Exhibit 4.20
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UNITED HEALTHCARE CORPORATION
, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES DESCRIBED HEREIN
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DEPOSIT AGREEMENT
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DATED AS OF ____________
TABLE OF CONTENTS
Page
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PARTIES.................................................................. 1
RECITALS................................................................. 1
ARTICLE I
Definitions
Certificate.............................................................. 1
Company.................................................................. 1
Deposit Agreement........................................................ 1
Depositary............................................................... 1
Depositary Shares........................................................ 1
Depositary's Agent....................................................... 1
Depositary's Office...................................................... 2
Receipt.................................................................. 2
Record Holder............................................................ 2
Registrar................................................................ 2
Stock.................................................................... 2
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
Section 2.01. Form and Transfer of Receipts............................. 2
Section 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof............................ 3
Section 2.03. Redemption of Stock....................................... 4
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Section 2.04. Registration of Transfer of Receipts...................... 5
Section 2.05. Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock................. 6
Section 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts.............. 6
Section 2.07. Lost Receipts, etc........................................ 7
Section 2.08. Cancellation and Destruction of Surrendered Receipts...... 7
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
Section 3.01. Filing Proofs, Certificates and Other Information......... 7
Section 3.02. Payment of Taxes or Other Governmental Charges............ 8
Section 3.03. Warranty as to Stock...................................... 8
ARTICLE IV
The Deposited Securities; Notices
Section 4.01. Cash Distributions........................................ 8
Section 4.02. Distributions Other than Cash............................. 8
Section 4.03. Subscription Rights, Preferences or Privileges............ 9
Section 4.04. Notice of Dividends, etc.; Fixing of Record
Date for Holders of Receipts.............................. 9
Section 4.05. Voting Rights.............................................10
Section 4.06. Changes Affecting Deposited Stock and
Reclassification, Recapitalizations, etc..................10
Section 4.07. Inspection of Reports.....................................11
Section 4.08. Lists of Holders..........................................12
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ARTICLE V
The Depositary, the Depositary's Agents,
The Registrar and the Company
Section 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar.............................................12
Section 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents,
any Registrar or the Company..........................12
Section 5.03. Obligations of the Depositary, the
Depositary's Agents, any Registrar and
the Company...........................................13
Section 5.04. Resignation and Removal of the Depositary;
Appointments of Successor Depositary..................14
Section 5.05. Corporate Notices and Reports.............................15
Section 5.06. Indemnification by the Company............................15
Section 5.07. Charges and Expenses......................................15
ARTICLE VI
Amendment and Termination
Section 6.01. Amendment.................................................16
Section 6.02. Termination...............................................16
ARTICLE VII
Miscellaneous
Section 7.01. Counterparts..............................................16
Section 7.02. Exclusive Benefit of Parties..............................16
Section 7.03. Invalidity of Provisions..................................16
Section 7.04. Notices...................................................16
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Section 7.05. Depositary's Agents.......................................17
Section 7.06. Holders of Receipts Are Parties...........................18
Section 7.07. Governing Law.............................................18
Section 7.08. Inspection of Deposit Agreement...........................18
Section 7.09. Headings..................................................18
Testimonium..............................................................
Signatures...............................................................
Exhibits A: Form of Reverse of Depositary Receipt
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DEPOSIT AGREEMENT
This Deposit Agreement (this "Agreement") is made and entered into as of
__________,____ among United HealthCare Corporation, a Minnesota corporation,
and _______, a ____________ corporation, and the holders from time to time of
the shares described herein.
RECITALS
WHEREAS it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of [describe series of] Preferred Stock,
without par value, of _______________ with the Depositary (as hereinafter
defined) for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts (as hereinafter defined) evidencing Depositary
Shares (as hereinafter defined) in respect of the Stock (as hereinafter defined)
so deposited;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designations filed with the
Secretary of State of Minnesota establishing the Stock as a series of preferred
stock of the Company.
