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Exhibit (p)
CGSH Draft of 1/7/99
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
THIS AMENDED AND RESTATED SUBSCRIPTION AGREEMENT dated as of , 1999 is
entered into between DECS Trust IV, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Purchaser").
WHEREAS the Purchaser and ▇▇▇▇▇ ▇▇▇▇▇▇▇, as trustee of the Trust, have
previously entered into a Subscription Agreement dated as of January 21, 1999
(the "Initial Agreement"); and
WHEREAS following the execution of the Initial Agreement, ▇▇▇▇▇ ▇▇▇▇▇▇▇
resigned as trustee of the Trust and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ was appointed Managing
Trustee; and
WHEREAS the Trust and the Purchaser have agreed to amend and restate the
Initial Agreement as set forth herein, intending such amendment and restatement
to have effect from the date of the Initial Agreement;
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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., on January 21, 1999, or at such
other time ("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 Purchaser is acquiring the Subscription DECS 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
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Subscription DECS, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the 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 by 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 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 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.
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
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.
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:
(b) "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
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reasonably satisfactory to the Trustees of DECS Trust IV that such registration
is not required." 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. Amendment to Declaration of Trust; Split of DECS. The Purchaser
consents to
(a) the execution and delivery by the Trustees of the Trust and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as sponsor of the Trust, of an Amended and Restated
Declaration of Trust in the form attached hereto and
(b) the split of the Subscription DECS subsequent to the
determination of the public offering price per DECS 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 law 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 Amended and Restated
Agreement on , 1999.
DECS TRUST IV
By
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By
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Name:
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Title:
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