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EXHIBIT P
EXECUTION COPY
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT dated as of January 21, 1999, is entered into
between DECS Trust IV, a statutory business trust organized under the Business
Trust Act of the State of Delaware (such trust and the trustees thereof acting
in their capacity as such being referred to herein as the "Trust"), and Xxxxxxx
Xxxxx Xxxxxx Inc. (the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of the DECS.
1.1 Sale and Issuance of DECS. 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 DECS (the "Subscription DECS"),
representing an undivided beneficial interest in the Trust, at a purchase price
of $100.00.
1.2. Closing. The purchase and sale of the Subscription DECS shall take
place at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., on January 20, 1999, or at such other
time ("Closing Date") and place as the Trust and the Purchaser mutually agree
upon. At or after the Closing Date, the Trust shall deliver to the Purchaser a
certificate representing the Subscription DECS, registered in the name of the
Purchaser or its nominee. Payment for the Subscription DECS 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 Subscription DECS.
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 Purchaser is acquiring the Subscription DECS 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 such
Subscription DECS, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the Subscription DECS,
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 the Subscription DECS.
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 Subscription
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DECS. The Purchaser is an "accredited investor" as defined in Rule 501(a)
of Regulation D under the Securities Act of 1933 (the "Act").
2.3. Restricted Securities. The Purchaser understands that the
Subscription DECS 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 Subscription DECS may be resold without
registration under the Act only in certain circumstances. In this connection,
the Purchaser represents that it understands the resale limitations imposed by
the Act and is generally familiar with the existing resale limitations imposed
by Rule 144 under the Act.
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
Subscription DECS unless and until:
(a) There is then in effect a registration statement under the 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 Subscription DECS under the Act.
(c) Notwithstanding to 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
Subscription DECS may bear either or both of the following legends:
(a) "These securities have not been registered under the Securities Act of
1933. 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 Trustee of DECS Trust IV 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 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. Amendment to Declaration of Trust; Split of DECS. The Purchaser
consents to (a) the execution and delivery by the Trustees of the Trust and
Xxxxxxx Xxxxx
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Barney Inc., as sponsor of the Trust, of an Amended and Restated Declaration of
Trust substantially in the form attached hereto and (b) the split of the
Subscription DECS subsequent to the determination of the public offering price
per DECS and related underwriting discount for the DECS to be sold to the
Underwriters (as defined in such Amended and Restated Declaration of Trust) but
prior to the sale of the DECS to the Underwriter into a greater number of DECS
so that immediately following such split the value of the Subscription DECS
will equal the aforesaid public offering price per DECS.
2.7 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.
2.8 Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the law of the State of New York
applicable to agreements made and to be performed wholly within such state.
In WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DECS TRUST IV
By /s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, as Trustee
XXXXXXX XXXXX XXXXXX INC.
By /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Director
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