SECURITIES AND EXCHANGE COMMISSION
FORM F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AEGON N.V. AEGON FUNDING CORP. AEGON FUNDING CORP. II
(Exact name of Registrant as (Exact name of Registrant as (Exact name of Registrant as
specified in its charter) specified in its charter) specified in its charter)
Not Applicable Delaware Delaware
(Translation of Registrant's name (State or other jurisdiction of (State or other jurisdiction of
into English) incorporation or organization) incorporation or organization)
The Netherlands 42-1489646 42-1510367
(State or other jurisdiction of (I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
incorporation or organization) Corporation Trust Center Corporation Trust Center
Not Applicable 1209 Orange Street 1209 Orange Street
(I.R.S. Employer Identification No.) Wilmington, DE 19801 Wilmington, DE 19801
Mariahoeveplein 50 (Address and telephone number of (Address and telephone number of
2591 TV The Hague Registrant's principal executive Registrant's principal executive
The Netherlands offices) offices)
011-31-70-344-3210
(Address and telephone number of
Registrant's principal executive
offices)
|
Craig D. Vermie, Esq.
AEGON USA, INC.
4333 Edgewood Road NE
Cedar Rapids, IA 52499
(319) 398-8814
(Name, address and telephone number of agent for service)
Copy of communications to:
A. Peter Harwich, Esq.
Allen & Overy
10 East 50th Street
New York, New York, 10022
(212) 610-6471
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.[_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same
offering.[_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.[_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box:[_]
Calculation of Registration Fee
====================================================================================================================================
Proposed maximum Proposed maximum Amount of
Amount to be offering price per unit aggregate offering registration
Title of each class of securities to be registered registered (1)(2) (1)(2) price (1)(2) fee (2)
---------------------------------------------------- ----------------- ----------------------- ------------------ --------------
Common shares, euro 0.12 par value (4)..............
Debt securities.....................................
Guarantees with respect to debt securities (5)......
------------------------------------------------------------------------------------------------------------------------------------
Total............................................. $4,000,000,000 N/A $4,000,000,000 $1,000,000(3)
------------------------------------------------------------------------------------------------------------------------------------
|
(1) There are being registered under this registration statement such
indeterminate number of common shares of AEGON N.V. and such indeterminate
principal amount of debt securities of AEGON N.V., AEGON Funding Corp. and
AEGON Funding Corp. II as shall have an aggregate offering price not to
exceed $4,000,000,000. If any debt securities are issued at original issue
discount, such greater principal amount as shall result in net proceeds of
$4,000,000,000 or the equivalent in foreign currency is being registered
under this registration statement. Any securities registered under this
registration statement may be sold separately or as units with other
securities registered under this registration statement. The proposed
maximum offering price per unit will be determined, from time to time, by
the registrant in connection with the issuance of the securities under this
registration statement.
(2) Pursuant to General Instruction II.C of Form F-3, not specified with
respect to each class of securities to be registered.
(3) Calculated in accordance with Rule 457(o) under the Securities Act of 1933.
(4) Including such indeterminate number of common shares of AEGON N.V. as may
be issued from time to time upon conversion or exchange of debt securities
that are convertible or exchangeable into common shares, to the extent any
of such debt securities are, by their terms, convertible or exchangeable
for common shares. No separate consideration will be received for common
shares issuable upon conversion of or in exchange for any securities
registered hereunder that provide for conversion or exchange into such
securities.
(5) Debt securities issued by AEGON Funding Corp. or AEGON Funding Corp. II
will be fully and unconditionally guaranteed by AEGON N.V. No separate
consideration will be received from investors for such guarantees.
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 this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY + +NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN + +OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THE + +SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. + |
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION DATED OCTOBER 11, 2001
PROSPECTUS
AEGON N.V.
(a Netherlands public company with limited liability)
and
AEGON Funding Corp.
(a Delaware corporation)
and
AEGON Funding Corp. II
(a Delaware corporation)
U.S. $4,000,000,000
AEGON N.V. may offer its common shares and senior or subordinated debt securities, including debt securities convertible or exchangeable into its common shares, for sale through this prospectus.
AEGON Funding Corp. and AEGON Funding Corp. II may offer senior or subordinated debt securities guaranteed by AEGON N.V. for sale through this prospectus.
We may offer these securities from time to time in one or more offerings with a total initial offering price of up to U.S. $4,000,000,000. We may also offer any combination of these securities.
We will provide the specific terms of the securities that we are offering in supplements to this prospectus. You should read this prospectus and any prospectus supplement carefully before you invest.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined that this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is _______, 2001.
CONTENTS
Page
FORWARD-LOOKING STATEMENTS................................................ 3
ABOUT THIS PROSPECTUS..................................................... 3
AEGON N.V................................................................. 4
AEGON FUNDING CORP........................................................ 4
AEGON FUNDING CORP. II.................................................... 4
WHERE YOU CAN FIND MORE INFORMATION ABOUT US.............................. 4
FINANCIAL AND EXCHANGE RATE INFORMATION................................... 5
ENFORCEMENT OF CIVIL LIABILITIES AGAINST FOREIGN PERSONS.................. 6
USE OF PROCEEDS........................................................... 6
RATIOS OF EARNINGS TO FIXED CHARGES....................................... 6
DESCRIPTION OF SHARE CAPITAL OF AEGON N.V................................. 7
DESCRIPTION OF DEBT SECURITIES............................................ 10
TAXATION.................................................................. 18
PLAN OF DISTRIBUTION...................................................... 33
VALIDITY OF SECURITIES.................................................... 35
EXPERTS................................................................... 35
|
FORWARD-LOOKING STATEMENTS
This prospectus contains and incorporates by reference forward-looking statements that are based on current expectations, estimates, forecasts and projections about the industries in which we operate, management's beliefs and assumptions made by management. Such statements include, in particular, statements about our plans, strategies and prospects. Words such as "expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates," variations of such words and similar expressions are intended to identify such forward- looking statements. These statements are not guarantees of future performance and involve risks, uncertainties and assumptions that are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in these forward-looking statements. Except as required under the Federal securities laws and the rules and regulations of the Securities and Exchange Commission, we do not have any intention or obligation to update publicly any forward-looking statements after they are made, whether as a result of new information, future events or otherwise.
Some of the important factors that could cause actual outcomes and results to differ materially from forward-looking statements we make may include factors described under "Risk Factors" in any related prospectus supplement, factors described in our other filings with the SEC and the following factors:
. changes in general economic conditions, particularly in the U.S., The Netherlands and the United Kingdom;
. changes in performance of financial markets, including emerging markets;
. the frequency and severity of insured loss events;
. changes affecting mortality and morbidity levels and trends;
. changes affecting interest rate levels;
. changes affecting currency exchange rates, including the euro/U.S. dollar and euro/pound sterling exchange rates;
. increasing levels of competition in the U.S., The Netherlands, the United Kingdom and emerging markets;
. changes in laws and regulations;
. regulatory changes relating to insurance industries;
. acts of God, acts of terrorism and acts of war;
. changes in policies of central banks and/or foreign governments; and
. general competitive factors, in each case on a global, regional and/or national basis.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission utilizing the "shelf" registration process. Under the shelf registration process, we may sell the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of the securities. The prospectus supplement may also add to or update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading "Where You Can Find More Information."
AEGON N.V.
AEGON N.V. (AEGON), through its member companies we collectively refer to as the AEGON Group, is a leading international insurance group with its headquarters in The Hague, The Netherlands. Its shares are quoted on the stock exchanges of Amsterdam, Frankfurt, New York, London, Zurich and Tokyo. Ranked by market capitalization, total assets and profits, the AEGON Group is one of the world's ten largest listed insurance groups. The AEGON Group has major operations in the U.S., The Netherlands, the United Kingdom, Canada and Mexico. The AEGON Group is also present in Hungary, Spain, Belgium, Germany, Hong Kong, Italy, Luxembourg, the Philippines and Taiwan, and has representative offices in China and India. With roots dating back 150 years, the AEGON Group has extensive experience in the insurance industry. Crucial differences exist in local markets and for this reason the AEGON Group emphasizes a decentralized organization structure. Our operating companies, with knowledgeable and experienced local management and employees, market their own, unique products using tailored distribution channels.
Close to 90% of the AEGON Group's core business is life insurance and
pension, related savings and investment products. The AEGON Group is also
active in accident and health insurance, property and casualty insurance and
limited banking activities. Consistent with a policy of spreading risks to
achieve reliable performance, the AEGON Group seeks to maintain a good balance
of business within the AEGON Group, both geographically and among product
groups. AEGON's headquarters are located at Mariahoeveplein 50, P.O. Box 202,
2501 CE The Hague, The Netherlands (telephone 011-31-70-344-3210; internet:
www.aegon.com).
AEGON FUNDING CORP.
AEGON Funding Corp. (AFC) was incorporated on May 21, 1999 under the laws of the State of Delaware. AFC is an indirect wholly owned subsidiary of AEGON and has no subsidiaries of its own.
AFC was established as a financing vehicle to be used to raise funds for the U.S. subsidiaries of AEGON. AFC's registered office is at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, 19801, and the telephone number of this office is 1-302-658-7581.
AEGON FUNDING CORP. II
AEGON Funding Corp. II (AFC II) was incorporated on September 19, 2000 under the laws of the State of Delaware. AFC II is an indirect wholly owned subsidiary of AEGON and has no subsidiaries of its own.
AFC II was established as a financing vehicle to be used to raise funds for the U.S. subsidiaries of AEGON. AFC II's registered office is at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, 19801, and the telephone number of this office is 1-302-658-7581.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
AEGON files annual reports with and furnishes other information to the Securities and Exchange Commission. You may read and copy any document filed with or furnished to the SEC by AEGON at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. AEGON's SEC filings are also available to the public through the SEC's web site at www.sec.gov. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room in Washington D.C. and in other locations.
As allowed by the SEC, this prospectus does not contain all the information you can find in our registration statement or the exhibits to the registration statement. The SEC allows AEGON to "incorporate by reference" information into this prospectus, which means that:
. incorporated documents are considered part of this prospectus;
. AEGON can disclose important information to you by referring you to those documents;
. information that AEGON files with the SEC after the date of this prospectus that is incorporated by reference in this prospectus automatically updates and supersedes this prospectus; and
. information that is more recent than is included in this prospectus automatically updates and supersedes information in documents incorporated by reference with a date earlier than this prospectus.
. This prospectus incorporates by reference the documents of AEGON listed below:
. Annual Report on Form 20-F for the fiscal year ended December 31, 2000;
. Report on Form 6-K dated April 6, 2001;
. Report on Form 6-K dated May 3, 2001;
. Report on Form 6-K dated May 4, 2001;
. Report on Form 6-K dated May 21, 2001;
. Report on Form 6-K dated May 30, 2001;
. Report on Form 6-K dated May 31, 2001;
. Report on Form 6-K dated June 19, 2001;
. Report on Form 6-K dated July 3, 2001;
. Report on Form 6 K dated August 10, 2001;
. Report on Form 6-K dated September 25, 2001;
. Report on Form 6-K dated October 4, 2001;
. Report on Form 6-K/A dated October 11, 2001; and
. each of the following documents that AEGON files with or furnishes to the SEC after the date of this prospectus from now until we terminate the offering of securities under this registration statement:
-reports filed under Section 13(a), 13(c) or 15(d) of the Exchange Act, and
-reports filed on Form 6-K that indicate that they are incorporated by reference in this prospectus.
These documents contain important information about the AEGON Group and our financial condition. You may obtain copies of these documents in the manner described above. You may also request a copy of these filings (excluding exhibits) at no cost by contacting us as follows:
Investor Relations Investor Relations AEGON N.V. AEGON USA, Inc. P.O. Box 202 1111 North Charles Street 2501 CE The Hague Baltimore, MD 21201 The Netherlands USA Tel: 011-31-70-344-8305 Tel: 1-410-576-4577 Fax: 011-31-70-383-2773 Fax: 1-410-347-8685 E-mail: groupir@aegon.nl E-mail: ir@aegonusa.com |
No person is authorized to give any information or represent anything not contained in this prospectus and the accompanying prospectus supplement. We are only offering the securities in places where sales of those securities are permitted. The information contained in this prospectus and any accompanying prospectus supplement, as well as information incorporated by reference, is current only as of the date of that information. The AEGON Group's business, financial condition, results of operations and prospects may have changed since that date.
AFC and AFC II do not, and will not, file separate reports with the SEC.
FINANCIAL AND EXCHANGE RATE INFORMATION
Except as otherwise noted, we present the financial statement amounts in this prospectus and in the documents incorporated by reference in this prospectus in accordance with generally accepted accounting principles
in The Netherlands (Dutch GAAP), which differ in significant respects from generally accepted accounting principles in the U.S. (U.S. GAAP). For a discussion of the principal differences between Dutch GAAP and U.S. GAAP relevant to AEGON, see Note 5 to AEGON's audited consolidated financial statements included in AEGON's Annual Report on Form 20-F for the fiscal year ended December 31, 2000, and Note 3 to AEGON's unaudited financial statements contained in AEGON's report on Form 6-K/A dated October 11, 2001, which are incorporated by reference in this prospectus.
We have derived the financial data in this prospectus presenting year-end figures from audited financial statements of AEGON. We have derived all financial data in this prospectus presenting interim figures from unaudited financial statements.
As used in this prospectus, "NLG" and "guilder" refer to the Dutch guilder, "dollar" and "$" refer to the U.S. dollar and "euro" refer to the unified currency that was introduced in connection with the European Economic and Monetary Union in The Netherlands and the other participating member states of the European Union on January 1, 1999. AEGON adopted the euro as its reporting currency beginning January 1, 1999. Effective January 1, 1999, the official euro / guilder exchange rate was fixed at a rate of euro 1.00 = NLG 2.20371. AEGON's financial statements for fiscal years prior to fiscal 1999 and certain other data included in this prospectus were originally stated in guilders, but have been translated to euros using this fixed exchange rate.
ENFORCEMENT OF CIVIL LIABILITIES AGAINST FOREIGN PERSONS
AEGON is a Netherlands corporation. A substantial number of the directors and management of AEGON, AFC and AFC II and certain of the experts named in this prospectus are residents of The Netherlands or other countries outside the United States. As a result, it may not be possible for investors to effect service of process within the United States upon AEGON or such persons with respect to matters arising under U.S. Federal securities laws or to enforce against them judgments of courts of the United States predicated upon civil liability under the Federal securities laws. Because of the absence of a convention between the United States and The Netherlands providing for the reciprocal recognition and enforcement of judgments in civil and commercial matters, it is uncertain whether a court in The Netherlands, in original actions or in actions for enforcement of judgments of United States courts, will find liability or enforce judgments predicated solely upon the Federal securities laws. Judgments of United States courts may be enforced by courts in The Netherlands only if such courts independently determine that fairness and good faith require such enforcement and that such enforcement does not contravene principles of pubic policy of The Netherlands. AEGON has consented to service of process in New York City for claims based upon the indenture, the debt securities and the guarantees described under "Description of Debt Securities."
USE OF PROCEEDS
Unless otherwise set forth in the applicable prospectus supplement, we intend to use the proceeds from the sale of securities offered through this prospectus for the AEGON Group's general corporate purposes, which include financing our operations, debt repayment and refinancing, capital expenditures and acquisitions. The specific purpose of any individual issuance of securities will be described in the applicable prospectus supplement.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table shows AEGON's historical ratios of earnings to fixed charges for the periods indicated, computed in accordance with Dutch GAAP and U.S. GAAP.
Six months ended
June 30, 2001 Year ended December 31,
(unaudited) (audited)
---------------- ----------------------------------------------------------------------------
2000 1999 1998 1997 1996
-------- -------- -------- -------- --------
Dutch GAAP.......... 4.8 4.6 3.9 3.2 2.7 2.5
U.S. GAAP........... 4.1 5.1 3.6 3.6 3.5 2.3
|
Calculation of Ratios
The data used to prepare the ratios have been derived from our consolidated financial statements.
For purposes of these tables, "earnings" means income before tax plus fixed charges.
"Fixed charges" are calculated by adding:
(1) interest expensed and capitalized; and
(2) amortized premiums, discounts and capitalized expenses related to indebtedness.
DESCRIPTION OF SHARE CAPITAL OF AEGON N.V.
The following is a summary of the terms of AEGON's share capital, including brief descriptions of provisions contained in AEGON's articles of incorporation, as last amended on May 30, 2000. These summaries and descriptions do not purport to be complete statements of these provisions.
Share Capital
As of June 30, 2001, the total authorized capital stock of AEGON consisted of 2,600,000,000 common shares and 1,400,000,000 preferred shares, each par value euro 0.12 per share. At the same date, there were 1,417,027,697 common shares and 440,000,000 preferred shares issued, of which 31,178,080 common shares were held by AEGON as treasury shares.
All of AEGON's issued common shares are fully paid and not subject to calls for additional payments of any kind. AEGON's common shares are held by shareholders worldwide in bearer and registered form. Holders of shares of New York registry hold their common shares in registered form (New York Shares).
As of June 30, 2001, 549,684,370 common shares were registered in AEGON's registry in The Netherlands, of which 517,271,586 common shares were held by Vereniging AEGON, AEGON's controlling shareholder. As of that date 132,286,231 shares were held as New York Shares. The balance of the issued common shares was held in bearer form.
Dividends
Under Dutch law and AEGON's articles of incorporation, the holders of AEGON common shares are entitled to payment of dividends out of the profits remaining after the creation of a reserve account, if any. The Executive Board of AEGON may determine the dividend payment date for the common shares and preferred shares, which may vary for registered and bearer shares, the record date for payment applicable to holders of registered common shares and, with the approval of the AEGON's Supervisory Board, the currency or currencies in which dividends will be paid. For dividends on New York Shares, AEGON may make payment in U.S. dollars. With respect to common shares, AEGON typically declares both an interim dividend during the fiscal year and a final dividend after the shareholders have approved AEGON's annual accounts. These dividends typically may be paid in cash or common shares at the option of the shareholder.
Preferred dividends are payable on the capital actually paid in on the preferred shares, and each such dividend, on an annual basis, is equal to the European Central Bank's fixed interest percentage for basic refinancing transactions, increased by 1.75%, as determined on the first Euronext Amsterdam working day of the financial year to which the dividend relates.
Voting Rights
All holders of AEGON common shares and preferred shares are entitled to attend personally or by proxy any general meeting of shareholders upon compliance with the procedures described below. Each holder of common shares or preferred shares is entitled to one vote for each share held by him and represented at the meeting.
A general meeting of shareholders is required to be held not later than June 30 in each year. General meetings of shareholders are called by AEGON's Supervisory Board or AEGON's Executive Board and are required to be held in The Hague, The Netherlands or certain other cities in The Netherlands. In order to attend a general meeting of shareholders, holders of bearer shares must produce evidence that such shares were held on a date specified in the notice of the meeting. Holders of registered shares must be listed on a date specified in the notice of
the meeting as being the holders of shares in a register, irrespective of whether or not they are the owners of such shares on the date of the meeting.
Action is taken at general meetings by an absolute majority of the votes cast unless a larger majority is explicitly provided by law or by the articles of incorporation.
AEGON may not vote shares held by it as treasury shares.
Control of AEGON N.V.
Vereniging AEGON. As of June 30, 2001, Vereniging AEGON held 100% of the outstanding preferred shares and 37.3% of the outstanding common shares (excluding shares held by AEGON as treasury shares). These holdings give Vereniging AEGON 52.4% of AEGON's voting shares and thus voting control of AEGON. Vereniging AEGON is a membership association under Dutch law. One of the principal characteristics of a membership association is that it has no share capital. The major objective of Vereniging AEGON is to promote the direct and indirect interests of AEGON Group companies, as well as insured parties, employees, shareholders and other relations of those companies. Vereniging AEGON expects to achieve its objective by, among other things, maintaining and executing voting control of AEGON. The table below shows the ownership percentage of Vereniging AEGON as of June 30, 2001.
Title of Class Number Owned Percent of Class
Outstanding
Common Shares..................................................... 517,271,586 37.3%
Preferred Shares.................................................. 440,000,000 100%
|
Vereniging AEGON has two administrative bodies: the general membership and executive committee. The general membership currently consists of 20 individuals who were elected as members of Vereniging AEGON. Of these 20 individuals, 16 represent a broad cross-section of Dutch society, and are called elected members. Of the other four members of the general membership, two are elected from the AEGON Supervisory Board and two are elected from the AEGON Executive Board. No employee (or former employee) of AEGON or its subsidiaries may be elected to the general membership.
Appointment of the AEGON Supervisory Board and Executive Board. AEGON has a two-tier management system consisting of an executive board and a supervisory board. Members of the Supervisory Board and the Executive Board are appointed by the Supervisory Board. The number of members of the Supervisory Board is determined from time to time by the Supervisory Board but may not consist of less than seven members. Reference is made to "Item 6. Directors, Senior Management and Employees" in AEGON's Annual Report on Form 20-F for the year ended December 31, 2000.
Shareholder Proposals. Proposals by shareholders are required to be placed on the agenda of a general meeting of shareholders, but only if such proposals have been signed by the holder or holders of at least 0.1% of the total capital issued and are submitted in writing to AEGON at least two months and not more than three months prior to the meeting, unless in the opinion of the Supervisory Board and the Executive Board there are important company interests that should prevent this from happening.
Amendment of Articles. AEGON's articles of incorporation may be amended at any general meeting of shareholders where at least 50% of the issued capital is represented, by an absolute majority of the votes cast. If the required quorum is not represented at the shareholder meeting, the amendment may be approved at a subsequent meeting to be called and held within four weeks with the same required vote, but without such quorum requirement. Any amendment of the articles of incorporation must have been proposed by the Executive Board and approved by the Supervisory Board.
Annual Accounts. The Supervisory Board adopts annually AEGON's annual accounts with respect to the previous calendar year, accompanied by a certificate of an independent accountant certifying such annual accounts. The annual accounts are submitted for approval to the annual general meeting of shareholders by the Executive Board, and the Executive Board is also required to present to the annual general meeting of shareholders a report of management with respect to the previous calendar year.
Liquidation Rights
In the event of the liquidation of AEGON, the general meeting of shareholders determines the remuneration of the liquidators and of the members of the Supervisory Board. The assets remaining after payment of all debts, liquidation expenses and taxes are to be distributed first to the holders of preferred shares in the amount of their paid-in capital. The amount left after such payment will be distributed to the holders of common shares.
Preemptive Rights
Except in certain instances prescribed by law, the holders of common shares have preemptive rights on a pro rata basis to purchase any common shares to be issued. Holders of preferred shares, as such, have no preemptive rights in respect of any common shares.
Preemptive rights in respect of common shares may be limited or precluded by a resolution approved by the general meeting of shareholders. See "Issuance of Additional Shares" below. In the notice of the meeting, the reasons for the proposal to limit or preclude the preemptive rights in respect of common shares and the intended issue price must be explained in writing. Preemptive rights may also be limited or precluded by the Executive Board if a resolution is approved by a general meeting of shareholders that confers this power on the Executive Board for a maximum of five years. This power may from time to time be extended, but never for a period longer than five years. A resolution approved at the general meeting of shareholders or taken by the Executive Board to limit or preclude the preemptive rights in respect of common shares requires the approval of the Supervisory Board. If AEGON makes a rights offering to the holders of common shares, the rights of holders of New York Shares to exercise the rights offered may be subject to a restriction that permits AEGON to sell those rights in a manner to be determined by the Executive Board and to remit the cash proceeds of that sale to the holders of New York Shares if the additional common shares are not registered under the Securities Act of 1933.
Issuance of Additional Shares
Shares of AEGON's authorized but unissued capital stock may be issued at such times and on such conditions as may be determined at a general meeting of shareholders or by the Executive Board if authorized by the shareholders. At the general meeting of shareholders held on May 3, 2001, the shareholders authorized the Executive Board for a period of three years effective January 1, 2002 subject to the approval of the Supervisory Board:
(a) to issue shares and grant rights to acquire shares up to the amount of AEGON's authorized capital; and
(b) to limit or exclude shareholders' preemption rights with regard to the issuance of shares and rights to acquire shares.
The Supervisory Board subsequently approved this authorization. At the same general meeting, the shareholders revoked a similar authorization to the Executive Board granted at the general meeting of shareholders held May 4, 2000. In respect of the issuance of common shares and the granting of rights to acquire shares without preemption rights, the authority given under clause (a) is limited to common shares with an aggregate par value of:
. 1% of the capital, if the issuance is to employees or management of any AEGON Group company pursuant to an option plan that has been instituted for the entire AEGON Group;
. 10% of the capital; and
. 20% of the capital, if the issuance occurs in connection with the acquisition of an enterprise or a corporation.
For the purposes of this paragraph, the term "capital" means the par value amount of the common share capital issued at the moment this authority is used for the first time in a certain year. The authorizations described above may only be withdrawn by a resolution of the general meeting of shareholders following a proposal by the Executive Board that has been approved by the Supervisory Board.
Repurchase by AEGON of its Shares
Subject to certain restrictions contained in the laws of The Netherlands and AEGON's articles of incorporation, the Executive Board may cause AEGON to purchase its own shares, provided that the total number of shares so repurchased may not exceed, in the aggregate, 10% of the issued capital. These purchases may be made
only upon authorization by the general meeting of shareholders, which authorization is valid for a maximum of 18 months and must include the number of shares to be acquired, the way in which they may be acquired and the minimum and maximum purchase price. At the general meeting of shareholders held May 3, 2001, the shareholders authorized the Executive Board for a period of 18 months to acquire shares up to the maximum number allowed by law and AEGON's articles of incorporation, for a consideration not to exceed 10% of the quoted local market price.
Certificates for Common Shares and their Transfer
Certificates evidencing common shares are issuable, subject to the restrictions described below, in bearer or registered form, as the holder may elect. Certificates issued by the New York registrar are in registered form and are printed in the English language. Bearer shares are evidenced by certificates printed only in the Dutch language. Common shares in bearer form and New York Shares may be held by residents as well as non-residents of The Netherlands. Only common shares in bearer form may be traded on Euronext Amsterdam and the London, Frankfurt, Tokyo and Zurich stock exchanges. Only New York Shares may be traded on the New York Stock Exchange.
Upon presentation of a bearer certificate to AEGON's Dutch transfer agent, accompanied by a request that the shares evidenced by that certificate be transferred to New York Shares, the Dutch transfer agent will cancel the bearer shares and will instruct AEGON's New York transfer agent to issue a New York Share certificate evidencing those shares. Similarly, upon presentation to the New York transfer agent of New York Shares accompanied by an appropriate request, the New York transfer agent will cancel those New York Shares and will instruct the Dutch transfer agent to issue a bearer share certificate evidencing those shares.
Transfers of common shares in bearer form are accomplished by delivery of the share certificates. New York Shares may be transferred on the books of AEGON at the office of the New York transfer agent by surrendering the New York Shares with the deed of transfer on the New York Shares or in a separate instrument completed in full and signed by the transferor. Upon surrender, AEGON, acting through its New York transfer agent, will either note the transfer on the surrendered New York Shares or issue replacement New York Shares registered in the name of the new owner. In addition, a shareholder is entitled, upon written request to AEGON and the surrender for cancellation of any share certificate previously issued, to have his name entered in the register of shareholders with respect to the shares owned by him and to receive, in lieu of a certificate, a non-negotiable declaration of registration of those shares.
DESCRIPTION OF DEBT SECURITIES
The following is a summary of the general terms of the debt securities. Each time that we issue debt securities pursuant to this prospectus we will file a prospectus supplement with the Securities Exchange Commission that you should read carefully. The prospectus supplement may contain additional terms of those debt securities. The terms presented here, together with the terms contained in the prospectus supplement, will be a description of the material terms of the debt securities, but if there is any inconsistency between the terms presented here and those in the prospectus supplement, those in the prospectus supplement will apply and will replace those presented here. You should also read the indenture under which we will issue the debt securities, which we have filed with the SEC as an exhibit to the registration statement of which this prospectus is a part. The terms of the debt securities include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939.
General
The debt securities will be issued by AEGON, AFC or AFC II, as the case may be, under an indenture with Citibank, N.A., unless specified otherwise in a prospectus supplement.
Any debt securities issued by AFC or AFC II will be guaranteed by AEGON.
The total principal amount of debt securities that can be issued under the indenture is unlimited. Except as otherwise provided in the prospectus supplement relating to a particular series of debt securities, the indenture does not limit the amount of other debt, secured or unsecured, that we may issue. We may issue the debt securities in one or more series.
The prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following:
. the issuer of the debt securities, AEGON, AFC or AFC II;
. the price of the debt securities offered;
. the title of the debt securities;
. the total principal amount of the debt securities;
. the date or dates, if any, on which the principal of and any premium on the debt securities will be payable;
. any interest rate, the date from which interest will accrue, interest payment dates and record dates for interest payments;
. whether the debt securities are senior or subordinated debt securities;
. the places at which payments of principal and interest are payable;
. the terms of any optional or mandatory redemption, including the price for the redemption;
. any sinking fund provisions;
. whether payments on the debt securities will be payable in foreign currency or currency units or another form and whether payments will be payable by reference to any index or formula;
. any changes or additions to the events of default or covenants described in this prospectus;
. whether debt securities will be issued as discount securities and the amount of any discount;
. whether the debt securities will be represented by one or more global securities;
. whether the debt securities will be issued in registered or bearer form, and any restrictions that may apply;
. any terms for the conversion or exchange of the debt securities for other securities of AEGON Group companies or any other entity (including any related cash-out option); and
. any other terms of the debt securities.
We have the ability under the indenture to "reopen" a previously issued series of debt securities and issue additional debt securities of that series or establish additional terms of the series. We are also permitted to issue debt securities with the same terms as previously issued debt securities. Unless otherwise indicated in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange.
The senior debt securities will be unsecured, unsubordinated indebtedness and will rank equally with all other unsecured and unsubordinated debt of their issuer. The subordinated debt securities will be unsecured indebtedness and will be subordinated in right of payment to some existing and future debt of their issuer. See "Subordination" below.
Some of the debt securities may be sold at a substantial discount below their stated principal amount. These debt securities will either bear no interest or will bear interest at a rate which at the time of issuance is below market rates. U.S. Federal income tax consequences and other special considerations applicable to discounted debt securities are discussed below under "Taxation in the United States" and may be discussed further in the prospectus supplement relating to these debt securities.
Guarantees
If AFC or AFC II issues the debt securities, AEGON will fully and unconditionally guarantee the due and punctual payment of the principal of, any premium and any interest on those debt securities, when and as these payments become due and payable, whether at maturity, upon redemption or declaration of acceleration, or otherwise. The guarantees of senior debt securities will constitute an unsecured, unsubordinated obligation of AEGON and will rank equally with all other unsecured and unsubordinated obligations of AEGON. The guarantees
of subordinated debt securities will constitute an unsecured obligation of AEGON and will be subordinated in right of payment to all senior indebtedness of AEGON.
AEGON will (1) agree that its obligations under the guarantees will be as principal obligor and not merely as surety, and will be enforceable irrespective of any invalidity, irregularity or unenforceability of the guaranteed debt securities or the indenture and (2) waive any right to require a proceeding against AFC or AFC II, as the case may be, before its obligations under the guarantees shall become effective. See "Enforcement of Civil Liabilities Against Foreign Persons."
