-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HSu3ktjJMVkMK5l4GORpFLiJjPwjpfKCc/cglEkO0JMaOEpjR5918gEChmLCwVCW WTDUnf3PTVpWsyepVJvfLg== 0000929624-98-001348.txt : 19980812 0000929624-98-001348.hdr.sgml : 19980812 ACCESSION NUMBER: 0000929624-98-001348 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980810 EFFECTIVENESS DATE: 19980810 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRANSAMERICA CORP CENTRAL INDEX KEY: 0000099189 STANDARD INDUSTRIAL CLASSIFICATION: LIFE INSURANCE [6311] IRS NUMBER: 940932740 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-61055 FILM NUMBER: 98680192 BUSINESS ADDRESS: STREET 1: 600 MONTGOMERY ST CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4159834000 MAIL ADDRESS: STREET 1: 600 MONTGOMERY STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94111 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on August 10, 1998 Registration No. 333-_________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 TRANSAMERICA CORPORATION (Exact name of issuer as specified in its charter) DELAWARE 94-0932740 (State or jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) 600 MONTGOMERY STREET, SAN FRANCISCO, CALIFORNIA 94111 (Address of Principal Executive Offices) TRANSAMERICA CORPORATION 1995 PERFORMANCE STOCK OPTION PLAN (Full Title of the Plan) Shirley H. Buccieri, Esq. Senior Vice President, General Counsel and Secretary Transamerica Corporation 600 Montgomery Street, San Francisco, California 94111 (Name and address of agent for service) Telephone number, including area code of agent for service: (415) 983-4000 Copies to: John E. Aguirre, Esq. Orrick, Herrington & Sutcliffe LLP Old Federal Reserve Bank Building 400 Sansome Street San Francisco, California 94111
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of to be Registered Registered Offering Price Per Aggregate Offering Registration Fee (1) Share (1) Price (1) Common Stock 2,000,000 shares $114.375 $228,750,000 $67,482
(1) Estimated solely for the purpose of calculating the registration fee on the basis of $114.375 per share, the average of the high and low prices of the Common Stock as reported by the New York Stock Exchange on August 5, 1998. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents are incorporated by reference in this Registration Statement: (i) Transamerica Corporation's (the "Corporation") latest annual report filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933 (the "Securities Act") that contains audited financial statements for the Corporation's latest fiscal year for which such statements have been filed; (ii) all other reports filed by the Corporation pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Corporation's latest annual report; and (iii) the description of the Corporation's common stock contained in the Corporation's Registration Statement on Form 8-A, as it may have been amended from time to time. All documents filed by the Corporation after the date of this registration statement pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Inapplicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Inapplicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS As authorized by Section 145 of the Delaware Corporation Law, the Corporation's Certificate of Incorporation eliminates the personal liability of its directors to the Corporation 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 the Corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional1 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, the Corporation's By-Laws provide for indemnification of directors, officers, employees and agents 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 the Corporation or a director, officer, employee or agent of another enterprise, serving as such at the request of the Corporation; 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 the Corporation or, with respect to any criminal proceeding, had reasonable cause to believe that his or her conduct was unlawful; and 2 provided, further, that, except as to actions to enforce indemnification rights, the Corporation shall indemnify any such person seeking indemnification in connection with any action, suit or proceeding (or part thereof) initiated against any such person only if the action, suit or proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. When indemnification is required, the director or officer shall be indemnified for losses, liabilities and expenses (including attorneys' 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 the Corporation, 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 interest of the Corporation. There can be no indemnification with respect to any matter as to which such person is adjudged to be liable to the Corporation; however, a court may, even in such case, allow indemnification to such person for such expenses as the court deems proper. The Corporation'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 the Corporation 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, the Corporation has entered into Indemnification Agreements (the "Indemnification Agreements") with each of its directors. The Indemnification Agreements provide directors with generally the same indemnification by the Corporation 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 the Corporation, approval by the Board of Directors of the Corporation of a claim initiated by a director is