Exhibit 99.3
EXCHANGE AGENT AGREEMENT
___________, 1999
The Bank of New York
Corporate Trust Trustee Administration
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
United HealthCare Corporation (the "Company") proposes to make an
offer (the "Exchange Offer") to exchange its $250 million of outstanding
unregistered 6.60% Notes due December 1, 2003 (the "Old Notes") for its $250
million of registered 6.60% Notes due December 1, 2003 (the "New Notes"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated ___________, 1999 (the "Prospectus"), and in the
related Letter of Transmittal, which together constitute the Exchange Offer and
are proposed to be distributed to all record holders of the Old Notes. The Old
Notes and the New Notes are collectively referred to herein as the "Notes."
The Company hereby appoints The Bank of New York to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer and The Bank
of New York agrees to act as Exchange Agent with respect to the Exchange Offer.
References hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or
about _____________, 1999. The Letter of Transmittal accompanying the
Prospectus (or in the case of book entry securities, the ATOP system) is to be
used by the holders of the Old Notes to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Notes tendered
in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
_____________, 1999 or on such later date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (confirmed in writing) or written notice to you before 9:00 A.M.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to delay the acceptance
of the Old Notes for exchange, amend or terminate the Exchange Offer or waive
any condition to the Exchange Offer pursuant to the terms of the Exchange
Offer as specified in the Prospectus under the caption "The Exchange
Offer--Expiration Date; Extensions; Amendments." The Company will provide
oral or written notice to you and also make a public announcement of any
delay in acceptance of Old Notes or any extension, termination or amendment
of the Exchange Offer. If any amendment or waiver constitutes a material
change to the Exchange Offer, however, the Company will promptly disclose
such amendment or waiver by means of a Prospectus Supplement that it will
distribute to the registered holders of the Old Notes, and the Company will
extend the Exchange Offer to the extent required by Rule 14e-1 under the
Securities Exchange Act of 1934, as amended.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; PROVIDED, HOWEVER, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Notes at
The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make Book-Entry delivery of the
Old Notes by causing the Book-Entry Transfer Facility to transfer such Old
Notes into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Notes (or confirmation of Book-Entry transfer into your
account at the Book-Entry Transfer Facility) and any other documents delivered
or mailed to you by or for holders of the Old Notes to ascertain whether: (i)
the Letters of Transmittal and any such other documents are duly executed and
properly completed in accordance with instructions set forth therein and (ii)
the Old Notes have otherwise been properly tendered. In each case where the
Letter of Transmittal or any other document has been improperly completed or
executed or any of the certificates for Old Notes are not in proper form for
transfer or some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the presenters of the need
for fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the President, any Senior Vice President,
any Executive Vice President, or any Vice President of the Company (such
approval, if given orally, to be confirmed in writing) or any other party
designated by such an officer in writing, you are
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authorized to waive any irregularities in connection with any tender of Old
Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter
of Transmittal and in the section of the Prospectus captioned "The Exchange
Offer--Procedures for Tendering Old Notes" and Old Notes shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes which
the President, any Senior Vice President, any Executive Vice President, or any
Vice President of the Company shall approve as having been properly tendered
shall be considered to be properly tendered. Such approval, if given orally,
shall be confirmed in writing.
6. You shall advise the Company with respect to any Old Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more names
only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Old Notes
to the transfer agent for split-up and return any untendered Old Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as promptly as practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to
be confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Old Notes properly tendered and you, on behalf of the Company,
will exchange such Old Notes for New Notes and cause such Old Notes to be
canceled. Delivery of New Notes will be made on behalf of the Company by you
at the rate of $1,000 principal amount of New Notes for each $1,000 principal
amount of the corresponding series of Old Notes tendered promptly after
notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Old Notes by the Company; provided, however, that in all
cases,
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Old Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Old Notes (or
confirmation of book-entry transfer into your account at the Book-Entry
Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. You shall issue New Notes only in
denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Old Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Notes tendered
shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Old Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer--Conditions to the Exchange
Offer" or otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted
Old Notes (or effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal relating thereto
that are in your possession, to the persons who deposited them.
12. All certificates for reissued Old Notes, unaccepted Old Notes
or New Notes shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons
or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth in this Exchange Agent Agreement or as may be
subsequently agreed to in writing by you and the Company;
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(b) will make no representations and have no responsibilities as
to the validity, sufficiency, value or genuineness of any of the certificates
or the Old Notes represented thereby deposited with you pursuant to the
Exchange Offer, and will not be required to and will make no representation
as to the validity, value or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram
or other document or security delivered to you and reasonably believed by you
to be genuine and to have been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
believe to be genuine or to have been signed or represented by a proper person
or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from the President, any Senior Vice President, any Vice President
or any other designated officer of the Company;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder
in good faith and in accordance with the advice or opinion of such counsel;
and
(h) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any Old Notes.