Governing Law
The debt securities, the indenture and the guarantees will be governed by and construed in accordance with the laws of the State of New York. The laws of the State of New York would not require the trustee to pursue or exhaust its legal and equitable remedies against AFC or AFC II, as the case may be, prior to exercising its rights under the guarantee relating to the guaranteed debt securities. We cannot assure you that a Dutch court would give effect to this provision. However, AEGON will waive any right to require a proceeding against AFC or AFC II before its obligations under the guarantees shall become effective. There are no limitations under the laws of The Netherlands or the articles of incorporation of AEGON on the right of non-residents of The Netherlands to hold the debt securities issued by AEGON.
Form, Exchange and Transfer
Unless otherwise specified in the related prospectus supplement, the debt securities of each series will be issuable in fully registered form, without coupons, in denominations of $1,000 and integral multiples thereof.
Unless otherwise specified in the related prospectus supplement, any payments of principal, interest and premium on registered debt securities will be payable and, subject to the terms of the indenture and the limitations applicable to global securities, debt securities may be transferred or exchanged, at any office or agency we maintain for such purpose, without the payment of any service charge except for any applicable tax or governmental charge.
Global Securities
The debt securities of a series may be issued in the form of one or more global certificates that will be deposited with a depositary identified in a prospectus supplement. Unless a global certificate is exchanged in whole or in part for debt securities in definitive form, a global certificate may generally be transferred only as a whole and only to the depositary or to a nominee of the depositary or to a successor depositary or its nominee.
Unless otherwise indicated in any prospectus supplement, The Depositary Trust Company (DTC) will act as depositary. Beneficial interests in global certificates will be shown on records maintained by DTC and its participants, and transfers of global certificates will be effected only through these records.
DTC has provided us the following information, and we take no responsibility for its accuracy. DTC is a limited purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the United States Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered under Section 17A of the Exchange Act. DTC holds securities that its participants deposit with DTC. DTC also facilitates the clearance and recording of the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through computerized records for participant's accounts. This eliminates the need for physical exchange of certificates. Direct participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Other organizations such as securities brokers and dealers, banks and trust companies that work through a participant, either directly or indirectly use DTC's book-entry system. The rules that apply to DTC and its participants are on file with the SEC.
Pursuant to DTC's procedures, upon the sale of debt securities represented by a global certificate to underwriters, DTC will credit the accounts of the participants designated by the underwriters with the principal amount of the debt securities purchased by the underwriters. Ownership of beneficial interests in a global certificate will be shown on DTC's records (with respect to participants), by the participants (with respect to indirect participants and certain beneficial owners) and by the indirect participants (with respect to all other beneficial
owners). The laws of some states require that certain persons take physical delivery in definitive form of the securities that they own. Consequently, the ability to transfer beneficial interests in a global certificate may be limited.
We will wire to DTC's nominee principal and interest payments with respect to global certificates. We and the trustees under the indenture will treat DTC's nominee as the owner of the global certificates for all purposes. Accordingly, we, the trustee and the paying agent will have no direct responsibility or liability to pay amounts due on the global certificates to owners of beneficial interests in the global certificates.
It is DTC's current practice, upon receipt of any payment of principal or interest, to credit participants, accounts on the payment date according to their beneficial interests in the global certificates as shown on DTC's records. Payments by participants to owners of beneficial interests in the global certificates will be governed by standing instructions and customary practices between the participants and the owners of beneficial interests in the global certificates, as is the case with securities held for the account of customers registered in "street name." However, payments will be the responsibility of the participants and not of DTC, the trustee or us.
Debt securities of any series represented by a global certificate will be exchangeable for debt securities in definitive form with the same terms in authorized denominations only if:
. DTC notifies us that it is unwilling or unable to continue as depositary, or DTC is no longer eligible to act as depositary, and we do not appoint a successor depositary within 90 days; or
. we determine not to have the debt securities of a series represented by global certificates and notify the trustee of our decision.
Payments of Additional Amounts
If the prospectus supplement for a particular series of debt securities so provides, the issuer or guarantor will make all payments on the debt securities of that series without withholding or deduction for any taxes, or other governmental charges in effect on the date of issuance of the debt securities of that series or imposed in the future by or on behalf of The Netherlands, in the case of AEGON, or the United States, in the case of AFC or AFC II, or any authority in The Netherlands or the United States, as applicable. In the event any Dutch, in the case of payments by AEGON, or United States, in the case of payments by AFC or AFC II, taxes or other charges are imposed on payments on any debt security of that series held by you, the issuer or guarantor will pay to you such additional amounts as may be necessary so that the net amounts receivable by you after any payment, withholding or deduction of tax or charge will equal the amounts of principal, any interest and any premium which would have been receivable on the debt security if there were no such payment, withholding or deduction; provided, however, that (a) in the case of payments by AEGON, the amounts with respect to any Dutch taxes shall be payable only to holders that are not residents in The Netherlands for purposes of its tax laws; and (b) in the case of payments by AFC or AFC II, the amounts with respect to any United States taxes shall be payable only to holders that are non-U.S. persons not resident in the United States, foreign corporations or certain trusts or estates not subject to taxes, for United States tax purposes, and provided further, that the issuer or guarantor shall not be required to make any payment of any additional amounts on account of:
. in the case of payments by AEGON, your being a resident of The Netherlands or having some connection with The Netherlands or United States (in the case of Dutch taxes) other than the mere holding of the debt security or the receipt of principal, any interest, or any premium on the debt security;
. in the case of payments by AFC or AFC II, your being a resident of the United States or having some connection with the United States (in the case of United States taxes) other than the mere holding of the debt security or the receipt of principal, and interest, or any premium on the debt security;
. your presentation of the debt security for payment more than 30 days after the later of (1) the due date for such payment or (2) the date we provide funds to make such payment to the trustee;
. any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge;
. any tax, assessment or other governmental charge payable other than by withholding from payments on the debt security;
. in the case of payments by AFC or AFC II, with respect to United States taxes, any tax imposed by reason of the holder's past or present status as a tax-exempt organization with respect to the United States or as a corporation which accumulates earnings to avoid United States Federal income tax;
. any tax, assessment or other governmental charge which would not have been imposed or withheld if the holder had declared his or her non- residence in The Netherlands, in the case of payments by AEGON, or the United States, in the case of payments by AFC or AFC II, or made a similar claim for exemption so that, upon making the declaration or the claim, the holder would either have been able to avoid the tax, assessment or charge or to obtain a refund of the tax, assessment or charge;
. any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of, premium, if any, or any interest on, any debt security, if such payment can be made without such withholding by any other paying agent; or
. any combination of items above,
nor shall additional amounts be paid with respect to any payment of the principal of, premium, if any, or any interest on any debt security to any holder who is a fiduciary, a partnership or a beneficial owner and who is other than the sole beneficial owner of the payment to the extent the fiduciary or a member of the partnership or a beneficial owner would not have been entitled to any additional amount had it been the holder of the debt security.
Tax Redemption
If the prospectus supplement for a particular series of debt securities so provides, the issuer or guarantor may redeem that series of debt securities before its maturity, in whole but not in part, if, at any time after the date of issuance of that series of securities, as a result of any:
. amendment to, or change in, the laws of The Netherlands, in the case of payments by AEGON, or the United States, in the case of payments by AFC or AFC II, or any political subdivision thereof; or
. change in the application or official interpretation of such laws or regulations,
where the amendment or change becomes effective after the date of the issuance of the series of debt securities, the issuer or guarantor become, or will become, obligated to pay any additional amounts as provided above under "Payments of Additional Amounts" and cannot reasonably avoid such obligation.
Before the issuer or guarantor may redeem debt securities of a particular series as provided above, the issuer or guarantor must deliver to the trustee at least 30 days, but not more than 60 days, prior to the date fixed for redemption:
. a written notice stating that the debt securities of a particular series are to be redeemed, specifying the redemption date and other pertinent information; and
. an opinion of independent legal counsel selected by us to the effect that, as a result of the circumstances described above, we have or will become obligated to pay any additional amounts.
The issuer or guarantor will give you at least 30 days', but not more than 60 days', notice before any tax redemption of a series of securities. On the redemption date, the issuer or guarantor will pay you the principal amount of your debt security, plus any accrued interest (including any additional amounts) to the redemption date.
Conversion or Exchange
The terms, if any, upon which debt securities of any series are convertible into or exchangeable for other securities will be set forth in the related prospectus supplement. These terms may include the conversion price, the conversion period, provisions as to whether conversion or exchange will be at the option of the holders of that series
of debt securities or at our option, any events requiring an adjustment of the conversion price, provisions affecting conversion in the event of the redemption of such series of debt securities and other relevant provisions relating to those securities.
Events of Default
The following are defined as events of default with respect to securities of any series outstanding under the indenture, unless otherwise stated in the related prospectus supplement:
(a) failure to pay principal or premium, if any, on any debt security of that series when due, and continuance of such a default beyond any applicable grace period;
(b) failure to pay any interest on any debt security of that series when due, and continuance of such a default for a period of 30 days beyond any applicable grace period;
(c) failure to deposit any sinking fund payment, when due and continuance of such a default beyond any applicable grace period, on any debt security of that series;
(d) failure to perform any of our other covenants or the breach of any of the warranties in the indenture after being given written notice and continuance of such a default for a period of 90 days beyond any applicable grace period; and
(e) certain events in bankruptcy, insolvency or reorganization of AEGON, AFC or AFC II.
If an event of default for any series of debt securities occurs and continues, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may accelerate the maturity of the debt securities of that series (or, such portion of the principal amount of such debt securities as may be specified in a prospectus supplement). If an acceleration occurs, subject to specified conditions, the holders of a majority of the aggregate principal amount of the outstanding debt securities of that series may rescind and annul such acceleration. Because each series of debt securities will be independent of each other series, a default in respect of one series will not necessarily in itself result in a default or acceleration of the maturity of a different series of debt securities.
Other than its duties in case of an event of default, the trustee is not obligated to exercise any of its rights or powers under the indenture at the request or direction of any of the holders, unless the holders offer the trustee reasonable indemnity. Subject to the indemnification of the trustee, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
A holder of debt securities of any series will not have any right to institute any proceeding with respect to the indenture unless:
. the holder previously gave written notice to the trustee of an event of default;
. the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and have offered reasonable indemnity to the trustee to institute such proceeding as trustee; and
. the trustee fails to institute such proceeding, and has not received from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series a direction inconsistent with such request, within 60 days after such notice, request and offer.
The limitations described above do not apply to a suit instituted by a holder of a debt security for the enforcement of payment of the principal, interest or premium on that debt security on or after the applicable due date specified in that debt security.
We will be required to furnish to each trustee annually a statement by our officers as to whether or not we are in default in the performance of any of the terms of the indenture.
Subordination
The indebtedness evidenced by the subordinated debt securities will, to the extent set forth in the indenture with respect to each series of subordinated debt securities, be subordinate in right of payment to the prior payment in full of all of our senior debt, as defined, including any senior debt securities. The prospectus supplement relating to any subordinated debt securities will summarize the subordination provisions of the indenture applicable to that series including:
. the applicability and effect of such provisions upon any payment or distribution of our assets to creditors upon any liquidation, bankruptcy, insolvency or similar proceedings;
. the applicability and effect of such provisions in the event of specified defaults with respect to senior debt, including the circumstances under which and the periods in which we will be prohibited from making payments on the subordinated debt securities; and
. the definition of senior debt applicable to the subordinated debt securities of that series.
In the event and during the continuation of any default in the payment of any senior debt continuing beyond any applicable grace period specified in the instrument evidencing that senior debt (unless and until the default shall have been cured or waived or shall have ceased to exist), no payments on account of principal, premium, if any, or interest, if any, on the subordinated debt securities or sums payable with respect to the conversion or exchange, if applicable, of the subordinated debt securities may be made pursuant to the subordinated debt securities.
Upon payment or distribution of our assets to creditors upon dissolution or winding-up or total or partial liquidation or reorganization, whether voluntary or involuntary in bankruptcy, insolvency, receivership or other proceedings, the holders of our senior debt will be entitled to receive payment in full of all amounts due on the senior debt before any payment is made by us on account of principal, premium, if any, or interest, if any, on the subordinated debt securities.
By reason of this subordination, in the event of our insolvency, holders of subordinated debt securities may recover less, ratably, and holders of senior debt may recover more, ratably, than our other creditors. The indenture does not limit the amount of senior debt that we may issue.
Limitation on Liens
If so specified in a prospectus supplement relating to a series of debt securities, so long as any of the debt securities of that series remain outstanding, the issuer and its subsidiaries may not secure any indebtedness in respect of borrowed moneys having an original maturity of more than two years by granting security upon any of their present or future assets or revenues unless they effectively provide that the same or equal and ratable security (or other security acceptable to the trustee) is accorded to all debt securities of that series for so long as the secured indebtedness is so secured. This limitation does not apply to:
. security created over any shares in, assets of or securities owned by any subsidiaries that are not principally engaged in the business of life insurance and that do not contribute more than 10% of AEGON's total aggregate consolidated gross premium income as reflected in its most recent annual audited financial statements;
. security created in the normal course of the insurance business carried on in a manner consistent with generally accepted insurance practice for that insurance business;
. security or preference arising by operation of any law;
. security over real property to secure borrowings to finance the purchase or improvement of that real property;
. security over assets existing at the time of the acquisition of those assets; and
. security not otherwise permitted by the above that secures borrowed money in an aggregate principal amount not exceeding 50% of AEGON's total aggregate consolidated indebtedness with an original maturity of more than two years.
Defeasance
Unless otherwise indicated in the related prospectus supplement, we may elect, at our option at any time, to have the provisions of the indenture relating (a) to defeasance and discharge of indebtedness or (b) to defeasance of certain restrictive covenants apply to the debt securities of any series, or to any specified part of a series.
In order to exercise either option, we must irrevocably deposit, in trust for the benefit of the holders of those debt securities, money or U.S. government securities, or both, which, through the payment of principal and interest in accordance with their terms, will provide amounts sufficient to pay the principal of and any premium and interest on those debt securities on the respective stated maturities in accordance with the terms of the indenture and those debt securities. Any additional conditions to exercising these options with respect to a series of debt securities will be described in an applicable prospectus supplement.
If we meet all the conditions to clause (a) above and elect to do so, we will be discharged from all our obligations with respect to the applicable debt securities and if those debt securities are subordinated debt securities, the provisions relating to subordination will cease to be effective (other than obligations to register transfer of debt securities, to replace lost, stolen or mutilated certificates and to maintain paying agencies). We shall be deemed to have paid and discharged the entire indebtedness represented by the applicable debt securities and to have satisfied all of our obligations under the debt securities and the indenture relating to those debt securities.
If we meet all the conditions to clause (b) above and elect to do so, we may omit to comply with and shall have no liability in respect of certain restrictive covenants as described in the related prospectus supplement and, if those debt securities are subordinated debt securities, the provisions of the indenture relating to subordination will cease to be effective, in each case with respect to those debt securities.
Modification of the Indenture
Under the indenture, our rights and obligations and the rights of holders may be modified with the consent of the holders holding not less than a majority of the aggregate principal amount of the outstanding debt securities of each series affected by the modification. No modification of the principal or interest payment terms, and no modification reducing the percentage required for modifications or altering the provisions relating to the waiver of any past default, is effective against any holder without its consent. We and the trustee may also amend the indenture or any supplement to the indenture without the consent of the holders of any debt securities to evidence the succession or addition of another corporation to AEGON, AFC or AFC II, as the case may be, to evidence the replacement of the trustee with respect to one or more series of debt securities and for certain other purposes.
Consolidation, Merger or Disposition of Assets of AEGON, AFC or AFC II
We may not consolidate with or merge into, or sell or lease substantially all of our assets to any person unless:
. the successor person expressly assumes our obligations on the debt securities and under the indenture;
. immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing; and
. any other conditions specified in the related prospectus supplement are met.
Concerning the Trustee
We and certain of our affiliates and subsidiaries may maintain deposit account and lines of credit and have other customary banking relationship with the trustee and its affiliates in the ordinary course of our and their respective businesses.
Pursuant to the Trust Indenture Act, should a default occur with respect to the debt securities constituting our senior debt securities or subordinated debt securities, the trustee would be required to resign as trustee with
respect to the debt securities constituting either the senior debt securities or the subordinated debt securities under the indenture within 90 days of the default unless the default were cured, duly waived or otherwise eliminated or unless only senior debt securities or subordinated debt securities are outstanding under the indenture at the time of the default.
TAXATION
Taxation in The Netherlands
General. The following describes the principal Dutch tax consequences of the acquisition, holding and disposal of common shares in AEGON or an interest in the debt securities. This summary does not purport to be a comprehensive description of all Dutch tax considerations that may be relevant to a decision to acquire, hold, convert or dispose of the common shares or the debt securities. Each prospective investor should consult a professional tax adviser with respect to the tax consequences of an investment in the common shares or the debt securities. The discussion of certain Dutch taxes below is included for general information only.
This summary is based on tax legislation, published case law, treaties, rules, regulations and similar documentation in force as of the date of this prospectus.
For the purposes of this discussion we have assumed that:
. AFC and AFC II are not resident, nor deemed to be resident, of The Netherlands for Dutch tax purposes;
. a corporate holder does not hold, directly or indirectly, an interest of 5% or more of the total issued capital of AEGON, and
. an individual holder, alone, or together with his or her partner (statutory defined term) or certain other related persons does not hold, directly or indirectly, (a) an interest of 5% or more of the total issued capital of AEGON or 5% or more of a certain class of AEGON's shares, (b) rights to acquire, directly or indirectly, such interest or (c) certain profit sharing rights in AEGON.
A holder that acquires an interest in excess of the thresholds mentioned above is strongly recommended to consult a professional tax adviser with respect to the Dutch tax consequences of an investment in the common shares.
Common Shares of AEGON.
Dividend Withholding Tax
Dividends and other revenue from the common shares will be generally subject to Dutch dividend withholding tax at a rate of 25%. Dividends include:
. distributions in cash or in kind including deemed and constructive distributions;
. liquidation proceeds, proceeds on redemption of the common shares and, as a rule, the consideration for the repurchase of common shares by AEGON in excess of the average paid-in capital recognized for Dutch dividend withholding tax purposes, unless the repurchase is exempt on the basis of Article 4c of the Dividend Tax Act 1965;
. the par value of shares issued to a holder of common shares or an increase of the par value of common shares, except when the increase is funded out of AEGON's paid-in capital as recognized for Dutch dividend withholding tax purposes; and
. partial repayments of paid-in capital, if and to the extent there are net profits, unless the general meeting of the shareholders of AEGON has resolved in advance to make such repayment and provided that the nominal value of the common shares concerned has been reduced by an equal amount by way of an amendment of the articles of incorporation and the paid-in capital is recognized as capital for Dutch dividend withholding tax purposes.
. In general, AEGON is required to remit all amounts withheld as Dutch dividend withholding tax to the Dutch tax authorities.
Residents of The Netherlands
In general, the Dutch dividend withholding tax withheld with respect to dividend distributions will be creditable for Dutch income tax purposes for the beneficial owner thereof, or, subject to certain conditions, may be recoverable in whole or in part by the Dutch resident beneficial owner of such dividend.
AEGON can refrain from withholding dividend withholding tax on the portion of the proceeds from the common shares in respect of which the temporary special distribution tax (as discussed below) is applicable, if the recipient of proceeds from the common shares is a resident of The Netherlands.
On request and if certain conditions are met, a refund of the Dutch dividend withholding tax applies to Dutch qualifying pension funds, certain exempt entities and Dutch investment institutions as defined in Article 28 of the Corporate Income Tax Act 1969.
Non-residents of The Netherlands
If a holder is resident in a country other than The Netherlands and if a treaty for the avoidance of double taxation with respect to taxes on income is in effect between The Netherlands and such country, and the holder is the beneficial owner of the dividends and a qualifying resident for purposes of the treaty, the holder will, depending on the terms of the particular treaty, qualify for full or partial relief at source or for a refund (in whole or in part) of the Dutch dividend withholding tax.
Residents of the United States that qualify for, and comply with the procedures for claiming benefits under the income tax convention between The Netherlands and the United States (NL/US income tax treaty), generally are eligible for a reduction of up to 15% of the Dutch withholding tax on dividend income. The NL/US income tax treaty provides a complete exemption for dividends received by exempt pension trusts and exempt organizations, as defined therein. A holder of the common shares will qualify for benefits under the NL/US income tax treaty (subject to compliance with the procedures for claiming benefits) if the holder:
. is the beneficial owner of the common shares and the dividends paid on those common shares;
. is resident in the United States;
. is not also resident in another jurisdiction;
. does not hold the common shares in connection with the conduct of business in The Netherlands; and
. is an individual, an exempt pension trust or exempt organization (as defined in the NL/US income tax treaty), an estate or trust whose income is subject to U.S. taxation as the income of a resident, either in its hands or in the hands of its beneficiaries, or a corporation that is not subject to the treaty's limitation of benefits provision.
AEGON can refrain from withholding Dutch dividend withholding tax on the part of the dividend distribution in respect of which the distribution tax discussed below is applicable, if the recipient of the dividend distribution is a resident of The Netherlands, The Netherlands Antilles or Aruba, a member state of the European Union or a country with which The Netherlands has concluded a treaty for the avoidance of double taxation.
Proposed Legislation
Recently, a proposal for legislation was announced that may affect the eligibility for an exemption, reduction or refund of the Dutch dividend withholding tax. The proposed legislation would have retroactive effect as of April 27, 2001. A recipient of a dividend on the common shares will not be entitled to an exemption, reduction or partial refund of Dutch dividend withholding tax if the recipient is not considered the beneficial owner of such dividend. This is the case if:
. the recipient of the dividend, in connection with the receipt of the dividend has incurred an obligation, as part of one or more related transactions, as a result of which the dividend in whole or in part has accrued or will accrue to the benefit of a person that is to a lesser extent entitled to an exemption, reduction or refund than the recipient of the dividend; and
. such person, other than the recipient of the dividend, retains or acquires, directly or indirectly, a comparable interest in the common shares on which the dividends are paid, as such person had before the related transactions were entered into.
Distribution Tax
AEGON is subject to a temporary special distribution tax at a rate of 20% to the extent that any "excessive" dividends are distributed on the common shares in the period from January 1, 2001 up to and including December 31, 2005. This distribution tax is a corporate income tax, not a creditable or refundable withholding tax. For purposes of this distribution tax, dividends are considered to be "excessive" when during a particular calendar year, the total amount of dividends distributed exceeds the highest of the following three amounts:
. 4% of the market capitalization of AEGON at the beginning of the relevant calendar year;
. twice the amount of the average annual dividends (exclusive of extraordinary dividends) by reference to the three calendar years immediately preceding January 1, 2001; or
. the adjusted statutory income of AEGON for the preceding book year.
The temporary special distribution tax is not levied insofar as the aggregate amount of dividend distributions during the period January 1, 2001 through December 31, 2005 is in excess of the balance of the fair market value of the net assets at the end of the fiscal year that ended prior to January 1, 2001 reduced by the paid-in capital recognized for Dutch tax purposes.
The distribution tax due is reduced pro rata for common shares that were held, at the time of the dividend distribution, for an uninterrupted period of three years, or as of September 14, 1999, by individuals or entities (other than investment institutions as defined in the Corporate Income Tax Act 1969) holding at least 5% of AEGON's nominal capital.
Corporate Income Tax and Individual Income Tax
Residents of The Netherlands
If a corporate holder is subject to Dutch corporate income tax, and the common shares are attributable to its business assets or deemed business assets, payments on the common shares and the gains realized upon the disposal of the common shares are taxable.
If an individual holder is resident or deemed to be a resident in The Netherlands for Dutch tax purposes (including an individual who has opted to be taxed as a resident of The Netherlands), payments on the common shares and gains realized upon the disposal of the common shares are taxable at the progressive rates of the Income Tax Act 2001, if:
(1) the holder of the common shares has an enterprise or an interest in an enterprise to which the common shares are attributable; or
(2) the payments and gains qualify as income from miscellaneous activities in The Netherlands within the meaning of Section 3.4 of the Income Tax Act 2001, which include the performance of activities with respect to the common shares that exceed "regular, active portfolio management" (normaal, actief vermogensbeheer).
If neither condition (1) nor (2) applies to an individual holder of common shares, the common shares will be included in the individual's yield basis. Consequently, actual payments on the common shares and the actual gains realized upon the disposal of the common shares will not be taxable. Instead, the holder of the common shares will be taxed at a flat rate of 30% on deemed income from "savings and investments" (sparen en beleggen) within the meaning of Section 5.1 of the Income Tax Act 2001. This deemed income amounts to 4% of the average of the individual's "yield basis" (rendementsgrondslag) within the meaning of Article 5.3 of the Income Tax Act 2001 at the beginning of the calendar year, and the individual's yield basis at the end of the calendar year, insofar as the average exceeds a certain threshold.
Non-residents of The Netherlands
Dividend distributions on the common shares and capital gains realized upon the disposal of the common shares for a holder that is not resident nor deemed to be resident in The Netherlands for Dutch tax purposes (and, in the case of an individual holder, has not opted to be taxed as a resident of The Netherlands) are not taxable in The Netherlands, provided that:
. the holder does not have an enterprise or an interest in an enterprise that is carried on through a permanent establishment or a permanent representative in The Netherlands to which the common shares are attributable;
. the holder is not entitled to a share in the profits of an enterprise that is effectively managed in The Netherlands, other than by way of securities or through an employment contract, and to which enterprise the common shares are attributable; and
. with respect to an individual holder, the dividend distributions or capital gains do not qualify as income from miscellaneous activities in The Netherlands within the meaning of Section 3.4 of the Income Tax Act 2001, which include the performance of activities in The Netherlands with respect to the common shares that exceed "regular, active portfolio management" (normaal, actief vermogensbeheer).
Gift and Inheritance Taxes
Residents of The Netherlands
Generally, gift and inheritance taxes will be due in The Netherlands in respect of an acquisition of the common shares by way of a gift by, or on the death of, an individual holder who, for the purposes of the Dutch gift and inheritance tax, is resident or deemed to be resident in The Netherlands at the time of the gift or his or her death.
An individual of Dutch nationality is deemed to be a resident of The Netherlands for the purposes of the Dutch gift and inheritance tax if he or she has been resident in The Netherlands during the 10 years preceding the gift or his or her death. An individual of any other nationality is deemed to be a resident of The Netherlands for the purposes of the Dutch gift and inheritance tax only if he or she has been residing in The Netherlands at any time during the 12 months preceding the time of the gift.
Non-residents of The Netherlands
No gift or inheritance taxes will arise in The Netherlands in respect of an acquisition of the common shares
by way of gift by, or as a result of the death of, an individual holder who is neither resident nor deemed to be a resident of The Netherlands, unless:
. the individual holder at the time of the gift has, or at the time of his or her death had, an interest in a Dutch enterprise to which the common shares are or were attributable;
. the common shares are or were attributable to the assets of an enterprise that is effectively managed in The Netherlands and the donor is, or the deceased was, entitled, other than by way of securities or through an employment contract, to a share in the profits of that enterprise at the time of the gift or, as applicable, at the time of his or her death; or
. in the case of a gift of the common shares by an individual who at the date of the gift was neither resident nor deemed to be resident in The Netherlands, such individual dies within 180 days after the date of the gift, if at the time of his or her death such individual was a resident or deemed to be a resident of The Netherlands.
Value Added Tax (VAT)
In general, no Dutch VAT will arise with respect to the issuance of the common shares and with respect to dividend distributions, partial or complete repayment of paid-in capital or other payments and distributions on common shares.
Capital Tax
Dutch capital tax will, in principle, be due by AEGON at the rate of 0.55% of the fair market value of any contribution to the capital of AEGON upon the issuance of the common shares.
Other Taxes and Duties
No net wealth tax, registration tax, customs duty, transfer tax, stamp duty or any other similar documentary tax or duty will be payable in The Netherlands by a holder in respect of or in connection with the subscription, issue, placement, allotment or delivery of the common shares.
Debt Securities of AEGON, AFC and AFC II.
Withholding Tax
No Dutch withholding tax is due upon payments on the debt securities provided that, in the case of debt securities issued by AEGON, the payments do not depend, nor are deemed to depend, on profits or distributions of profits by AEGON.
Corporate Income Tax and Individual Income Tax
Residents of The Netherlands
If a holder of the debt securities is subject to Dutch corporate income tax and the debt securities are attributable to its business assets or its deemed business assets, payments on the debt securities and the gains realized upon the disposal of the debt securities will be taxable.
If a holder of the debt securities is an individual resident or deemed to be resident in The Netherlands for Dutch tax purposes (including an individual who has opted to be taxed as a resident of The Netherlands), payments
on the debt securities and the gains realized upon the disposal of the debt securities will be taxable at the progressive rates of the Income Tax Act 2001, if:
(1) the holder of the debt securities has an enterprise or an interest in an enterprise, to which enterprise the debt securities are attributable; or
(2) such payments and gains qualify as income from miscellaneous activities in The Netherlands within the meaning of Section 3.4 of the Income Tax Act 2001, which include the performance of activities with respect to the debt securities that exceed "regular, active portfolio management" (normaal, actief vermogensbeheer).
If neither condition (1) nor (2) applies to an individual holder of the
debt securities, the debt securities will be included in the individual's yield
basis. Consequently, actual payments on the debt securities and the actual gains
realized upon the disposal of the debt securities will not be taxable. Instead,
the holder of the debt securities will be taxed at a flat rate of 30% on deemed
income from "savings and investments" (sparen en beleggen) within the meaning of
Section 5.1 of the Income Tax Act 2001. This deemed income amounts to 4% of the
average of the individual's "yield basis" (rendementsgrondslag) within the
meaning of Article 5.3 of the Income Tax Act 2001 at the beginning of the
calendar year and the individual's yield basis at the end of the calendar year,
insofar as the average exceeds a certain threshold.
Non-residents of The Netherlands
A corporate holder and individual holder of the debt securities that is not resident nor deemed to be resident in The Netherlands for Dutch tax purposes (nor, in the case of an individual holder, has opted to be taxed as a resident of The Netherlands) is not taxable in respect of a payment on the debt securities or the gains realized upon the disposal of the debt securities, provided that:
. the corporate holder or individual holder of the debt securities does not have an interest in a Dutch enterprise to which Dutch enterprise the debt securities are attributable;
. the corporate holder or the individual holder of the debt securities is not entitled to a share in the profits of an enterprise that is effectively managed in The Netherlands, other than by way of securities or through an employment contract, and to which enterprise the debt securities are attributable; or
. in respect of an individual holder such payments and gains do not qualify as income from miscellaneous activities in The Netherlands within the meaning of Section 3.4 of the Income Tax Act 2001, which include the performance of activities in The Netherlands with respect to the debt securities that exceed "regular, active portfolio management" (normaal, actief vermogensbeheer).
Gift and Inheritance Taxes
Residents of The Netherlands
Generally, gift and inheritance taxes will be due in The Netherlands in respect of an acquisition of the debt securities by way of a gift by, or on the death of, an individual holder who for the purposes of the Dutch gift and inheritance tax is resident or deemed to be resident in The Netherlands at the time of the gift or his or her death.
An individual of Dutch nationality is deemed to be resident in The Netherlands for the purposes of the Dutch gift and inheritance tax, if he or she has been resident in The Netherlands during the 10 years preceding the gift or his or her death. An individual of any other nationality is deemed to be resident in The Netherlands for the purposes of the Dutch gift and inheritance tax only if he or she has been residing in The Netherlands at any time during the 12 months preceding the time of the gift.
