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Exhibit 2(p)
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT dated as of the 3rd day of March, 1998, is
entered into between DECS Trust III, 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 Xxxxx Xxxxxx 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 $100.00.
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 March 3, 1998, 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.
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
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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 III that such
registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
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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 Xxxxx Xxxxxx
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 III
By /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx X. Xxxxxxx, as Trustee
XXXXX XXXXXX INC.
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
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