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Exhibit 99.3
August 26, 1999
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
Global Trust Services
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Dear Xx. Xxxxxxxx:
Oxford Health Plans, Inc. a Delaware corporation (the "Company"),
proposes to make an offer (the "Exchange Offer") to exchange up to $200,000,000
aggregate principal amount of its 11% Senior Notes due 2005 (the "New Notes"),
for a like principal amount of its outstanding 11% Senior Notes due 2005 (the
"Old Notes"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus (the "Prospectus") included in the
Company's registration statement on Form S-4 (File No. 333-77525), as amended
(the "Registration Statement"), filed with the Securities and Exchange
Commission (the "SEC"), and 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." Capitalized terms used herein and not defined shall have
the respective meanings ascribed to them in the Prospectus or accompanying
Letter of Transmittal.
The Company hereby appoints The Chase Manhattan Bank to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Company on
or about August 31, 1999. The Letter of Transmittal accompanying the Prospectus
(or in the case of book entry securities, an Agent's message sent through 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 the twentieth business day following its commencement 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 (1) giving oral (confirmed in writing)
or written notice to you and (2) issuing a press release
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or other public announcement of the extension, which will include disclosure of
the approximate number of Old Notes deposited to date, each before 9:00 A.M.,
New York City time, on the next business day after the previously scheduled
Expiration Date.
The Company expressly reserves the right, in its sole discretion,
to amend or terminate the Exchange Offer, and not to accept for exchange any Old
Notes not theretofore accepted for exchange. The Company will give oral
(confirmed in writing) or written notice of any amendment, termination or
nonacceptance to you as promptly as practicable and will promptly announce any
such event by making a timely release to PR Newswire.
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", in the Letter of Transmittal accompanying the Prospectus or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith and without gross negligence or willful
misconduct be limited 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 procedures for such transfer.
3. You are to examine each of the Letters of Transmittal, if any,
and certificates for Old Notes (and confirmation of book-entry transfers of Old
Notes 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, certificates and any such
other documents are duly executed and properly completed in accordance with
instructions set forth therein and that such book-entry confirmations are in due
and proper form and contain the information required to be 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 where book-entry confirmations are not in due and proper form or
omit certain information, 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.
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4. With the approval of Xxxxxxx X. Xxxx, Executive Vice
President, General Counsel and Secretary, or the Chairman of the Board, the
President, Chief Executive Officer, any Executive Vice President or any other
person designated by such an officer in writing (such approval, if given orally,
to be confirmed in writing), you are 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", 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
that the Chairman of the Board, the President, Chief Executive Officer, any
Executive Vice President or any other person designated by such an officer in
writing, 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 those regarding
any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes when so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Notes or a book-entry delivery, as applicable, to the transfer agent for
split-up and return any untendered Old Notes or cause book-entry credit for the
untendered portion to be made 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)
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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 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, 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, except as described in the section of the Prospectus
captioned "The Exchange Offer--Procedures for Tendering", duly executed Letter
of Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents. Unless otherwise instructed by the Company, 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 on or prior to the Expiration Date
in accordance with the terms of the Exchange Offer.
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 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 (or effected such book-entry
transfer).
12. All certificates for reissued Old Notes, unaccepted Old Notes
or for New Notes (other than those effected by book-entry transfer) shall be
forwarded (a) by messenger or (b) by guaranteed overnight courier.
13. You are not authorized to pay or offer to pay any
concessions, commissions or other solicitation fees to any broker, dealer,
commercial bank, trust company or other nominee or to engage or use any person
to solicit tenders.
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14. As Exchange Agent hereunder, you:
(a) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal or herein or
as may be subsequently agreed to in writing by you and the Company;
(b) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates for the Old Notes 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
satisfactory to you;
(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 any officer of the Company;
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities, and the written opinion
of such counsel or, if appropriate, counsel to the Company 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
written opinion of such counsel or, if appropriate, counsel to the Company; and
(h) shall not advise any person tendering Old Notes
pursuant to the Exchange Offer as to whether to tender or refrain from tendering
all or any portion of Old Notes or as to the market value, decline or
appreciation in market value of any Old Notes that may or may not occur as a
result of the Exchange Offer or as to the market value of the New Notes;
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provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
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 accepting (or withdrawing
from) the Exchange Offer. The Company will furnish you with copies of such
documents at your request.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxx X. Xxxx, Esq. of the Company,
(telephone number (000) 000-0000) and such other person or persons as the
Company may request, as reasonably required by the Company, up to and including
the Expiration Date, as to the aggregate principal amount of Old Notes which
have been duly tendered pursuant to the Exchange Offer and the items received by
you pursuant to the Exchange Offer and 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
registered holders or in the case of book-entry delivery DTC participants whose
tenders were accepted, the aggregate principal amount of Old Notes tendered, the
aggregate principal amount of Old Notes accepted and the identity of any
Participating Broker-Dealers and the aggregate principal amount of New Notes
delivered to each, and deliver said list to the Company.
