EXHIBIT P
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the 10th day of September
1997, between the Xxxxxx STRYPES Trust, a business trust organized pursuant to
the Business Trust Act of the State of Delaware (Chapter 38, Title 12, of the
Delaware Code, 12 Del. C. (Sections 3801 et seq.)) (such trust and the trustees
thereof acting in their capacity as such being referred to herein as the
"Trust"), and ML IBK Positions, Inc. (the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE STRYPES
1.1 SALE AND ISSUANCE OF UNITS. Subject to the terms and conditions of
this Agreement, the Trust agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Trust, one Structured Yield Product Exchangeable for
Stock/(SM)/, representing an undivided beneficial interest in the Trust (a
"STRYPES"), at a purchase price of $100.
1.2 CLOSING. The purchase and sale of the STRYPES shall take place at the
offices of Xxxxx & Xxxx llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
9:00 a.m., New York City time, on September 11, 1997, or at such other time
("Closing Date") and place as the Trust and the Purchaser mutually agree upon.
At or after the Closing, the Trust shall deliver to the Purchaser a certificate
representing the STRYPES purchased by the Purchaser, registered in the name of
the Purchaser or its nominee. Payment for the STRYPES shall be made on the
Closing Date by the Purchaser by bank wire transfer or by delivery of a
certified or official bank check, in either case in immediately available funds,
of an amount equal to the purchase price of the STRYPES purchased by the
Purchaser.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. The
Purchaser hereby represents and warrants to, and covenants for the benefit of,
the Trust that:
2.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made by the
Trust with the Purchaser in reliance upon the Purchaser's representation to the
Trust, which by the Purchaser's execution of this Agreement the Purchaser hereby
confirms, that the STRYPES are being acquired for investment for the Purchaser's
own account, and not as a nominee or agent and not with a view to the resale or
distribution by the Purchaser of any of the STRYPES, and that the Purchaser has
no present intention of selling, granting any
_______________________
/(SM)/ Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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participation in, or otherwise distributing the STRYPES, in either case in
violation of any securities registration requirement under applicable law, but
subject nevertheless, to any requirement of law that the disposition of its
property shall at all times be within its control. By executing this Agreement,
the Purchaser further represents that the Purchaser does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
STRYPES.
2.2 INVESTMENT EXPERIENCE. The Purchaser acknowledges that it can bear
the economic risk of the investment for an indefinite period of time and has
such knowledge and experience in financial and business matters (and
particularly in the business in which the Trust operates) as to be capable of
evaluating the merits and risks of the investment in the STRYPES. The Purchaser
is an "accredited investor" as defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended (the "Securities Act").
2.3 RESTRICTED SECURITIES. The Purchaser understands that the STRYPES are
characterized as "restricted securities" under the United States securities laws
inasmuch as they are being acquired from the Trust in a transaction not
involving a public offering and that under such laws and applicable regulations
such STRYPES may be resold without registration under the Securities Act only in
certain circumstances. In this connection, the Purchaser represents that it
understands the resale limitations imposed by the Securities Act and is
generally familiar with the existing resale limitations imposed by Rule 144.
2.4 FURTHER LIMITATIONS ON DISPOSITION. The Purchaser further agrees not
to make any disposition directly or indirectly of all or any portion of the
STRYPES unless and until:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(b) The Purchaser shall have furnished the Trust with an opinion of
counsel, reasonably satisfactory to the Trust, that such disposition will
not require registration of such STRYPES under the Securities Act.
Notwithstanding the provisions of subsections (a) and (b) above, no such
registration statement or opinion of counsel shall be necessary for a transfer
by the Purchaser to any affiliate of the Purchaser, if the transferee agrees in
writing to be subject to the terms hereof to the same extent as if it were the
original Purchaser hereunder.
2.5 LEGENDS. It is understood that the certificate evidencing the STRYPES
may bear either or both of the following legends:
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(a) "These securities have not been registered under the Securities
Act of 1933, as amended. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
reasonably satisfactory to the Trustees of Xxxxxx STRYPES Trust that such
registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
The Purchaser and the Trust agree that the legend contained in the
paragraph (a) above shall be removed at a holder's request when it is no longer
necessary to ensure compliance with federal securities laws.
2.6 SPLIT OF STRYPES. The Purchaser consents to the split of the
Purchaser's STRYPES. Subsequent to the determination of the public offering
price per STRYPES and related underwriting discount for the STRYPES to be sold
to the Underwriters (as defined in the Amended and Restated Trust Agreement of
the Trust dated as of September 15, 1997, by ML IBK Positions, Inc., as sponsor,
and the trustees named therein) but prior to the sale of the STRYPES to the
Underwriters, the STRYPES purchased hereby shall be split into a greater number
of STRYPES so that immediately following such split the value of each STRYPES
held by the Purchaser will equal the aforesaid public offering price per
STRYPES.
2.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the matters contained herein and supersedes all
prior agreements or understandings. No amendment or modification of this
Agreement shall be valid unless the amendment or modification is in writing and
is signed by all parties to this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
2.9 GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements and to be performed wholly within such state.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXX STRYPES TRUST
By __________________________________
Xxxxxx X. Xxxxxxx, as Managing Trustee
ML IBK POSITIONS, INC.
By ___________________________________
Name: Xxxx XxXxxxxxx
Title: Vice President
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