"Company" shall mean United HealthCare Corporation, a Minnesota
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean _______________, and any successor as Depositary
hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a
[describe fraction] interest in a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
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"Depositary's Office" shall mean the office of the Depositary at ______, in
_____________, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall mean
the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be appointed
to register ownership and transfers of Depositary Shares as herein provided.
"Stock" shall mean the Company's [describe series of] Preferred Stock,
without par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Form and Transfer of Receipts. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.02, shall execute and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at an office described in the third paragraph of Section 2.02, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
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Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, that such signature may be
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to the Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares relating to such deposited Stock. The Depositary Shares, upon
issuance, delivery and payment therefor will be validily issued, fully paid and
nonassesssable.
Deposited Stock shall be held by the Depositary at the Depositary's office
or at such other place or places as the Depositary shall determine.
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Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
so deposited on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares relating to the Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Depositary's Office or such
other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other reclassifications
affecting the Stock, or in the case of dividends or other distributions of
Stock, if any, there shall be deposited hereunder not more than _______ shares
of Stock.
Section 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such proposed redemption , by first class mail, postage
prepaid, not less than 30 nor more than 60 days prior to the date fixed for
redemption in accordance with Section 3.4 of the Certificate. On the date of
such redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed, plus any accrued
and unpaid dividends thereon, the Depositary shall redeem the Depositary Shares
relating to such Stock. The Depositary shall mail notice of such redemption and
the proposed simultaneous redemption of the number of Depositary Shares relating
to the Stock to be redeemed, by first-class paid postage prepaid, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares (the Redemption Date"), to the record holders of the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither the failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accumulate at the close of business on such Redemption Date. In case less
than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata as may be
determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Stock to be
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redeemed by it as set forth in the Company's notice provided for in the
preceding paragraph) all dividends in respect of the Depositary Shares so called
for redemption shall cease to accumulate, the Depositary Shares being redeemed
from such proceeds shall be deemed no longer to be outstanding, all rights of
the holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to [insert fraction referred to in definition of "Depositary Shares"] of the
redemption price per share paid in respect of the shares of Stock plus all money
and other property, if any, underlying such Depositary Shares, including all
amounts paid by the Company in respect of dividends which on the Redemption Date
have accumulated on the shares of Stock to be so redeemed and have not
theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
Section 2.04. Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Depositary Shares upon any surrender of the
Receipt or Receipts evidencing such Depositary Shares by the holder in person or
by duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer. Thereupon the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the person entitled thereto.
Section 2.05. Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting of a split-up or combination of such Receipt or
Receipts, and subject to the Terms and Conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered. Any holder of at least [insert
reciprocal of fraction referred to in definition of "Depositary Shares"]
Depositary Shares may withdraw the number of whole shares of Stock underlying
such Depositary Shares and all money and other property, if any, relating
thereto by surrendering Receipts evidencing such Depositary Shares at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, underlying the Depositary Shares so surrendered for
withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit
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such Stock hereunder or to receive Depositary Shares therefor. If a Receipt
delivered by a holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares relating to other than a number of whole
shares of Stock, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or (subject to Section 3.02) upon his
order, a new Receipt evidencing such excess number of Depositary Shares.
Delivery of the Stock and money and other property being withdrawn may be made
by delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of Stock, such
holder shall execute and deliver to the Depositary a written order so directing
the Depositary, and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer.
Delivery of the Stock and money and other property, if any, underlying the
Depositary Shares surrendered for withdrawal shall be made by the Depositary at
the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
Section 2.06. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the registration
of transfer of Depositary Shares may be refused and the registration of
transfer, surrender or exchange of outstanding Depositary Shares may be
suspended (i) during any period when the register of stockholders of the Company
is closed or (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
Section 2.07. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for
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such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
Section 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proof, Certificates and Other Information. Any holder
of a Depositary Share may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Depositary Share or the withdrawal of any Stock underlying
Depositary Shares or the distribution of any dividend or other distribution or
the sale of any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made.
