Exhibit 99.3
EXCHANGE AGENT AGREEMENT
August ___, 1998
Chase Manhattan Bank and Trust Company,
National Association
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Ladies and Gentlemen:
Global Health Sciences, Inc., a California corporation (the
"Issuer"), proposes to make an offer (the "Exchange Offer") to exchange its
outstanding 11% Senior Notes Due 2008 (the "Old Notes"), of which an aggregate
of $225,000,000 in principal amount is outstanding as of the date hereof, for an
equal principal amount of newly issued 11% Senior Notes Due 2008 (the "New
Notes") which have been registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Old Notes and New Notes are collectively referred to
herein as the "Notes." The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus, dated July __, 1998 (the
"Prospectus"), proposed to be distributed to all record holders of the Old Notes
and beneficial interests therein. Terms used and not defined herein have the
meanings set forth in the Prospectus or the Letter of Transmittal (except that
the term "Old Notes" shall include beneficial interests therein, held by or
through participants in The Depository Trust Company (the "Book-Entry Transfer
Facility") ("Book-Entry Interests") and Old Notes held in definitive registered
form ("Definitive Registered Notes")).
The Issuer hereby appoints Chase Manhattan Bank and Trust
Company, National Association to act as exchange agent (the "Exchange Agent") in
connection with the Exchange Offer. References hereinafter to "you" shall refer
to Chase Manhattan Bank and Trust Company, National Association.
The Exchange Offer is expected to be commenced by the Issuer
on or about July ___, 1998. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Old Notes to accept the Exchange
Offer, and
contains certain instructions with respect to the delivery of Book-Entry
Interests and Definitive Registered Notes.
The Exchange Offer shall expire at 5:00 p.m., San Francisco
time, __________ , 1998 or on such later date or time to which the Issuer may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Issuer 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 Issuer expressly reserves the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Old Notes not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the section "Exchange
Offer-Conditions." The Issuer will give oral (confirmed in writing) or written
notice of any amendment, termination or nonacceptance to you as promptly as
practicable.
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," as specifically set forth in the Letter of Transmittal, and as
specifically set forth herein and such duties which are necessarily incidental
thereto; 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 Book-Entry Transfer Facility for purposes of the Exchange Offer within
two business days after the date of the Prospectus or, if you already have
established an account with the Book-Entry Transfer Facility suitable for the
Exchange Offer, you will identify such preexisting account to be used in the
Exchange Offer, 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
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accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal, each
of the certificates for Old Notes in the case of Definitive Registered Notes,
or, in the case of Book-Entry Interests, confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility via the Book-Entry
Transfer Facility's Automated Tender Offer Program and any accompanying Agent's
Message 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, 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 Chief Executive Officer, Chief
Financial Officer or any Senior 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 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
section of the Prospectus captioned "Exchange Offer-Procedures for Tendering" or
in the Letter of Transmittal, 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 Chief Executive Officer, Chief Financial Officer or any Senior Vice
President of the Company or any other party 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, to be confirmed in writing).
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6. You shall advise the Company with respect to any Old Notes
delivered 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 to so 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 the expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Issuer 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 Issuer, 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 Issuer 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 Issuer, provided, however, that
in all cases, Old Notes tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of properly endorsed Definitive
Registered Notes or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility, or a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature guarantees
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(or in lieu thereof an Agent's Message, where applicable) and any other required
document. 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 Issuer 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 Issuer not to exchange any Old Notes tendered
shall be given (such notice, if given orally, shall be confirmed in writing) by
the Issuer to you.
11. If, pursuant to the Exchange Offer, the Issuer 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 "Exchange Offer-Conditions" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange Offer effect the
appropriate book-entry transfer of the unaccepted Old Notes, and return 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 for New Notes shall be forwarded by first-class certified mail, return
receipt requested.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other person or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency, value or genuineness
of Old Notes deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representations as to the validity, value or
genuineness of the Exchange Offer;
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provided, however, that in no way will your general duty to act in good faith be
discharged by the foregoing;
(b) 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;
(c) shall not be liable to the Issuer for any action
taken or omitted by you, or any action suffered by you to be taken or omitted,
without negligence, misconduct or bad faith on your part, by reason of or as a
result of the administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions delivered
to you pursuant hereto, and may reasonably rely on and shall be protected in
acting in good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile 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;
(d) may reasonably act upon any tender, statement,
request, comment, agreement or other instrument whatsoever not only as to its
due execution and validity and the effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which you shall
in good faith reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon
written or oral instructions confirmed in writing from any officer of the Issuer
with respect to the Exchange Offer;
(f) 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;
(g) shall not be liable hereunder for special,
indirect or consequential loss or damage of any kind whatsoever (including, but
not limited to, lost profits), even if you have been advised of the likelihood
of such loss or damage and regardless of the form of action; and
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(h) may consult with your counsel and the written
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by you hereunder in good
faith and in accordance with such written opinion of such counsel.