Non-residents of The Netherlands
No gift or inheritance taxes will arise in The Netherlands in respect of an acquisition of the debt securities by way of gift by, or as a result of the death of, an individual holder who is neither resident nor deemed to be resident in The Netherlands, unless:
. such individual holder at the time of the gift has or at the time of his or her death had, an interest in a Dutch enterprise to which Dutch enterprise the debt securities are or were attributable;
. the debt securities are or were attributable to the assets of an enterprise that is effectively managed in The Netherlands and the donor is or the deceased was entitled to a share in the profits of that enterprise, at the time of the gift or at the time of his or her death, other than by way of securities or through an employment contract; or
. in the case of a gift of the debt securities by an individual who at the date of the gift was neither a resident nor deemed to be a resident of The Netherlands, such individual dies within 180 days after the date of the gift, if at the time of his or her death such individual was a resident or deemed to be a resident of The Netherlands.
Other Taxes and Duties
No capital duty, registration tax, customs duty, transfer tax, stamp duty or any other similar documentary tax or duty, will be payable in The Netherlands by the corporate holder or the individual holder in respect of or in connection with the subscription, issue, placement, allotment or delivery of the debt securities.
Proposed EU Savings Directive
On July 18, 2001 the EU Commission published a proposal for a new directive regarding the taxation of savings income. It is proposed that, subject to a number of important conditions being met, member states will be required to provide to the tax authorities of another member state details of payments of interest or other similar income paid by a person within its jurisdiction to an individual resident in that other member state, subject to the right of certain member states to opt instead for a withholding system for a transitional period in relation to such payments. The proposed directive is not yet final, and may be subject to further amendment and clarification.
Taxation in the United States
General. This section summarizes the material U.S. tax consequences to beneficial holders of the common shares and the debt securities. This summary addresses only the U.S. Federal income tax considerations for holders that acquire the securities at their original issuance and hold the securities as capital assets. This summary does not address all U.S. Federal income tax matters that may be relevant to a particular prospective holder. Each prospective investor should consult a professional tax advisor with respect to the tax consequences of an investment in the common shares or the debt securities. This summary does not address tax considerations applicable to a holder of security that may be subject to special tax rules including, without limitation, the following:
. financial institutions;
. insurance companies;
. dealers or traders in securities or currencies;
. tax-exempt entities;
. persons that will hold the securities as part of a "hedging" or "conversion" transaction or as a position in a "straddle" for U.S. Federal income tax purposes;
. holders that own (or are deemed to own) 10% or more of the voting shares of the relevant issuer or guarantor; and
. holders that have a "functional currency" other than the U.S. dollar.
Further, this summary does not address alternative minimum tax consequences or the indirect effects on the holders of equity interests in a holder of security.
This discussion does not cover every type of security that may be issued under this prospectus. If we intend to issue a security of a type not described in this summary, additional tax information will be provided in the prospectus supplement for the applicable security.
This summary is based on the U.S. Internal Revenue Code of 1986, as amended, U.S. Treasury regulations and judicial and administrative interpretations, in each case as in effect and available on the date of this prospectus. All of the foregoing are subject to change, which change could apply retroactively and could affect the tax consequences described below.
Each prospective investor should consult its own tax advisor with respect to the U.S. Federal, state, local and foreign tax consequences of acquiring, owning or disposing of the securities.
For the purposes of this summary, a "U.S. holder" is a beneficial owner of securities that is, for U.S. Federal income tax purposes:
. a citizen or resident of the United States;
. a corporation, or other entity that is treated as a corporation for U.S. Federal income tax purposes, created or organized in or under the laws of the United States or any state of the United States (including the District of Columbia);
. an estate the income of which is subject to U.S. Federal income taxation regardless of its source; or
. a trust, if a court within the United States is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of the substantial decisions of such trust.
If a partnership holds securities, the tax treatment of a partner will generally depend upon the status of the partner and upon the activities of the partnership. Partners of partnerships holding securities should consult their tax advisor. A non-U.S. holder is a beneficial owner of securities that is not a U.S. holder.
Tax Consequences to U.S. Holders.
Common Shares of AEGON
Distributions
The gross amount of any distribution (including any amounts withheld in respect of Dutch withholding tax) actually or constructively received by a U.S. holder with respect to common shares will be taxable to the U.S. holder as a dividend to the extent of AEGON's current and accumulated earnings and profits as determined under U.S. Federal income tax principles. The U.S. holder will not be eligible for any dividends received deduction in respect of the dividend otherwise allowable to corporations. Distributions in excess of earnings and profits will be non-
taxable to the U.S. holder to the extent of, and will be applied against and reduce, the U.S. holder's adjusted tax basis in the common shares. Distributions in excess of earnings and profits and such adjusted tax basis will generally be taxable to the U.S. holder as capital gain from the sale or exchange of property. AEGON does not maintain calculations of its earnings and profits under U.S. Federal income tax principles. If AEGON does not report to a U.S. holder the portion of a distribution that exceeds earnings and profits, the distribution will generally be taxable as a dividend even if that distribution would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described above. The amount of any distribution of property other than cash will be the fair market value of that property on the date of distribution.
The amount of any distribution paid in currency other than U.S. dollars (a "foreign currency") including the amount of any withholding tax thereon, will be included in the gross income of a U.S. holder in an amount equal to the U.S. dollar value of the foreign currencies calculated by reference to the exchange rate in effect on the date of receipt, regardless of whether the foreign currencies are converted into U.S. dollars. If the foreign currencies are converted into U.S. dollars on the date of receipt, a U.S. holder generally should not be required to recognize foreign currency gain or loss in respect of the dividend. If the foreign currencies received in the distribution are not converted into U.S. dollars on the date of receipt, a U.S. holder will have a basis in the foreign currencies equal to its U.S. dollar value on the date of receipt. Any gain or loss on a subsequent conversion or other disposition of the foreign currencies will be treated as ordinary income or loss.
Dividends received by a U.S. holder with respect to common shares will be treated as foreign source income for the purposes of calculating that holder's foreign tax credit limitation. Subject to certain conditions and limitations, and subject to the discussion in the next paragraph, any Dutch income tax withheld on dividends may be deducted from taxable income or credited against a U.S. holder's Federal income tax liability. The limitation on foreign taxes eligible for the U.S. foreign tax credit is calculated separately with respect to specific classes of income. For this purpose, dividends distributed by AEGON generally will constitute "passive income," or, in the case of some U.S. holders, "financial services income." In certain circumstances, a U.S. holder may be unable to claim foreign tax credits for foreign taxes imposed on a dividend if the U.S. holder (1) has not held the common shares for at least 16 days in the 30-day period beginning 15 days before the ex-dividend date, during which it is not protected from risk of loss; (2) is obligated to make payments related to the dividends; or (3) holds the common shares in arrangements in which the U.S. holder's expected profit, after non-U.S. taxes, is insubstantial.
In general, upon making a distribution to shareholders, AEGON is required to remit all amounts withheld as Dutch dividend withholding tax to the Dutch tax authorities and, in such circumstances, the full amount of the taxes so withheld would generally (subject to certain limitations and conditions) be eligible for the U.S. holder's foreign tax deduction or credit as described above. Investors are urged to consult their tax advisers regarding the general creditability or deductibility of Dutch withholding taxes.
A distribution of additional common shares to U.S. holders with respect to their common shares that is made as part of a pro rata distribution to all shareholders generally will not be subject to U.S. Federal income tax unless U.S. holders can elect that the distribution be payable in either additional common shares or cash. AEGON expects that U.S. holders would have this option upon each distribution. Accordingly, a distribution of additional common shares to U.S. holders with respect to their common shares where U.S. holders may elect that distribution be payable in additional common shares or cash will be taxable under the rules described above.
Sale or Other Disposition of Shares
A U.S. holder will generally recognize gain or loss for U.S. Federal income tax purposes upon the sale or exchange of common shares in an amount equal to the difference between the U.S. dollar value of the amount realized from such sale or exchange and the U.S. holder's tax basis for those common shares. This gain or loss will be a capital gain or loss and will generally be treated as from sources within the United States, except that losses will be treated as foreign source to the extent the U.S. holder received dividends that were includible in the financial services income basket during the 24-month period prior to the sale. Prospective investors should consult their own tax advisors with respect to the treatment of capital gains (which may be taxed at lower rates than
ordinary income for taxpayers who are individuals, trusts or estates that have held the common shares for more than one year) and capital losses (the deductibility of which is subject to limitations).
If a U.S. holder receives foreign currency upon a sale or exchange of common shares, gain or loss, if any, recognized on the subsequent sale, conversion or disposition of such foreign currency will be ordinary income or loss, and will generally be income or loss from sources within the United States for foreign tax credit limitation purposes. However, if such foreign currency is converted into U.S. dollars on the date received by the U.S. holder, the U.S. holder generally should not be required to recognize any gain or loss on such conversion.
Redemption of Common Shares
The redemption of common shares by AEGON will be treated as a sale of the redeemed shares by the U.S. holder (which is taxable as described above under "Sale or Other Disposition of the Common Shares") or, in certain circumstances, as a distribution to the U.S. holder (which is taxable as described above under "Distributions").
Passive Foreign Investment Company Considerations
A corporation organized outside the United States generally will be classified as a passive foreign investment company (PFIC) for U.S. Federal income tax purposes in any taxable year in which, after applying certain look- through rules, either: (1) at least 75% of its gross income is passive income, or (2) on average at least 50% of the gross value of its assets is attributable to assets that produce passive income or are held for the production of passive income. In arriving at this calculation, AEGON must also include a pro rata portion of the income and assets of each corporation in which it owns, directly or indirectly, at least a 25% interest. Passive income for this purpose generally includes dividends, interest, royalties, rents and gains from commodities and securities transactions, but excludes any income derived in the active conduct of an insurance business by a corporation which is predominantly engaged in an insurance business. Based on AEGON's estimated gross income, the average value of AEGON's gross assets and the nature of AEGON's active insurance business, AEGON does not believe that it will be classified as a PFIC in the current taxable year. AEGON's status in any taxable year will depend on its assets and activities in each year and no assurances can be provided in that regard.If AEGON were treated as a PFIC in any year during which a U.S. holder owns common shares, certain adverse tax consequences could apply. Investors should consult their own tax advisors with respect to any PFIC considerations.
Debt Securities of AEGON, AFC and AFC II.
Interest
Interest paid on the debt securities, other than interest on a discount note that is not qualified stated interest (each as defined below under "Original Issue Discount - General"), will be taxable to a U.S. holder as ordinary interest income at the time it is received or accrued, depending on the U.S. holder's method of accounting for U.S. Federal income tax purposes.
A U.S. holder utilizing the cash method of accounting for U.S. Federal income tax purposes that receives an interest payment denominated in a foreign currency will be required to include in income the U.S. dollar value of that interest payment, based on the exchange rate in effect on the date of receipt, regardless of whether the payment is in fact converted into U.S. dollars.
If interest on a debt security is payable in a foreign currency, an accrual basis U.S. holder is required to include in income the U.S. dollar value of the amount of interest income accrued on a debt security during the accrual period. An accrual basis U.S. holder may determine the amount of the interest income to be recognized in accordance with either of two methods. Under the first accrual method, the amount of income accrued will be based on the average exchange rate in effect during the interest accrual period or, with respect to an accrual period that spans two taxable years, the part of the period within the taxable year. Under the second accrual method, the U.S. holder may elect to determine the amount of income accrued on the basis of the exchange rate in effect on the last
day of the accrual period or, in the case of an accrual period that spans two taxable years, the exchange rate in effect on the last day of the part of the period within the taxable year. If the last day of the accrual period is within five business days of the date the interest payment is actually received, an electing accrual basis U.S. holder may instead translate that interest expense at the exchange rate in effect on the day of actual receipt. Any election to use the second accrual method will apply to all debt instruments held by the U.S. holder at the beginning of the first taxable year to which the election applies or thereafter acquired by the U.S. holder and will be irrevocable without the consent of the U.S. Internal Revenue Service.
A U.S. holder utilizing either of the foregoing two accrual methods will recognize ordinary income or loss with respect to accrued interest income on the date of receipt of the interest payment (including a payment attributable to accrued but unpaid interest upon the sale or retirement of a debt security). The amount of ordinary income or loss will equal the difference between the U.S. dollar value of the interest payment received (determined on the date the payment is received) in respect of the accrual period and the U.S. dollar value of interest income that has accrued during that accrual period (as determined under the accrual method utilized by the U.S. holder).
Foreign currency received as interest on the debt securities will have a tax basis equal to its U.S. dollar value at the time the interest payment is received. Gain or loss, if any, realized by a U.S. holder on a sale or other disposition of that foreign currency will be ordinary income or loss and will generally be income from sources within the United States for foreign tax credit limitation purposes.
Interest on the debt securities received by a U.S. holder will be treated as foreign source income for the purposes of calculating that holder's foreign tax credit limitation. The limitation on foreign taxes eligible for the U.S. foreign tax credit is calculated separately with respect to specific classes of income. For this purpose, the interest on the debt securities should generally constitute "passive income," or in the case of certain U.S. holders, "financial services income."
Original Issue Discount
General
A debt security, other than a debt security with a term of one year or less (a short-term note), will be treated as issued at an original issue discount (OID, and a debt security issued with OID, a Discount Note ) for U.S. Federal income tax purposes if the excess of the sum of all payments provided under the debt security, other than "qualified stated interest payments" (as defined below), over the issue price of the debt security is more than a "de minimis amount" (as defined below). "Qualified stated interest" is generally interest paid on a debt security that is unconditionally payable at least annually at a single fixed rate. The issue price of the debt securities will be the first price at which a substantial amount of the debt securities are sold to persons other than bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents, or wholesalers.
In general, if the excess of the sum of all payments provided under the debt security other than qualified stated interest payments over its issue price is less than 0.25% of the debt security's stated redemption price at maturity multiplied by the number of complete years to its maturity (the "de minimis amount"), then such excess, if any, constitutes "de minimis OID" and the debt security is not a Discount Note. Unless the election described below under "Election to Treat All Interest as OID" is made, a U.S. holder of a debt security with de minimis OID must include such de minimis OID in income as stated principal payments on the debt security are made. The includible amount with respect to each such payment will equal the product of the total amount of the debt security's de minimis OID and a fraction, the numerator of which is the amount of the principal payment made and the denominator of which is the stated principal amount of the debt security.
A U.S. holder will be required to include OID on a discount debt security in income for U.S. Federal income tax purposes as it accrues calculated on a constant-yield method (described below) before the actual receipt of cash attributable to that income, regardless of the U.S. holder's method of accounting for U.S. Federal income tax purposes. Under this method, U.S. holders generally will be required to include in income increasingly greater
amounts of OID over the life of Discount Notes. Investors should consult their own tax advisors to determine the U.S. Federal income tax implications of the constant-yield method and regarding the accrual of OID generally.
OID for any accrual period on a debt security that is denominated in, or determined by reference to, a foreign currency will be determined in that foreign currency and then translated into U.S. dollars in the same manner as interest payments accrued by an accrual basis U.S. holder, as described under "Payments of Interest" above. Upon receipt of an amount attributable to OID in these circumstances, a U.S. holder may recognize ordinary income or loss.
OID on a Discount Note will be treated as foreign source income for the purposes of calculating a U.S. holder's foreign tax credit limitation. The limitation on foreign taxes eligible for the U.S. foreign tax credit is calculated separately with respect to specific classes of income. For this purpose, OID on a Discount Note should generally constitute "passive income" or, in the case of certain U.S. holders, "financial services income."
Acquisition Premium
A U.S. holder that purchases a debt security for an amount less than or equal to the sum of all amounts payable on the debt security after the purchase date other than payments of qualified stated interest but in excess of its adjusted issue price and that does not make the election described below under "Election to Treat All Interest as OID" will have acquisition premium. Investors should consult their own tax advisors regarding the U.S. Federal income tax implications of acquisition premium.
Market Discount
A debt security, other than a short-term note, will be treated as purchased at a market discount (a market discount note) if the debt security's stated redemption price at maturity or, in the case of a Discount Note, the debt security's "revised issue price," exceeds the amount for which the U.S. holder purchased the debt security by at least 0.25% of the debt security's stated redemption price at maturity or revised issue price, respectively, multiplied by the number of complete years to the debt security's maturity. If such excess is not sufficient to cause the debt security to be a market discount note, then such excess constitutes "de minimis market discount" and the debt security is not subject to the rules discussed in the following paragraphs. For these purposes, the "revised issue price" of a debt security generally equals its issue price, increased by the amount of any OID that has accrued on the debt security.
Any gain recognized on the maturity or disposition of a market discount note will be treated as ordinary income to the extent that such gain does not exceed the accrued market discount on that debt security. Alternatively, a U.S. holder of a market discount note may elect to include market discount in income currently over the life of the debt security. Such an election shall apply to all debt instruments with market discount acquired by the electing U.S. holder on or after the first day of the first taxable year to which the election applies. This election may not be revoked without the consent of the IRS.
Market discount on a market discount note will accrue on a straight-line basis unless the U.S. holder elects to accrue such market discount on a constant-yield method. Such an election shall apply only to the debt security with respect to which it is made and may not be revoked. A U.S. holder of a market discount note that does not elect to include market discount in income currently generally will be required to defer deductions for interest on borrowings allocable to that debt security in an amount not exceeding the accrued market discount on that debt security until the maturity or disposition of that debt security.
Election to Treat All Interest as OID
A U.S. holder may elect to include in gross income all interest that accrues on a debt security using the constant-yield method described above under the heading "Original Issue Discount - General," with the modifications described below. For the purposes of this election, interest includes stated interest, OID, de minimis
OID, market discount, de minimis market discount and unstated interest, as adjusted by any amortizable bond premium or acquisition premium.
In applying the constant-yield method to a debt security with respect to which this election has been made, the issue price of the debt security will equal its cost to the electing U.S. holder, the issue date of the debt security will be the date of its acquisition by the electing U.S. holder, and no payments on the debt security will be treated as payments of qualified stated interest. This election will generally apply only to the debt security with respect to which it is made and may not be revoked without the consent of the IRS. If this election is made with respect to a debt security with amortizable bond premium, then the electing U.S. holder will be deemed to have elected to apply amortizable bond premium against interest with respect to all debt instruments with amortizable bond premium (other than debt instruments the interest on which is excludible from gross income) held by the electing U.S. holder as of the beginning of the taxable year in which the debt security with respect to which the election is made is acquired or thereafter acquired. The deemed election with respect to amortizable bond premium may not be revoked without the consent of the IRS.
If the election to apply the constant-yield method to all interest on a debt security is made with respect to a market discount note, the electing U.S. holder will be treated as having made the election discussed above under "Original Issue Discount - Market Discount" to include market discount in income currently over the life of all debt instruments held or thereafter acquired by such U.S. holder.
Debt Securities Purchased at a Premium
A U.S. holder that purchases a debt security for an amount in excess of its principal amount may elect to treat such excess as amortizable bond premium. If this election is made, the amount required to be included in the U.S. holder's income each year with respect to interest on the debt security will be reduced by the amount of amortizable bond premium allocable (based on the debt security's yield to maturity) to such year. In the case of a debt security that is denominated in, or determined by reference to, a foreign currency, amortizable bond premium will be computed in units of foreign currency, and amortizable bond premium will reduce interest income in units of foreign currency. At the time amortizable bond premium offsets interest income, a U.S. holder realizes exchange gain or loss (taxable as ordinary income or loss) equal to the difference between exchange rates at that time and at the time of the acquisition of the debt securities. Any election to amortize bond premium shall apply to all bonds (other than bonds the interest on which is excludible from gross income) held by the U.S. holder at the beginning of the first taxable year to which the election applies or thereafter acquired by the U.S. holder and is irrevocable without the consent of the IRS.
Sale, Exchange or Retirement of the Debt Securities
A U.S. holder's tax basis in a debt security will generally equal its "U.S. dollar cost," increased by the amount of any OID or market discount included in the U.S. holder's income with respect to the debt security and the amount, if any, of income attributable to de minimis OID and de minimis market discount included in the U.S. holder's income with respect to the debt security (each as determined above), and reduced by the amount of any payments with respect to the debt security that are not qualified stated interest payments and the amount of any amortizable bond premium applied to reduce interest on the debt security. The "U.S. dollar cost" of a debt security purchased with a foreign currency will generally be the U.S. dollar value of the purchase price on (1) the date of purchase or (2) in the case of a debt security traded on an established securities market (as defined in the applicable U.S. Treasury regulations), that are purchased by a cash basis U.S. holder (or an accrual basis U.S. holder that so elects), on the settlement date for the purchase.
A U.S. holder will generally recognize gain or loss on the sale, exchange or retirement of a debt security equal to the difference between the amount realized on the sale, exchange or retirement and the tax basis of the debt security. The amount realized on the sale, exchange or retirement of a debt security for an amount in foreign currency will be the U.S. dollar value of that amount on the date of disposition, except in the case of debt securities traded on an established securities market (as defined in the applicable U.S. Treasury regulations) that are sold by an accrual basis U.S. holder that elects to utilize the U.S. dollar value on the settlement date for the sale.
Gain or loss recognized by a U.S. holder on the sale, exchange or retirement of a debt security that is attributable to changes in currency exchange rates will be ordinary income or loss and will consist of OID exchange gain or loss and principal exchange gain or loss. OID exchange gain or loss will equal the difference between the U.S. dollar value of the amount received on the sale, exchange or retirement of a debt security that is attributable to accrued but unpaid OID as determined by using the exchange rate on the date of the sale, exchange or retirement and the U.S. dollar value of accrued but unpaid OID as determined by the U.S. holder under the rules described above under "Original Issue Discount - General". Principal exchange gain or loss will equal the difference between the U.S. dollar value of the U.S. holder's purchase price of the debt security in foreign currency determined on the date of the sale, exchange or retirement, and the U.S. dollar value of the U.S. holder's purchase price of the debt security in foreign currency determined on the date the U.S. holder acquired the debt security. The foregoing foreign currency gain or loss will be recognized only to the extent of the total gain or loss realized by the U.S. holder on the sale, exchange or retirement of the debt security, and will generally be treated as from sources within the United States for U.S. foreign tax credit limitation purposes.
Any gain or loss recognized by a U.S. holder in excess of foreign currency gain recognized on the sale, exchange or retirement of a debt security would generally be U.S. source capital gain or loss (except to the extent such amounts are attributable to market discount, accrued but unpaid interest, or subject to the general rules governing contingent payment obligations). Prospective investors should consult their own tax advisors with respect to the treatment of capital gains (which may be taxed at lower rates than ordinary income for taxpayers who are individuals, trusts or estates that held the debt securities for more than one year) and capital losses (the deductibility of which is subject to limitations).
A U.S. holder will have a tax basis in any foreign currency received on the sale, exchange or retirement of a debt security equal to the U.S. dollar value of the foreign currency at the time of the sale, exchange or retirement. Gain or loss, if any, realized by a U.S. holder on a sale or other disposition of that foreign currency will be ordinary income or loss and will generally be income from sources within the United States for foreign tax credit limitation purposes.
Payments by Guarantor
A payment on guaranteed debt securities made by AEGON will be treated in the same manner as if made directly by the issuer.
Special Categories of Debt Securities of AEGON, AFC and AFC II
Additional tax rules may apply to other categories of debt securities of AEGON, AFC and AFC II. The prospectus supplement for these debt securities may describe these rules. In addition, you should consult your tax advisor in these situations. These categories of debt securities include:
. debt securities that are convertible into common shares of AEGON;
. debt securities that are issued in bearer form;
. debt securities with contingent payments;
. debt securities with variable rate payments;
. indexed debt securities where payments will be payable by reference to any index or formula;
. debt securities that are perpetual in maturity;
. debt securities that are callable by the issuer before their maturity, other than typical calls at a premium; and
. debt securities that are extendable at the option of the issuer or the holder.
Information Reporting and Backup Withholding
If you hold your securities through a broker or other securities intermediary, the intermediary is required to provide information to the IRS concerning interest, OID or dividend, as the case may be, and retirement proceeds on your securities, unless an exemption applies. In addition, you must provide the intermediary with your taxpayer identification number for its use in reporting information to the IRS and comply with other IRS requirements concerning information reporting. If you are subject to these requirements but do not comply, the intermediary is required to backup withhold in respect of amounts payable to you on the securities. If the intermediary backup withholds payments, you may use the withheld amount as a credit against your Federal income tax liability. Some U.S. holders, including corporations and tax-exempt organizations, are exempt from these requirements. U.S. holders should consult their tax advisors as to their qualification for exemption from backup withholding and the procedure for obtaining an exemption.
Tax Consequences to Non-U.S. Holders.
Withholding Taxes
Generally, payments of principal and interest, including OID, on the guaranteed debt securities will not be subject to U.S. withholding taxes. The same rules will apply to payments of additional amounts and payments made by a guarantor on a guaranteed debt security. However, if you hold guaranteed debt securities issued by AFC or AFC II, for the exemption from U.S. withholding taxes to apply to you, you must meet one of the following requirements:
. You provide your name, address, and a signed statement that you are the beneficial owner of the guaranteed debt security and are not a U.S. holder. This statement is generally made on U.S. IRS Form W-8BEN;
. You or your agent claim an exemption from withholding tax under an applicable tax treaty. This claim is generally made on U.S. IRS Form W-8BEN; or
. You or your agent claim an exemption from withholding tax on the ground that the income is effectively connected with the conduct of a trade or business in the U.S. This claim is generally made on U.S. IRS Form W-8ECI.
You should consult your tax advisor about the specific methods for satisfying these requirements. A claim for exemption will not be valid if the person receiving the application form has actual knowledge that the statements on the form are false.
Even if you comply with these conditions, U.S. withholding tax might arise on guaranteed debt securities issued by AFC and AFC II if the amount of interest is based on the earnings or other attributes of AFC and AFC II, as the case may be, or a related party. If this exception applies, additional information will be provided in the prospectus supplement.
Information Reporting and Backup Withholding
If you provide the tax certifications needed to avoid withholding tax on interests, as described above, principal and interest payments received by you will automatically be exempt from U.S. information reporting
requirements and backup withholding. Interest payments made to you by AFC and AFC II will be reported to the IRS. Sales proceeds you receive on a sale of your guaranteed debt through a broker may be subject to information reporting and backup withholding if you are not eligible for an exemption. In particular, information reporting and backup withholding may apply if you use the U.S. office of a broker, and information reporting (but not backup withholding) may apply if you use the foreign office of a broker that has certain connections to the U.S. You should consult your tax advisor concerning information reporting and backup withholding on a sale.
Sale, Exchange or Retirement of Securities
If you sell, exchange or redeem common shares or debt securities, you will not be subject to U.S. Federal income tax on any gain unless one of the following applies:
. the gain is connected with a trade or business that you conduct in the U.S.;
. you are an individual, you are present in the U.S. for at least 183 days during the year in which you dispose of the guaranteed debt security, and certain other conditions are satisfied; or
. the gain represents accrued interest or OID, in which case the rules for interest would apply.
U.S. Trade or Business
If you hold your securities in connection with a trade or business that you are conducting in the U.S., any interest or dividend on the security and any gain from disposing the security generally will be subject to income tax as if you were a U.S. holder, and if you are a corporation, you may be subject to the "branch profits tax" on your earnings that are connected with your U.S. trade or business. This tax is 30%, but may be reduced or eliminated by an applicable income tax treaty.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus in and outside the United States in one or more of the following ways:
. through underwriters;
. through dealers;
. through agents; or
. directly to purchasers.
The distribution of the securities may be carried out from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. Underwriters, dealers and agents may be customers of, engage in transactions with or perform services for the AEGON Group in the ordinary course of business.
The prospectus supplement relating to any offering will include the following information:
. the terms of the offering;
. the names of any underwriters, dealers or agents;
. the purchase price of the securities;
. the net proceeds to us from the sale of the securities;
. any delayed delivery arrangements;
. any underwriting discounts or other underwriters' compensation; and
. any discounts or concessions allowed or reallowed or paid to dealers.
Sales through Underwriters or Dealers
If we use underwriters in an offering using this prospectus, we will execute an underwriting agreement with one or more underwriters. The underwriting agreement will provide that the obligations of the underwriters with respect to a sale of the offered securities are subject to specified conditions precedent and that the underwriters will be obligated to purchase all of the offered securities if they purchase any. Underwriters may sell those securities through dealers. The underwriters may change the initial offering price and any discounts or concessions allowed or re-allowed or paid to dealers. If we use underwriters in an offering of securities using this prospectus, the applicable prospectus supplement will contain a statement regarding the intention, if any, of the underwriters to make a market in the offered securities.
We may grant to the underwriters an option to purchase additional offered securities, to cover over-allotments, if any, at the public offering price (with additional underwriting discounts or commissions), as may be set forth in the related prospectus supplement. If we grant any over-allotment option, the terms of the over-allotment option will be set forth in the prospectus supplement relating to such offered securities.
If we use a dealer in an offering of securities using this prospectus, we will sell the offered securities to the dealer as principal. The dealer may then resell those securities to the public or other dealers at a fixed price or varying prices to be determined at the time of resale.
Direct Sales and Sales through Agents
We may also use this prospectus to directly solicit offers to purchase securities. In this case, no underwriters or agents would be involved. Except as set forth in the applicable prospectus supplement, none of our directors, officers or employees will solicit or receive a commission in connection with those direct sales. Those persons may respond to inquiries by potential purchasers and perform ministerial and clerical work in connection with direct sales.
We may also sell the offered securities through agents we designate from time to time. In the prospectus supplement, we will describe any commission payable by us to the agent. Unless we inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
Delayed Delivery Contracts
We may authorize underwriters and agents to solicit offers by certain institutions to purchase securities pursuant to delayed delivery contracts providing for payment and delivery on a future date specified in the prospectus supplement. Institutions with which delayed delivery contracts may be made include commercial and savings banks, insurance companies, educational and charitable institutions and other institutions we may approve. The obligations of any purchaser under any delayed delivery contract will not be subject to any conditions except that any related sale of offered securities to underwriters shall have occurred and the purchase by an institution of the securities covered by its delayed delivery contract shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which that institution is subject. Any commission paid to agents and underwriters soliciting purchases of securities pursuant to delayed delivery contracts accepted by us will be detailed in the prospectus supplement.
Indemnification
Underwriters, dealers or agents participating in a distribution of securities using this prospectus may be deemed to be underwriters under the Securities Act. Pursuant to agreements that we may enter into, underwriters, dealers or agents who participate in the distribution of securities by use of this prospectus may be entitled to indemnification by us against certain liabilities, including liabilities under the Securities Act, or contribution with respect to payments that those underwriters, dealers or agents may be required to make in respect of those liabilities.
VALIDITY OF SECURITIES
Certain matters of United States law relating to the securities offered through this prospectus will be passed upon for AEGON, AFC and AFC II by Allen & Overy, New York, New York. Certain Dutch legal matters relating to the securities will be passed upon for AEGON by Allen & Overy, Amsterdam, The Netherlands.
EXPERTS
Ernst & Young Accountants, independent auditors, have audited the consolidated financial statements and schedules included in AEGON's annual report on Form 20-F for the year ended December 31, 2000, as set forth in their report, which is incorporated by reference in this prospectus. AEGON's financial statements and schedules are incorporated by reference in reliance on Ernst & Young Accountant's report, given on their authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
AEGON maintains insurance to indemnify members of the AEGON Executive and Supervisory Boards and officers of AEGON. The certificate of incorporation of each of AFC and AFC II provides for indemnification of present and former officers and directors and their legal representatives for actions taken at the request of AFC or AFC II, as the case may be. Indemnification is to be made to the fullest extent legally permissible under the General Corporation Law of the State of Delaware for all expenses, liabilities and losses reasonably incurred by such persons in connection with those actions. The by-laws of each of AFC and AFC II permit insurance to be maintained for such indemnification.