Section 3.02. Payment of Taxes or Other Governmental Charges. Holders of
Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property underlying such
Depositary Share and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Depositary Share remaining liable for any deficiency.
Section 3.03. Warrants as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to the record holders of
Depositary Shares on the record date fixed pursuant to Section 4.04 such amounts
of such dividend or distribution as are, as nearly as practicable, in proportion
to the respective number of Depositary Shares held by such holders; provided,
however; that in case the Company or the Depositary shall be required to
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to record holders of Depositary
Shares then outstanding.
Section 4.02. Distributions Other than Cash. Whenever the Depositary shall
receive any distribution other than cash on the Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to the record holders of
Depositary Shares on the record date fixed pursuant to Section 4.04 such amounts
of the securities or property received by it as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper
the net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Depositary Shares as provided by Section 4.01 in
the case of a distribution received in cash. The Company shall not make any
distribution of such securities unless the Company shall have provided an
opinion of counsel stating that such securities have been registered under the
Securities Act of 1933 or that such registration is not required.
Section 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase
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any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Depositary Shares in such
manner as the Depositary may determine, either by the issue to such record
holders of warrants representing such rights, preferences or privileges or by
such other method as may be approved by the Depositary in its discretion with
the approval of the Company; provided, however, that (i) if at the time of issue
or offer of any such rights, preferences or privileges the Depositary determines
that it is not lawful or (after consultation with the Company) not feasible to
make such rights, preferences or privileges available to the holders of
Depositary Shares by the issue of warrants or otherwise, or (ii) if and to the
extent so instructed by holders of Depositary Shares who do not desire to
exercise such rights preferences or privileges, then the Depositary, in its
discretion (with the approval of the Company, in any case where the Depositary
has determined that it is not feasible to make such rights preferences or
privileges available may, if applicable laws or the terns of such rights,
preferences or privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and upon such
terns as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed by the Depositary to the record holders
of Depositary Shares entitled thereto as provided by Section 4.01 in the case of
a distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges, unless the Company shall have provided
an opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act of 1933 or that such registration is
not required.
If registration under the Securities Act of 1933 of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Depositary Shares to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Depositary Shares any right, preference or privilege to subscribe
for or to purchase any securities unless and until such a registration statement
shall have become effective, or unless the offering and sale of such securities
to such holders may be made without registration under the provisions of such
Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to the holders of
Depositary Shares, the Company agrees with the Depositary that the Company will
use its best efforts to take such action or obtain such authorization, consent
or permit sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such right, preferences or
privileges.
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Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders
of Depositary Shares. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered, with respect to
the Stock, or whenever the Depositary shall receive notice of any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the holders of Depositary Shares
who shall be entitled to receive a distribution in respect of such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to receive notice of such meeting.
Section 4.05. Voting Rights. Upon receipt of notice of any meeting at which
holders of the Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Depositary Shares a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.04, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instruction set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Depositary Share, the Depositary will abstain
from voting (but, at its discretion, not from appearing at any meeting with
respect to such Stock unless directed to the contrary by the holders of all the
Depositary Shares) to the extent of the Stock underlying such Depositary Share.
Section 4.06. Changes Affecting Deposited Stock and Reclassifications,
Recapitalizations, etc. Upon any change in par or liquidation value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion, upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion, with the approval of, and shall upon the instructions of,
the Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a share of
Stock, in each case as may be necessary fully to reflect the effects of such
change in par or liquidation value, split up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be
- 10 -
received by the Depositary in exchange for or upon conversion of or in respect
of the Stock as new deposited securities so received in exchange for or upon
conversion of or in respect of such Stock. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
Section 4.07. Inspection of Reports. The Depositary shall make available
for inspection by any holder of Depositary Shares at the Depositary's Office,
and at such other places as it may from time to time deem advisable, any reports
and communications received from the Company which are received by the
Depositary as the holder of the Stock, and the Depositary will forward to the
record holders of the Depositary Shares, at their respective addresses, any such
reports or communications that are not required to be delivered by the Company
to the record holders of the Depositary Shares pursuant to Section 5.05.
