in the Prospectus. In addition, in order to utilize the guaranteed delivery
procedure to tender Old Capital Securities pursuant to the Exchange Offer, a
completed, signed and dated Letter of Transmittal relating to the Old Capital
Securities (or facsimile thereof) must also be received by the Exchange Agent
prior to 5:00 p.m., New York City time, on the Expiration Date.
Capitalized terms used but not defined herein have the meanings given
them in the Prospectus.
<PAGE> 2
The Exchange Agent for the Exchange Offer is:
THE FIRST NATIONAL BANK OF CHICAGO
<TABLE>
<CAPTION>
By: Mail Facsimile Transmissions: By Hand or Overnight Delivery
<S> <C> <C>
(Registered or Certified Mail (Eligible Institutions Only) The First National Bank of Chicago
Recommended) (212) 240-8938 c/o First Chicago Trust Company
The First National Bank of Chicago of New York
c/o First Chicago Trust Company of 14 Wall Street
New York 8th Floor, Window 2
14 Wall Street To Confirm by Telephone New York, New York 10005
8th Floor, Window 2 or for Information Call:
New York, New York 10005 (212) 240-8801
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA FACSIMILE
TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
Ladies and Gentlemen:
The undersigned hereby tenders to Transamerica Capital III, a
Delaware business trust (the "Trust"), upon the terms and subject to the
conditions set forth in the Prospectus dated _________, 1998 (as the same may be
amended or supplemented from time to time, the "Prospectus"), and the related
Letter of Transmittal (which together constitute the "Exchange Offer"), receipt
of which is hereby acknowledged, the aggregate liquidation amount of Old Capital
Securities set forth below pursuant to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer--Procedures for
Tendering Old Capital Securities."
Aggregate Liquidation Amount Tendered: $
Name(s) of Registered Holder(s):
Certificate No(s)(if available):
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<PAGE> 3
Total Liquidation Amount represented by Old Capital Securities Certificate(s):
$________________
If Old Capital Securities will be tendered by book-entry transfer, provide the
following information:
DTC Account Number: ____________________
Date: _____________, 1998
All authority herein conferred or agreed to be conferred in this Notice of
Guaranteed Delivery shall survive the death, incapacity or dissolution of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, legal representatives, successors and assigns of the undersigned.
PLEASE SIGN HERE:
_________________________ __________, 1998
_________________________ __________, 1998
(Signature(s) of Owner(s)
or Authorized Signatory)
Area Code and telephone number: _______________________
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<PAGE> 4
Must be signed by the holder(s) of the Old Capital Securities
exactly as their name(s) appear(s) on certificate(s) for the Old Capital
Securities or on a security position listing, or by person(s) authorized to
become registered holder(s) by endorsements and documents transmitted with this
Notice of Guaranteed Delivery. If signature is by an attorney-in-fact, executor,
administrator, trustee, guardian, officer of a corporation or other person
acting in a fiduciary or representative capacity, please set forth the signer's
full title. Please print name(s) and address(es):
Names:
Capacity:
Address:
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker or government securities dealer; (iii) a credit
union; (iv) a national securities exchange, registered securities association or
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the Old Capital
Securities tendered hereby in proper form for transfer, or confirmation of the
book-entry transfer of such Old Capital Securities to the Exchange Agent's
account at The Depository Trust Company ("DTC"), pursuant to the procedures for
book-entry transfer set forth in the Prospectus, in either case together with
one or more properly completed and duly executed Letter(s) of Transmittal (or
facsimile thereof) and any other required documents within three New York Stock
Exchange, Inc. trading days after the date of execution of this Notice of
Guaranteed Delivery.
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<PAGE> 5
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal (or facsimile thereof) and the Old Capital Securities tendered
hereby to the Exchange Agent within the time period set forth above and that
failure to do so could result in a financial loss to the undersigned.