Any underwriter will agree, severally, to indemnify the directors of AEGON, AFC and AFC II and the officers of such corporations who sign the registration statement from and against certain civil liabilities, including liabilities under the Securities Act or to contribute with respect to payments which such persons may be required to make in respect thereof, based on information supplied by such underwriter for use herein and in any prospectus supplement.
Item 9. Exhibits
Exhibit Number Description -------- -------------------------------------------------------------------------------------------------- *1.1 Form of Underwriting Agreement with respect to common shares *1.2 Form of Underwriting Agreement with respect to debt securities 4.1 Articles of Incorporation of AEGON N.V. 4.2 Specimen Share Certificate 4.3 Indenture between AEGON N.V., AEGON Funding Corp., AEGON Funding Corp. II and Citibank, N.A., as Trustee 5.1 Opinion of Allen & Overy, New York, New York 5.2 Opinion of Allen & Overy, Amsterdam, The Netherlands 23.1 Consent of Allen & Overy, New York, New York (included in Exhibit 5.1) 23.2 Consent of Allen & Overy, Amsterdam, The Netherlands (included in Exhibit 5.2) 23.3 Consent of Ernst & Young Accountants 24.1 Powers of Attorney (included on signature pages) 25.1 Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 |
Item 10. Undertakings
A. Undertaking pursuant to Rule 415
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 this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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 (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 and Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by Item 8.A. of Form 20-F at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required
pursuant to this subparagraph (4) and other information necessary to
ensure that all other information in the prospectus is at least as current
as the date of those financial statements. Notwithstanding the foregoing,
with respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in Form F-3.
B. Undertaking regarding request for acceleration of effective date:
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or 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 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 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 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.
C. Undertaking regarding filings incorporating subsequent Exchange Act documents by reference:
Each of the undersigned registrants undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant, AEGON N.V., certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in The Hague, The Netherlands, on this 11th day of October, 2001.
AEGON N.V.
By: /s/ K.J. STORM
----------------------------------
Name: K.J. Storm
Title: Chairman of the Executive Board
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints E. Lagendijk and C.M. van Katwijk, and each of them severally, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and reports on Form 6-K relating thereto and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all the said attorneys-in-fact and agents or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons (who comprise a majority of the Corporate Executive Board) in the capacities and on the dates indicated.
Signature Title Date
/s/ K.J. STORM Chief Executive Officer and Chairman of October 11 , 2001
-------------------------------------
K.J. STORM the Executive Board (Principal Executive
Officer)
/s/ D.J. SHEPARD Executive Board Member October 11, 2001
-------------------------------------
D.J. SHEPARD
/s/ P. VAN DE GEIJN Executive Board Member October 11 , 2001
-------------------------------------
P. VAN DE GEIJN
/s/ J.B.M. STREPPEL Executive Board Member October 11 , 2001
-------------------------------------
J.B.M. STREPPEL (Principal Financial and Principal
Accounting Officer)
|
/s/ M. TABAKSBLAT Chairman of the Supervisory October 11, 2001 ------------------------------------- M. TABAKSBLAT Board /s/ H. DE RUITER Vice Chairman of the Supervisory Board October 11, 2001 ------------------------------------- H. DE RUITER /s/ D.G. EUSTACE Supervisory Board Member October 11, 2001 ------------------------------------- D.G. EUSTACE /s/ SIR M. JENKINS, K.C.M.G. Supervisory Board Member October 11, 2001 ------------------------------------- SIR M. JENKINS, K.C.M.G. /s/ O.J. OLCAY Supervisory Board Member October 11, 2001 ------------------------------------- O.J. OLCAY /s/ K.M.H. PEIJS Supervisory Board Member October 11, 2001 ------------------------------------- K.M.H. PEIJS /s/ G.A. POSTHUMUS Supervisory Board Member October 11, 2001 ------------------------------------- G.A. POSTHUMUS /s/ T. REMBE Supervisory Board Member October 11, 2001 ------------------------------------- T. REMBE /s/ W.F.C. STEVENS Supervisory Board Member October 11, 2001 ------------------------------------- W.F.C. STEVENS /s/ F.J. DE WIT Supervisory Board Member October 11, 2001 ------------------------------------- F.J. DE WIT /s/ C.D. VERMIE Authorized U.S. Representative October 11, 2001 ------------------------------------- C.D. VERMIE |
Pursuant to the requirements of the Securities Act of 1933, the registrant, AEGON Funding Corp., certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly
caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wilmington, Delaware, on this 11th day of October, 2001.
AEGON Funding Corp.
By: /s/ R.J. MCGRAW
---------------
Name: R.J. MCGRAW
Title: President
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints E. Lagendijk and C.M. van Katwijk, and each of them severally, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all the said attorneys-in- fact and agents or either of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons (who comprise a majority of the Board of Directors) in the capacities and on the dates indicated.
Signature Title Date
/s/ R.J. MCGRAW President October 11, 2001
--------------------------------
R.J. MCGRAW (Principal Executive Officer)
/s/ C.M. VAN KATWIJK Treasurer October 11, 2001
--------------------------------
C.M. VAN KATWIJK (Principal Financial Officer
and Principal Accounting Officer)
/s/ C.D. VERMIE Secretary October 11, 2001
--------------------------------
C.D. VERMIE
|
Pursuant to the requirements of the Securities Act of 1933, the registrant, AEGON Funding Corp. II, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wilmington, Delaware, on this 11th day of October, 2001.
AEGON Funding Corp. II
By: /s/ R.J. MCGRAW
---------------
Name: R.J. McGraw
Title: President
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints E. Lagendijk and C.M. van Katwijk, and each of them severally, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all the said attorneys-in-fact and agents or either of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons (who comprise a majority of the Board of Directors) in the capacities and on the dates indicated.
Signature Title Date
/s/ R.J. MCGRAW President October 11, 2001
---------------------------------
R.J. MCGRAW (Principal Executive Officer)
/s/ C.M. VAN KATWIJK Treasurer October 11, 2001
---------------------------------
C.M. VAN KATWIJK (Principal Financial Officer
and Principal Accounting Officer)
/s/ C.D. VERMIE Secretary October 11, 2001
---------------------------------
C.D. VERMIE
|
EXHIBIT INDEX
Exhibit Number Description ------- --------------------------------------------------------------------------------------------------- *1.1 Form of Underwriting Agreement with respect to common shares *1.2 Form of Underwriting Agreement with respect to debt securities 4.1 Articles of Incorporation of AEGON N.V. 4.2 Specimen Share Certificate 4.3 Indenture between AEGON N.V., AEGON Funding Corp., AEGON Funding Corp. II and Citibank, N.A., as Trustee 5.1 Opinion of Allen & Overy, New York, New York 5.2 Opinion of Allen & Overy, Amsterdam, The Netherlands 23.1 Consent of Allen & Overy, New York, New York (included in Exhibit 5.1) 23.2 Consent of Allen & Overy, Amsterdam, The Netherlands (included in Exhibit 5.2) 23.3 Consent of Ernst & Young Accountants 24.1 Powers of Attorney (included on signature pages) 25.1 Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 |
EXHIBIT 4.1
ARTICLES OF INCORPORATION*
AEGON N.V.
registered in The Hague
Trade Register 27076669, Chamber of Commerce The Hague
Continuing text after the amendments, executed on May 30, 2000 before Mr R.J.J. Lijdsman, civil law notary, Amsterdam, certificate from the minister that there have appeared to be no objections dated May 18, 2000 number N.V.
101.780.
*The term `Articles of Incorporation' is a translation of the Dutch word `statuten'. One should be aware that the Dutch concept `statuten' does not only include the Anglo-Saxon concept of `Articles of Incorporation' but also the concept of `by-laws'.
The following is a fair English translation of the text of the Articles of Incorporation of AEGON N.V. An attempt has been made to translate as literally as possible without jeopardising the overall continuity of the text. Inevitably, however, differences may occur in translation and if they do, the Dutch text will by law govern. In the above, Dutch legal concepts are expressed in English terms and not in their original Dutch terms; the concepts concerned may not be identical to concepts described by the English terms as such terms may be understood under the laws of other jurisdictions.
Name and registered office.
Article 1.
The name of the Company shall be AEGON N.V. and it is registered in The Hague
(The Netherlands).
Duration.
Article 2.
The Company shall continue to exist for an indefinite period of time.
Objectives.
Article 3.
1. The objectives of the Company are to incorporate, acquire and alienate
shares and interests in, to finance and grant security for commitments of,
to enter into general business relationships with and to manage and grant
services to legal entities and other entities, in particular those involved
in the insurance business, as well as to conduct any other activity which
might further advance these objectives. These objectives shall be construed
as broadly as possible.
2. In achieving the aforesaid objectives due regard shall be taken, within the
scope of sound business operations, to provide fair safeguards for the
interests of all the parties directly or indirectly involved in the
Company.
Capital and shares.
Article 4.
1. The authorized capital of the Company amounts to FOUR HUNDRED EIGHTY
MILLION EURO (EUR 480,000,000.00), divided into four billion
(4,000,000,000) shares having a par value of twelve eurocents (EUR 0.12)
each, of which:
- one billion four hundred million (1,400,000,000) are preferred shares,
and
- two billion six hundred million (2,600,000,000) are common shares.
2. All the shares shall be fully paid upon acceptance.
3. Shares shall, at the choice of the shareholder, be either registered or
shall be to bearer. Subject to the approval of the supervisory board, the
executive board may decide that, in the event of a choice for or a
conversion into registered shares for which no certificates of share are in
circulation, a minimum limit may be placed on the number of shares in order
to become eligible for registration in the share register as referred to in
paragraph 6.
4. For shares to bearer the Company shall issue certificates of share of such
numbers of shares as the executive board shall determine.
5. The executive board may, at the shareholder's option, provide that, instead
of certificates of share to bearer provided with a dividend sheet
consisting of separate dividend coupons (K-certificates), certificates of
share to bearer provided with a dividend sheet not consisting of separate
dividend coupons (CF-certificates) shall be issued. Such dividend sheets of
CF-certificates shall, on behalf of the holders of shares to bearer to
which they relate, be handed over to and remain permanently in the custody
of a custodian to be appointed in accordance with the provisions of this
paragraph. The executive board shall appoint as custodians of these
dividend sheets individuals or legal entities whose business is the custody
of dividend sheets and who have dividend sheets in their custody
administered by an institution which is designated to this end by the
executive board and which is independent of the Company. If there are CF-
certificates they may always be exchanged for K-certificates and vice
versa. The Company shall charge no costs to a shareholder who has requested
such exchange.
6. A register of registered shares shall be kept by or on behalf of the
Company. The register may consist of various parts which may be kept in
different places and each may be kept in more than one copy and in more
than one place as determined by the executive board. The register shall be
kept up to date. In the register shall be entered the names and the
addresses referred to in paragraph 7 of all the holders of registered
shares, the call paid on each share and such other particulars as the
2/14
executive board may determine. The entries in the register as well as the
amendments thereof shall be certified in a manner to be prescribed by the
executive board. Article 85 Book 2 of the Dutch Civil Code shall apply to
the Company.
7. Every holder of a registered share as well as usufructuaries and lienors of
such a share are obliged to furnish the Company in writing with an address
to which all notices, dispatched by the Company in respect of his share,
are to be delivered.
8. Any holder of a registered share as well as usufructuaries and lienors of
such a share shall, at their request, be provided free of charge with an
extract from the register which shows their right to such share.
9. The executive board may resolve that for registered shares certificates of
share shall be made available.
10. The certificates of registered shares shall not be provided with dividend
sheets. They shall be available for such numbers of registered shares as
the executive board shall fix and determine.
11. The executive board shall determine the form and contents of the
certificates of share with due observance for the provisions of these
articles of incorporation. Each certificate shall state upon the face
thereof that it is a certificate of a common share or of a preferred share
and shall further bear indications, such that it can be distinguished from
other certificates of share. They shall be signed by a member of the
executive board and a member of the supervisory board whose signatures may
be in facsimile. The executive board can provide that certificates of
registered shares shall also be signed by one or more persons to be
designated for this purpose by the executive board.
12. At the request of the shareholder
a. shares to bearer will be exchanged for registered shares and vice
versa;
b. certificates of shares to bearer will be exchanged for more or fewer
certificates of together the same number of shares of the same kind to
bearer (with due observance for the provisions of paragraph 4);
c. certificates of registered shares will be exchanged for more or fewer
certificates of together the same number of registered shares of the
same kind (with due observance of the provisions of paragraph 10); and
d. certificates of registered shares will be issued or taken back by the
Company, the original entry in the register being maintained,
all this subject to the provisions of paragraph 3. Such request shall be
made in writing at the address to be determined by the executive board. The
executive board may provide that the request must be made by the filling in
and signing of a form to be made available by the Company. For the
transactions mentioned above under a) and d), the Company shall only charge
costs, which costs shall have to be paid before the request will be
complied with. The other transactions mentioned above shall not be
performed until the certificates of share to be surrendered or to be
exchanged, as the case may be, have been handed in, with any appurtenant
documents belonging to them.
13. The Company may acquire other than by gratuitous title, any fully paid
shares in its own capital only if:
a. its net assets reduced by the purchase price is not less than the paid-
in and claimed portion of the capital increased by the reserves which
must be maintained according to the law, and
b. the nominal amount of the shares in its capital which the Company
acquires, holds or holds in pledge or which are held by a subsidiary
company does not exceed one tenth of the issued capital. The term
`shares' in this paragraph shall include depositary receipts thereof.
14. For the acquisition of shares referred to in the preceding paragraph the
executive board shall require the authorization of the general meeting of
shareholders, which authorization shall be valid for eighteen months. The
authorization shall determine how many shares may be acquired, how they may
be acquired and the minimum and maximum price.
15. The Company may acquire its own shares for transfer to staff employed by
the Company or by a Group Company, pursuant to a regulation to that effect.
16. No payments shall be made on shares which the Company holds in its own
share capital.
3/14
17. The Company may not vote shares which it holds in its own share capital; in
addition Article 118 paragraph 7 of Book 2 of the Dutch Civil Code shall
apply. In determining the extent to which the shareholders cast their
votes, are present or represented, or the extent to which the share capital
is furnished or represented, shares for which the law determines that no
vote may be cast thereon, shall not be taken into account.
18. The term `shares' means both common and preferred shares, unless the
contrary is expressly provided or is evident from the context.
19. The rights of holders of depositary receipts issued with the cooperation of
the Company and of usufructuaries and lienors to whom the law has accorded
corresponding rights are subject to the legal provisions concerned.
Issuance of shares.
Article 5.
1. The authority to issue shares is vested in the general meeting of
shareholders or in the executive board, after it has been designated to do
so by the general meeting for a fixed period of five years at the utmost,
in such numbers, at such times and on such terms - but not below par,
except if the provisions of Article 80, Book 2 of the Dutch Civil Code
apply, and subject to payment in full - as the general meeting or the
executive board respectively shall determine. In a resolution on the
aforesaid designation it shall be determined how many shares of either type
may be issued.
2. If the executive board has been so designated by the general meeting of
shareholders as mentioned in paragraph 1, this designation may only be
withdrawn if it is thus proposed by the executive board and approved by the
supervisory board, unless the designation specifically states that it
cannot be withdrawn.
3. In the case that common shares are issued, holders of common shares shall,
subject to the exceptions mentioned in the law, have the right, within a
period to be set by the executive board and subject to the approval of the
supervisory board, to take new common shares at a fixed price in proportion
to the number of their existing common shares, unless the general meeting
of shareholders or the executive board, if the latter has been designated
to this end by the general meeting - after receiving the designation
referred to in paragraph 1 - for a fixed period of five years at the
utmost, with due observance of Article 96a paragraph 7, Book 2 of the Dutch
Civil Code, resolves upon a restriction or exclusion of the pre-emption
rights.
4. The resolution upon the issuance of non-issued shares referred to in
paragraph 1 and the resolution upon restriction or exclusion of the pre-
emption rights referred to in paragraph 3 shall be subject to the approval
of the supervisory board.
5. If the executive board has been designated, according to paragraph 1, by
the general meeting of shareholders as a competent body for the passing of
resolutions upon the issuance of preferred shares, a general meeting of
shareholders shall be held within thirty days after such shares have been
issued, in which a statement concerning the reason(s) for such issue will
be made by the executive board, unless such statement had already been made
before at a meeting of shareholders.
6. The executive board is authorized, with the approval of the supervisory
board, within the scope of a merger of a subsidiary of the company, to
issue common shares to be debited to a reserve insofar as the executive
board has been appointed by the general meeting of shareholders in
accordance with paragraphs 1 and 3 of this Article.
7. Without prejudice to the provisions of the preceding paragraphs and of
Article 96 paragraph 2, Book 2 of the Dutch Civil Code, the issuance of
preferred shares shall be subject to the previous approval of the meeting
of holders of preferred shares.
8. The preceding two paragraphs shall not apply in the case that preferred
shares are issued to the only holder of preferred shares.
Repayments on preferred shares.
Article 6.
4/14
Provided the provisions of Article 99, Book 2 of the Dutch Civil Code are observed, the general meeting of shareholders may stipulate, on the proposal of the executive board, that the calls paid on the preferred shares shall be repaid in whole or in part; in case of whole repayment these shares shall be withdrawn. Partial repayment shall, in respect of all those shares, be made proportionately. Without prejudice to the provisions of paragraph 5 of the above-mentioned Article 99, this resolution of the general meeting shall require the previous or simultaneous approval of the meeting of holders of preferred shares.
Transfer of registered shares.
Article 7.
1. Without prejudice to the provisions of paragraphs 2, 3 and 4 the transfer
of a registered share shall require a specific deed of transfer, setting
forth the shares to be transferred, and, unless the Company itself is a
party to the deed, a written acknowledgement of the transfer by the
Company. The acknowledgement shall be stated in the deed itself or in a
dated statement of acknowledgement in the deed or in a copy or an extract
of the deed, authenticated by a notary public or the alienator. The
acknowledgement may be substituted by the official delivery to the Company
of such deed, copy or extract.
2. Except for the provisions of the following paragraph, any transfer of
registered shares may only take place with the previous consent of the
supervisory board. This consent may be so conditioned as the board may deem
desirable or necessary.
3. The consent referred to in the preceding paragraph shall not be required in
the case of;
a. a transfer of registered shares for which no certificates of share are
outstanding, and
b. a transfer of registered shares for which certificates of share are
outstanding, provided the deed destined for a transfer as shown on the
back of the certificate(s) of share - or a separate deed corresponding
with the text thereof - has been filled in and has been signed by or on
behalf of the transferor.
4. Without prejudice to the provisions in paragraph 1, the transfer of
registered shares for which certificates of share are outstanding can only
take place if the certificate(s) of share is/are surrendered to the Company
at the same time. As proof of the acknowledgement of the transfer, the
acknowledgement shall be noted on that/those document(s) or that/those
document(s) shall be replaced with one or more certificates of share in the
name of the acquirer, all by or on behalf of the Company.
5. The provisions of the preceding paragraphs shall apply analogously to the
transfer of a registered share as a result of a forced sale as well as to
the allotment of a registered share as a result of the distribution of any
community of property.
6. The provisions of paragraph 1 and of the first sentence of paragraph 4
shall apply analogously to the transfer of a limited right on a registered
share. If a certificate of share has been issued, the acknowledgement of
the transfer may only take place by a statement to this effect on the
document.
Duplicate of shares, talons and dividend coupons.
Article 8.
1. In case one or more certificates of share, talons or dividend coupons
should be lost or have been damaged, stolen or destroyed, the executive
board may, on conditions to be stipulated by it, issue duplicates of
certificates of share, talons or dividend coupons to the owner.
2. The issue of such duplicates shall render the corresponding old documents
null and void against the Company.
The executive board.
Article 9.
1. The Company's management is vested with the executive board.
5/14
2. The number of members of the executive board shall be determined by the
supervisory board after consultation with the executive board.
3. The members of the executive board shall be individually appointed by the
supervisory board.
4. The supervisory board shall inform the general meeting of shareholders of a
contemplated appointment of a member of the executive board.
5. The supervisory board appoints a chairman and may grant him the title of
president and, if deemed necessary, a vice-chairman and grant him the title
of vice-president from among the members of the executive board.
6. The employment conditions of the members of the executive board shall be
determined by the supervisory board.
7. A member of the executive board shall not be dismissed by the supervisory
board until after the general meeting of shareholders has rendered an
opinion on the contemplated dismissal. At such a meeting the person
concerned shall have the right to speak about the contemplated dismissal.
The provisions of Article 158 paragraph 11, Book 2, of the Dutch Civil Code
shall apply accordingly with respect to the provisions in paragraph 4 and
this paragraph 7.
8. A member of the executive board may at any time be suspended from his
duties by the supervisory board. Such suspension shall lapse unless it is
followed by a general meeting of shareholders held within six months, at
which the dismissal of the member concerned is dealt with in the manner
described in the preceding paragraph.
9. In the event of death, temporary suspension, dismissal or any other cause
which prevents the attendance of one or more but not all the members of the
executive board, the other members shall temporarily be charged with the
entire management. In case any such circumstances apply to all the members
of the executive board, the supervisory board shall temporarily be charged
with the management, in which case the supervisory board is empowered to
entrust one or more persons, whether or not from among its own members,
with such management.
Powers of the executive board.
Article 10.
1. The executive board is authorized to represent the Company. Each member of
the executive board individually is also authorized to represent the
Company.
2. The executive board is authorized, subject to the approval of the
supervisory board, without the prior approval of the general meeting of
shareholders to perform any of the legal acts referred to in Article 94,
Book 2 of the Dutch Civil Code.
3. The executive board shall need the approval of the supervisory board for
resolutions concerning:
a. the issuance and acquisition of shares in the Company and debentures
chargeable to the Company and of debentures chargeable to a limited
partnership or general partnership in which the Company is a fully
liable partner;
b. cooperation in the issuance of depositary receipts;
c. the application for quotation or cancellation of quotation of the
documents under a and b hereof in the official list of any stock
exchange;
d. entering into or severing a permanent partnership of the Company or a
dependent company with another legal entity or company or as a fully
liable partner in a limited partnership or general partnership, if
this cooperation or cessation thereof has a significant impact on the
Company;
e. a participation by the Company or a dependent company in the capital
of another company, which requires capital in value equal to or
greater than one fourth (1/4) of the issued capital with the reserves
as shown by the balance sheet with notes of the Company, as well as a
radical increase or decrease of any such existing participation;
f. investments requiring an amount equal to at least one fourth (1/4) of
the Company's issued share capital and reserves as shown by its
balance sheet with notes thereon;
g. a proposal for an amendment of the articles of incorporation;
h. a proposal for the dissolution of the Company;
6/14
i. a petition in bankruptcy and a petition for a moratorium;
j. the termination of service of a substantial number of employees of the
Company or of a dependent company at the same time or within a short
period of time;
k. a significant change in the working conditions of a substantial number
of employees of the Company or of a dependent company;
l. a proposal for a reduction of the issued share capital; and
m. a proposal for a merger.
4. The term `dependent company' used in these articles of incorporation means
a company as mentioned in Article 152, Book 2 of the Dutch Civil Code.
5. Resolutions and acts adopted or performed respectively without the approval
as required by the law and these articles of incorporation (except in the
case that the approval, required by the provision in paragraph 3,
subparagraph m is missing), do not effect the authority of the executive
board or its individual members to represent the Company. Without prejudice
to the previous sentence the executive board shall remain responsible to
the Company for the aforementioned acts or resolutions adopted or performed
without the required approval.
Supervisory board.
Article 11.
1. The Company shall have a supervisory board.
2. The individual members of the supervisory board shall be appointed by the
supervisory board.
3. The supervisory board shall consist of at least seven natural persons. If
the number of the members of the supervisory board is less than seven, the
board shall take measures forthwith to increase the number of members to at
least seven.
4. The general meeting of shareholders, the executive board and the workers'
council may recommend persons to the supervisory board for appointment as
members. To this end, the supervisory board shall inform them in a timely
fashion when and for what reason a vacancy on the supervisory board has to
be filled. The workers' council shall not pass a resolution as meant in
this Article until the Company and the workers' council have at least once
consulted together on the issue concerned.
5. The supervisory board shall notify both the general meeting of shareholders
and the workers' council of the name of the person whom it wishes to
appoint.
6. The information mentioned in paragraph 4 and the notification mentioned in
paragraph 5 may be contained in the notice by which the meeting of
shareholders is convened.
7. The recommendation referred to in paragraph 4 and the notification referred
to in paragraph 5 shall state the candidate's age, occupation, the amount
in money of the shares he holds in the Company's share capital and the
posts he occupies or has occupied, in so far as the latter are of
importance to the performance of duties as a member of the supervisory
board. They shall also state the companies of which the candidate is
already a member of a supervisory board; if they should include companies
belonging to one and the same group, the group's name shall suffice. The
grounds for the recommendation and the nomination shall also be stated.
8. The supervisory board shall appoint the person referred to in paragraph 5,
unless the general meeting of shareholders or the workers' council objects
to the intended appointment. The grounds for this objection may only be
that the regulations of paragraph 4, second full sentence, or paragraph 5
have not been properly complied with, that it is expected that the
nominated person will be unsuitable for the fulfilment of the task as a
member of the supervisory board or that the supervisory board will not be
composed as it should be subsequent to the intended appointment.
9. The appointment procedure outlined in this Article shall also be subject to
the provisions set forth in Article 158, Book 2 of the Dutch Civil Code.
Article 12.
1. The following persons may not be members of the Company's supervisory
board:
a. employees of the Company;
7/14
b. persons employed by a dependent company;
c. committee members of, and persons employed by a workers' organization
usually involved in fixing the employment conditions of the persons
referred to under paragraphs a and b above.
2. Without prejudice to the provision of paragraph 3 b, a member of the
supervisory board will be appointed for a period of 4 years, unless a
shorter period is considered desirable. In the year in which a person
reaches the age of seventy (70) years or over, he/she shall no longer be
eligible for appointment as a member of the supervisory board.
3. A member of the supervisory board shall retire no later than:
a. at the conclusion of the annual general meeting of shareholders, to be
held in the year in which the number of years the appointment was
valid elapse or have elapsed; in this case the retiring member of the
supervisory board shall be eligible for reappointment forthwith;
b. at the conclusion of the annual general meeting of shareholders in the
year in which the member of the supervisory board concerned will reach
the age of seventy (70) years.
4. The Corporate Affairs Division (Ondernemingskamer) of the Amsterdam Court
of Justice (Gerechtshof) may, if so petitioned, dismiss a member of the
supervisory board from office for dereliction of duty, for other important
reasons or due to significant changes in circumstances which result in his
retention as a member of the supervisory board no longer being reasonably
required by the Company, This petition may be filed by the Company,
represented for the purposes thereof by the supervisory board, a
representative of the general meeting of shareholders or a representative
of the workers' council. Article 158 paragraphs 11 and 13, Book 2 of the
Dutch Civil Code are applicable.
5. A member of the supervisory board may be suspended from his duties by the
supervisory board; such suspension shall lapse by right if the Company has
not filed a petition with the Corporate Affairs Division, mentioned in the
preceding paragraph, within one month of the commencement of such
suspension.
Article 13.
1. The supervisory board shall elect a chairman and a vice-chairman from among
its members.
2. If the chairman and the vice-chairman are absent or prevented from
attending a meeting, one of the other members of the supervisory board, to
be designated by the supervisory board, shall act as chairman.
3. A resolution of the supervisory board shall be evidenced by a document
containing such resolution, signed by the chairman or, if he is absent or
prevented from attending, by one of the other members of the supervisory
board.
4. The fees to be paid to a member of the supervisory board shall be fixed by
the general meeting of shareholders and shall not be dependent upon the
profit of the Company.
Article 14.
1. The supervisory board has as its duties to supervise the administration by
the executive board and the general course of business of the Company and
the enterprise associated with it and to assist the executive board with
advice. In performing their duties the members of the supervisory board
shall be guided by the interests of the Company and the enterprise
associated with it.
2. The supervisory board may provide that one or more of its members,
accompanied or not accompanied by an expert as mentioned in the following
paragraph, shall have access to the Company's premises and be authorized to
inspect its books, correspondence and other documents, and take cognizance
of the acts and operations that have taken place. The supervisory board may
also decide that only some rights mentioned in the preceding sentence may
be exercised.
3. In the accomplishment of its duties the supervisory board may call upon the
assistance or advice of one or more experts to be appointed by it for a fee
to be agreed upon with the supervisory board, which fee shall be chargeable
to the Company.
8/14
4. The supervisory board shall meet whenever the chairman or at least two
members shall deem it desirable. The chairman or his substitute shall
preside over the meeting and minutes shall be kept of the proceedings. The
members of the executive board shall attend the meetings unless the
supervisory board expresses its wish to meet separately.
5. At the meeting of the supervisory board resolutions shall be adopted by an
absolute majority of the votes cast at the meeting.
6. No resolutions at any meeting shall be adopted unless at least one-half of
the members of the supervisory board are in attendance.
7. In the event of a voting tie the chairman shall have a deciding vote, but
only if more than two members of the supervisory board are present.
8. The supervisory board may adopt a resolution without holding a meeting,
upon the conditions that the proposed resolution has been submitted to all
the members of the supervisory board, none of them opposes this manner of
adopting a resolution and the majority of the members have voted in favour
of the proposed resolution.
9. At the subsequent meeting of the supervisory board, held after the members
of this board have adopted a resolution without holding a meeting as
referred to in the preceding paragraph, the chairman of that meeting shall
communicate the result of the voting.
Committees.
Article 15.
1. The supervisory board may, without prejudice to its responsibility,
designate one or more committees from among its members, which shall have
as their duty to deal with items as specified by the board.
2. The composition of this/these committee(s) shall be determined by the
supervisory board.
3. The general meeting of shareholders may grant an additional fee to the
members of the committee(s) for their service on the committee(s).
Financial year, annual accounts and annual report.
Article 16.
1. The Company's financial year shall be the same as the calendar year.
2. Each year, within five months after the end of the financial year, unless
the general meeting of shareholders extends this term by six months at the
utmost owing to exceptional circumstances, the executive board shall draw
up annual accounts for the past financial year and shall deposit these at
the office of the Company for the shareholders. Within this same period the
executive board shall also deposit the annual report for the shareholders.
The annual accounts shall consist of the balance sheets and income
statements, together with an annotated narrative.
3. The annual accounts shall be duly adopted by the supervisory board.
4. The annual accounts shall be signed by each of the members of the executive
board and by each of the members of the supervisory board. If the
signatures of one or more of them is lacking, this shall be stated together
with the reason therefore.
5. The supervisory board shall simultaneously submit the annual accounts for
approval to the general meeting of shareholders and for discussion to the
workers' council. In addition to the annual accounts, the annual report and
the other particulars referred to in Article 392, Book 2 of the Dutch Civil
Code shall also be submitted, inasmuch as the Company is not released
therefrom by the law.
6. The annual accounts, the annual report and the particulars to be added
pursuant to Article 392, Book 2 of the Dutch Civil Code shall, from the day
of the convening of the general meeting of shareholders intended for their
consideration until the end of that meeting, be open for inspection at the
Company's office in The Hague and an admitted institution as meant in the
Fondsenreglement of Amsterdam Exchanges N.V. in Amsterdam. A copy of these
documents shall be made available free of charge to shareholders; third
parties may obtain such copies at cost.
7. The annual accounts shall require the approval of the general meeting of
shareholders.