17. Letters of Transmittal, book-entry confirmations and Notices
of Guaranteed Delivery received by you 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, or one year, whichever is longer, and thereafter
shall be delivered by you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials as instructed by the Company.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the
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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, except any lien,
encumbrance or right of set-off that you have with respect to the Indenture,
dated as of May 13, 1998 between the Company and you, as trustee.
19. For services rendered as Exchange Agent hereunder, you shall
be entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and indemnification of
you as Exchange Agent, which shall be controlled by this Agreement.
21. The Company covenants and agrees to indemnify you against any
and all losses, liabilities, costs or expenses (including reasonable attorneys'
fees and expenses) incurred by you 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 anything in this Agreement to the contrary
notwithstanding, the Company shall not be liable for indemnification or
otherwise for any loss, liability or expense to the extent arising out of your
negligence or bad faith. 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 cable or by facsimile which is 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 may assume the defense of any
pending or threatened action against you in respect of which indemnification may
be sought hereunder, in which case the Company shall not thereafter be
responsible for the subsequently incurred fees and disbursements of legal
counsel for you under this paragraph so long as the Company shall retain counsel
reasonably satisfactory to you to defend such suit; provided, that the Company
shall not be entitled to assume the defense of any such action if the named
parties to such action include both you and the Company and representation of
both parties by the same legal counsel would, in the written opinion of your
counsel, be inappropriate due to actual or potential conflicting interests
between you and the Company. You understand and agree
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that the Company shall not be liable under this paragraph for the fees and
expenses of more than one legal counsel for you.
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, in certain
instances, to deduct thirty-one percent (31%) with respect to interest paid on
the New Notes and proceeds from the sale, exchange, redemption or retirement of
the New Notes from holders who have not supplied their correct Taxpayer
Identification Numbers 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 a
written approval from the Company, 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, your 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, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
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.
28. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile or similar
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writing) and shall be given to such party, addressed to it, at its address or
facsimile number set forth below:
If to the Company, to:
Oxford Health Plans, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Executive Vice President,
General Counsel and Secretary
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
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If to the Exchange Agent, to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/8162
Attention: Xxxxxx X. Xxxxxxxx
Assistant Vice President
30. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, paragraphs 17, 19, 21 and 23 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property then held
by you as Exchange Agent under this Agreement.
31. 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.
OXFORD HEALTH PLANS, INC.
By: /s/ Xxxxxxx X. Xxxx
_______________________________
Name: Xxxxxxx X. Xxxx
Title: Executive Vice
President,
General Counsel and
Secretary
Accepted as of the date
first above written:
THE CHASE MANHATTAN BANK,
as Exchange Agent
By: /s/ Xxxxxx X. Xxxxxxxx
______________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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SCHEDULE I
FEE SCHEDULE FOR
EXCHANGE AGENT SERVICES
THE CHASE MANHATTAN BANK
SCHEDULE OF CORPORATE TRUST FEES FOR
OXFORD HEALTH PLANS, INC.
11% SENIOR NOTES DUE 2005
I. EXCHANGE AGENT FEE:
$5,000
This fee covers the administrative duties as exchange agent for the
securities under the Indenture including the dissemination of exchange
offer materials and coordination with The Depository Trust Company to close
the offer.
II. TRANSACTION FEES: BILLED AT COST
This fee covers the expenses charged by The Depository Trust Company in
connection with participant holders list used in the mailing of the
materials.
III. OUT-OF-POCKET EXPENSES: BILLED AT COST*
*All reasonable "out-of-pocket" expenses including, but not limited to,
legal fees, telecommunications, postage, travel, etc. incurred with the
performance of our duties under the indenture.
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