Section 4.08. List of Holders. Promptly upon request from time to time by
the Company, the Depositary shall furnish to it a list, as of a recent date, of
the name, address and holdings of Depositary Shares of all persons in whose
names Depositary Shares are registered on the books of the Depositary.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office, or at any Registrar's Office, at
which the Depositary shall have complete access to all books and records
maintained on the Company's behalf, facilities for the execution and delivery,
surrender and exchange of Receipts and the registration of transfer of
Depositary Shares, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of the Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration, and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the record holders of
Depositary Shares.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock Exchange
or other securities
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exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange or such other exchange. Such Registrar
(which may be the Depositary if so permitted by the requirements of such
Exchange or such other exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of Company.
Section 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, any Registrar of the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Depositary Shares if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority, or in the case of the
Depositary, any Depositary Agent or any Registrar, by reason of any provision,
present or future, of the Company's Certificate of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, any Depositary's Agent, any
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Depositary
Share (i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
Section 5.03. Obligations of the Depositary, the Depositary's Agents, any
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Depositary Shares other
than for its gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity reasonably satisfactory to it against all expense and liability
be furnished.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Depositary Share or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice,
- 12 -
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote, as long as any such action or non-action is taken in good faith.
The Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided. The Depositary may
at any time be removed by the Company by notice of such removal delivered to the
Depositary, such removal to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided. In
case the Depositary acting hereunder shall at any time resign or be removed, the
Company shall, within 60 days after the delivery of the notice of resignation or
removal, as the case may be, appoint a successor Depositary, which shall be a
bank or trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $50,000,000. If no
successor Depositary shall have been so appointed within 60 days after delivery
of such notice, the resigning or removed Depositary may petition any court of
competent jurisdiction for the appointment of a successor Depositary. Every
successor Depositary shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor and
shall deliver to such successor a list of the record holders of all outstanding
Depositary Shares. Any successor Depositary shall promptly mail notice of its
appointment to the record holder of Depositary Shares.
Any corporation into or with which the Depositary may merge, consolidate or
be converted shall be the successor of such Depositary without the execution or
filing of any
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document or, any further act. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
Section 5.05. Corporate Notices and Resorts. The Company agrees that it
will transmit to the record holders of Depositary Shares, in each case at the
address furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, the rules
of any securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company' Certificate of Incorporation (including
the Certificate) to be furnished by the Company to holders of the Stock. Such
transmission will be at the Company's expense
Section 5.06. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless form, any loss, liability or expense (including the costs and
expense of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Deposit Agreement and the Depositary Shares (a)
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence or
bad faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Depositary Shares or the Stock pursuant to the provisions hereof. The
obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
Section 5.07. Charges and Expenses. The Company shall pay all transfer and
other taxes and governmental charges arising from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Receipts, any redemption of the Stock at the option of the Company and any
withdrawals of Stock by holders of Depositary Shares. All other transfer and
other taxes and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of a Depositary Shares the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
charges and expenses of the Depositary, any Depositary's Agent hereunder and any
Registrar (including, in each case, fees and expense of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company at such times as the Company
and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between
- 14 -
the Company and the Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment (other than any change in
the fees of any Depositary or Registrar, which shall go into effect not sooner
than three months after notice thereof to the holders of the Depositary Shares)
which shall materially and adversely alter the rights of the existing holders of
the Depositary Shares will be effect unless such amendment shall have been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Depositary Share at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Depositary Share, to consent and agree to such amendment and to be bound by this
Deposit Agrees as amended thereby.
Section 6.02. Termination. This Deposit Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03 or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding-up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.01 or
4.02, as applicable. Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary, and Depositary's Agent and any Registrar
under Section 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed and original, but all such counterparts taken together shall
constitute one and the same instrument.