Name of Firm:
Authorized
Signature:
Print name
and title:
Address:
(Zip code)
Area code and telephone number:
Date: _____________, 1998
NOTE: DO NOT SEND CERTIFICATES FOR OLD CAPITAL SECURITIES WITH THIS NOTICE OF
GUARANTEED DELIVERY. ACTUAL SURRENDER OF OLD CAPITAL SECURITIES MUST BE MADE
PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY EXECUTED
LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
5
<PAGE> 1
EXHIBIT 99.3
AGREEMENT
March __, 1998
The First National Bank of Chicago
Corporate Trust Administration
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Ladies and Gentlemen:
Transamerica Capital III, a statutory business trust created under the laws of
the State of Delaware (the "Trust") proposes to make an offer (the "Exchange
Offer") to exchange its 7-5/8% Capital Securities (Liquidation Amount $1,000 per
Capital Security) (the "Old Securities") for its 7-5/8% Capital Securities
(Liquidation Amount $1,000 per Capital Security) which have been registered
under the Securities Act of 1933 (the "New Securities"). All of the beneficial
interests represented by common securities of the Trust are owned by
Transamerica Corporation, a Delaware corporation (the "Corporation"). The terms
and conditions of the Exchange Offer as currently contemplated are set forth in
a prospectus dated March__, 1998 (the "Prospectus"), to be distributed to all
record holders of the Old Securities. The Old Securities and the New Securities
are collectively referred to herein as the "Securities."
The Trust hereby appoints The First National Bank of Chicago to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The First National Bank of Chicago.
The Exchange Offer is expected to be commenced by the Trust on or about March
__, 1998. The Letter of Transmittal accompanying the Prospectus (or in the case
of book-entry securities, the ATOP system) is to be used by the holders of the
Old Securities to accept the Exchange Offer and contains instruction with
respect to (i) the delivery of certificates for Old Securities tendered in
connection therewith and (ii) the book-entry transfer of Securities to the
Exchange Agent's account.
The Exchange Offer shall expire at 5:00 PM, New York City time on April __, 1998
or on such later date or time to which the Corporation and the Trust may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Corporation expressly reserves the right to
extend the Exchange Offer from time to time by giving oral (to be confirmed in
writing) or written notice to you before 9:00 AM, New York City time, on the
business day following the previously scheduled Expiration Date.
The Corporation expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Old Securities not theretofore
accepted for exchange, upon the occurrence of any of the conditions to the
Exchange Offer specified in the Prospectus under the caption "The Exchange Offer
- - Conditions to the Exchange Offer." The Corporation will give oral (confirmed
in writing) or written notice of any amendment or termination of the Exchange
<PAGE> 2
Offer or nonacceptance of Old Securities to you promptly after any amendment,
termination or nonacceptance.
In carrying out your duties as Exchange Agent, you are to act in accordance with
the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in
no way will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish an account with respect to the Old Securities at The
Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date
of the Prospectus, and any financial institution that is a participant
in the Book-Entry Transfer Facility's system may make book-entry
delivery of the Old Securities by causing the Book-Entry Transfer
Facility to transfer such Old Securities into your account in
accordance with the Book-Entry Transfer Facility's procedure for such
transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Securities (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Old Securities to
ascertain whether (i) the Letters of Transmittal and any such other
documents are duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Old Securities have
otherwise been property tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or
executed and any of the certificates for Old Securities are not in
proper form for transfer or some other irregularity in connection with
the acceptance of the Exchange Offer exists, you will endeavor to
inform the presenters of the need for fulfillment of all requirements
and to take any other action as may be necessary or advisable to cause
such irregularity to be corrected.
4. With the approval of any Administrator of the Trust or of any person
designated in writing by the Corporation (a "Designated Officer") (such
approval, if given orally, to be confirmed in writing) or any other
party designated by any such Administrator or Designated Officer in
writing, you are authorized to waive any irregularities in connection
with any tender of Old Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer - Procedures for Tendering Old Capital Securities," and
Old Securities shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Securities
which any Administrator of the Trust or Designated Officer of the
Corporation shall approve as
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<PAGE> 3
having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Corporation with respect to any Old Securities
received subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative
capacity only when proper evidence of such person's authority
so to act is submitted; and
(c) from persons other than the registered holder of Old
Securities provided that customary transfer requirements,
including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated
and as permitted in the Letter of Transmittal and deliver certificates
for Old Securities to the transfer agent for split-up and return any
untendered Old Securities to the holder (or such other person as may be
designated in the Letter of Transmittal) as promptly as practicable
after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Corporation will notify you (such notice if given orally, to
be confirmed in writing) of its acceptance promptly after the
Expiration Date, of all Old Securities properly tendered and you, on
behalf of the Corporation, will exchange such Old Securities for New
Securities and cause such Old Securities to be canceled. Delivery of
New Securities will be made on behalf of the Corporation by you at the
rate of $1,000 Liquidation Amount of New Securities for each $1,000
Liquidation Amount of the Old Securities tendered promptly after notice
(such notice if given orally, to be confirmed in writing) of acceptance
of said Old Securities by the Corporation; provided, however, that in
all cases, Old Securities tendered pursuant to the Exchange Offer will
be exchanged only after timely receipt by you of certification for such
Old Securities (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) with any
required signature guarantees and any other required documents. You
shall issue New Securities only in minimum blocks of at least 100
(representing a minimum of $100,000 aggregate Liquidation Amount). Old
Securities may be tendered for exchange in whole or in part in a
Liquidation Amount of not less than $100,000 or any integral multiples
of $1,000 in excess thereof; provided that, if any Old Securities are
tendered for exchange in part, the untendered Liquidation Amount
thereof must be $100,000 or any integral multiple of $1,000 in excess
thereof.