9/14
8. Within eight days after the approval mentioned in the preceding paragraph, the annual accounts shall be made public by the filing of complete copies thereof in the Dutch language at the office of the Trade Register, after the day of the adoption and approval has been noted thereon, all this without prejudice to the provisions of Article 394, Book 2 of the Dutch Civil Code.
Annual general meeting of shareholders.
Article 17.
A general meeting of shareholders shall be held annually either in The Hague,
Leidschendam, Rijswijk (ZH) or Voorburg, at the discretion of the executive
board or the supervisory board, depending on which body calls the meeting. It
shall be held each year no later than in the month of June.
Special general meeting of shareholders.
Article 18.
Special general meetings of shareholders shall be held whenever the executive
board or the supervisory board calls such meetings, subject to the provisions of
Articles 110, 111 and 112 of Book 2 of the Dutch Civil Code, which Articles are
applicable to the Company. These meetings shall be held in either The Hague,
Leidschendam, Rijswijk (ZH) or Voorburg, at the discretion of the body calling
the meeting.
Notice and conduct of general meeting of shareholders.
Article 19.
1. General meetings of shareholders shall be convened by means of an
announcement in a national daily newspaper and in the Official List of
Amsterdam Exchanges N.V. in Amsterdam or any substitute official
publication thereof.
2. The announcement shall mention the subjects to be dealt with or shall
mention that the shareholders may look at them at the offices of the
Company. It will furthermore mention that the documents pertaining to the
agenda are available to the shareholders free of charge at the offices of
the Company in The Hague and at an admitted institution as meant in the
Fondsenreglement of Amsterdam Exchanges N.V. in Amsterdam.
3. At least fifteen days' notice shall be given, not counting the day of the
notice and the day of the meeting.
4. The chairman of the supervisory board or his substitute shall act as
chairman at the general meeting of shareholders.
5. Unless the minutes are taken by a notary public (`notaris'), minutes of the
proceedings of the meeting shall be kept by a person to be designated by
the chairman, which minutes shall be adopted jointly by the chairman and a
shareholder, who on the motion of the chairman shall be designated by those
attending, from among those attending the meeting and which shall be signed
by the latter two persons in witness of their adoption. These minutes thus
adopted shall be available for inspection by the shareholders up to and
including the next general meeting.
6. Requests to add subjects to the agenda of the general meeting of
shareholders made by shareholders who, solely or jointly, represent at
least 0.1% of the issued common shares, will be honoured if these are
lodged in writing with the Company's registered office, at least two and at
a maximum of three months prior to the day on which the meeting will be
held, unless in the opinion of the supervisory board and the executive
board there are important Company interests which would prevent this from
happening.
Admittance to general meeting of shareholders; voting power.
Article 20.
1. Each outstanding share shall be entitled to one vote.
2. When a share is pledged, the voting power cannot be granted to the pledgee.
3. Every shareholder is entitled to attend the general meeting of shareholders
and to speak and vote in the meeting, either in person or by a proxy
granted in writing.
10/14
4. When convening a General Meeting of Shareholders, the Executive Board is
authorized to determine that those entitled to attend and vote at said
General Meeting in accordance with the provisions of paragraphs 1 and 2 of
Section 117 of Book 2 of the Dutch Civil Code shall be determined on the
basis of the names of the persons who, on a specified date which may not be
earlier than provided for by statutory provisions, are listed as being the
holders of shares in a register to be designated by the Executive Board,
irrespective of whether or not they are the rightful owners of such shares
on the date of the meeting.
5. Holders of bearer shares or their proxies shall only be admitted to the
meeting on production of evidence that such shares were held on the date
determined in accordance with the provisions of paragraph 4 above, or on
the date of the General Meeting if no such date has been determined,
obtained in the manner stated in the notice of the meeting. The proxy shall
also be required to produce written evidence of his mandate.
6. Holders of registered shares or their proxies, as the case may be, shall
only be admitted to the meeting if they have notified the Company in
writing of their intention to attend the meeting. The notice of convocation
shall include the latest date for notifying attendance and also the address
to which such notification must be sent. Insofar as certificates have been
issued for their shares, holders must state the distinctive number(s) of
their share certificate(s). In respect of their registered shares they will
only be admitted to the meeting if the shares in question are registered in
their name on the date determined in accordance with paragraph 5 of this
Article.
7. The members of the supervisory board and of the executive board shall have
the right to attend the general meeting of shareholders in person and to be
heard in the meeting. They shall have an advisory capacity at the meeting.
8. The chairman of the meeting shall decide upon the admittance to the meeting
of persons other than those mentioned in the paragraphs 3 and 7.
9. At the general meeting of shareholders all resolutions shall be adopted by
an absolute majority of the valid votes cast, except in those cases in
which the law or these articles of incorporation prescribe a larger
majority.
10. Blank votes shall be regarded as not having been cast.
11. For resolutions not concerning persons the vote shall be viva voce. On
resolutions concerning persons the vote shall be by means of folded ballot
papers, unless none of the persons present demands a vote by head count.
12. If in the election of persons no absolute majority of the valid votes cast
at the meeting is obtained, a new vote shall be taken - after an
intermediate vote, if necessary on the two persons who have, at the first
vote, received the greatest and the next greatest number of votes. The
person who receives the greatest number of votes at the new vote shall be
elected. If there is an equality of votes in this case, lots shall be
drawn.
13. In the case of a voting tie regarding resolutions not concerning persons
the proposal shall be rejected.
14. Members of the supervisory board, members of the executive board and, in
general, persons in the Company's service shall not be allowed to vote any
proxy.
Meetings of holders of shares of a specific class.
Article 21.
1. Meetings of holders of shares of a specific kind shall be held whenever the
executive board or the supervisory board calls such meetings at a place
designated pursuant to Article 17. The provisions of Article 19, paragraph
1 up to and including paragraph 5, and Article 20 shall also apply.
2. A meeting of holders of preferred shares at which all outstanding preferred
shares are represented may, only upon the proposal of the executive board
and subject to the approval of the supervisory board - also if the
provisions of paragraph 1 have not been observed pass valid resolutions,
provided they are passed unanimously.
11/14
Certified public accountant.
Article 22.
1. The general meeting of shareholders shall commission a certified public
accountant or an organization in which certified public accountants
cooperate as referred to in Article 393 paragraph 1 Book 2 of the Dutch
Civil Code, both hereafter referred to as `accountant' to examine the
annual accounts drawn up by the executive board in accordance With the
provisions of Article 393 paragraph 3, Book 2 of the Dutch Civil Code.
2. The accountant shall be entitled to inspect all the Company's books and
documents. He is prohibited from divulging anything shown or communicated
to him regarding the Company's affairs any further than his mandate
requires. His fee shall be chargeable to the Company.
3. The accountant shall deliver the report on his examination to the
supervisory board and to the executive board. He shall mention at a minimum
his findings concerning the reliability and continuity of the automated
data processing. He shall report on the results of his examination in an
Auditor's Statement on the accuracy of the annual accounts.
4. The annual accounts can not be adopted or approved if the supervisory board
or the general meeting of shareholders has not been able to review the
Auditor's Statement from the accountant, which Statement shall be added to
the annual accounts, unless the particulars to be added state a legal
reason why the Statement is lacking.
Discharge.
Article 23.
In the general meeting of shareholders where it is decided to approve the annual
accounts, a separate proposal for the discharge from all liability of the
executive board for its management and of the supervisory board for its
supervision in the past financial year shall be dealt with.
Appropriation of profit.
Article 24.
1. If the approved income statements show a profit, the supervisory board may
decide, upon the proposal of the executive board, to set aside part of the
profit to augment and/or form surplus funds.
2. Profits may only be distributed as far as the Company's equity exceeds the
amount of the paid and called part of the share capital increased by the
surplus funds to be maintained according to the law.
3. From the net profit, if it is sufficient to this end after a part of the
profit has been set aside for augmenting or forming surplus funds according
to paragraph 1, first of all the holders of preferred shares shall receive,
on the call paid on their preferred shares, a dividend the percentage of
which, on an annual basis, is equal to the European Central Bank's fixed
interest percentage for basic refinancing transactions, to be increased by
1.75 percentage points, all applicable to the first day of trading on
Amsterdam Exchanges in the financial year to which the dividend relates.
Apart from this no additional dividend is to be paid on the preferred
shares.
4. The remaining profit shall be put at the disposal of the general meeting of
shareholders.
5. Provided it appears from an interim statement of assets signed by the
executive board that the requirement mentioned in paragraph 2 concerning
the position of the Company's assets has been fulfilled, the executive
board may, subject to the approval of the supervisory board even before the
approval of the balance sheets and the income statements of any financial
year distribute one or more interim dividends on account of the dividend to
the holders of shares, with regard to preferred shares, however, subject to
the maximum mentioned in paragraph 3.
6. A dividend or interim dividend shall be declared and paid as from a day to
be fixed to this end by the executive board. Different days may be fixed
for this purpose for:
- shares to bearer for which K-certificates have been issued;
- shares to bearer for which CF-certificates have been issued;
- registered shares for which certificates of share have been issued; as
well as for:
- registered shares for which no certificates of share have been issued.
12/14
Furthermore common shares and preferred shares can be treated differently.
Each day which has been fixed shall be announced with due regard to
regulations applicable to the Company.
7. For a dividend or an interim dividend on a share for which a CF-certificate
has been issued, such party shall be entitled as a holder of the share at a
time fixed by the executive board. In order to exercise the right to a
dividend or an interim dividend referred to in the preceding sentence, the
rightful claimant must see to it that the dividend sheet is, at the time
mentioned there, in the custody of a custodian as referred to in Article 4
paragraph 5. For the distribution of a dividend or interim dividend
mentioned in this paragraph, the Company shall be discharged towards the
rightful claimants by payment to the institution mentioned in Article 4,
paragraph 5 or to one or more third parties to be designated by such
institution and the Company, in favour of those in whose names the dividend
sheets are in the custodians' custody at the aforesaid time.
8. A party in whose name the share is registered in the share register at a
date fixed to this end by the executive board, shall be entitled to a
dividend or an interim dividend on a registered share for which no
certificate of share has been issued, or on a registered share for which a
certificate of share has been issued.
9. Different times may be fixed for the shares mentioned in the paragraphs 7
and 8. Each time which has been fixed shall be announced with due regard to
regulations applicable for the Company.
10. The executive board may decide, subject to the approval of the supervisory
board that the payment of a dividend or an interim dividend in cash on
registered common shares for which certificates of share have been issued
and the dealing in which on an exchange or a similar institution in another
country than The Netherlands is permitted with the cooperation of the
Company, shall take place in the currency of that country unless this is
not possible for the Company owing to government measures or other
circumstances beyond its control. If, in accordance with the provisions of
the preceding sentence, a dividend or an interim dividend is distributed in
a foreign currency, it shall to this end be converted at the exchange rate
current on the exchange at Amsterdam on a day to be fixed and announced by
the executive board which does not fall before the day on which the
distribution is resolved upon, nor after the day fixed for the shares in
question in accordance with the provisions of paragraph 6.
11. The executive board is authorized, subject to the approval of the
supervisory board, to decide that a dividend or an interim dividend on
common shares shall not take place as a cash payment but as a payment in
common shares, or to decide that holders of common shares shall have a
choice to receive a dividend or an interim dividend as a cash payment
and/or as a payment in common shares, in all cases out of the profit and/or
out of a surplus fund, provided that the executive board is designated by
the general meeting as stated in Article 5, paragraphs 1 and 3. Subject to
approval of the supervisory board the executive board shall also determine
the conditions for the aforementioned choices.
12. Dividends which have not been claimed within five years of the first day
upon which they were made payable shall lapse to the Company.
Proposal for amendment of the articles of incorporation or for dissolution.
Article 25.
1. The general meeting of shareholders may pass a resolution for an amendment
of the articles of incorporation or for dissolving the Company only upon a
proposal of the executive board, and approved by the supervisory board. Any
such proposal shall always be stated in the notice of the general meeting
of shareholders.
2. In the event of a proposal for amending the articles of incorporation, a
copy of such proposal containing the literal text of the proposed amendment
shall be deposited at the Company's office in The Hague and at the office
of an admitted institution as meant in the Fondsenreglement of Amsterdam
Exchanges N.V. in Amsterdam, for inspection by any shareholder, until the
end of the meeting. Further, a copy of the proposal shall be made available
free of charge to any shareholder from the day when it was deposited until
the day of the meeting.
13/14
3. For the adoption of a resolution to amend the articles of incorporation or
dissolve the Company it shall be required that at least half the issued
capital be represented at the meeting at which the proposals concerned are
dealt with.
4. If the requirement mentioned in the preceding paragraph has not been
satisfied, a second meeting shall be called and held within four weeks.
This subsequent meeting may adopt an appropriate resolution irrespective of
the issued capital represented.
5. No new items shall be brought up for discussion at this meeting.
Dissolution and liquidation.
Article 26.
1. In the event of dissolution of the Company by virtue of a resolution of the
general meeting of shareholders, the members of the executive board shall
be charged with the liquidation of the business of the Company and the
members of the supervisory board with the supervision thereof.
2. The provisions of these articles of incorporation remain in force as much
as possible during liquidation.
3. In the resolution for dissolution and liquidation the general meeting of
shareholders shall fix the remuneration of the liquidators and members of
the supervisory board.
4. If upon liquidation, after settlement of all debts, including the costs of
liquidation, a credit balance remains, it shall be distributed as follows:
First, all holders of preferred shares shall receive, as far as possible,
the call paid on their shares. The amount remaining after such payment
shall be equally distributed to the holders of common shares. Liquidators
are authorized to make a distribution in advance, if the state of the
assets gives reason to do so.
5. The liquidation shall otherwise be subject to the provisions of Title 1,
Book 2 of the Dutch Civil Code.
14/14
EXHIBIT 4.2
[FRONT OF CERTIFICATE]
ORDINARY SHARES
EUR 0.12 NOMINAL VALUE
INCORPORATED UNDER THE LAWS CUSIP 007924 10 3
OF THE NETHERLANDS CORPORATE
SEAT IN THE HAGUE SEE REVERSE FOR CERTAIN DEFINITIONS
AEGON N.V.
|
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE ORDINARY SHARES OF
AEGON N.V. (herein called the "Corporation") transferable on the books of the
Corporation by the holder hereof in person or by duly authorized attorney upon
the surrender of this Certificate properly endorsed.
This Certificate and the shares represented hereby are subject to all
terms, conditions and limitations of the Articles of Incorporation of the
Corporation and to the limitation set forth in the next succeeding paragraph
hereof to all of which the holder of this Certificate assents by acceptance
hereof. The Corporation will furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof, and the qualifications, limitations or restrictions of such preferences
and/or rights. Dividends declared but not claimed within five years after the
due date will be credited to the Corporation.
The rights of the holder hereof and all successors and assigns are further
subject to the limitation that in the event of a rights offering to all holders
of the Ordinary Shares of the Corporation which is not registered under the
Securities Act of 1933, AEGON N.V. shall have the right, and the Corporation is
hereby irrevocably given all necessary power and authority to, sell the rights
to which the holder hereof is entitled, in such manner as the Executive Board of
the Corporation shall determine, and shall remit the proceeds of such sale to
the person registered as the holder hereof on the books of the Corporation on
the record date for determining holders entitled to such rights.
This Certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
Witness the facsimile signature of the Corporation's duly authorized
officers.
Dated
[REVERSE OF CERTIFICATE]
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ..........Custodian..........
TEN ENT - as tenants by the entireties (Cust) (Minor)
under Uniform Gifts to Minors
JT TEN - as joint tenants with right
of survivorship and not as Act..................
tenants in common (State)
|
Additional abbreviations may also be used though not in the above list.
................................................................................ Please print or typewrite name and address including postal zip code of assignee
................................................................................
................................................................................
..........................................................................Shares
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
................................................................................
................................................................................ Attorney to transfer the said shares on the books of the within-named Corporation with full Power of substitution in the premises. Dated,..............................
...........................................
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the Certificate, in every particular, without alteration or enlargement, or any change whatever.
If the endorsement be executed by an attorney, executor, administrator, trustee or guardian, the person executing the endorsement must give his full title in such capacity and proper evidence of authority to act in such capacity, if not on file with the Registrar and Transfer Agent, must be forwarded with this certificate.
All endorsements or assignments of certificates must be guaranteed by a member of a Medallion Signature Program approved by the Securities Transfer Association Inc.
EXHIBIT 4.3
THIS INDENTURE dated as of October 11, 2001
BETWEEN:
(1) AEGON Funding Corp., a corporation duly organized and existing under the laws of the State of Delaware ("AEGON Funding");
(2) AEGON Funding Corp. II, a corporation duly organized and existing under the laws of the State of Delaware ("AEGON Funding II");
(3) AEGON N.V., a corporation duly organized and existing under the laws of The Netherlands, having its principal office at Mariahoeveplein 50, 2591 TV, The Hague, The Netherlands ("AEGON N.V."); and
(4) CITIBANK, N.A., a national banking association duly organized and existing under the laws of the United States of America, as Trustee (the "Trustee").
RECITALS
Each of AEGON N.V., AEGON Funding and AEGON Funding II has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided.
AEGON N.V. indirectly owns beneficially and of record 100% of the share capital of AEGON Funding and AEGON Funding II; AEGON N.V. has duly authorized the execution and delivery of this Indenture to provide for the Parent Guarantee (as defined herein) with respect to the Securities of AEGON Funding and AEGON Funding II set forth in this Indenture. For purposes of this Indenture, the "Company" means either AEGON N.V., AEGON Funding or AEGON Funding II, as the case may be, in its capacity as issuer of the Securities. For the purposes of this Indenture, "Parent Guarantor" means AEGON N.V. in its capacity as issuer of the Parent Guarantee.
All things necessary to make this Indenture a valid and legally binding agreement of AEGON N.V., AEGON Funding and AEGON Funding II, in accordance with its terms, have been done.
NOW, THEREFORE:
The parties hereto hereby agree as follows, for the equal and proportionate benefit of all Holders of the Securities or of series thereof:
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
101. Definitions
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted as consistently applied by AEGON N.V. at the date of this instrument;
(4) unless the context otherwise requires, any reference to an "Article" or a "Section" refers to an Article or a Section, as the case may be, of this Indenture; and
(5) the word "including" means "including, without limitation"; and
(6) 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.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" has the meaning specified in Section 1006.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.
"Average Price Per Share" means (a) for New York Shares for any day the average of the opening and closing prices per Common Share (i) on the New York Stock Exchange as reported on the composite tape, or, if the New York Shares are not listed or admitted to trading on the New York Stock Exchange, on the principal (as determined by AEGON N.V.'s Board of Directors) U.S. national securities exchange on which the New York Shares are listed or admitted to trading, or (ii) if not listed or admitted to trading on any national securities exchange on the National Association of Securities Dealers Automated Quotations National Market System, or, if the New York Shares are not listed or admitted to trading on any national securities exchange or quoted on such National Market System, the average of the opening and closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by AEGON N.V. for that purpose, and (b) for Ordinary Shares for any day the average of the first and last sale prices per Common Share on Euronext Amsterdam or, in the event that the Ordinary Shares are quoted on Euronext Amsterdam on one or more lines, the average of the first and last reported sale prices on all such lines, in each case as reported in the Officiele Prijscourant for that date, or in the absence of such price, as certified by ABN AMRO Bank N.V. or such other reputable independent bank in Amsterdam as selected by AEGON N.V. or (c) for either New York Shares or Ordinary Shares such other average as may be specified with respect to a given series of Securities pursuant to Section 301.
"Board of Directors" means either the board of directors of AEGON Funding or AEGON Funding II or the Executive Board of AEGON N.V., as applicable, or any duly authorized committee thereof or nominated thereby.
"Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the Parent Guarantor, as applicable, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
"Cash Dividend" has the meaning specified in Section 1504.
"Cash Option" means the option of AEGON N.V., upon notice of conversion, to pay Holders the Cash Option Amount in lieu of delivering Common Shares.
"Cash Option Amount" means an amount in U.S. dollars, or any other currency or currencies as specified pursuant to Section 301, equal to the Average Price per Share on, unless otherwise specified pursuant to Section 301, the five Stock Exchange Trading Days up to and including the Conversion Date multiplied by the number of Common Shares the Holder would have been entitled to upon conversion had AEGON N.V. not exercised its Cash Option.
"Closing Price" on any day means the official closing price per Common Share quoted on the New York Stock Exchange for such day.
"Commission" means the U.S. Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Common Shares" means the common shares, par value 0.12 euros per common share, of AEGON N.V., as designated on the date hereof, and all shares resulting from any reclassification of such common shares.
"Company" means each Person named as the "Company" in the recitals to this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Conversion Agent" has the meaning specified in Section 1002.
"Conversion Date" has the meaning specified in Section 1503.
"Conversion Price" means the price at which the Convertible Securities
shall be convertible into Common Shares, such price to be established
pursuant to Section 301 and to be subject to adjustment as provided in
Section 1504.
"Conversion Shares" has the meaning specified in Article Fifteen.
"Convertible Securities" means any series of Securities of AEGON N.V. designated as convertible or exchangeable pursuant to Section 301.
"Corporate Trust Office" means the principal office of the Trustee in New York, NY at which at any particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
"Effective Date" means (i) in the case of a dividend or distribution on Common Shares in the form of Common Shares which dividend or distribution permits the recipient to elect between cash and Common Shares, the date on which the Common Shares are issued in connection with such dividend or distribution, (ii) the date on which Common Shares will trade on the New York Stock Exchange excluding the relevant right or entitlement relating to an event giving rise to an adjustment of the Conversion Price, (iii) if (i) and (ii) are not applicable, the date on which the relevant event is announced by the Company or, if no such announcement is made, the date the relevant issue is made.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the Security Register.
"Indebtedness" means all indebtedness for money borrowed that is created, assumed, incurred or guaranteed in any manner or for which the Company is otherwise responsible or liable.
"Indenture" means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
The term "Indenture" shall also include the terms of particular series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
"Market Price" on any day means the Average Price Per Share for the ten consecutive Stock Exchange Trading Days ending on the earlier of such day and the Stock Exchange Trading Day immediately preceding the Effective Date.
"Maturity", when used with respect to any Security, means the date, if any, on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section 501(4) or 501(5).
"New York Shares" means Common Shares registered on AEGON N.V.'s share registry in New York.
"Officers' Certificate" means a certificate signed by the Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers' Certificate given pursuant to Section 1004 shall be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an employee for counsel for the Company.
"Ordinary Shares" means Common Shares in bearer form or Common Shares registered on AEGON N.V.'s share registry in the Netherlands.
"Original Issue Discount Security" means any 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 502.
"Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
"Parent Guarantee" means the guarantee of the Parent Guarantor endorsed on a Security issued by AEGON Funding or AEGON Funding II and authenticated and delivered pursuant to this Indenture which guarantee shall be made as and to the extent provided in Article Sixteen.
"Paying Agent" means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization, limited liability company or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any vice president, any trust officer or any other officer of the 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 his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
"Securities" has the meaning stated in the recital to this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 305.
"Senior Debt" means the principal of (and premium, if any) and interest on any Indebtedness of the Company currently outstanding or to be issued hereafter unless such Indebtedness by the terms of the instrument by which it is created or evidenced, is Subordinated Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Stock Exchange Trading Day" means a day that the New York Stock Exchange and the Euronext Amsterdam exchange are open for trading.
"Subordinated Indebtedness" means any Indebtedness of the Company the right to payment of which is, or is expressed to be, or is required by any present or future agreement of the Company to be, subordinated to other indebtedness in the event of bankruptcy, dissolution, winding-up or liquidation of the Company.
"Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
"Total Current Dividend" has the meaning specified in Section 1504.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president".
102. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 1004) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(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 each such individual, 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, in the opinion of each such individual, such condition or covenant has been complied with.
103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
104. Acts of Holders; Record Dates
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as otherwise expressly provided herein, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of registered Securities shall be proved by the Security Register, and the ownership of unregistered Securities, if any, shall be determined in the manner set forth in the Board Resolution or supplemental indenture relating to any series of unregistered Securities.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make
or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities of the relevant series on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph,
the Company shall cause notice of such record date, the proposed action and
the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee shall cause notice of such record date, the proposed action and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
105. Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company or the Parent Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing (which may be via fax or electronic
mail) to or with the Trustee at its Corporate Trust Office, Attention:
Citibank Agency & Trust, or
(2) the Company or the Parent Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company or the Parent Guarantor, as the case may be, addressed to it at the address of its principal office or at any other address specified for that purpose previously furnished in writing to the Trustee by the Company or the Parent Guarantor, as the case may be, and not theretofore superceded.
106. Notice to Holders; Waiver
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
107. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
108. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
109. Successors and Assigns
All covenants and agreements in this Indenture by the Company, and, if applicable, the Parent Guarantor, shall bind its and their successors and assigns, whether so expressed or not.
110. Separability Clause
In case any provision in this Indenture or in the Securities 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.
111. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
112. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York.
113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect (and without accrual or payment of additional interest) as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity.
114. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
By the execution and delivery of this Indenture, the Parent Guarantor (i) acknowledges that it has, by separate written instrument, irrevocably designated and appointed the Company as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Securities, the Parent Guarantees or this Indenture that may be instituted in the Federal or State court in the Borough of Manhattan, The City of New York or brought under
Federal or State securities laws or brought by the Trustee (whether in its
individual capacity or in its capacity as a trustee hereunder), and
acknowledges that the Company has accepted such designation, (ii) submits
to the jurisdiction of any such court in any such suit or proceeding, and
(iii) agrees that service of process upon the Company and written notice of
said service to it (mailed or delivered to its Secretary at the address
specified in the most recent address furnished in writing to the Trustee
expressly for this purpose) shall be deemed in every respect effective
service of process upon it in any such suit or proceeding.
To the extent that the Parent Guarantor has or hereafter may acquire immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, or otherwise) with respect to itself or its property, the Parent Guarantor hereby waives such immunity in respect of its respective obligations under this Indenture, the Securities and the Parent Guarantees to the fullest extent permitted by law.
SECURITY FORMS
201. Forms Generally
The Securities of each series, the Parent Guarantees, if applicable, to be endorsed thereon and the Trustee's certificates of authentication shall be in substantially the forms set forth in this Article or in one or more indentures supplemental hereto, or, in the case of the Securities, in such other form as shall be established by or pursuant to a Board Resolution, 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 the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities or Parent Guarantees, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, 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 at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.
The definitive Securities and Parent Guarantees, if applicable, to be endorsed thereon shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities or Parent Guarantees, as evidenced by their execution of such Securities or Parent Guarantees, as the case may be.
In the case of Convertible Securities of any series that are convertible at the option of Holders into Common Shares, the form of election to convert shall be substantially in the form set forth in Section 301, or in such other form as shall be established by or pursuant to a Resolution or in one of 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 be imprinted or otherwise reproduced on the Convertible Securities of such series.
202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
......................................
......................................
CUSIP No. ......... [$] ........
[.], a corporation duly organized and existing under the laws of [.]
(herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to [.], or registered assigns, [if the Security is not
perpetual, insert: the principal sum of [.] on [.]] [if the Security is to
bear interest prior to Maturity, insert: and to pay interest thereon from
[.] or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, [insert as applicable: annually, semi-
annually or quarterly] on [insert appropriate interest payment dates: [.]
and [.]] in each year, commencing [.], at the rate of [.]% per annum, until
the principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, which
shall be the [.] or [.] (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest, if any, on
this Security will be made at the office or agency of the Company
maintained for that purpose in [insert the places of payment] [.] in
[insert the currency or currencies of payment] such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert: provided,
however, that at the option of the Company payment of interest may be made
by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
All payments in respect of the Security, including without limitation, payments of principal, [if the security is to bear interest prior to maturity insert: interest, if any,] and premium, if any, shall be made by the Company, or by the Parent Guarantor, as the case may be, without withholding or deduction for or on account of any present or future taxes, duties, levies, or other governmental charges of whatever nature in effect on the date of the Indenture or imposed or established in the future by or on behalf of The Netherlands or the United States or any authority thereof (respectively, a "Netherlands Tax" and "United States Tax"). In the event that any such Netherlands Tax or United States Tax is so imposed or established, the Company or the Parent Guarantor shall pay such additional amounts ("Additional Amounts") as may be necessary in order that the net amounts receivable by each Holder after any payment, withholding or deduction in respect of such Netherlands Tax or United States Tax shall equal the respective amounts of principal [if the Security is to bear interest prior to maturity insert: , interest and] premium, if any, which would have been receivable in respect of the Security in the absence of such payment, withholding or deduction; provided, however, that (a) the amounts with respect to the Netherlands Tax shall be payable only to Holders that are not residents in The Netherlands for purposes of its tax; and (b) amount with respect to United States Tax shall be payable only to a Holder that is, for United States tax purposes, a nonresident alien individual, a foreign corporation, or an estate or trust not subject to tax on a
net income basis with respect to income on the Securities (a "United States Alien"), and provided further, that the issuer or guarantor shall not be required to make any payment of Additional Amounts for or account of:
(1) any tax, assessment or other governmental charge which would not have been imposed but for the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) and The Netherlands or the United States (in the case of a Netherlands Tax or a United States Tax, respectively), or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is payable other than by withholding from payments of (or in respect of) principal of, premium, if any, or any interest on, the Securities;
(4) with respect to any United States Tax, any such tax imposed by reason of the Holder's past or present status as a personal holding company, foreign personal holding company or foreign private foundation or similar tax-exempt organization with respect to the United States or as a corporation which accumulates earnings to avoid United States Federal income tax;
(5) with respect to any United States Tax, any such Tax imposed by reason of such Holder's past or present status as (i) the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of AEGON Funding or AEGON Funding II or (ii) a controlled foreign corporation that is related to AEGON Funding or AEGON Funding II through stock ownership;
(6) any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of, premium, if any, or any interest on, any Security, if such payment can be made without such withholding by any other paying agent;
(7) any tax, assessment or other governmental charge which would not have been imposed or withheld if such Holder had made a declaration of nonresidence or other similar claim for exemption or presented any applicable form of certificate, upon the making or presentation of which that Holder would either have been able to avoid such tax, assessment or charge or to obtain a refund of such tax, assessment or charge, including, with respect to any United States Tax, certification or documentation to the effect that such Holder or beneficial owner is a United States Alien and lacks other connections with the United States;
(8) any tax, assessment or other governmental charge which would not have been imposed but for the presentation of a Security (where presentations is required) for payment on the date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later; or
(9) any combination of items above;
nor shall Additional Amounts be paid with respect to any payment of the principal of, or premium, if any, or any interest on any Security to any such Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amount had it been the Holder of the Security.
Whenever in this Security or in the Indenture there is a reference, in any context, to the payment of the principal of [if the Security is to bear interest prior to maturity, insert: or interest on], or in respect of, any Security, such payment shall be deemed to include the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect of such payment pursuant to the provisions hereof or thereof and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
[If the Security is an extendible security, insert: The Securities of this series are subject to repayment on [insert provisions with respect to repayment date or dates] at the option of the Holders thereof exercisable on or before [.], but not prior to the [.] preceding such [.], at a repayment price equal to the principal amount thereof to be repaid, together with interest payable thereon to the repayment date, as described on the reverse side hereof.]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed. Dated:
.......................................
By.....................................
Attest:
.......................................
