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Exhibit 2.p
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the __ day of ________
_______ 1997, between ____________________, ____________________ and ___________
_________ (collectively, the "Trustee"), not in their individual capacities,
but solely as trustees of Second Automatic Common Exchange Security Trust, a
trust organized and existing under the laws of New York (the "Trust"), and
Xxxxxxx, Xxxxx & Co. or one of its affiliates (the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE SECURITIES
1.1 SALE AND ISSUANCE OF UNITS. Subject to the terms and
conditions of this Agreement, the Trustees agree to sell to the Purchaser, and
the Purchaser agrees to purchase from the Trustees, Automatic Common Exchange
Securities, representing undivided beneficial interest in the Trust (the
"Securities") at an aggregate purchase price of [$__________].
1.2 CLOSING. The purchase and sale of the Securities shall take
place at the offices of Xxxxxxxx & Xxxxxxxx, [125 Broad Street, New York, New
York] at _____ a.m., on ____________________, 1997, or at such other time (the
"Closing Date") and place as the Trustees and the Purchaser mutually agree
upon. At or after the Closing, the Trustees shall deliver to the Purchaser
certificates representing the Securities, registered in the name of the
Purchaser or its nominee. Payment for the Securities shall be made on the
Closing Date by the Purchaser by bank wire transfers or by delivery of
certified or official bank checks, in either case in immediately available
funds, of an amount equal to the purchase price of the Securities 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 Trustees with the Purchaser in reliance upon the Purchaser's representation
to the Trustees, which by the Purchaser's execution of this
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Agreement the Purchaser hereby confirms, that the Securities 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 Securities, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the Securities, 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 Securities.
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 Securities. The
Purchaser is an "accredited investor" as defined in Rule 501(a) of Regulation D
under the Securities Act of 1933, as amended (the "Act").
2.3 RESTRICTED SECURITIES. The Purchaser understands that the
Securities are characterized as "restricted securities" under the United States
securities laws inasmuch as they are being acquired from the Trustees in a
transaction not involving a public offering and that under such laws and
applicable regulations such Securities 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.
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 Securities unless and until:
(a) There is then in effect a registration statement under the Act
covering such proposed disposition
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and such disposition is made in accordance with such registration statement;
(b) The Purchaser shall have furnished the Trustees with an opinion of
counsel, reasonably satisfactory to the Trustees, that such disposition will
not require registration of such Securities under the Act;
(c) 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
Securities 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 Trustees
of Second Automatic Common Exchange Security Trust that such registration is
not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
The Purchaser and the Trustees agree that the legend contained in the
paragraph (a) above shall be removed at a holder's request when they are no
longer necessary to ensure compliance with federal securities laws.
2.6 AMENDMENT TO TRUST AGREEMENT; SPLIT OF THE SECURITIES. The
Purchaser consents to (a) the execution and delivery by the Trustees and
Xxxxxxx, Xxxxx & Co., as sponsor of the Trust, of an Amended and Restated Trust
Agreement in the form attached hereto and (b) the split of the Purchaser's
Securities. Subsequent to the determination of the public offering price per
Security and related underwriting discount for the Securities to be sold to the
Underwriters (as defined in the aforementioned Amended and Restated Trust
Agreement) but prior to the sale of the
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Securities to the Underwriters, each Security purchased hereby shall be split
into a greater number of Securities so that immediately following such split
the value of each Security held by the Purchaser will equal the aforesaid public
offering price less the related underwriting discount.
2.7 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TRUSTEES
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as Trustee
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as Trustee
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as Trustee
XXXXXXX, SACHS & CO.
By:
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Title:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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