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<PAGE> 4
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Old Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time on or prior
to the Expiration Date.
10. The Corporation shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Corporation not to exchange any
Old Securities tendered shall be given orally (and confirmed in wiring)
by the Trust to you.
11. If, pursuant to the Exchange Offer, the Corporation does not accept for
exchange all or part of the Old Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer - Conditions to the
Exchange Offer" or otherwise, you shall promptly after the expiration
or termination of the Exchange Offer return those certificates for
unaccepted Old Securities (or effect appropriate book-entry transfer)
together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted Old Securities
or for New Securities shall be forwarded by (a) first-class certified
mail, return receipt requested, under a blanket surety bond protecting
you and the Corporation from loss or liability arising out of the
non-receipt or non-delivery of such certificates or (b) by registered
mail insured separately for the replacement value of each of such
certificate.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other
person or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth in the section of the Prospectus
captioned "The Exchange Offer," the Letter of Transmittal or
herein or as may be subsequently agreed to in writing by you
and the Corporation;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Old Securities
represented thereby deposited with you pursuant to the
Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the
Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with
reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice,
letter, telegram or other document or
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<PAGE> 5
security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or
parties;
(e) may reasonably act upon any tender, statement, request,
agreement or other instrument whatsoever not only as to its
due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
believe to be genuine or to have been signed or represented by
a proper person or persons;
(f) may rely on and shall be protected in acting upon written or
oral instructions from any Administrator of the Trust or from
any Designated Officer of the Corporation;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or
opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by you hereunder in good faith
and in accordance with the advice or opinion of such counsel;
and
(h) shall not advise any person tendering Old Securities pursuant
to the Exchange Offer as to the wisdom of making such tender
or as to the market value or decline or appreciation in market
value of any Old Securities.
15. You shall take such action as may from time to time be requested by the
Trust or its counsel or any Designated Officer of the Corporation (and
such other action as you reasonably deem appropriate) to furnish copies
of the Prospectus, Letter of Transmittal and the Notice of Guaranteed
Delivery (as defined in the Prospectus) or such other forms as may be
approved from time to time by the Corporation or the Trust to all
persons requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Corporation
will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be
directed to the Corporation, Attention: Austin Kim.
16. You shall advise by facsimile transmission or by telephone, and
promptly thereafter confirm in writing to Robert R. McDuff,
Administrator of the Trust, and such other person or persons as the
Corporation or the Trust may request, daily (and more frequently during
the week immediately preceding the Expiration Date and if otherwise
requested) up to and including the Expiration Date, as to the number of
Old Securities which have been tendered pursuant to the Exchange Offer
and the items received by you pursuant to this Agreement, separately
reporting and giving cumulative totals as to items properly received
and items improperly received. In addition, you will also inform, and
cooperate in making available to, the Corporation or the Trust or any
such other person or persons upon oral request made from time to time
on or prior to the Expiration Date of such other information as it or
such person reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Corporation or the Trust
and such person as the Corporation or the Trust may request of access
to those persons on your staff who are
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<PAGE> 6
responsible for receiving tenders, in order to ensure that immediately
prior to the Expiration Date the Corporation or the Trust shall have
received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of
all persons whose tenders were accepted, the aggregate Liquidation
Amount of Old Securities tendered, and the aggregate Liquidation Amount
of Old Securities accepted and deliver said list to the Trust promptly
after the Expiration Date.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall
be preserved by you for a period of time at least equal to the period
of time you preserve other records pertaining to the transfer of
securities. You shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Corporation at the
address set forth below for notices.
