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EXHIBIT 99.3
AGREEMENT
March __, 1998
The First National Bank of Chicago
Corporate Trust Administration
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
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
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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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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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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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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: Xxxxxx Xxx.
16. You shall advise by facsimile transmission or by telephone, and
promptly thereafter confirm in writing to Xxxxxx X. XxXxxx,
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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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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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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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
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: 415/983-5411
Attention: Xxxxxx Xxx
If to the Exchange Agent:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
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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Please acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
Transamerica Corporation III
By: _________________________________
Name: Xxxxxx X. XxXxxx
Title: Administrator
Accepted as the date first above written:
THE FIRST NATIONAL BANK OF CHICAGO, as Exchange Agent
By: _________________________________
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
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