Exhibit (P)
FORM OF
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this "Agreement") dated as of [ ],
2001, is entered into between Equity Securities 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 Xxxxxxx Xxxxx Xxxxxx Inc. (the "Purchaser").
WHEREAS, the Purchaser has heretofore transferred to the Trust the
amount of $100 (the "Purchase Price") for the purpose and with the intent of
purchasing one Equity Trust Security (the "Subscription Equity Trust Security"),
representing an undivided beneficial interest in the Trust; and
WHEREAS, the Trust wishes to transfer to the Purchaser, in
consideration of the Purchase Price, the Subscription Equity Trust Security.
NOW THEREFORE, the parties hereto agree as follows:
1. Purchase and Sale of the Subscription Equity Trust Security.
1.1. Sale and Issuance of Subscription Equity Trust Security.
Subject to the terms and conditions of this Agreement, the Trust agrees to sell
to the Purchaser in consideration of the Purchaser's delivery to the Trust of
the Purchase Price, and the Purchaser agrees to purchase from the Trust, the
Subscription Equity Trust Security.
1.2. Closing. (a) The closing of the purchase and sale of the
Subscription Equity Trust Security shall take place at the offices of Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, The Citicorp Center, 000 Xxxx 00xx Xxxxxx, 00xx
xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., on [ ], 2001, 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 Equity Trust Security,
registered in the name of the Purchaser or its nominee.
(b) The Trust hereby acknowledges Purchaser's delivery to the
Trust of the Purchase Price on [ ], 2001.
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 Purchaser is acquiring the Subscription Equity Trust
Security 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 Equity Trust Security, and that the Purchaser has no present
intention of selling, granting any participation in, or otherwise distributing
the Subscription Equity Trust 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 the Subscription Equity Trust Security.
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 Equity
Trust Security. 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 Equity Trust Securities 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 Equity Trust
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 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 Equity Trust Securities 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
Equity Trust Security 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 Equity Trust 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 Trustee of Equity
Securities Trust II 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. Split of Equity Trust Security. The Purchaser consents to the
split of the Subscription Equity Trust Security subsequent to the determination
of the public offering price per Equity Trust Security and related underwriting
discount for the Equity Trust Securities (as defined in the Trust Agreement) to
be sold to the Underwriters (as defined in the Trust Agreement) but prior to the
sale of the Equity Trust Securities to the Underwriters into a greater number of
Equity Trust Securities so that immediately following such split the value of
the Subscription Equity Trust Security will equal the aforesaid public offering
price per Equity Trust Security.
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.
2.9. Definitions. Capitalized terms used but not otherwise defined
herein shall have the respective meanings specified in the Custodian Agreement,
dated as of the date hereof, by and between Equity Securities Trust II and The
Bank of New York, a New York banking corporation.