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reason of amounts, if any,
borrowed by the Corporation, or any of its subsidiaries or affiliates
pursuant to any loan or credit agreement with you or for compensation
owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached
hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letter of Transmittal (as they may be amended
from time to time), on the other hand, shall be resolved in favor of
the latter two documents, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent, which shall
be controlled by this Agreement.
21. (a) The Corporation covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including reasonable attorneys' fees and
expenses, arising out of or in connection with any act, omission, delay
or refusal made by you in reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid, genuine
and sufficient and in accepting any tender or effecting any transfer of
Old Securities reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Old Securities; provided, however,
that the Corporation shall not be liable for indemnification or
otherwise for any loss, liability, cost or expense to the extent
arising out of your gross negligence or willful misconduct. In no case
shall the Corporation be liable under this indemnity with respect to
any claim against you unless the Corporation shall be notified by you,
by mail or cable or by facsimile confirmed by mail, of the written
assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written
assertion or notice of commencement of action. The Corporation shall be
entitled to participate at its own expense in the defense of any such
claim or other action, and, if the Corporation so elects, the
Corporation may assume the defense of any suit brought to
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<PAGE> 7
enforce any such claim. In the event that the Corporation shall assume
the defense of any such suit or threatened action in respect of which
indemnification may be sought hereunder, the Corporation shall not be
liable for the fees and expenses of any additional counsel thereafter
retained by you so long as you consent to the Corporation's choice of
counsel, which consent may not be unreasonably withheld; provided that
the Corporation shall not be entitled to assume the defense of any such
action if the named parties to such action include both the Corporation
and you and representation of both parties by the same legal counsel
would, in the written opinion of counsel to you, be inappropriate due
to actual or potential conflicting interests between them. It is
understood that the Corporation shall not be liable under this
paragraph for the fees and expenses of more than one legal counsel for
you. In the event that the Corporation shall assume the defense of any
such suit, the Corporation shall not thereafter be liable for the fees
and expenses of any counsel retained by you.
(b) You agree that, without prior written consent of the Corporation
(which consent shall not be unreasonably withheld), you will not
settle, compromise or consent to the entry of any pending or threatened
claim, action, or proceeding in respect of which indemnification could
be sought in accordance with the indemnification provisions of this
Agreement (whether or not you or the Corporation or any of its trustees
or controlling persons is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or consent
includes an unconditional release of the Corporation and its trustees
and controlling persons from all liability arising out of such claim,
action or proceeding.
22. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Taxpayer
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. The Trust understands that you are required
in certain instances to deduct 31% of distributions made with respect
to the New Securities and proceeds from the sale, exchange, redemption
or retirement of the New Securities from holders who have not supplied
their correct Taxpayer Identification Number or required certification.
Such funds will be turned over to the Internal Revenue Service in
accordance with applicable regulations.
23. You shall notify the Corporation of the amount of any transfer taxes
payable in respect of the exchange of Old Securities and, upon receipt
of written approval from the Corporation, you shall deliver or cause to
be delivered, in a timely manner to each governmental authority to
which any transfer taxes are payable in respect of the exchange of Old
Securities, your check in the amount of all transfer taxes so payable,
and the Corporation shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Securities;
provided, however, that you shall reimburse the Corporation for amounts
refunded to you in respect of your payment of any such transfer taxes,
at such time as such refund is received by you.
24. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
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<PAGE> 8
25. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the
party to be charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party,
addressed to it, at its address or telecopy number set forth below:
If to the Corporation:
Transamerica Corporation
600 Montgomery Street
San Francisco, CA 94111
Facsimile: 415/983-5411
Attention: Austin Kim
If to the Exchange Agent:
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Facsimile: 312/407-1708
Attention: Corporate Trust Department
28. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 17, 19, 21, and 23 shall survive the termination
of this Agreement. Upon any termination of this Agreement, you shall
promptly deliver to the Trust any certificates for Securities, funds or
property then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date hereof.
30. This Agreement shall be governed by and construed in accordance with
the laws of the State of California (without regard to its conflict of
laws principles).
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<PAGE> 9
Please acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
Transamerica Corporation III
By: _________________________________
Name: Robert R. McDuff
Title: Administrator
Accepted as the date first above written:
THE FIRST NATIONAL BANK OF CHICAGO, as Exchange Agent
By: _________________________________
Name: James R. Prendiville
Title: Vice President
9
