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Exhibit 99.2.N(2)
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT dated as of the 8th day of October, 1997,
is entered into between DECS Trust II, 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 Salomon Brothers 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 $100,000.
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 October 8, 1997, or at such
other time (the "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 the Subscription DECS 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 such Subscription DECS,
and that the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing such 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 any of the Subscription DECS.
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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 Subscription 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 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
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 II that such registration is not required."
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(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 and Salomon Brothers
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 Underwriter (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 laws 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 II
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx,
as Trustee
SALOMON BROTHERS INC
By: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Director
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