EXHIBIT 99 (P)
TrUEPrS SUBSCRIPTION AGREEMENT
THIS TrUEPrS SUBSCRIPTION AGREEMENT dated as of this 6th day of November,
1998, by and between ANZ Exchangeable Preferred Trust II, a business trust
created pursuant to the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. (Sections 3801 et seq.)) (such trust
and the trustees thereof acting in their capacities as such being referred to
herein as the "Trust"), and ML IBK Positions, Inc. (the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE TrUEPrS
1.1 SALE AND ISSUANCE OF TrUEPrS. 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, 4,000 Trust Units
Exchangeable for Preference SharesSM ("TrUEPrSSM"), each representing a
proportionate undivided beneficial interest in the assets of the Trust, at
a purchase price of $100,000.
1.2 CLOSING. The purchase and sale of the TrUEPrS shall take place
at the offices of Xxxxx & Xxxx llp, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 at or about 10:00 a.m., New York City time, on November 6, 1998,
or at such other time ("Closing Date") and place as the Trust and the
Purchaser mutually agree upon. At or after the Closing, the Trust shall
deliver to the Purchaser a certificate representing the TrUEPrS purchased
by the Purchaser, registered in the name of the Purchaser or its nominee.
Payment for the TrUEPrS 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 TrUEPrS 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
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 TrUEPrS 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 TrUEPrS, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the TrUEPrS, in
either
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/SM/ Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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 TrUEPrS.
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
TrUEPrS. The Purchaser is an "accredited investor" as defined in Rule
501(a) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act").
2.3 RESTRICTED SECURITIES. The Purchaser understands that the
TrUEPrS 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 TrUEPrS may be resold without registration
under the Securities Act only in certain circumstances. In this connection,
the Purchaser represents that it understands the resale limitations imposed
by the Securities 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 TrUEPrS unless and until:
(a) There is then in effect a registration statement under the
Securities 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 TrUEPrS under the
Securities Act.
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
TrUEPrS may bear either or both of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for
sale, pledged or
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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 ANZ Exchangeable Preferred
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 the
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 ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. No amendment or
modification of this Agreement shall be valid unless the amendment or
modification is in writing and is signed by all parties to this Agreement.
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 AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ANZ EXCHANGEABLE PREFERRED TRUST II
By __________________________________
Xxxxxx X. Xxxxxxx, as Managing Trustee
ML IBK POSITIONS, INC.
By ___________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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