not required as a condition to such person's indemnification rights; and (2) no indemnification shall be provided to a director 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 the Corporation, that such person committed an act for which personal liability has not been eliminated under the Corporation's Certificate of Incorporation. The Indemnification Agreements also provide for (i) arbitration of indemnification claims after a change in control of the Corporation, (ii) if a potential change in control or a change in control occurs, the 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 the Corporation based on the relative benefits to the Corporation and the indemnitee and the relative fault of the Corporation and the indemnitee. There is directors and officers liability insurance currently in force which insures directors and officers of the Corporation. The policy covers losses for which the Corporation 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 3 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 the Corporation. 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. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. ITEM 8. EXHIBITS 4.1 Transamerica Corporation 1995 Performance Stock Option Plan, as amended (including Amendment Nos. 1 and 2) (incorporated by reference to Exhibit B of the Registrant's Proxy Statement for the Annual Meeting of Stockholders held on April 23, 1998). 4.2 Form of Nonqualified Stock Option Agreement under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit EX-10.2 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended June 30, 1995). 4.3 Form of Nonqualified Stock Option Agreement granted with Tandem Limited Stock Appreciation Right under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit EX-10.3 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended June 30, 1995). 4.4 Form of Tandem Limited Stock Appreciation Right under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit 10.27 of the Registrant's Annual Report on Form 10-K (File No. 1-2964) for the year ended December 31, 1997). 4.5 Form of $125 Nonqualified Stock Option Agreement under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit 10.1 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended March 31, 1998). 4.6 Form of $150 Nonqualified Stock Option Agreement granted with Tandem Limited Stock Appreciation Right under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit 10.2 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended March 31, 1998). 4.7 Form of Tandem Limited Stock Appreciation Right (Tandem to $150 Options) under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit 10.3 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended March 31, 1998). 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP. 23.1 Consent of Ernst & Young LLP. 4 23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in Exhibit 5.1 to this Registration Statement. 24.1 Powers of Attorney of Directors. ITEM 9. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by these paragraphs is contained in periodic reports filed by the Registrant 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; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act each filing of the Registrant's annual report pursuant to section 13(a) or section l5(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed 5 in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successfu1 defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant 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 Act and will be governed by the final adjudication of such issue. 6 Signatures THE REGISTRANT Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California on the 6th day of August, 1998. TRANSAMERICA CORPORATION (Registrant) /s/ Burton E. Broome - -------------------------------- Burton E. Broome Vice President and Controller 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. Signature Title Date Principal Executive Officer: President and Chief August 6, 1998 Executive Officer /s/ Frank C. Herringer - -------------------------------- Frank C. Herringer Principal Financial Officer: Executive Vice President August 6, 1998 and Chief Financial Officer /s/ Edgar H. Grubb - -------------------------------- Edgar H. Grubb Principal Accounting Officer: Vice President and August 6, 1998 Controller /s/ Burton E. Broome - -------------------------------- Burton E. Broome 7 Directors: * - ------------------------ Samuel L. Ginn Director August 6, 1998 * - ------------------------ Frank C. Herringer Director August 6, 1998 * - ------------------------ Robert W. Matschullat Director August 6, 1998 * - ------------------------ Gordon E. Moore Director August 6, 1998 * - ------------------------ Toni Rembe Director August 6, 1998 * - ------------------------ Condoleezza Rice Director August 6, 1998 * - ------------------------ Charles R. Schwab Director August 6, 1998 * - ------------------------ Forrest N. Shumway Director August 6, 1998 * - ------------------------ Peter V. Ueberroth Director August 6, 1998 *By: /s/ Burton E. Broome ----------------------- Burton E. Broome Attorney-in-Fact A majority of the members of the Board of Directors. 8 EXHIBIT INDEX 4.1 Transamerica Corporation 1995 Performance Stock Option Plan, as amended (including Amendment Nos. 1 and 2) (incorporated by reference to Exhibit B of the Registrant's Proxy Statement for the Annual Meeting of Stockholders held on April 23, 1998). 