Section 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successor
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.04. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex,
confirmed by letter, addressed to the Company at 300 Opus Center, 0000 Xxxx Xxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, to the
- 15 -
attention of ____________, or at any other address of which the Company shall
have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex, confirmed by
letter, addressed to the Depositary at the Depositary's Office, at ___________,
or at any other address of which the Depositary shall have notified the Company
in writing.
Any and all notices to be given to any record holder of a Depositary Share
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or
telecopy confirmed by letter, addressed to such record holder at the address of
such record holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telecopy shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telecopy) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telecopy received by it from the
other or from any holder of a Depositary Share, notwithstanding that such
telegram or telecopy shall not subsequently be confirmed by letter or as
aforesaid.
Section 7.05. Depositary Agents. The Depositary may from time to time, with
the prior approval of the Company, appoint Depositary Agents to act in any
respect of the Depositary for the purposes of this Deposit Agreement and may at
any time appoint additional Depositary Agents and vary or terminate the
appointment of such Depositary Agents.
Section 7.06. Holders of Receipts Are Parties. The holders of Depositary
Shares from time to time shall be parties to this Deposit Agreement and shall be
bound by all of the terms and conditions hereof and of the Receipts evidencing
such Depositary Shares by acceptance of delivery thereof.
Section 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
MINNESOTA.
Section 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Depositary Share.
- 16 -
Section 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Deposit Agreement as of the day and year first above set forth, and all holders
of Depositary Shares shall become parties hereto by and upon acceptance by them
of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
UNITED HEALTHCARE CORPORATION
By
----------------------------
Authorized Officer
[Name of Depositary]
By
----------------------------
Authorized Officer
- 17 -
EXHIBIT A
NO.:_____________ DEPOSITARY SHARES:______________
DR:______________ CERTIFICATE FOR NOT MORE THAN
_______ DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING [CONVERTIBLE] PREFERRED STOCK, SERIES __,
OF UNITED HEALTHCARE CORPORATION INCORPORATED UNDER THE LAWS
OF THE STATE OF MINNESOTA
CUSIP NO:____________
[See Reverse For Certain Definitions]
____________________________________, AS DEPOSITARY (THE "DEPOSITARY"),
HEREBY CERTIFIES THAT:
_________________________ is the registered owner of ________ Depositary Shares
("Depositary Shares"), each Depositary Share representing ______ of one share of
[Convertible] Preferred Stock, Series ___, par value $__________ per share, of
United HealthCare Corporation, a Minnesota corporation (the "Corporation"), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of __________, ______, (the "Deposit
Agreement") between the Corporation and the Depositary. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer and shall have
been countersigned manually by a Registrar or by the Depositary as Registrar in
respect of the Depositary Receipts by the manual signature of a duly authorized
officer thereof.
Dated:
---------------------
[DEPOSITARY AND REGISTRAR]
By:
---------------------------
Its:
-----------------------
Attest:
By:
----------------------------
Its:
------------------------
Countersigned and Registered:
-------------------------------
Authorized Signature
UNITED HEALTHCARE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND
WITHOUT CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS,
AND RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE
ISSUED, SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF
DIRECTORS TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES
OR SERIES.
A-2
---------------------------------------------
ABBREVIATIONS
The following abbreviations, when used in this instrument, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--_______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
-----------------------
(State)
Additional abbreviations may be used though not in the above list.
---------------------------------
A-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
---------------------------- -----------
/ --------------------------------------/
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address,
including postal zip code of assignee)
--------------------------------------------------------------------------------
the within Receipt and all rights thereunder and hereby irrevocably constitutes
and appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
to transfer said Depositary Shares on the books of the within named Depositary,
with full power of substitution in the premises.
Dated
--------------------- -----------------------------------------------
NOTICE: The signature on this assignment must
correspond with the name as written upon the
face of the within Receipt in every particular,
without alteration or enlargement or any change
whatsoever.
--------------------------
Signature Guarantee
SIGNATURE GUARANTEE: Signatures must be guaranteed by an "eligible
institution" meeting the requirements of the [Registrar], which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the [Registrar] in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
A-4