203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of [.] (herein called the "Indenture", which term shall have the meaning assigned to it in such instrument), between the Company [if applicable, insert: , AEGON N.V., as Parent Guarantor (herein called the "Parent Guarantor"),] and [.], as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company [if applicable, insert: ,
the Parent Guarantor,] the Trustee [, the holders of Senior Debt] and the
Holders of the Securities and of the terms upon which the Securities and
[if applicable, insert: the Parent Guarantees endorsed thereon] are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert: limited in aggregate
principal amount to [.]].
[If applicable insert: If at any time subsequent to the issuance of the Securities of this series as a result of any change in, or amendment to, the laws or regulations or rulings of The Netherlands or of any political subdivision thereof or any authority therein or thereof having power to tax or as a result of any regulations or rulings or any amendment to or change in the application or official interpretation of such laws, regulations or rulings, the Company, or the Parent Guarantor, as the case may be, becomes, or will become, obligated to pay any Additional Amounts and such obligations cannot be avoided by the Company or, if applicable, the Parent Guarantor taking reasonable measures available to it, the Securities of this series will be redeemable as a whole (but not in part), at the option of the Company or the Parent Guarantor, at any time upon not less than thirty (30) nor more than sixty (60) days' notice given to the Holders at their principal amount [if the Security is to bear interest prior to maturity, insert: together with accrued interest thereon, if any,] [if the Security is an Original Issue Discount Security, insert appropriate provision] (and any Additional Amounts payable with respect thereto) to the date fixed for redemption (the "Tax Redemption Date"). In order to effect a redemption of Securities of this series as described in this paragraph, the Company or, if applicable, the Parent Guarantor shall deliver to the Trustee at least forty-five (45) days prior to the Tax Redemption Date: (i) a written notice stating that the Securities of this series are to be redeemed as a whole and (ii) an opinion of independent legal counsel of recognized standing to the effect that the Company or, if applicable, the Parent Guarantor has or will become obligated to pay Additional Amounts as a result of such change or amendment. No notice of redemption may be given earlier than sixty (60) days prior to the earliest date on which the Company or, if applicable, the Parent Guarantor would be obligated to pay such Additional Amounts were a payment in respect of the Securities of this series then due. The notice shall additionally specify the Tax Redemption Date and all other information necessary to the publication and mailing by the Trustee of notices of such redemption. The Trustee shall be entitled to rely conclusively upon the information so furnished by the Company or, if applicable, the Parent Guarantor in such notice and shall be under no duty to check the accuracy or completeness thereof. Such notice shall be irrevocable and upon its delivery the Company or, if applicable, the Parent Guarantor shall be obligated to make the payment or payments referred to therein to the Trustee.]
[If applicable, insert: The Securities of this series are subject to redemption upon not less than 30 days' notice by mail, [if applicable, insert: (1) on [.] in any year commencing with the year 20[.] and ending with the year 20[.] through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert: on or after, [.], 20[.], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert: on or before. [.], [.]%, and if redeemed] during the 12-month period beginning [.] of the years indicated,
Year Redemption Year Redemption
Price Price
|
and thereafter at a Redemption Price equal to [.]% of the principal amount,
together in the case of any such redemption [if applicable, insert:
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert: The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on [.] in any
year commencing with the year 20[.] and ending with the year 20[.] through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time
[if applicable, insert: on or after, [.]], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-
month period beginning [.] of the years indicated,
Year Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the Sinking Fund of the Sinking Fund
|
and thereafter at a Redemption Price equal to [.]% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert: Notwithstanding the foregoing, the Company may
not, prior to [.], redeem any Securities of this series as contemplated by
[if applicable, insert: Clause (2) of] the preceding paragraph as a part
of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial
practice) of less than [.]% per annum.]
[If applicable, insert: The sinking fund for this series provides for the
redemption on [.] in each year beginning with the year 20[.] and ending
with the year 20[.] of [if applicable, insert: not less than [.]
("mandatory sinking fund") and not more than] [.] aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable, insert:
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert: mandatory] sinking fund payments otherwise required to
be made [if applicable, insert: , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert: In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert paragraph regarding subordination of the Security.]
[If applicable, insert: The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security]
[, in each case] upon compliance with certain conditions set forth in the
Indenture.]
[If the Security is a Convertible Security convertible at the option of the Holder, insert: Subject to the provisions of the Indenture, the Holder hereof has the right, at his option at any time until 11:59 p.m. New York time on the fifth Business Day preceding the maturity date hereof (except that, in case this Convertible Security shall be called for redemption before maturity, such right shall terminate in respect of this Convertible Security at 11:59 p.m. New York time on the fifth Business Day preceding the date fixed for redemption of this Security unless AEGON N.V. shall default on payment due upon such redemption), to convert this Convertible Security (or any portion hereof which is $1,000 or an integral multiple thereof) into fully paid and nonassessable Common Shares of AEGON N.V. at the initial Conversion Price of [.] per Common Share, subject to such adjustment, if any, to the Conversion Price and the securities or other property issuable upon conversion as may be required by the provisions of the Indenture, but only upon surrender of this Convertible Security to the Trustee or to the Conversion Agent for surrender to AEGON N.V. in accordance with the instructions on file with the Conversion Agent, accompanied by a written notice of election to convert, which shall be substantially in the Form of Election to Convert contained in the Indenture, and (if required by AEGON N.V.) by an instrument or instruments of transfer, in form satisfactory to AEGON N.V. and the Conversion Agent, duly executed by the Holder or by his attorney duly authorized in writing.]
[If the Security is a Convertible Security subject to mandatory conversion or conversion at the option of AEGON N.V., insert applicable provisions.]
[If the Security is a Convertible Security convertible into Common Shares, insert: No payment or adjustment is to be made on conversion of this Convertible Security for interest accrued hereon or for dividends on Common Shares issued on conversion; provided, however, that if this Convertible Security is surrendered for conversion after the Regular Record Date for a payment of interest and on or before the Interest Payment Date, then, notwithstanding such conversion, the interest falling due to such Interest Payment Date will be paid to the person in whose name this Convertible Security is registered at the close of business on such Regular Record Date and any Convertible Security surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest payable on such Interest Payment Date. No fractional Common Shares shall be issuable upon any conversion, but in lieu thereof AEGON N.V. shall make an adjustment therefor in cash as provided in the Indenture.] [If the Cash Option applies, insert: AEGON N.V. may elect to pay a Cash Option Amount in lieu of delivering Common Shares.]
[If the Security is not an Original Issue Discount Security, insert: If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert: If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [insert formula for determining the
amount.] Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and, if applicable, the Parent Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Parent Guarantor, if applicable, and the Trustee with the consent of the Holders of [a majority] in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company and, if applicable, the Parent Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable [if applicable, insert: only] in registered form without coupons [if applicable, insert: or in bearer form] in denominations of [$1,000] and
any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company, the Parent Guarantor, if applicable, or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Parent Guarantor, if applicable, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee thereof. This Security may not be exchanged in whole or in part for a registered Security, and no transfer of this Security in whole or in part may be registered, in the name of any Person other than such Depositary or a nominee thereof, except in the limited circumstances described in the Indenture.
205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.
Citibank, N.A.
As Trustee
By...............................
Authorized Signatory
Dated:...........................
206. Form of Election to Convert.
The notice of conversion to be delivered by a Holder to the Conversion Agent in connection with the conversion of Convertible Securities of any series that are convertible into Common Shares shall be in substantially the following form, with such appropriate insertions,
omissions, substitutions and other variations as are deemed necessary or appropriate by AEGON N.V. or the Trustee:
Notice of Conversion
The undersigned Holder of the Convertible Securities specified below hereby irrevocably exercises the option to convert such Convertible Securities, or the aggregate principal amount thereof specified below, into Common Shares of AEGON N.V., as indicated below, in accordance with the terms of the Convertible Securities and the Indenture dated as of October 11, 2001 (the "Indenture") between AEGON N.V., AEGON Funding Corp., AEGON Funding Corp. II and [.], as Trustee, and directs that (i) the Common Shares issuable and deliverable upon conversion be issued in the name of and delivered to the undersigned unless a different name has been indicated below or (ii) the Cash Option Amount be delivered if AEGON N.V. elects to exercise its Cash Option. AEGON N.V. shall cause any amounts due to the Holder to be paid as promptly as practicable. If Common Shares are to be issued in the name of a Person other than the undersigned, the undersigned has paid all transfer taxes payable with respect thereto. All capitalized terms used herein and not defined herein shall have the meanings specified in the Indenture.
Dated:
.......................................
Signature (for Conversion only)
Title of Convertible Securities:
Certificate Number(s)
(if applicable):
Aggregate Principal Amount Represented: (1) Principal Amount to be Converted: (2)
(1) Unless otherwise specified, a Holder will be deemed to be converting the entire principal amount of the Convertible Securities delivered.
(2) Certificate registered in the name of the Holder will be issued in the principal amount of the Convertible Securities not converted, unless otherwise provided.
If Common Shares are to be received and are to be issued otherwise than to Holder:
.......................................
Please print name and address
If check for fractional Common Shares to be issued otherwise than to Holder:
.......................................
Please print name and address
If AEGON N.V. elects the Cash Option, payment should be made in accordance with the following instructions:
Payment to: ...........................
Please print name and address
For Account: ..........................
Please print name and address of Holder
.......................................
.......................................
Signature Guarantee: ..................
207. Form of Parent Guarantee.
Parent Guarantee
For value received, the Parent Guarantor hereby unconditionally guarantees, to the Holder of the Security upon which this Parent Guarantee is endorsed, and to the Trustee on behalf of such Holder, the due and punctual payment of the principal of (and premium, if any) and interest on such Security when and as the same shall become due and payable, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of the Company punctually to make any such payment, the Parent Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by acceleration, call for redemption or otherwise, and as if such payment were made by the Company.
The Parent Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of any invalidity, irregularity or unenforceability of this Security or the Indenture, the absence of any action to enforce the same or any release or amendment or waiver of any term of any other guarantee of, all or of any of the Securities, any waiver or consent by the Holder of such Security or by the Trustee or either of them with respect to any provisions thereof or of the Indenture, the obtaining of any judgment against the Company or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor; provided, however, that notwithstanding the foregoing, no such release, amendment, waiver, consent or judgment shall, without the consent of the Parent Guarantor, increase the principal amount of such Security or increase the rate or rates of interest thereon, or increase any premium payable upon redemption thereof, or alter the stated maturity thereof or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of maturity thereof. The Parent Guarantor hereby waives the benefits of diligence, presentment, demand of payment, any requirement that the Trustee or any of the Holders exhaust any right or take any action against the Company or any other Person, filing of claims with a court in the event of insolvency or bankruptcy of the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby, and covenants that this Parent Guarantee will not be discharged except by complete performance of the obligations contained in such Security and in this Parent Guarantee; provided, however, that the Parent Guarantor receives prompt written notice of any failure by the Company to make any payment of principal, premium, if any, or interest or any sinking fund or analogous payment. The Parent Guarantor hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Security, whether at their Stated Maturity,
by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, subject to the terms and conditions set forth in the Indenture, directly against the Parent Guarantor to enforce this Parent Guarantee without first proceeding against the Company.
No reference herein to the Indenture and no provision of this Parent Guarantee or of the Indenture shall alter or impair the guarantee of the Parent Guarantor, which is absolute and unconditional, of the due and punctual payment of the principal (and premium, if any) and interest on the Security upon which this Parent Guarantee is endorsed.
This Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer," or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
[If applicable, insert relevant subordination language in accordance with Article Fourteen.]
All terms used in this Parent Guarantee which are defined in the Indenture referred to in the Security upon which this Parent Guarantee is endorsed shall have the meanings assigned to them in such Indenture.
This Parent Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Parent Guarantee is endorsed shall have been executed by the Trustee under the Indenture by manual signature.
IN WITNESS WHEREOF, the Parent Guarantor has caused this Parent Guarantee to be duly executed.
Dated:
......................................
By....................................
Attest:
......................................
THE SECURITIES
301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
Each Company may issue Securities in one or more series. For each Security or series thereof, there shall be established in or pursuant to a Board Resolution by the Company issuing such Security or series thereof and, subject to Section 303, set forth, or determined in the manner provided, in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance thereof:
(1) the issuer and title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(4) the date or dates, if any, on which the principal of any Securities of the series is payable;
(5) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, 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 any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in
the currency of the United States of America for any purpose, including for purposes of the definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections and, if other than by a Board
Resolution, the manner in which any election by the Company to defease
such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable in whole or in part in registered form, bearer form or in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(17) if the Securities of the series are Convertible Securities, the period
or periods within which, the Conversion Price or Prices at which (and
the adjustments to be made thereto, if otherwise than as provided in
Section 1504) and the terms and conditions upon which the Convertible
Securities of the series may be converted, in whole or in part,
whether such conversion is mandatory, at the option of the Holders of
the Convertible Securities of the series or at the option of AEGON
N.V., whether the Common Shares issuable upon conversion will be New
York Shares or Ordinary Shares or either New York Shares or Ordinary
Shares at the option of the Holder or at the option of AEGON N.V.,
whether the Cash Option applies and the identity of any Conversion
Agent for Convertible Securities of the series if other than or in
addition to the Trustee;
(18) any addition to or change in the Events of Default, including any grace periods, which
applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(19) if applicable, that the Securities of the series and, if applicable, the Parent Guarantee shall be subordinated in right of payment to Senior Debt as provided in Article Fourteen;
(20) any addition to or change in the covenants set forth in Article Ten which applies to Securities of the series; and
(21) any other terms of the Security or series thereof (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers' Certificate referred to above or in any such indenture supplemental hereto. All Securities to be issued by AEGON Funding or AEGON Funding II shall have endorsed thereon a Parent Guarantee as provided in Section 205.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series.
302. Denominations.
Unless otherwise set forth in a Board Resolution pursuant to Section 301, the Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company issuing such Securities by its Chairman of the Board of Directors, its Vice Chairman of the Board of Directors, its President or one of its Vice Presidents. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and, if applicable, having endorsed thereon the Parent Guarantee executed by the Parent Guarantor to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, if applicable with the Parent Guarantee of the Parent Guarantor endorsed thereon, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities, if applicable with the Parent Guarantee of the Parent Guarantor endorsed thereon, as in this Indenture provided and not otherwise. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating:
(1) if the form of such Securities has been established by or pursuant to a Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant to a Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Parent Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security and the Parent Guarantee endorsed thereon has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which
they are issued and, if applicable, having endorsed thereon the Parent Guarantees substantially of the tenor of the definitive Parent Guarantees in lieu of which they are issued duly executed by the Parent Guarantor and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities and, if applicable, the Parent Guarantees may determine, as evidenced by their execution of such Securities and, if applicable, Parent Guarantees.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, and, if applicable, having endorsed thereon Parent Guarantees executed by the Parent Guarantor. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Company may act as "Security Registrar" or appoint the Trustee or one or more agents to register and transfer Securities.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Security Registrar in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed, if applicable, thereon the Parent Guarantee of the Parent Guarantor.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, and, if applicable, having the Parent Guarantee of the Parent Guarantor endorsed thereon executed by the Parent Guarantor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, the Parent Guarantor shall execute the Parent Guarantee endorsed thereon, if applicable, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities and any Parent Guarantees endorsed thereon issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company and the Parent Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and Parent Guarantees endorsed thereon surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless: (A) such Depositary (i) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee or the Security Registrar, the Company shall execute, if applicable the Parent Guarantor shall execute its Parent Guarantee endorsed
thereon, and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them, if applicable the Parent Guarantor and any agent of any of them
harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security, and, if applicable, the Parent Guarantee endorsed thereon, shall constitute an original additional contractual obligation of the Company and, if applicable, the Parent Guarantor, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (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 Security of such series 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 be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall 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 given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series 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.
Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company, the Parent Guarantor, if applicable, or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Parent Guarantor, if applicable, the Trustee nor any agent of any of them shall be affected by notice to the contrary.
309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order.
310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SATISFACTION AND DISCHARGE
401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either:
(A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, or, if applicable, the Parent Guarantor, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company or, if applicable, the Parent Guarantor has paid or caused to be paid all other sums payable hereunder by the Company and the Parent Guarantor; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614, the conversion rights, if any, of Holders of Outstanding Securities of such series and the Company's obligations, if any, under Article Fifteen and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
REMEDIES
501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days or such longer grace period as may be established therefor pursuant to Section 301; or
(2) default in the payment of the principal of or any premium on any Security of that series at its Maturity and continuance of such default for any grace period established therefor pursuant to Section 301; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series and continuance of such default for any grace period established therefor pursuant to Section 301; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company 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 or which has expressly been included
in this Indenture solely for the benefit of a series of Securities
other than that series), 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 and the Parent Guarantor, if
applicable, by the Trustee or to the Company and the Parent
Guarantor, if applicable, and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series
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
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or, if applicable, the Parent Guarantor in an
involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or, if applicable, the Parent Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or, if applicable, the Parent Guarantor under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or, if applicable, the Parent Guarantor or of any substantial part of the property of the Company or, if applicable, the Parent Guarantor, or ordering the winding up or liquidation of the affairs of the Company or, if applicable, the Parent Guarantor, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company or, if applicable, the Parent Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or, if applicable, the Parent Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or, if applicable, the Parent Guarantor or of any substantial part of the property of either of them, or the making by the Company or, if applicable, the Parent Guarantor of an assignment for the benefit of creditors, or the admission by either the Company or, if applicable, the Parent Guarantor in writing of an inability to pay its debts generally as they become due, or the taking of corporate action by the Company or, if applicable, the Parent Guarantor in furtherance of any such action; or
(7) any other Event of Default specified with respect to Securities of
that series in a Board Resolution specified as contemplated by
Section 301.
502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and:
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days or such longer grace period as may be established therefor pursuant to section 301, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof and such default
continues for any grace period established therefor pursuant to
Section 301,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, the Parent Guarantor, if applicable, or any other obligor upon the Securities, its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder 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 Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee.
505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 607;
SECOND: Subject to Article Fourteen, to payment of Senior Debt;
THIRD: Subject to Article Fourteen, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on
the Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts
37
|
due and payable on such Securities for principal and any premium
and interest, respectively; and
FOURTH: To the Company.
|
507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority aggregate in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders 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 of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
508. Unconditional Right of Holders to Receive Principal Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, including reasonable attorneys' fees and expenses, in each case in the manner and to the extent provided in the Trust Indenture Act; provided, however, that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company or the Parent Guarantor, if applicable.
515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
THE TRUSTEE
601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the 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 (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its own selection and the advice of such counsel or any 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 reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) 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, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, personally or by agent or attorney, the books, records and premises of the Company during normal business hours on a business day with reasonable prior notice at the reasonable expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation, unless such liability shall be determined to have arisen from its gross negligence, bad faith or willful misconduct, provided that the Trustee shall not be entitled to such information which the Company is prevented from disclosing as a matter of law or contract;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the 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 Indenture;
(9) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and
(10) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and the Parent Guarantees endorsed thereon, if any, except the Trustee's certificates of authentication, shall be taken as the statements of the Company or the Parent Guarantor, as the case may be, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or of the Parent Guarantees endorsed thereon, if any. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company or the Parent Guarantor, if applicable.
607. Compensation and Reimbursement.
Each of the Company and the Parent Guarantor, jointly and severally, agrees:
(1) to pay to the Trustee as agreed upon in writing from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance determined to have been caused by its own negligence, bad faith or willful misconduct; and
(3) to indemnify fully the Trustee (and any predecessor Trustee) for, and to hold it harmless against, any and all loss, liability, claim, damage or expense (including reasonable attorneys' fees and expenses) incurred without negligence, bad faith or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the 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 Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or a trustee under any existing indentures in effect between the Company and the Trustee, if applicable.
609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust Office in the Borough of Manhattan, the City of New York. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person 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 the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the 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 Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company and, if applicable, the Parent Guarantor. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company and, if applicable, the Parent Guarantor. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days following such removal, the Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, 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, (A) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security 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 with respect to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company, the Parent Guarantor, if applicable, and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate
Trust Office.
611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the Parent Guarantor, if applicable, or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the Parent Guarantor, if applicable, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, 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 Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall 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; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or the Parent Guarantor, if applicable, or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and, if applicable, the Parent Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
612. Merger, Conversion, Consolidation or Succession to Business.
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 the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In the event that any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company, the Parent Guarantor, if applicable, or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company, the Parent Guarantor, if applicable, or any such other obligor.
614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent 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, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided that such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company and the Parent Guarantor, if applicable. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company and the Parent Guarantor, if applicable. Upon receiving such a notice of resignation or upon such a termination, or in the event that such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section at any time, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.
,,........................................, As Trustee
By......................................, As Authenticating Agent
By........................................ Authorized Officer
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than January 15 and July 15 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding January 15 or July 15, as the case may be; and
(2) 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;
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company, the Parent Guarantor, if applicable, and the Trustee that neither the Company, the Parent Guarantor, if applicable, nor the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
703. Reports by Trustee.
The Trustee shall transmit to Holders 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.
Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than June 15 in each calendar year following the date hereof, so long as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission, with the Company and, if applicable, the Parent Guarantor. The Company will notify the Trustee when any Securities are listed on any stock exchange or delisted therefrom.
704. Reports by Company.
The Company and, if applicable, the Parent Guarantor shall file with the
Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, if any, as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
801. Company or, if Applicable, Parent Guarantor May Consolidate, Etc., Only on Certain Terms.
Each of the Parent Guarantor, if applicable, and the Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless:
(1) if applicable, in case the Parent Guarantor shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Parent Guarantor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Parent Guarantor substantially as an entirety (for purposes of this Article Eight, a "Successor Parent") shall expressly assume, by an indenture supplemental hereto executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the Parent Guarantor's obligations under this Indenture and the performance or observance of every covenant of this Indenture on the part of the Parent Guarantor to be performed or observed; and
(2) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety (for purposes of this Article Eight, a "Successor Company") shall (a) expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed and (b) if any such Person is incorporated under the laws of any jurisdiction other than The Netherlands, agree to pay any Additional Amounts with respect to the Securities; and
(3) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company, or, if applicable, the Parent Guarantor or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing.
802. Successor Substituted.
Upon any consolidation of the Parent Guarantor, if applicable, or the Company with, or merger of the Parent Guarantor, if applicable, or the Company into, any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Parent Guarantor, if applicable, or the Company as an entirety in accordance with Section 801, the Successor Parent or the Successor Company, as the case may be, shall succeed to and be substituted for, and may exercise every right and power of, the Parent Guarantor, if applicable, or the Company under this Indenture with the same effect as if such Successor Person had been named as the Parent Guarantor, if applicable, or the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities or the Parent Guarantees, if applicable, as the case may be.
SUPPLEMENTAL INDENTURES
901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Parent Guarantor, when authorized by respective Board Resolutions, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or
(2) to evidence the succession of another Person to the Parent Guarantor, if applicable, and the assumption by any such successor of the covenants of the Parent Guarantor herein and in the Parent Guarantees; or
(3) to add to the covenants of the Company or the Parent Guarantor, if applicable, for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Parent Guarantor; or
(4) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(5) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or
(6) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or
(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture or any supplemental Indenture, provided that such action pursuant to this Clause (9) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.
902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company, the Parent Guarantor, if applicable, and the Trustee, the Company and, if applicable, the Parent Guarantor, when authorized by respective Board Resolutions, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture with respect to the subordination of the Securities in a manner adverse to the Holder, or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes in this
Section and Section 1007, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(6).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee may receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company and the Parent Guarantor, if applicable, shall so determine, new Securities and the Parent Guarantees, if applicable, endorsed thereon of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
COVENANTS
1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
1002. Maintenance of Office or Agency.
So long as the Securities remain Outstanding, the Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Convertible Securities may be presented for conversion into shares, if applicable (hereinafter the "Conversion Agent", which term shall include any additional Conversion Agents as may be appointed by the Company), and where notices and demands to or upon the Company and the Parent Guarantor in respect of the Securities of that series, and any Parent Guarantee, if applicable, endorsed on the Securities and this Indenture may be served. The Company will give written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall relieve the Company or, if applicable, the Parent Guarantor of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company or the Parent Guarantor, as the case may be, will give written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
1003. Money for Securities Payments to Be Held in Trust; Paying Agent.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) comply with the provisions of the Trust Indenture Act applicable to
it as a Paying Agent and (2) during the continuance of any default by the
Company (or any other obligor upon the Securities of that series) in the
making of any payment in respect of the Securities of that series, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the
Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers' Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Article and whether an Event of Default has occurred and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. The Company shall deliver to the Trustee, as soon as possible and in any event within 10 business days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officer's Certificate setting forth details of such Event of Default or default and actions which the Company proposes to take with respect thereto.
1005. Existence.
Subject to Article Eight, each of the Company and, if applicable, the Parent Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its and their corporate existence.
1006. Payments of Additional Amounts.
All payments in respect of the Securities, including without limitation, payments of principal interest, if any, and premium, if any, shall be made by the Company, or by the Parent Guarantor, if applicable, without withholding or deduction for or on account of any present or future taxes, duties, levies, or other governmental charges of whatever nature in effect on the date of the Indenture or imposed or established in the future by or on behalf of The Netherlands or the United States or any authority thereof (respectively, a "Netherlands Tax" and an "United States Tax"). In the event any such Netherlands Tax and United States Tax is so imposed or established, the Company or the Parent Guarantor shall pay such additional amounts ("Additional Amounts") as may be necessary in order that the net amounts receivable by each Holder after any payment, withholding or deduction in respect of such Netherlands Tax and United States Tax shall equal the respective amounts of principal, interest if any, and premium, if any, which would have been receivable in respect of the Security in the absence of such payment, withholding or deduction; provided, however, that (a) the amounts with respect to the Netherlands Tax shall be payable only to Holders that are not residents in The Netherlands for purposes of its tax; and (b) amount with respect to United States Tax shall be payable only to a Holder that is, for United States tax purposes, a nonresident alien individual, a foreign corporation, or an estate or trust not subject to tax on a net income basis with respect to income on the Securities (a "United States Alien"); and provided further, that the issuer or guarantor shall not be required to make any payment of Additional Amounts for or account of:
(1) any tax, assessment or other governmental charge which would not have been imposed but for the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) and The Netherlands or the United States (in the case of a Netherlands Tax or a United States Tax, respectively), or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein;
(2) any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is payable other than by withholding from payments of (or in respect of) principal of or any premium or interest on the Securities;
(4) with respect to any United States Tax, any such tax imposed by reason of the Holder's past or present status as a personal holding company, foreign personal holding company or foreign private foundation or similar tax-exempt organization with respect to the United States or as a corporation which accumulates earnings to avoid United States Federal income tax;
(5) with respect to any United States Tax, any such Tax imposed by reason of such Holder's past or present status as (i) the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of AEGON Funding or AEGON Funding II or (ii) a controlled foreign corporation that is related to AEGON Funding or AEGON Funding II through stock ownership;
(6) any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of, premium, if any, or any interest on, any Security, if such payment can be made without such withholding by any other paying agent;
(7) any tax, assessment or other governmental charge which would not have been imposed or withheld if such Holder had made a declaration of nonresidence or other similar claim for exemption or presented any applicable form of certificate, upon the making or presentation of which that Holder would either have been able to avoid such tax, assessment or charge or to obtain a refund of such tax, assessment or charge, including, with respect to any United States Tax, certification or documentation to the effect that such Holder or beneficial owner is a United States Alien and lacks other connections with the United States;
(8) any tax, assessment or other governmental charge which would not have been imposed but for the presentation of a Security (where presentations is required) for payment on the date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later; or
(9) any combination of items above;
nor shall Additional Amounts be paid with respect to any payment of the principal of, premium, if any, or any interest on any Security to any such Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amount had it been the Holder of the Security.
Whenever in this Security or in the Indenture there is a reference, in any context, to the payment of the principal of interest, if any, on, or in respect of, any Security, such payment shall be deemed to include the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect of such payment pursuant to the provisions hereof or thereof and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
1007. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(20), 901(3) or 901(7) for the benefit of the Holders of such series or in any of Sections 1001 to 1006, inclusive, if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
1008. Calculation of Original Issue Discount.
Upon the written request of the Trustee, the Company shall provide to the Trustee on a timely basis such information as the Trustee reasonably requires to enable the Trustee to prepare and file any form required to be submitted by the Company to the Internal Revenue Service and the Holders of the Securities relating to original issue discount.
1009. Limitation on Liens
The provisions of this Section shall be applicable only to the Securities of any series that is designated, as contemplated by Section 301, as a series for the benefit of which this Section shall apply.
So long as any of the Securities to which this Section applies remain
Outstanding, no Indebtedness in respect of borrowed moneys having an
original maturity of more than two years, in each case now or hereafter
existing, shall be secured by the Company or its Subsidiaries or by the
Parent Guarantor or its Subsidiaries, if applicable, upon any of the
present or future assets or revenues of the Company or any of its
Subsidiaries or the Parent Guarantor or any of its Subsidiaries, if
applicable, unless it shall, simultaneously with or prior to the creation
of such security, effectively provide that the same or equal and ratable
security (or other security acceptable to the Trustee) is accorded to all
such Securities for so long as such Indebtedness is so secured, except
that the foregoing shall not apply to (i) security created over any
shares in, assets of or securities owned by any Subsidiaries that are not
principally engaged in the business of life insurance and that do not
contribute more than 10% of AEGON N.V.'s total aggregate consolidated
gross premium income as indicated on AEGON N.V.'s most recent annual
audited consolidated income statement, (ii) security created in the
normal course of the insurance business carried on in a manner consistent
with generally accepted insurance practice for such insurance business,
(iii) security or preference arising by operation of any law, (iv)
security over real property to secure borrowings to finance the purchase
or improvement of such real property, (v) security over assets existing
at the time of acquisition thereof, and (vi) security not otherwise
permitted by the foregoing clauses securing borrowed money in an
aggregate principal amount not exceeding 50% of AEGON N.V.'s total
aggregate consolidated Indebtedness with an original maturity of more
than two years.
REDEMPTION OF SECURITIES
1101. Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article.
1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or Company Order or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security),
the Company shall, not more than 60 nor less than 30 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction.
1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 nor less than 30 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 nor less than 30 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 15 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his last address appearing in the Security Register. Any notice which is mailed in the manner provided herein shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. Failure to give notice by mail, or any defect in the notice to the Holder of any security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other security of such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and premium, if any,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for payment of the Redemption Price,
(6) if the Securities of such series are Convertible Securities convertible at the option of the Holder into Common Shares, the Conversion Price, the place or places of conversion, whether or not AEGON N.V. may elect to exercise its Cash Option, if applicable, that, unless otherwise provided pursuant to Section 301 for Convertible Securities of such series, Convertible Securities called for redemption may be converted at any time before the close of business on the fifth Business Day prior to the Redemption Date and if not converted prior to the close of business on such date, the right of conversion will be lost and that Holders who want to convert Convertible Securities must satisfy the requirements set forth in the terms thereof,
(7) that the redemption is for a sinking fund, if such is the case, and
(8) applicable CUSIP numbers.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company and shall be irrevocable.
1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate and in the manner prescribed therefor in the Security.
