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EXHIBIT 2.P
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the ___ day
of May 1997, between Xxxx X. Xxxxxxxx (the "Trustee"), not in his individual
capacity, but solely as trustee of Automatic Common Exchange Security Trust II,
a trust organized and existing under the laws of New York (the "Trust"), and
Xxxxxxx, Sachs & 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 Trustee agrees to sell to the Purchaser, and
the Purchaser agrees to purchase from the Trustee, one Trust Automatic Common
Exchange Security, representing an undivided beneficial interest in the Trust
(the "Security") at an aggregate purchase price of $100.00.
1.2 CLOSING. The purchase and sale of the Security shall take
place at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx at 10:00 a.m., on May ___, 1997, or at such other time (the "Closing
Date") and place as the Trustee and the Purchaser mutually agree upon. At or
after the Closing, the Trustee shall deliver to the Purchaser a certificate
representing the Security, registered in the name of the Purchaser or its
nominee. Payment for the Security 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 Security 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 Trustee with the Purchaser in reliance upon the Purchaser's
representation to the Trustee, which by the Purchaser's execution of this
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 the
Security, and that the Purchaser has no present intention of selling, granting
any participation in, or otherwise distributing the Security, 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 Security.
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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 Security. 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 Trustee in a
transaction not involving a public offering and that under such laws and
applicable regulations such Security 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 Security 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;
(b) The Purchaser shall have furnished the Trustee with an
opinion of counsel, reasonably satisfactory to the Trustee, that such
disposition will not require registration of such Securities under the Act; or
(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 Security 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 Automatic Common
Exchange Security Trust II that such registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
The Purchaser and the Trustee 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.
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2.6 AMENDMENT TO TRUST AGREEMENT; SPLIT OF THE SECURITY. The
Purchaser consents to (a) the execution and delivery by the Trustee 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
Security. 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 Securities to the Underwriters, the
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.
TRUSTEE
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Xxxx X. Xxxxxxxx
as Trustee
XXXXXXX, XXXXX & CO.
By:
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