SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the
9th day of September, 1997, between DECS Trust, 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 Salomon Brothers 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
$100,000.
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 September 9th, 1997, 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
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 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 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
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
(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
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 paragraph (a) above shall be removed at a holder's
request when it is no longer necessary to ensure compliance with
federal securities laws.
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2.6. Amendment to Declaration of Trust; Split of DECS.
The Purchaser consents to (a) the execution and delivery by the
Trustees and Salomon Brothers 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 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 less the related underwriting
discount.
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
By_____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee
SALOMON BROTHERS INC
By_____________________________
Name:
Title:
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