4.2 Form of Nonqualified Stock Option Agreement under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit EX-10.2 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended June 30, 1995). 4.3 Form of Nonqualified Stock Option Agreement granted with Tandem Limited Stock Appreciation Right under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit EX-10.3 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended June 30, 1995). 4.4 Form of Tandem Limited Stock Appreciation Right under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit 10.27 of the Registrant's Annual Report on Form 10-K (File No. 1-2964) for the year ended December 31, 1997). 4.5 Form of $125 Nonqualified Stock Option Agreement under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit 10.1 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended March 31, 1998). 4.6 Form of $150 Nonqualified Stock Option Agreement granted with Tandem Limited Stock Appreciation Right under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to Exhibit 10.2 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended March 31, 1998). 4.7 Form of Tandem Limited Stock Appreciation Right (Tandem to $150 Options) under the Registrant's 1995 Performance Stock Option Plan (incorporated by reference to the Registrant's (incorporated by reference to Exhibit 10.3 of the Registrant's Quarterly Report on Form 10-Q (File No. 1-2964) for the quarter ended March 31, 1998). 5.1 Opinion of Orrick, Herrington & Sutcliffe LLP. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in Exhibit 5.1 to this Registration Statement. 24.1 Powers of Attorney of Directors. 9 EX-5.1 2 ORRICK, HERRINGTON & SUTCLIFFE OPINION Exhibit 5.1 July 18, 1998 Transamerica Corporation 600 Montgomery Street San Francisco, CA 94111 Re: Registration Statement on Form S-8 Ladies and Gentlemen: At your request, we are rendering this opinion in connection with the proposed issuance pursuant to the Transamerica Corporation 1995 Performance Stock Option Plan (the "Plan"), of 2,000,000 additional shares of common stock, $1.00 par value ("Common Stock"), of Transamerica Corporation, a Delaware corporation (the "Company"). We have examined instruments, documents, and records which we deemed relevant and necessary for the basis of 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. Based on such examination, we are of the opinion that the 2,000,000 additional shares of Common Stock to be issued by the Company pursuant to the Plan are validly authorized shares of Common Stock, and, when issued in accordance with the provisions of the Plan, will be legally issued, fully paid, and nonassessable. We hereby consent to the filing of this opinion as an exhibit to this Registration Statement on Form S-8 and to the use of our name wherever it appears in said Registration Statement. In giving such consent, we do not consider that we are "experts" within the meaning of such term as used in 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 EX-23.1 3 CONSENT OF ERNST & YOUNG LLP Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration pertaining to the Transamerica Corporation 1995 Performance Stock Option Plan of our report dated January 23, 1998, with respect to the consolidated financial statements and schedules of Transamerica Corporation included and incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP San Francisco, California August 3, 1998 EX-24.1 4 POWER OF ATTORNEY EXHIBIT 24.1 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: The undersigned hereby constitutes and appoints BURTON E. BROOME, SHIRLEY H. BUCCIERI and ROBERT D. MYERS, and each of them with power to act alone, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign (either manually or electronically through the EDGAR System of the United States Securities and Exchange Commission) a Registration Statement or Registration Statements on Form S-8 related to 2,000,000 shares of common stock of Transamerica Corporation issuable under the Transamerica Corporation 1995 Performance Stock Option Plan, and any and all amendments of such Registration Statements, including post-effective amendments, and to file the same, together with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each such attorney-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises hereof, as fully as to all intents and purposes as he or she might do or could do in person, hereby ratifying and confirming all that each such attorney-in- fact or his or her substitutes may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned directors have executed this Power of Attorney effective as of the 23rd day of April, 1998. /s/ Samuel L. Ginn /s/ Condoleezza Rice - ---------------------------------- ---------------------------------- Samuel L. Ginn Condoleezza Rice /s/ Frank C. Herringer /s/ Charles R. Schwab - ---------------------------------- ---------------------------------- Frank C. Herringer Charles R. Schwab /s/ Robert W. Matschullat /s/ Forrest N. Shumway - ---------------------------------- ---------------------------------- Robert W. Matschullat Forrest N. Shumway /s/ Gordon E. Moore /s/ Peter V. Ueberroth - ---------------------------------- ---------------------------------- Gordon E. Moore Peter V. Ueberroth /s/ Toni Rembe - ---------------------------------- Toni Rembe -----END PRIVACY-ENHANCED MESSAGE-----