15. You shall take such action as may from time to time be
requested by the Issuer 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 or such other forms as may be
approved from time to time by the Issuer 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
Issuer 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:
Global Health Sciences, Inc.
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter, confirm in writing to:
Global Health Sciences, Inc.
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and such other person or persons as the Company may request, daily, and more
frequently if reasonably requested, up to and including the Expiration Date, as
to the principal amount of the 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 Issuer or any such other person or persons as the
Issuer requests from time to time prior to the Expiration Date of such other
information as they, it or he reasonably requests. Such cooperation shall
include,
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without limitation, the granting by you to the Issuer and such persons as the
Issuer 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 Issuer shall have received information in sufficient detail
to enable it to decide whether to extend the Exchange Offer. You shall prepare a
list of persons who failed to tender or whose tenders were not accepted and the
aggregate principal amount of Old Notes not tendered or Old Notes not accepted
and deliver said list to the Issuer at least seven days prior to the Expiration
Date. You shall also 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 Issuer.
17. 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 payment of transfer taxes by reasons of amounts, if any, borrowed by the
Issuer, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
18. Letters of Transmittal 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 Issuer.
19. For services rendered as Exchange Agent hereunder you
shall be entitled to a fee of $2,500 and you shall be entitled to reimbursement
of your expenses (including fees and expenses of your counsel, which fees are
expected under normal circumstances to be not in excess $5,000) incurred in
connection with the Exchange Offer.
20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal attached hereto and further acknowledge that you have
examined each of them to the extent that they relate to your duties hereunder.
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
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respect to the duties, liabilities and indemnification of you as Exchange Agent
which shall be controlled by this Agreement.
21. Any corporation into which you, in your individual
capacity, may be merged or converted or with which you may be consolidated or
any corporation resulting from any merger, conversion or consolidation to which
you, in your individual capacity, shall be a party or any corporation to which
substantially all of your corporate trust business, in your individual capacity,
may be transferred shall be the Exchange Agent under this Agreement without
further act.
22. The Issuer agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any liability, cost or
expense, including reasonable attorneys' fees, arising out of or in connection
with the acceptance or administration of your duties hereunder, including,
without limitation, in connection with any act, omission, delay or refusal made
by you in reasonable 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
Issuer shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence, willful
breach of this Agreement, willful misconduct or bad faith. In no case shall the
Issuer be liable under this indemnity with respect to any claim against you
unless the Issuer shall be notified by you, by letter or cable 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 Issuer shall be
entitled to participate at its own expense in the defense of any such claim or
other action, and, if the Issuer so elects, the Issuer shall assume the defense
of any suit brought to enforce any such claim. In the event that the Issuer
shall assume the defense of any such suit, the Issuer shall not be liable for
the fees and expenses of any additional counsel thereafter retained by you so
long as the Issuer shall retain counsel reasonably satisfactory to you to defend
such
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suit. You shall not compromise or settle any such action or claim without the
consent of the Issuer.
23. You 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 Issuer 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 Issuer 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 and, provided, further, that if New Notes and/or substitute
Old Notes not exchanged are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered holder of the Old
Notes tendered in the Exchange Offer, or if tendered Old Notes are registered in
the name of any person other than the person signing the applicable Letter of
Transmittal, or if a transfer tax is imposed for any reason other than the
transfer of Old Notes to the Issuer or its order pursuant to the Exchange Offer,
the amount of any such transfer taxes (whether imposed on the registered holder
or any other persons) will be payable by the tendering holder and will not be
reimbursed to you by the Issuer. In no event, however, will the Exchange Agent
be responsible for the payment of any applicable transfer tax imposed for any
reason other than the exchange of Old Notes.
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 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.
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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) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Issuer:
Global Health Sciences, Inc.
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
If to the Exchange Agent:
Chase Manhattan Bank and Trust Company
National Association
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxx
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate after all obligations of the parties hereunder shall
be fulfilled. Notwithstanding the foregoing, Paragraphs 19 and 22 shall survive
the termination of this Agreement. Upon any termination of this Agreement, you
shall promptly deliver to the Issuer any funds or property (including, without
limitation, Letters of Transmittal and any other documents
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relating to the Exchange Offer) then held by you as Exchange Agent under this
Agreement except as provided in Section 18.
30. This Agreement shall be binding and effective as of the
date hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
GLOBAL HEALTH SCIENCES, INC.
By: -----------------------------
Name:
Title:
Accepted as the date
first above written:
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
By: ----------------------------------
Name: Xxxxx Xxxx
Title:
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