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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the 7th day of
November 1995, between Xxxxxxx X. Xxxxxx, III, Xxxxx X. X'Xxxxx and Xxxxxx X.
Xxxxxxx (collectively, the "Trustees"), not in their individual capacities but
solely as trustees of AJL PEPS TRUST, a trust organized and existing under the
laws of New York (the "Trust"), XXXXXX XXXXXXX & CO. INCORPORATED and XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED or one of its affiliates (together
with Xxxxxx Xxxxxxx & Co. Incorporated, the "Purchasers" and each individually
a "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of PEPS.
1.1 Sale and Issuance of Units. Subject to the terms and conditions
of this Agreement, the Trustees agree to sell to each Purchaser, and each
Purchaser agrees to purchase from the Trustees, one Premium Exchangeable
Participating Share, representing undivided beneficial interests in the Trust
(the "PEPS") at an aggregate purchase price of $50,000.
1.2 Closing. The purchase and sale of the PEPS shall take place at
the offices of Xxxxx Xxxx & Xxxxxxxx, New York, N.Y., at 10:00 a.m. on November
7, 1995, or at such other time ("Closing Date") and place as the Trustees and
the Purchasers mutually agree upon. At or after the Closing, the Trustees
shall deliver to the Purchasers certificates representing the PEPS, registered
in the name of the respective Purchasers or their nominees. Payment for the
PEPS shall be made on the Closing Date by the Purchasers by bank wire transfers
or by delivery of certified or official bank checks, in either case in
immediately available funds, of an amount equal to the purchase price of the
PEPS purchased by such Purchaser.
2. Representations, Warranties and Covenants of each Purchaser. Each
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
Trustees as with such Purchaser in reliance upon such Purchaser's
representation to the Trustees as, which by such Purchaser's execution of this
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Agreement such Purchaser hereby confirms, that the PEPS are being acquired for
investment for such Purchaser's own account, and not as a nominee or agent and
not with a view to the resale or distribution by such Purchaser of any of the
PEPS, and that such Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the PEPS, 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, such
Purchaser further represents that such Purchaser does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or
grant participations to such person or to any third person, with respect to any
of the PEPS.
2.2 Investment Experience. Such 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 PEPS. Such 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. Such Purchaser understands that the PEPS
are characterized as "restricted securities" under the United States securities
laws inasmuch as they are being acquired from the Trustees in a transaction not
involving a public offering and that under such laws and applicable regulations
such PEPS may be resold without registration under the Act only in certain
circumstances. In this connection, such 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.
2.4 Further Limitations on Disposition. Such Purchaser further agrees
not to make any disposition directly or indirectly of all or any portion of the
PEPS 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) Such Purchaser shall have furnished the Trustees with an opinion
of counsel, reasonably satisfactory to the Trustees, that such disposition will
not require
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registration of such PEPS 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 such Purchaser to any affiliate of such 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
PEPS 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 Trustees of AJL PEPS Trust that such registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
Each Purchaser and the Trustees agree that the legend contained in
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 Amendment to Trust Agreement; Split of PEPS. Each Purchaser
consents to (a) the execution and delivery by the Trustees and Xxxxxx Xxxxxxx
& Co. Incorporated, as sponsor of the Trust, of an Amended and Restated Trust
Agreement in the form attached hereto and (b) the split of such Purchasers
PEPS. Subsequent to the determination of the public offering price per PEPS
and related underwriting discount for the PEPS to be sold to the Underwriters
(as defined in the aforementioned Amended and Restated Trust Agreement) but
prior to the sale of the PEPS to the Underwriters, each PEPS purchased hereby
shall be split into a greater number of PEPS so that immediately following such
split the value of each PEPS held by the Purchasers will equal the aforesaid
public offering price less the related underwriting discount.
2.7 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.
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Xxxxxxx X. Xxxxxx III,
as trustee
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Xxxxx X. X'Xxxxx,
as trustee
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Xxxxxx X. Xxxxxxx,
as trustee
XXXXXX XXXXXXX & CO. INCORPORATED
By:
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Title:
Address: 0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By:
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Title:
Address: World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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