Exhibit 99.(p)
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the [ ]th day of April,
2006, between Claymore/Xxxxxxx James SB-1 Equity Fund, a statutory trust
organized and existing under the laws of Delaware (the "Trust"), and Claymore
Securities, Inc. (the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE SHARES
1.1 SALE AND ISSUANCE OF SHARES. 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, [ ] common shares of beneficial interest,
par value $0.01, representing undivided beneficial interests in the Trust (the
"Shares") at a price per Share of $[ ] for an aggregate purchase price of
$[ ].
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 Shares 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 Shares, and that the Purchaser has
no present intention of selling, granting any participation in, or otherwise
distributing the Shares, 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 Shares.
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 Shares. The Purchaser is an
"accredited investor" as defined in Rule 501(a) of Regulation D under the
Securities Act of 1933 (the "1933 Act").
2.3 RESTRICTED SECURITIES. The Purchaser understands that the Shares 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 Shares may be resold without registration under the 1933 Act only in
certain circumstances. In this connection, the Purchaser represents that it
understands the resale limitations imposed by the 1933 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
Shares unless and until:
(a) There is then in effect a registration statement under the 1933
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 Trustees, that such disposition will
not require registration of such Shares under the 0000 Xxx.
2.5 LEGENDS. It is understood that the certificate evidencing the Shares
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 Shares
under such Act or an opinion of counsel reasonably satisfactory to the Trustees
of Fiduciary/Claymore Energy and Infrastructure Fund that such registration is
not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
(c) The Purchaser and the Trust 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 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.
CLAYMORE/XXXXXXX JAMES
SB-1 EQUITY FUND
By:
--------------------------
Xxxxxx X. Xxxx
Chief Financial Officer,
Chief Accounting Officer
and Treasurer
CLAYMORE SECURITIES, INC.
By:
--------------------------
Xxxxxxxx Xxxxxxx
Senior Managing Director
and General Counsel
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