1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
1108. Conversion Arrangement on Call for Redemption.
If in connection with any redemption of Securities of any series with respect to which the Holders have the right to convert such Securities into Common Shares, the Holders thereof do not elect to convert such Securities, the Company may arrange for the purchase and conversion of such Securities by an agreement with one or more investment banking firms or other purchasers to purchase such Securities by paying to the Trustee in trust for the Holders, not later than the close of three Business Days prior to the Redemption Date, an amount not less than the applicable Redemption Price, together with interest accrued to the Redemption Date, of such Securities. Notwithstanding anything to the contrary contained in this Article Eleven, the obligation of the Company to pay the Redemption Price of such Securities, together with interest accrued to the Redemption Date, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers to the Trustee in trust for the Holders. If such an agreement is made, any Securities not duly surrendered for conversion by the Holders thereof may, at the option of the Company, be deemed to the fullest extent permitted by law, to have been acquired by such purchasers from such Holders and (notwithstanding anything to the contrary contained in Article Fifteen) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the Redemption Date, subject to payment by the purchasers as specified above. The Trustee shall hold and dispose of any such amount paid to it in the same manner as it would moneys deposited with it by the Company for the redemption of the Securities. Without the Trustee's prior written consent, no arrangement between the Company and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture.
1109. Redemption for Tax Reasons.
If at any time subsequent to the issuance of Securities of any series as a result of any change in, or amendment to, the laws or regulations or rulings of The Netherlands or the United States or any other nation or government or of any political subdivision thereof or any authority therein or thereof having power to tax or as a result of any regulations or rulings or any amendment to or change in the application or official interpretation of such laws, regulations or rulings, the Company, or the Parent Guarantor, as the case may be, becomes, or will become, obligated to pay any Additional Amounts and such obligations cannot be avoided by the Company or, if applicable, the Parent Guarantor taking reasonable measures
available to it, the Securities of any such series shall be redeemable as a whole (but not in part), at the option of the Company or, if applicable, the Parent Guarantor, at any time upon not less than 30 nor more than 60 days' notice given to the Holders at the principal amount of such Securities together with accrued interest thereon (of, if any such Securities are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to the date fixed for redemption (the "Tax Redemption Date"). The Company or the Parent Guarantor, if applicable, will also pay to the Holders of Securities of such series on the Tax Redemption Date any Additional Amounts which would otherwise be payable. In order to effect a redemption of Securities of this series as described in this paragraph, the Company or the Parent Guarantor, if applicable, shall deliver to the Trustee not more than 60 nor less than 30 days prior to the Tax Redemption Date: (i) a written notice stating that the Securities of this series are to be redeemed as a whole and (ii) an opinion of independent legal counsel of recognized standing selected by the Company to the effect that the Company or the Parent Guarantor, as the case may be, has or will become obligated to pay Additional Amounts as a result of such change or amendment. The notice shall additionally specify the Tax Redemption Date. The Trustee shall be entitled to rely conclusively upon the information so furnished by the Company or the Parent Guarantor in such notice and shall be under no duty to check the accuracy or completeness thereof.
SINKING FUNDS
1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities 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 such Securities is herein referred to as an "optional sinking fund payment". If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
1202. Satisfaction of Sinking Fund Payments with Securities.
The Company: (1) may deliver Outstanding Securities of a series (other than any previously called for redemption), (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities and (3) may apply as a credit Securities of such series that have been surrendered to the Company for conversion, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any Securities, the Company shall deliver to the Trustee or written statement specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202, and shall also deliver to the Trustee any Securities to be so delivered. Not less than 15 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107. Failure of the Company, on or before any such sixtieth day, to deliver such written statement and Securities specified in this Section 1203, if any, shall not constitute a default, but shall constitute, on and as of such date, the irrevocable election if the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Company will make no optional sinking fund payment with respect to such series as provided for by the terms of the Securities.
DEFEASANCE AND COVENANT DEFEASANCE
1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as
the case may be, designated pursuant to Section 301 as being defeasible
pursuant to such Section 1302 or 1303, in accordance with any applicable
requirements provided pursuant to Section 301 and upon compliance with
the conditions set forth below in this Article Thirteen. Any such
election shall be evidenced by a Board Resolution or a Company Order or
in another manner specified as contemplated by Section 301 for such
Securities.
1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations, and, if applicable, the provisions of Article Fourteen shall cease to be effective, with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Company's obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder, (4) the conversion rights, if any, of Holders of Outstanding Securities of such series and the Company's obligations, if any, with respect thereto under Article Fifteen and (5) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have
this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities.
1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may
be, (1) the Company shall be released from its obligations under any
covenants provided pursuant to Section 301(20), 901(3) or 901(7) for the
benefit of the Holders of such Securities, (2) the occurrence of any
event specified in Sections 501(4) (with respect to any such covenants
provided pursuant to Section 301(20), 901(3) or 901(7) and 501(7) shall
be deemed not to be or result in an Event of Default and (3) the
provisions of Article Fourteen, if applicable, shall cease to be
effective, in each case with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section
1304 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of
Section 501(4)) or Article Fourteen, if applicable, whether directly or
indirectly by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or
Article to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected
thereby.
1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with
the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefits of
the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of
principal and interest 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 (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and
any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x)
any security which is (i) a direct obligation of the United States
of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation 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 (i) or (ii),
is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government
Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Section 501(5), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(9) If Article Fourteen is applicable to such Securities, at the time of such deposit, (A) no default in the payment of any principal of or premium or interest on any Senior Debt shall have occurred and be continuing, (B) no event of default with respect to any Senior Debt shall have resulted in such Senior Debt becoming, and continuing to be,
due and payable prior to the date on which it would otherwise have become due and payable (unless payment of such Senior Debt has been made or duly provided for), and (C) no other event of default with respect to any Senior Debt shall have occurred and be continuing permitting (after notice or lapse of time or both) the holders of such Senior Debt (or a trustee on behalf of such holders) to declare such Senior Debt due and payable prior to the date on which it would otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying
Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other
funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust shall not be subject to the provisions of
Article Fourteen.
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 1304 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 Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
SUBORDINATION OF SECURITIES
1401. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of any series and, if applicable, to any Parent Guarantee specified as subordinated as contemplated by Section 301 for Securities of such series.
1402. Securities and, if applicable, Parent Guarantee Subordinate to Senior Debt.
The Company, and if applicable the Parent Guarantor, covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the indebtedness represented by the Securities and the payment of the principal of (and premium, if any) and interest on each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Debt.
1403. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company, or, if applicable, to the Parent Guarantor, (b) any liquidation, dissolution or other winding up of the Company or, if applicable, the Parent Guarantor whether voluntary or involuntary, or (c) any general assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company or, if applicable, the Parent Guarantor, then and in any such event the holders of Senior Debt shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Debt, or provision shall be made for such payment in cash or U.S. Government Obligations before the Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities, including any payment in respect of the Parent Guarantee, and to that end the holders of Senior Debt shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company or, if applicable, the Parent Guarantor being subordinated to the payment of the Securities or, if applicable, the Parent Guarantee, which may be payable or deliverable in respect of the Securities or, if applicable, the Parent Guarantee in any such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution or other winding up event.
In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any payment or distribution of assets of the Company or, if applicable, the Parent Guarantor of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Securities or, if applicable, the Parent Guarantee, before all Senior Debt is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the
Company or, if applicable, the Parent Guarantor for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of equity of the Company or, if applicable, the Parent Guarantor as reorganized or readjusted, or securities of the Company or, if applicable, the Parent Guarantor or any other corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Debt which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities or, if applicable, the Parent Guarantee are so subordinated as provided in this Article. The consolidation of the Company or, if applicable, the Parent Guarantor with, or the merger of the Company or, if applicable, the Parent Guarantor into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company or, if applicable, the Parent Guarantor for the purposes of this Section if the Person formed by such consolidation or into which the Company or, if applicable, the Parent Guarantor is merged or which acquires by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight.
1404. Prior Payment to Senior Debt Upon Acceleration of Securities.
In the event that any Securities are declared due and payable before their Stated Maturity, then and in such event the holders of Senior Debt shall be entitled to receive payment in full of all amounts due or to become due on or in respect of such Senior Debt , or provision shall be made for such payment in cash or U.S. Government Obligations, before the Holders of the Securities are entitled to receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company or, if applicable, the Parent Guarantor being subordinated to the payment of the Securities or, if applicable, the Parent Guarantee) by the Company or, if applicable, the Parent Guarantor on account of the principal of (or premium, if any) or interest on the Securities or on account of the purchase or other acquisition of Securities; provided, however, that nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance with Article Twelve by delivering and crediting pursuant to Section 1202 Securities which have been acquired (upon redemption or otherwise) prior to such declaration of acceleration or which have been converted pursuant to Article Fifteen.
In the event that, notwithstanding the foregoing, the Company or, if applicable, the Parent Guarantor shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company or, if applicable, the Parent Guarantor.
The provisions of this Section shall not apply to any payment with respect to which Section 1403 would be applicable.
1405. No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in the payment of principal of (or premium, if any) or interest on any Senior Debt beyond any applicable grace period with respect thereto, or in the event that any event of default with respect to any Senior Debt shall have occurred and be continuing, unless and until such event of default shall have been cured or waived or shall have ceased to exist, or (b) in the event any judicial proceeding shall be pending with respect to any such default, then no payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company or, if applicable, the Parent Guarantor being subordinated to the payment of the Securities or, if applicable, the Parent Guarantee) shall be made by the Company or, if applicable, the Parent Guarantor on account of principal of (or premium, if any) or interest on the Securities or on account of the purchase or other acquisition of Securities; provided, however, that nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance with Article Twelve by delivering and crediting pursuant to Section 1202 Securities which have been acquired (upon redemption or otherwise) prior to such default or which have been converted pursuant to Article Fifteen.
In the event that, notwithstanding the foregoing, the Company or, if applicable, the Parent Guarantor shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company or, if applicable, the Parent Guarantor.
The provisions of this Section shall not apply to any payment with respect to which Section 1403 would be applicable.
1406. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Company or, if applicable, the Parent Guarantor, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company or, if applicable, the Parent Guarantor referred to in Section 1403 or under the conditions described in Section 1404 or 1405, from making payments at any time of principal of (and premium, if any) or interest on the Securities, or (b) the application by the Trustee of any money deposited with it hereunder to the payment of or on account of the principal of (and premium, if any) or interest on the Securities or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article.
1407. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the Holders of the Securities shall be subrogated to the rights of the holders of such Senior Debt to receive payments and distributions of cash, property and securities applicable to the Senior Debt until the principal of (and premium, if any) and interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Debt by Holders of the Securities or the Trustee, shall, as among the Company or, if applicable, the Parent Guarantor, its creditors other than holders of
Senior Debt and the Holders of the Securities, be deemed to be a payment or distribution by the Company or, if applicable, the Parent Guarantor to or on account of the Senior Debt.
1408. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Debt on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as among the Company or, if applicable, the Parent Guarantor, its creditors other than holders of Senior Debt and the Holders of the Securities, the obligation of the Company or, if applicable, the Parent Guarantor, which is absolute and unconditional, to pay to the Holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Company or, if applicable, the Parent Guarantor of the Holders of the Securities and creditors of the Company or, if applicable, the Parent Guarantor other than the holders of Senior Debt; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Debt to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.
1409. Trustee to Effectuate Subordination.
Each holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes.
1410. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt 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, if applicable, the Parent Guarantor or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Company or, if applicable, the Parent Guarantor with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Debt may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of the Securities to the holders of Senior Debt, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt, or otherwise amend or supplement in any manner Senior Debt or any instrument evidencing the same or any agreement under which Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in any manner for the collection of Senior Debt; and (iv) exercise or refrain from exercising any rights against the Company or, if applicable, the Parent Guarantor and any other Person.
1411. Notice to Trustee
The Company or, if applicable, the Parent Guarantor shall give prompt written notice to the Trustee of any fact known to the Company or, if applicable, the Parent Guarantor which would prohibit the making of any payment to or by the Trustee in respect of the Securities or, if applicable, the Parent Guarantee. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities or, if applicable, the Parent Guarantee, unless and until the Trustee shall have received written notice thereof from the Company or, if applicable, the Parent Guarantor or a holder of Senior Debt or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 601, shall be entitled in all respects to assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt (or a trustee therefor) to establish that such notice has been given by a holder of Senior Debt (or a trustee therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt 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, 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.
1412. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company or, if applicable, the Parent Guarantor referred to in this Article, the Trustee, subject to the provisions of Section 601, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other indebtedness of the Company or, if applicable, the Parent Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
1413. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or, if applicable, the Parent Guarantor or to any other Person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
1414. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607.
1415. Article Applicable to Paying Agents.
In the event that, at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Section 1414 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
1416. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery of junior securities upon conversion of Securities in accordance with Article Fifteen shall not be deemed to constitute a payment or distribution on account of the principal of or any premium or interest on Securities or on account of the purchase or other acquisition of Securities, and (2) the payment, issuance or delivery of cash, property or securities (other than junior securities) upon conversion of a Security shall be deemed to constitute payment on account of the principal of such Security. For the purposes of this Section, the term "junior securities" means (a) shares of any equity securities of any class of AEGON N.V. and (b) securities of the Company which are subordinated in right of payment to all Senior Debt which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company or, if applicable, the Parent Guarantor, its creditors other than holders of Senior Debt and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with Article Fifteen.
CONVERSION OF CONVERTIBLE SECURITIES
1501. Applicability of Article.
The provisions of this Article shall be applicable to any series of Securities of AEGON N.V. designated as "convertible" or "exchangeable" pursuant to Section 301 (for the purposes of this Article, "Convertible Securities"). For purposes of this Indenture, "convertible" shall mean convertible or exchangeable, as the case may be, and "convert," "conversion" and words of like import shall mean convert or exchange, conversion or exchange and words of like import.
1502. Conversion of Convertible Securities.
In connection with Convertible Securities of any series that are
convertible into Common Shares, each such Convertible Security (or any
portion thereof which is, unless otherwise specified as contemplated by
Section 301 for Convertible Securities of any series, $1,000 or an
integral multiple thereof) shall be convertible into Common Shares in
accordance with the terms of Convertible Securities of such series and
(except as otherwise specified pursuant to
Section 301 for Convertible Securities of such series) in accordance with
this Article Fifteen at any time until 11:59 p.m. New York time on the
fifth Business Day preceding the maturity date of the Convertible
Securities of such series or in case such Convertible Security shall have
been called for redemption, then in respect of such Convertible Security
until (unless AEGON N.V. shall default in payment due upon the redemption
thereof) 11:59 p.m. New York time on the fifth Business Day preceding the
date fixed for redemption, unless otherwise specified as contemplated by
Section 301 for Convertible Securities of such series.
The initial Conversion Price at which a Convertible Security of any series is convertible shall be set forth in or established pursuant to a Board Resolution, Company Order or supplemental indenture, as contemplated by Section 301.
Any such Convertible Security that is convertible at the option of the Holder thereof shall be so converted upon surrender to the Trustee or the Conversion Agent for surrender to AEGON N.V. in accordance with the instructions on file with the Trustee and the Conversion Agent, at any time specified for such series as contemplated by Section 301 at the office or agency to be maintained by AEGON N.V. in accordance with the provisions of Section 1002, accompanied by a written notice of election to convert as provided in Section 1503 and, if so required by AEGON N.V., by a written instrument or instruments of transfer in form satisfactory to AEGON N.V. and the Conversion Agent duly executed by the Holder or his attorney duly authorized in writing. Any such Convertible Security that is convertible otherwise than at the option of the Holder thereof shall be so converted as specified pursuant to Section 301 for Convertible Securities of such series. AEGON N.V. covenants to effect such conversion by procuring the issuance of Common Shares or, if applicable, the Cash Option Amount, and payment of cash in lieu of fractional shares in exchange for and in consideration of delivery to them of the Convertible Securities. For convenience, the conversion of principal of any Convertible Security or Convertible Securities pursuant to this Article Fifteen is hereinafter sometimes referred to as the conversion of such Convertible Security or Convertible Securities. All Convertible Securities surrendered for conversion shall, if surrendered to AEGON N.V. or the Conversion Agent, be delivered to the Trustee for cancellation and canceled by it as provided in Section 306 (except as otherwise provided therein). Any Convertible Security surrendered for conversion shall not thereafter be convertible.
1503. Issuance of Common Shares on Conversion.
Unless AEGON N.V. elects to exercise its Cash Option, if any, specified pursuant to Section 301 with respect to any series of Convertible Securities, as promptly as practicable after the surrender as herein provided of any Convertible Security or Convertible Securities for conversion, AEGON N.V shall deliver or cause to be delivered to or upon the written order of the Holder of the Convertible Security or Convertible Securities so surrendered the number of duly authorized, validly issued, fully paid and nonassessable Common Shares into which such Convertible Security or Convertible Securities may be converted in accordance with the provisions of this Article Fifteen (such Common Shares being referred to in this Article Fifteen as the "Conversion Shares"). If AEGON N.V. elects to exercise its Cash Option, if any, it shall comply with the provisions of Section 1509. Prior to delivery of such Conversion Shares upon conversion of a Convertible Security at the option of a Holder, AEGON N.V. shall require a written notice, which shall be substantially in the Form of Election to Convert as provided for in Section 206, to be delivered to its office or agency from the Holder of the Convertible Security or Convertible Securities so surrendered stating that the Holder irrevocably elects to convert such Convertible Security or Convertible Securities for Common Shares, as specified in such notice. Such conversion notice once given shall be irrevocable and may not be withdrawn without the consent in writing of AEGON N.V.. AEGON N.V. or any Conversion Agent on its behalf, may reject any incomplete or incorrect conversion notice.
All costs and expenses incurred or caused by an incomplete or incorrect notice shall be for the account of the relevant Holder.
Such conversion shall be deemed to have been made at the close of business on the Conversion Date, and the rights of the Holder of such Convertible Security as a Holder shall cease at such time. The Person or Persons entitled to receive the Conversion Shares upon conversion of such Convertible Security or Convertible Securities shall be treated for all purposes as having become the holder or holders of such Conversion Shares at such time and such conversion shall be at the Conversion Price for such series of Convertible Securities in effect at such time. For the purposes of this Article, the conversion date (the "Conversion Date") shall be the date on which the Convertible Securities shall have been duly surrendered for conversion and the duly signed and completed conversion notice shall have been delivered in accordance with the terms of this Article.
Upon conversion of any Convertible Security which is converted in part only, AEGON N.V. shall execute and the Trustee shall authenticate and make available for delivery to or on the order of the Holder thereof a new Security or Security of authorized denominations in a principal amount equal to the unconverted portion of such Convertible Security.
1504. No Adjustment for Interest or Dividends.
No payment or adjustment in respect of interest on the Convertible Securities or dividends on the Conversion Shares shall be made upon the conversion of any Convertible Security or Convertible Securities; provided, however, that if a Convertible Security or Convertible Securities or any portion thereof shall be converted subsequent to any record date and on or prior to the next succeeding interest payment date, the interest falling due on such interest payment date shall be payable on such interest payment date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name such Convertible Security is registered at the close of business on such record date and Convertible Securities surrendered for conversion during the period from the close of business on any record date to the opening of business on the corresponding interest payment date must be accompanied by payment of any amount equal to the interest payable on such interest payment date.
1505. Adjustment of Conversion Price.
Except as may otherwise be established pursuant to Section 301 with respect to a particular series of Convertible Securities, the Conversion Price in effect at any time for any series of Convertible Securities that is convertible into Common Shares shall be subject to adjustment as follows:
(a) If AEGON N.V. shall, after the original issue date of such series of Convertible Securities, (i) pay a dividend or make a distribution on its Common Shares in the form of Common Shares (other than a dividend or distribution that permits the recipient to elect between cash and Common Shares), (ii) split its outstanding Common Shares into a greater number of Common Shares or (iii) consolidate its outstanding Common Shares into a lesser number of Common Shares, the Conversion Price shall be adjusted (with effect from the Effective Date of such event) in accordance with the following formula:
P x X
A = -----
Y
where:
"A" shall mean the adjusted Conversion Price;
"P" shall mean the Conversion Price prior to the adjustment;
"X" shall mean the number of Common Shares outstanding immediately prior to the happening of the relevant event; and
"Y" shall mean the number of Common Shares outstanding immediately after the happening of the relevant event.
(b) If AEGON N.V. shall, after the original issue date of such Convertible Securities, issue to all or substantially all holders of Common Shares, any rights to purchase or subscribe for Common Shares or other securities which are convertible into Common Shares or warrants or other rights to purchase or subscribe for Common Shares; and the purchase, subscription, conversion or other issue price per Common Share (taking into account the consideration, if any, received by AEGON N.V.) is below the Market Price on the date of announcement of such issuance, the Conversion Price shall be adjusted (with effect from the Effective Date of such event) in accordance with the following formula:
P x (S + f)
A = -----------
(S + a)
where:
"A" and "P" shall have the same meanings as in paragraph (a) of this
Section 1504;
"S" shall mean the number of Common Shares outstanding on the date of the announcement of such event;
"f" shall mean the number of additional Common Shares which the aggregate purchase, subscription, conversion or other price (taking into account the consideration, if any, received by AEGON N.V.) would purchase at the Market Price; and
"a" shall mean the number of additional Common Shares which are issued or are initially issuable pursuant to the other securities or rights that are the subject of the issue.
(c) In case AEGON N.V. shall issue or distribute, as the case may be, after the original issue date of such series of Convertible Securities, to all or substantially all holders of Common Shares any securities (other than as described in paragraph (a) or (b) above) or assets (other than cash dividends or dividends in kind in accordance with applicable laws) in each case declared and paid other than in the ordinary course of AEGON N.V.'s operations (other than as described in paragraph (a) or (b) above) or any rights to acquire such securities or assets, the Conversion Price shall be adjusted (with effect from the Effective Date of such event) in accordance with the following formula:
P x (M - d)
A = -----------
M
where:
"A" and "P" shall have the same meanings as in paragraph (a) of this
Section 1504;
"M" shall mean the Market Price on the date on which such issue or distribution, as the case may be, shall be made; and
"d" shall mean the fair market value (as determined by the Board of Directors which determination shall be conclusive as of the date on which such issue or distribution, as the case may be, shall be made) of such portion of securities or assets or rights to acquire any of the foregoing as is attributable to one Common Share.
(d) If AEGON N.V. determines that an adjustment should be made to the Conversion Price, AEGON N.V. shall, if the effect of the adjustment is to reduce the Conversion Price, make such adjustments as it determines is fair and reasonable.
(e) Notwithstanding anything in this Section 1504 to the contrary, the Conversion Price may not be reduced so that, on conversion, Common Shares would be issued at a discount to their par value
(f) Except as otherwise may be specified for any series of Convertible
Securities pursuant to Section 301, all calculations under this
Section 1504 shall be made to the nearest cent or to the nearest one-
hundredth of a Common Share, as the case may be. If any doubt shall
arise as to the appropriate adjustment to the Conversion Price, a
certificate of the auditors of AEGON N.V. at the time shall be
conclusive and binding on all concerned save in the case of manifest
error.
(g) No adjustment in the Conversion Price shall be required unless such adjustment would require a change of at least 1% in the Conversion Price then in effect; provided, however, that any adjustments which by reason of this paragraph are not required to be made and any amount by which the Conversion Price shall be rounded shall be carried forward and taken into account in any subsequent adjustment.
(h) No adjustment in the Conversion Price shall be required for a change in the par value of the Common Shares.
(i) Notwithstanding anything herein to the contrary, no adjustment will be made to the Conversion Price where Common Shares or other securities or options, warrants or other rights to subscribe for or purchase Common Shares or other securities are issued to employees, consultants, producers, agents, dealers or marketers (including directors) of AEGON N.V. or of any Subsidiary or associated company of AEGON N.V. pursuant to any share option or share award programs or similar arrangements for any such persons.
(j) If a Conversion Date shall fall prior to the Effective Date of an event requiring adjustment of the Conversion Price in circumstances where the delivery of Common Shares in respect of the exercise of the relevant conversion right falls on or after such Effective Date, AEGON N.V. shall issue to the relevant Holder such additional number of Common Shares to which such Holder would have been entitled had the relevant Conversion Date fallen immediately following such Effective Date.
(k) Whenever the Conversion Price of any series is adjusted, as herein provided, AEGON N.V. shall promptly file with the Trustee and with the Conversion Agent an Officer's Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. Such certificate shall be conclusive evidence of the correctness of such adjustment. Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such certificate or any facts or computations set forth therein, except to exhibit said certificate from time to time to any Holder of Convertible Securities desiring to inspect the same. The Trustee, at the expense of AEGON N.V., shall cause written notice setting forth the adjusted Conversion Price to be provided to each Holder of Convertible Securities of such series.
1506. No Fractional Conversion Shares To Be Issued.
No fractional Conversion Shares shall be issued upon conversions of Convertible Securities. If more than one Convertible Security of any series shall be surrendered for conversion at one time by the same Holder, the number of full shares which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Convertible Securities of such series so surrendered. Instead of a fraction of a Conversion Share which would otherwise be issuable upon conversion of any Convertible Security or Convertible Securities (or specified portions thereof), AEGON N.V. shall pay a cash adjustment in respect of such fraction of a share in an amount equal to the same fractional interest of the Closing Price of Common Shares on the Stock Exchange Trading Day next preceding the day of conversion.
1507. Preservation of Conversion Rights upon Consolidation, Merger, Sale or Similar Event.
In the event that AEGON N.V. shall be a party to (i) any consolidation of AEGON N.V. with, or merger of AEGON N.V. into, any other Person, any merger of another Person into AEGON N.V. (other than a consolidation or merger which does not result in a conversion or cancellation of outstanding Common Shares of AEGON N.V.) or (ii) any sale or transfer of assets of AEGON N.V. or similar event which, in any such case will result in a reclassification or change of the Common Shares (other than a change in the par or nominal value or by a split or consolidation of Common Shares), the corporation or Person formed by such consolidation or resulting from such merger or which shall have acquired such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Convertible Security then Outstanding shall have the right thereafter to convert such Convertible Security into the kind and amount of Common Shares, other securities, cash and other assets receivable upon such consolidation, merger, sale or similar event by a holder of the number of Common Shares into which such Convertible Security might have been converted immediately prior to such consolidation, merger, sale or similar event. In any such event, the Conversion Price shall be appropriately allocated to such Common Shares, other securities cash or other assets. Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article Fifteen. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provision contained in any such supplemental indenture relating either to the kind or amount of shares or other securities or property receivable by Holders of Convertible Securities upon the conversion of their Convertible Securities after any such consolidation, merger, sale or transfer, or to any adjustment to be made with respect thereto and may accept the signing of such supplemental indenture by such corporation or Person as conclusive evidence of the
correctness of any such provisions. The above provisions of this Section 1506 shall similarly apply to any successive consolidation, merger, sale or similar event.
1508. Covenant to Reserve Common Shares for Issuance on Conversion of Convertible Securities.
AEGON N.V. covenants that it will at all times reserve and keep available, in the case of Convertible Securities of any series that are convertible into Common Shares, out of the aggregate of its authorized but unissued Common Shares and its issued Common Shares held in its treasury for the purpose of issue upon conversion of Convertible Securities as herein provided, such number of Common Shares as shall then be issuable upon the conversion of all Outstanding Convertible Securities of such series. AEGON N.V. shall from time to time, in accordance with the laws of The Netherlands, increase the authorized amount of its Common Shares if at any time the aggregate of the authorized amount of its Common Shares remaining unissued and its issued shares of Common Shares held in its treasury shall not be sufficient to permit the conversion of all Convertible Securities of such series at the time Outstanding and currently convertible.
1509. Exercise of Cash Option.
Unless otherwise specified pursuant to Section 301, AEGON N.V. may elect
to exercise a Cash Option with respect to each series of Convertible
Securities. If AEGON N.V. elects to pay Holders of Convertible Securities
a Cash Option Amount in lieu of delivering Common Shares pursuant to
Section 1503 it shall (i). notify the Conversion Agent thereof and (ii)
as promptly as practical, on or after the Conversion Date, cause the Cash
Option Amount to be delivered to or upon the written order of the Holder
in the manner specified in the conversion notice, as set forth in Section
206.
PARENT GUARANTEE
1601. Parent Guarantee.
The Parent Guarantor hereby fully and unconditionally guarantees, to each Holder of a Security issued by AEGON Funding, AEGON Funding II and authenticated and delivered by the Trustee, and to the Trustee for itself and on behalf of such Holder, the due and punctual payment of the principal of, premium, if any, and interest, if any, on such Security when and as the same shall become due and payable, whether at the Stated Maturity, by acceleration, call for redemption or otherwise, in accordance with the terms of such Security and of this Indenture and all other obligations of the Company under this Indenture. In case of the failure of the Company punctually to make any such payment, the Parent Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by acceleration, call for redemption or otherwise, and as if such payment were made by the Company.
The Parent Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of any invalidity, irregularity or unenforceability of such Security or this Indenture, the absence of any action to enforce the same, any release or amendment or waiver of any term or any other guarantee of all or any of the Securities, any waiver or consent by the Holder of such Security or by the Trustee with respect to any provisions thereof or of this Indenture, the obtaining of any judgment against the Company or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor, provided, however, that, notwithstanding the foregoing, no such release, amendment, waiver, consent or judgment shall, without the
consent of the Parent Guarantor, increase the principal amount of such Security or increase the rate or rates or interest thereon, or increase any premium payable upon redemption thereof, or alter the stated maturity thereof or increase the principal amount or any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of maturity thereof. The Parent Guarantor hereby waives the benefits of diligence, presentment, demand of payment, any requirement that the Trustee or any of the Holders exhaust any right or take any action against the Company or any other Person, filing of claims with a court in the event of insolvency or bankruptcy of the Company, protest or notice with respect to such Security or the debt evidenced thereby, and covenants that the Parent Guarantee will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in the Parent Guarantee.; provided, however, that the Parent Guarantor receives prompt written notice of any failure by the Company to make any payment of principal, premium, if any, or interest or sinking fund or analogous payment, if any. The Parent Guarantor hereby agrees that, in the event of a default in payment of principal, premium, if any, or interest, if any, on such Security, whether at their Stated Maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, subject to the terms and conditions set forth in this Indenture, directly against the Parent Guarantor to enforce the Parent Guarantee without first proceeding against the Company.
Each Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer," or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Notwithstanding anything herein to the contrary, any Parent Guarantee related to any Security that is designated as subordinated shall be subordinated to the extent and in the manner provided in Article Fourteen.
1602. Execution and Delivery of Parent Guarantees.
The Parent Guarantee to be endorsed on the Securities shall include the terms of the Parent Guarantee set forth in Section 1601 and any other terms that may be set forth in the form established pursuant to Article Two. The Parent Guarantor hereby agrees to execute its Parent Guarantee, in the form established pursuant to Article Two, to be endorsed on each Security authenticated and delivered by the Trustee.
The Parent Guarantees shall be executed on behalf of the Parent Guarantor by any one of the Parent Guarantor's Chairman of the Board, Vice Chairman of the Board, President or Vice Presidents, attested by its Secretary or any Assistant Secretary. The signature of any or all of these officers on the Parent Guarantee may be manual or facsimile.
A Parent Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Parent Guarantor shall bind the Parent Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of the Security on which such Parent Guarantee is endorsed or did not hold such offices at the date of such Parent Guarantee.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Parent Guarantee endorsed thereon on behalf of the Parent Guarantor. The Parent Guarantor agrees that its Parent Guarantee set forth in this Section 1601 shall remain in full force and effect notwithstanding any failure to endorse a Parent Guarantee on any Security.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
--------------------------- --------------------------
AEGON N.V. AEGON Funding Corp.