15. You shall take such action as may from time to time be
requested by the Company or its counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as defined in the
Prospectus) or such other forms as may be approved from time to time by the
Company, to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange Offer,
provided that such information shall relate only to the procedures for
tendering into (or withdrawing from) the Exchange Offer. The
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Company will furnish you with copies of such documents at your request. All
other requests for information relating to the Exchange Offer shall be
directed to the Company, Attention: Investor Relations, 300 Opus Center, 0000
Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, (000) 000-0000.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to _____________________________ of
the Company and such other person or persons as it may request, daily (and
more frequently during the week immediately preceding the Expiration Date and
if otherwise requested) up to and including the Expiration Date, as to the
number of Old Notes which have been tendered pursuant to the Exchange Offer
and the items received by you pursuant to this Agreement, separately
reporting and giving cumulative totals as to items properly received and
items improperly received. In addition, you will also inform, and cooperate
in making available to, the Company or any such other person or persons upon
oral request made from time to time prior to the Expiration Date of such
other information as it or he or she reasonably requests. Such cooperation
shall include, without limitation, the granting by you to the Company and
such person as the Company may request of access to those persons on your
staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date the Company shall have received
information in sufficient detail to enable it to decide whether to extend the
Exchange Offer. You shall prepare a final list of all persons whose tenders
were accepted, the aggregate principal amount of Old Notes tendered and the
aggregate principal amount of Old Notes accepted and deliver said list to the
Company.
17. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by you as to the date and the time of
receipt thereof and shall be preserved by you for a period of time at least
equal to the period of time you preserve other records pertaining to the
transfer of securities. You shall dispose of unused Letters of Transmittal and
other surplus materials by returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right of
setoff whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by
the Company, or any of its subsidiaries or affiliates pursuant to any loan or
credit agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the
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latter two documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be controlled by this
Agreement.
21. The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including attorneys' fees and expenses, arising
out of or in connection with any act, omission, delay or refusal made by you
in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably
believed by you to be valid, genuine and sufficient and in accepting any
tender or effecting any transfer of Old Notes reasonably believed by you in
good faith to be authorized, and in delaying or refusing in good faith to
accept any tenders or effect any transfer of Old Notes; provided, however,
that the Company shall not be liable for indemnification or otherwise for any
loss, liability, cost or expense to the extent arising out of your gross
negligence or willful misconduct. In no case shall the Company be liable
under this indemnity with respect to any claim against you unless the Company
shall be notified by you, by letter or by facsimile confirmed by letter, of
the written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written
assertion or notice of commencement of action. The Company shall be entitled
to participate at its own expense in the defense of any such claim or other
action, and, if the Company so elects, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event that the Company
shall assume the defense of any such suit, the Company shall not be liable
for the fees and expenses of any additional counsel thereafter retained by
you so long as the Company shall retain counsel satisfactory to you to defend
such suit, and so long as you have not determined, in your reasonable
judgment, that a conflict of interest exists between you and the Company.
You agree that, without the prior written consent of the Company (which
consent shall not be unreasonably withheld), you will not settle, compromise
or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding in respect of which indemnification could be sought in
accordance with the indemnification provision of this Agreement (whether or
not you or the Company or any of its directors, officers and controlling
persons is an actual or potential party to such claim, action or proceeding),
unless such settlement, compromise or consent includes an unconditional
release of the Company and its directors, officers and controlling persons
from all liability arising out of such claim, action or proceeding.
22. You shall arrange to comply with all requirements under the
tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. The Company understands that you are required to
deduct 31% on payments to holders who have not supplied their correct
Taxpayer Identification Number or required certification. Such funds will be
turned over to the Internal Revenue Service in accordance with applicable
regulations.
23. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and, upon receipt of written
approval from the Company,
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shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in respect of
the exchange of Old Notes, the Company's check in the amount of all transfer
taxes so payable, and the Company shall reimburse you for the amount of any
and all transfer taxes payable in respect of the exchange of Old Notes;
provided, however, that you shall reimburse the Company for amounts refunded
to you in respect of your payment of any such transfer taxes, at such time as
such refund is received by you.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles. This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. Without limitation to the
foregoing, the parties hereto expressly agree that no holder of Old Notes or
New Notes shall have any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
25. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the
party to be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to
it, at its address or telecopy number set forth below:
If to the Company:
United HealthCare Corporation
300 Opus Center
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
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Attention: Xxxxx X. Xxxxxx, General Counsel
With a copy to:
Xxxxxx & Whitney LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxxx
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee Administration
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate on the earlier of 90 days following the Expiration
Date or the close of business on the date of actual receipt of written notice
by you from the Company stating that this Agreement is terminated.
Notwithstanding the foregoing, Paragraphs 19, 21 and 23 shall survive the
termination of this Agreement. Upon any termination of this Agreement, you
shall promptly deliver to the Company any certificates for Notes, funds or
property then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
UNITED HEALTHCARE CORPORATION
By:
--------------------------
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
------------------------------------
Name:
Title:
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SCHEDULE I
COMPENSATION DUE EXCHANGE AGENT
$5,000 plus reasonable attorneys' fees and expenses
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