By: /s/ C.M. VAN KATWIJK By: /s/ C.M. VAN KATWIJK
----------------------- ----------------------
|
--------------------------- --------------------------
AEGON Funding Corp. II Citibank, N.A., as Trustee
By: /s/ C.M. VAN KATWIJK By: /s/ JOHN J. BYRNES
----------------------- ----------------------
|
TABLE OF CONTENTS*
Page
Definitions and Other Provisions of General Application 1
101. Definitions........................................................... 1
Act................................................................... 2
Additional Amounts.................................................... 2
Affiliate............................................................. 2
Authenticating Agent.................................................. 2
Average Price Per Share............................................... 2
Board of Directors.................................................... 3
Board Resolution...................................................... 3
Business Day.......................................................... 3
Cash Dividend......................................................... 3
Cash Option........................................................... 3
Cash Option Amount.................................................... 3
Closing Price......................................................... 3
Commission............................................................ 3
Common Shares......................................................... 3
Company............................................................... 3
Company Request; Company Order........................................ 3
Conversion Agent...................................................... 3
Conversion Date....................................................... 3
Conversion Price...................................................... 3
Conversion Shares..................................................... 4
Convertibel Securities................................................ 4
Corporate Trust Office................................................ 4
corporation........................................................... 4
Covenant Defeasance................................................... 4
Defaulted Interest.................................................... 4
Defeasance............................................................ 4
Depositary............................................................ 4
Effective Date........................................................ 4
Event of Default...................................................... 4
Exchange Act.......................................................... 4
Expiration Date....................................................... 4
Global Security....................................................... 4
Holder................................................................ 4
Indebtedness.......................................................... 4
Indenture............................................................. 4
interest.............................................................. 5
Interest Payment Date................................................. 5
Investment Company Act................................................ 5
Market Price.......................................................... 5
Maturity.............................................................. 5
Notice of Default..................................................... 5
New York Shares....................................................... 5
Officers' Certificate................................................. 5
Opinion of Counsel.................................................... 5
Ordinary Shares....................................................... 5
|
*NOTE: This table of contents shall not, for any purpose, be deemed to be part of the Indenture.
Original Issue Discount Security...................................... 5
Outstanding........................................................... 5
Parent Guarantee...................................................... 6
Paying Agent.......................................................... 6
Person................................................................ 6
Place of Payment...................................................... 6
Predecessor Security.................................................. 7
Redemption Date....................................................... 7
Redemption Price...................................................... 7
Regular Record Date................................................... 7
Responsible Officer................................................... 7
Securities............................................................ 7
Securities Act........................................................ 7
Security Register..................................................... 7
Senior Debt........................................................... 7
Special Record Date................................................... 7
Stated Maturity....................................................... 7
Stock Exchange Trading Day............................................ 7
Subordinated Indebtedness............................................. 7
Subsidiary............................................................ 8
Total Current Dividend................................................ 8
Trust Indenture Act................................................... 8
Trustee............................................................... 8
U.S. Government Obligation............................................ 8
Vice President........................................................ 8
102. Compliance Certificates and Opinions.................................. 8
103. Form of Documents Delivered to Trustee................................ 9
104. Acts of Holders; Record Dates......................................... 9
105. Notices, Etc., to Trustee and Company................................. 11
106. Notice to Holders; Waiver............................................. 11
107. Conflict with Trust Indenture Act..................................... 12
108. Effect of Headings and Table of Contents.............................. 12
109. Successors and Assigns................................................ 12
110. Separability Clause................................................... 12
111. Benefits of Indenture................................................. 12
112. Governing Law......................................................... 12
113. Legal Holidays........................................................ 12
114. Agent for Service; Submission to Jurisdiction; Waiver of Immunities... 12
Security Forms............................................................. 13
201. Forms Generally....................................................... 13
202. Form of Face of Security.............................................. 13
203. Form of Reverse of Security........................................... 16
204. Form of Legend for Global Securities.................................. 21
205. Form of Trustee's Certificate of Authentication....................... 21
206. Form of Election to Convert........................................... 21
207. Form of Parent Guarantee.............................................. 23
The Securities............................................................. 24
301. Amount Unlimited; Issuable in Series.................................. 24
302. Denominations......................................................... 27
303. Execution, Authentication, Delivery and Dating........................ 27
304. Temporary Securities.................................................. 28
|
305. Registration, Registration of Transfer and Exchange................................................ 29
306. Mutilated, Destroyed, Lost and Stolen Securities................................................... 30
307. Payment of Interest; Interest Rights Preserved..................................................... 31
308. Persons Deemed Owners.............................................................................. 32
309. Cancellation....................................................................................... 32
310. Computation of Interest............................................................................ 33
Satisfaction and Discharge.............................................................................. 33
401. Satisfaction and Discharge of Indenture............................................................ 33
402. Application of Trust Money......................................................................... 34
Remedies................................................................................................ 34
501. Events of Default.................................................................................. 34
502. Acceleration of Maturity; Rescission and Annulment................................................. 35
503. Collection of Indebtedness and Suits for Enforcement by Trustee.................................... 36
504. Trustee May File Proofs of Claim................................................................... 37
505. Trustee May Enforce Claims Without Possession of Securities........................................ 37
506. Application of Money Collected..................................................................... 37
507. Limitation on Suits................................................................................ 38
508. Unconditional Right of Holders to Receive Principal Premium and interest........................... 38
509. Restoration of Rights and Remedies................................................................. 38
510. Rights and Remedies Cumulative..................................................................... 39
511. Delay or Omission Not Waiver....................................................................... 39
512. Control by Holders................................................................................. 39
513. Waiver of Past Defaults............................................................................ 39
514. Undertaking for Costs.............................................................................. 40
515. Waiver of Usury, Stay or Extension Laws............................................................ 40
The Trustee............................................................................................. 40
601. Certain Duties and Responsibilities................................................................ 40
602. Notice of Defaults................................................................................. 40
603. Certain Rights of Trustee.......................................................................... 40
604. Not Responsible for Recitals or Issuance of Securities............................................. 42
605. May Hold Securities................................................................................ 42
606. Money Held in Trust................................................................................ 42
607. Compensation and Reimbursement..................................................................... 42
608. Conflicting Interests.............................................................................. 42
609. Corporate Trustee Required; Eligibility............................................................ 43
610. Resignation and Removal; Appointment of Successor.................................................. 43
611. Acceptance of Appointment by Successor............................................................. 44
612. Merger, Conversion, Consolidation or Succession to Business........................................ 45
613. Preferential Collection of Claims Against Company.................................................. 45
614. Appointment of Authenticating Agent................................................................ 46
Holders' Lists and Reports by Trustee and Company....................................................... 47
701. Company to Furnish Trustee Names and Addresses of Holders.......................................... 47
702. Preservation of Information; Communications to Holders............................................. 47
703. Reports by Trustee................................................................................. 48
704. Reports by Company................................................................................. 48
Consolidation, Merger, Conveyance, Transfer or Lease.................................................... 48
801. Company or, if Applicable, Parent Guarantor and Company May Consolidate, Etc., Only on Certain
Terms.............................................................................................. 48
|
802. Successor Substituted.............................................................................. 49 Supplemental Indentures.................................................................................. 49 901. Supplemental Indentures Without Consent of Holders................................................. 49 902. Supplemental Indentures With Consent of Holders.................................................... 50 903. Execution of Supplemental Indentures............................................................... 51 904. Effect of Supplemental Indentures.................................................................. 51 905. Conformity with Trust Indenture Act................................................................ 52 906. Reference in Securities to Supplemental Indentures................................................. 52 Covenants................................................................................................ 52 1001. Payment of Principal, Premium and Interest......................................................... 52 1002. Maintenance of Office or Agency.................................................................... 52 1003. Money for Securities Payments to Be Held in Trust.................................................. 52 1004. Statement by Officers as to Default................................................................ 53 1005. Existence.......................................................................................... 54 1006. Payments of Additional Amounts..................................................................... 54 1007. Waiver of Certain Covenants........................................................................ 55 1008. Calculation of Original Issue Discount............................................................. 56 1009. Limitation on Liens................................................................................ 56 Redemption of Securities................................................................................. 56 1101. Applicability of Article........................................................................... 56 1102. Election to Redeem; Notice to Trustee.............................................................. 56 1103. Selection by Trustee of Securities to Be Redeemed.................................................. 57 1104. Notice of Redemption............................................................................... 57 1105. Deposit of Redemption Price........................................................................ 58 1106. Securities Payable on Redemption Date.............................................................. 58 1107. Securities Redeemed in Part........................................................................ 59 1108. Conversion Arrangement on Call for Redemption...................................................... 59 1109. Redemption for Tax Reasons......................................................................... 59 Sinking Funds............................................................................................ 60 1201. Applicability of Article........................................................................... 60 1202. Satisfaction of Sinking Fund Payments with Securities.............................................. 60 1203. Redemption of Securities for Sinking Fund.......................................................... 61 Defeasance and Covenant Defeasance....................................................................... 61 1301. Company's Option to Effect Defeasance or Covenant Defeasance....................................... 61 1302. Defeasance and Discharge........................................................................... 61 1303. Covenant Defeasance................................................................................ 62 1304. Conditions to Defeasance or Covenant Defeasance.................................................... 62 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions...... 64 1306. Reinstatement...................................................................................... 64 Subordination of Securities.............................................................................. 65 1401. Applicability of Article........................................................................... 65 1402. Securities and, if applicable, Parent Guarantee Subordinate to Senior Debt......................... 65 1403. Payment Over Proceeds Upon Dissolution, Etc........................................................ 65 1404. Prior Payment to Senior Debt Upon Acceleration of Securities....................................... 66 1405. No Payment When Senior Debt in Default............................................................. 67 1406. Payment Permitted if No Default.................................................................... 67 1407. Subrogation to Rights of Holders of Senior Debt.................................................... 67 |
1408. Provisions Solely to Define Relative Rights........................................................ 68 1409. Trustee to Effectuate Subordination................................................................ 68 1410. No Waiver of Subordination Provisions.............................................................. 68 1411. Notice to Trustee.................................................................................. 69 1412. Reliance on Judicial Order or Certificate of Liquidating Agent..................................... 69 1413. Trustee Not Fiduciary for Holders of Senior Debt................................................... 69 1414. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights....................... 69 1415. Article Applicable to Paying Agents................................................................ 70 1416. Certain Conversions Deemed Payment................................................................. 70 Conversion of Convertible Securities..................................................................... 70 1501. Applicability of Article........................................................................... 70 1502. Conversion of Securities........................................................................... 70 1503. Issuance of Common Shares on Conversion............................................................ 71 1504. No Adjustment for Interest or Dividends............................................................ 72 1505. Adjustment of Conversion Price..................................................................... 72 1506. No Fractional Conversion Shares To Be Issued....................................................... 75 1507. Preservation of Conversion Rights upon Consolidation, Merger, Sale or Similar Event................ 75 1508. Covenant to Reserve Common Shares for Issuance on Conversion of Securities......................... 76 1509. Exercise of Cash Option............................................................................ 76 Parent Guarantee......................................................................................... 76 1601. Parent Guarantee................................................................................... 76 1602. Execution and Delivery of Parent Guarantees........................................................ 77 SIGNATURES............................................................................................... 79 |
Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1)............................................ 609
(a)(2)............................................ 609
(a)(3)............................................ Not Applicable
(a)(4)............................................ Not Applicable
(b) ............................................ 608
610
(S) 311(a) ............................................ 613
(b) ............................................ 613
(S) 312(a) ............................................ 701
702
(b) ............................................ 702
(c) ............................................ 702
(S) 313(a) ............................................ 703
(b) ............................................ 703
(c) ............................................ 703
(d) ............................................ 703
(S) 314(a) ............................................ 704
(a)(4)............................................ 101
1004
(b) ............................................ Not Applicable
(c)(1)............................................ 102
(c)(2)............................................ 102
(c)(3)............................................ Not Applicable
(d) ............................................ Not Applicable
(e) ............................................ 102
(S) 315(a) ............................................ 601
(b) ............................................ 602
(c) ............................................ 601
(d) ............................................ 601
(e) ............................................ 514
(S) 316(a) ............................................ 101
(a)(1)(A)......................................... 502
512
(a)(1)(B)......................................... 513
(a)(2)............................................ Not Applicable
(b) ............................................ 508
(c) ............................................ 104
(S) 317(a)(1)............................................ 503
(a)(2)............................................ 504
(b) ............................................ 1003
(S) 318(a) ............................................ 107
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture
Dated as of October 11, 2001
AEGON N.V., AEGON Funding Corp. and AEGON Funding Corp. II
and
Citibank, N.A.
INDENTURE
ALLEN & OVERY
London
ICM:544683.5
EXHIBIT 5.1
ALLEN & OVERY
Telephone: (212) 610 6300
Direct Line: (212) 610 6429
Fax (Group 3): (212) 610 6369
Fax (Group 4): (212) 610 6359
www.allenovery.com
Our Ref: NY:26604
October 11, 2001
AEGON N.V.
Mariahoeveplein 50
2591 TV The Hague
The Netherlands
AEGON Funding Corp.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
AEGON Funding Corp. II
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
Dear Sirs:
We have acted as special United States counsel for AEGON N.V., a company incorporated under the laws of The Netherlands ("AEGON"), AEGON Funding Corp., a Delaware corporation ("AFC"), and AEGON Funding Corp. II, a Delaware corporation ("AFC II"), in connection with the proposed issuance by AEGON, AFC and AFC II (each, an "Issuer") of debt securities (the "Debt Securities"), which, if issued by AFC or AFC II, will be guaranteed by AEGON (with such guarantees hereinafter referred to as the "Guarantees"). The Debt Securities and the Guarantees are being registered under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a registration statement on Form F-3 (the "Registration Statement").
A. SCOPE OF REVIEW AND RELIANCE
In that connection, we have examined such documents, corporate records and other instruments, including the Registration Statement and the form of indenture (the "Indenture") included as an exhibit to the Registration Statement, as we have deemed necessary or appropriate for the purposes of this opinion.
To: AEGON N.V.
AEGON Funding Corp.
AEGON Funding Corp. II
Page: 2
B. ASSUMPTIONS
In giving this opinion, we have assumed the following (without independent verification):
1. the legal capacity of all natural persons, the authority of all persons signing each of the documents on behalf of the parties to such documents an d the genuineness of all signatures;
2. the authenticity and completeness of all documents submitted to us as originals;
3. the conformity to original documents and the completeness of all documents submitted to us as certified or conformed copies or photocopies and the authenticity of the originals of such documents;
4. the conformity to original documents and the completeness of all documents received by us by facsimile transmission and the authenticity of the originals of such documents;
5. the due authorization of (a) the issuance of the Debt Securities and the Guarantees, and (b) the execution and delivery of the Indenture by AEGON; and
6. the due authorization, execution and delivery of the Indenture by the Trustee.
C. OPINION
1. Based solely on certificates from the Secretary of State of the State of Delaware, each of AFC and AFC II is a corporation validly existing under the laws of the State of Delaware.
2. The issue and sale by AFC and AFC II of the Debt Securities have been duly authorized by AFC and AFC II. When the Indenture shall have been duly executed and delivered by AEGON, AFC and AFC II, it will constitute a valid and binding agreement of AFC, AFC II and AEGON, enforceable in accordance with its terms (subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether in a proceeding in equity or at law).
3. The Debt Securities, when executed by AEGON, AFC or AFC II, as applicable, and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof, will be validly issued and will constitute valid and binding obligations of AEGON, AFC or AFC II, as applicable, enforceable in accordance with their respective terms (subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether in a proceeding in equity or at law).
4. The Guarantees, when executed by AEGON, as guarantor, with respect to the Debt Securities of AFC or AFC II, as applicable, and when endorsed upon Debt Securities authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof, will be validly
To: AEGON N.V.
AEGON Funding Corp.
AEGON Funding Corp. II
Page: 3
issued and will constitute valid and binding obligations of AEGON, as guarantor, enforceable in accordance with their respective terms (subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting the rights and remedies of creditors generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether in a proceeding in equity or at law).
D. LIMITATIONS AND QUALIFICATIONS
1. We do not express any opinion herein concerning any law other than the Federal law of the United States of America, the law of the State of New York and the General Corporation Law of the State of Delaware. In particular, we do not purport to pass on any matter governed by the laws of The Netherlands.
2. We do not express any opinion herein as to AEGON's waiver of immunity from jurisdiction of any court or from any legal process with respect to itself or its property set forth in Section 114 of the Indenture.
We know that we are referred to under the heading "Validity of Securities" in the Prospectus forming a part of the Registration Statement, and we hereby consent to such use of our name in the Registration Statement and any amendments (including post-effective amendments) thereto, to the incorporation by reference of this opinion and consent in any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act, and to the filing of this opinion with the Registration Statement as Exhibit 5.1 thereto. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act.
Very truly yours,
ALLEN & OVERY
Exhibit 5.2
[Letterhead of Allen & Overy, Amsterdam]
AEGON N.V.
Mariahoeveplein 50
2591 TV The Hague
The Netherlands
Our Ref: NRV/RMB/AMBA:1367.1
Amsterdam, 11 October 2001
Dear Sirs,
Re AEGON Group registration on Form F-3 under the United States Securities Act of 1933, as amended
You have requested us, the undersigned, as your legal counsel in respect of certain matters of Dutch law, to render an opinion in connection with the proposed issuance, (i) by AEGON N.V. ("AEGON") of its common shares ("Common Shares") and (ii) by AEGON, AEGON Funding Corp., a Delaware corporation ("AFC"), and by each of AEGON Funding Corp. II, a Delaware corporation ("AFC II"), (each, an "Issuer") of its debt securities (the "Debt Securities"), which, if issued by AFC or AFC II, will be guaranteed by AEGON (with such guarantees hereinafter referred to as the "Guarantees"). The Common Shares, the Debt Securities and the Guarantees are being registered under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a registration statement on Form F-3 (the "Registration Statement"). There will be registered under the Registration Statement such indeterminate number of Common Shares and such indeterminate number of Debt Securities as shall have an aggregate offering price not to exceed US $4,000,000,000. The Common Shares and the Debt Securities are hereafter collectively referred to as the "Securities".
In rendering this opinion, we have examined and relied upon the following documents:
(1) an excerpt dated 10 October 2001 of the registration of AEGON in the trade register of the Chamber of Commerce and Industry in The Hague (the "Trade Register") confirmed by telephone to be correct as of the date hereof (the "Excerpt");
(2) the deed of incorporation of AEGON (the "Deed of Incorporation") including the articles of incorporation (statuten) of AEGON as, according to the Excerpt, deposited with the Trade Register as being in force on the date hereof (the "Articles of Association");
(3) a copy of an excerpt from the minutes of the meeting of the Executive Board (raad van bestuur) of AEGON held on 30 August 2001 relating to the resolution of the Executive Board of AEGON to file a shelf registration with the United States Securities and Exchange Commission at a maximum total amount of US $4,000,000,000 (the "Resolution");
(4) a copy of the Registration Statement;
(5) a copy of the indenture (the "Indenture") dated 11 October 2001, between AEGON, AFC, AFC II and Citibank, N.A. as Trustee, (the "Trustee") filed as exhibit 4.3 to the Registration Statement;
(6) the form of Guarantee to be endorsed on the Debt Securities as set out in the Indenture;
and such other documents and such treaties, laws, rules, regulations and the like as we have deemed necessary as a basis for the opinions hereafter expressed.
For the purpose of rendering the opinions expressed herein, we have assumed:
(i) the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies;
(ii) that the deed of incorporation of AEGON dated 23rd May, 1969, of which we received a copy from the Chamber of Commerce of The Hague, the Netherlands is a valid notarial deed (authentieke akte), that the contents thereof are correct and complete, and that there were no defects in the incorporation (not appearing on the
face of incorporation of the deed of incorporation) on the basis of which a court might dissolve AEGON;
(iii) that the Articles of Association are the articles of association of AEGON as in force on the date hereof. Although not constituting conclusive evidence thereof, our assumption is supported by the contents of the Excerpt;
(iv) that the Resolution correctly reflects the resolution made by the Executive Board of AEGON in respect of the filing of the shelf registration with the United States Securities and Exchange Commission, that such resolution has been made with due observance of the Articles of Association and has not been and will not be amended, revoked or declared null and void by a competent court;
(v) that the Registration Statement and the Indenture have been or will be signed on behalf of AEGON by any member of the Executive Board or by a person or persons duly authorised to represent AEGON for such purpose under a valid power of attorney;
(vi) that (a) each party to the Indenture other than AEGON has all requisite power (corporate and otherwise) to execute and deliver, and to perform its obligations under, the Indenture, and that (b) the Indenture has been duly authorised, executed and delivered by or on behalf of the parties thereto other than AEGON;
(vii) that the Indenture, the Debt Securities and the Guarantees constitute the legal, valid and binding obligations of the parties thereto, enforceable against those parties in accordance with their terms, under the law of the State of New York law by which they are expressed to be governed and under the laws of any other relevant jurisdiction (other than the Netherlands);
(viii) that the Indenture has not been amended, supplemented, terminated, rescinded or declared null and void by a court;
(ix) that the Debt Securities, and if the Debt Securities are convertible or exchangeable into Common Shares, the Common Shares issuable upon conversion, and the Common Shares at the time of issuance thereof will have been duly authorised and validly issued in accordance with the Articles of Association in effect at the time of authorisation;
(x) that the nominal amount and any share premium agreed upon at any time of the Common Shares issuable upon conversion of the Debt Securities convertible or
exchangeable into Common Shares and the Common Shares at the time of issuance thereof, have or will have been duly paid-up;
(xi) that the Common Shares will be admitted to listing at Euronext Amsterdam N.V.;
(xii) that the Debt Securities issued by AEGON will be offered in accordance with the provisions of the Securities Transaction Supervision Act 1995 (Wet toezicht effectenverkeer 1995).
Based upon the foregoing and subject to any factual matters or documents not disclosed to us in the course of our investigation, and subject to the qualifications and limitations stated hereafter, we are of the opinion that:
A. Corporate Status AEGON is validly existing as a naamloze vennootschap met beperkte aansprakelijkheid (a public company with limited liability) under the laws of the Netherlands.
B. Corporate Power AEGON has the corporate power to execute and deliver the Indenture, to offer, execute and issue the Securities and to perform its obligations under the Indenture and the Securities.
C. Due Authorisation and Execution
(1) The filing of the shelf registration with the United States Securities and
Exchange Commission has been duly authorised by all requisite corporate
action on the part of, and has been duly executed by AEGON. The Indenture
has been duly executed by Aegon.
(2) When the Securities and Guarantees have been signed on behalf of AEGON by any member of the Executive Board or by a person duly authorised to represent AEGON for such purpose under a valid power of attorney issued and (in the case of the Debt Securities) authenticated, issued and delivered in accordance with their terms, will have been duly executed by AEGON. When issued, the Common Shares will be fully paid and non-assessable.
D. Choice of Law The choice of the law of the State of New York as the law governing the Indenture and the Debt Securities is valid and binding under the laws of the Netherlands, except
(i) to the extent that any term of the Indenture or the Debt Securities or any provision of the laws of the State of New York law applicable thereto is manifestly incompatible with the public policy (ordre public) of the Netherlands, and except (ii) that a Dutch court may give effect to mandatory rules of the laws of another jurisdiction with which the situation has a close connection, if and insofar as, under the laws of that other jurisdiction, those rules must be applied, whatever the chosen law.
E. Enforceability of Foreign Judgements
In the absence of an applicable treaty between the United States and the
Netherlands, a judgement rendered by a United States court will not be
enforced by the courts of the Netherlands. In order to obtain a judgement
which is enforceable in the Netherlands the claim must be relitigated before
a competent Dutch court. A judgement rendered by a United States court will,
under current practice, be recognised by a Dutch court if (i) that judgement
results from proceedings compatible with Dutch concepts of due process and
(ii) that judgement does not contravene public policy (ordre public) of the
Netherlands and (iii) the foreign court has found itself competent on
grounds which are internationally accepted. If the judgement is recognised
by a Dutch court, that court will generally grant the same judgement without
relitigation on the merits.
This opinion is subject to the following qualifications:
(a) The opinions expressed herein may be affected or limited by the provisions of any applicable bankruptcy (faillissement), insolvency, fraudulent conveyance (actio Pauliana), reorganisation, moratorium (surseance van betaling) and other or similar laws of general application now or hereafter in effect, relating to or affecting the enforcement or protection of creditors' rights.
(b) The enforcement in the Netherlands of the Indenture and the Debt Securities and foreign judgements will be subject to the rules of civil procedure as applied by the Dutch courts. Specific performance may not always be available under Dutch law.
(c) Under the laws of the Netherlands each power of attorney (volmacht) or mandate (lastgeving), whether or not irrevocable, granted by AEGON will terminate by force of law, and without notice, upon bankruptcy of AEGON and will cease to have effect upon AEGON having been granted a suspension of payments (surseance van betaling). To the extent that the appointment by AEGON of a process agent would be
deemed to constitute a power of attorney or a mandate, this qualification would also apply.
(d) It is uncertain under Dutch conflicts of law rules whether the transfer of title to or ownership of the Securities would be governed by the chosen law, the law of the country in which a Security is situated or the law governing the contract between the transferor and the transferee. To the extent that Dutch law would apply to the transfer of title to or ownership of the Securities, title shall pass by delivery pursuant to a valid agreement by a transferor who has power to pass title to such Security.
(e) If a facsimile signature will be used for the Securities, each signatory should approve such use of his or her signature and evidence of such approval may be required for the enforcement of the Securities in the Netherlands. If any of the Securities were executed by attaching thereto the facsimile signature of any person who no longer holds office at the date of actual issuance of such Securities, it may be necessary for the enforcement of such Securities in the Netherlands that the holder thereof presents both the Securities and evidence of approval by the signatory.
We express no opinion on any law other than the law of the Netherlands (unpublished case law not included) as it currently stands. We express no opinion on any laws of the European Union (insofar as not implemented in the Netherlands in statutes or other regulations of general application) or on any anti-trust laws. We express no opinion in respect of any matter of taxation.
In this opinion Dutch legal concepts are expressed and described in English terms and not in their original Dutch terms. These concepts may not be identical to the concepts described by the same English term as they exist under the laws of other jurisdictions. This opinion may only be relied upon under the express condition that any issues of interpretation or liability arising hereunder will be governed by and construed in accordance with Dutch law and be brought before a Dutch court.
This opinion is strictly limited to the matters stated herein and should not be read as extending by implication to any other matters not specifically referred to herein. Nothing in this opinion should be taken as expressing an opinion in respect of any representations or warranties or other information contained in the Indenture or any other document examined in connection with this opinion except as expressly confirmed herein.
We know that we are referred to under the heading "Validity of Securities" in the Prospectus forming a part of the Registration Statement, and we hereby consent to such use of our name in the Registration Statement and any amendments (includng post-effective amendments) thereto, to the incorporation by reference of this opinion and consent in any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act, and to the filing of this opinion with the Registration Statement as Exhibit 5.2 thereto. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act.
Yours faithfully,
Allen & Overy
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption 'Experts' in the Registration Statement (Form F-3) and related Prospectus of AEGON N.V., AEGON Funding Corp. and AEGON Funding Corp. II for the registration of common stock of AEGON N.V. and senior or subordinated debt securities of AEGON N.V., including debt securities convertible or exchangeable into common shares of AEGON N.V., with a total initial offering price of up to US $4,000,000,000 and to the incorporation by reference therein of our report dated March 8, 2001, with respect to the consolidated financial statements and schedules of AEGON N.V. included in its Annual Report (Form 20-F) for the year ended December 31, 2000, filed with the Securities and Exchange Commission.
The Hague, October 9, 2001
Ernst & Young Accountants
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) ____
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
AEGON N.V. AEGON FUNDING CORP. AEGON FUNDING CORP. II
(Exact Name of Registrant as specified in its charter)
The Netherlands Delaware Delaware
(State or other jurisdiction of incorporation or organization)
Not Applicable 42-1489646 42-1489646
(I.R.S. Employer Identification Number)
Mariahoeveplein 50 Corporation Trust Center Corporation Trust Center
2591 TV The Hague 1209 Orange Street 1209 Orange Street
The Netherlands Wilmington, DE 19801 Wilmington, DE 19801
(Address of the Registrant's principal executive offices)
|
Debt Securities
(Title of the indenture securities)
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.
Name Address ---- ------- Comptroller of the Currency Washington, D.C. Federal Reserve Bank of New York New York, NY 33 Liberty Street New York, NY Federal Deposit Insurance Corporation Washington, D.C. |
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of Eligibility.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (Exhibit 2 to T-1 to Registration Statement No. 2- 29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of June 30, 1996 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
__________________
|
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., 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 New York and State of New York, on the 11th day of October, 2001.
CITIBANK, N.A.
By s/John J. Byrnes
--------------------
John J. Byrnes
Vice President
|
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A. of New York in the State of New York, at the close of business on June 30, 2001, published in response to call made by Comptroller of the Currency, under Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of the Currency Northeastern District.
ASSETS Thousands of dollars
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin....................... $ 9,584,000
Interest-bearing balances........................ 17,387,000
Held-to-maturity securities...................... 0
Available-for-sale securities.................... 38,680,000
Federal funds sold and
securities purchased under
agreements to resell........................ 14,143,000
Loans and leases held for sale................... 10,171,000
Loans and lease financing
receivables:
Loans and Leases, net of
unearned income............................. 238,620,000
LESS: Allowance for loan and lease
losses...................................... 4,532,000
------------
Loans and leases, net of unearned
income, allowance, and reserve.............. 234,088,000
Trading assets................................... 35,100,000
Premises and fixed assets
(including capitalized leases).............. 3,911,000
Other real estate owned.......................... 261,000
Investments in unconsolidated
subsidiaries and associated
companies................................... 862,000
Customers' liability to this bank
on acceptances outstanding.................. 1,160,000
Intangible assets: Goodwill...................... 2,433,000
Intangible assets: Other intangible
assets...................................... 3,610,000
Other assets..................................... 20,791,000
------------
TOTAL ASSETS..................................... $392,181,000
============
LIABILITIES
Deposits: In domestic offices.................... $ 73,813,000
Noninterest- bearing............................. 14,495,000
Interest- bearing................................ 59,318,000
In foreign offices, Edge and
Agreement subsidiaries,
and IBFs.................................... 208,338,000
Noninterest- bearing............................. 14,372,000
Interest- bearing................................ 193,966,000
Federal funds purchased and securities
sold under agreements
to repurchase............................... 11,307,000
Demand notes issued to the
U.S. Treasury............................... 0
|
Trading liabilities.............................. 20,654,000
Other borrowed money (includes
mortgage indebtedness and
obligations under capitalized
leases): ss................................. 21,841,000
Bank's liability on acceptances
executed and outstanding.................... 1,160,000
Subordinated notes and debentures................ 8,675,000
Other liabilities................................ 18,198,000
------------
TOTAL LIABILITIES................................ $363,986,000
------------
Minority interest in consolidated
Subsidiaries..................................... 211,000
EQUITY CAPITAL
Perpetual preferred stock and
related surplus............................. 0
Common stock..................................... 751,000
Surplus.......................................... 11,584,000
Undivided profits and capital
reserves.................................... 16,506,000
Accumulated net gains (losses)
on cash flow hedges......................... -857,000
Other equity capital components.................. 0
------------
TOTAL EQUITY CAPITAL............................. $ 27,984,000
------------
TOTAL LIABILITIES AND EQUITY
CAPITAL..................................... $392,181,000
============
|
I, Roger W. Trupin, Controller of the above-named bank
do hereby declare that this Report of Condition is true
and correct to the best of my knowledge and belief.
ROGER W. TRUPIN CONTROLLER
We, the undersigned directors, attest to the correctness of this Report of Condition. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
ALAN S. MACDONALD
WILLIAM R. RHODES
VICTOR J. MENEZES
DIRECTORS