Exhibit (p)
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the 26th day of
September 1997, between the WBK STRYPES Trust, a business trust organized
pursuant to the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. (Sections 3801 et seq.))
(such trust and the trustees thereof acting in their capacity as such
being referred to herein as the "Trust"), and ML IBK Positions, Inc.
(the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE STRYPES
1.1 SALE AND ISSUANCE OF UNITS. 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 Structured Yield Product Exchangeable for
Stock(sm), representing an undivided beneficial interest in the Trust (a
"STRYPES"), at a purchase price per STRYPES of $______.
1.2 CLOSING. The purchase and sale of the STRYPES shall take place at the
offices of ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at
9:00 a.m., New York City time, on September __, 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 STRYPES purchased by the Purchaser, registered in the name of
the Purchaser or its nominee. Payment for the STRYPES 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
Purchaser.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH PURCHASER. The
Purchaser hereby represents and warrants to, and covenants for the benefit of,
the Trust that:
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(sm) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc
Exhibit (p)
2.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made by the Trust
with the Purchaser in reliance upon such Purchaser's representation to the
Trust, which by the Purchaser's execution of this Agreement such Purchaser
hereby confirms, that the STRYPES 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 STRYPES, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the STRYPES, 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
STRYPES.
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 STRYPES. The Purchaser is an
"accredited investor" as defined in Rule 501(a) of Regulation D under the
Securities Act of 1933, as amended (the "Securities Act").
2.3 RESTRICTED SECURITIES. The Purchaser understands that the STRYPES 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 STRYPES may be resold without registration under the Securities
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Exhibit (p)
Act only in certain circumstances. In this connection, the Purchaser represents
that it understands the resale limitations imposed by the Securities 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 STRYPES unless and until:
(a) There is then in effect a registration statement under the
Securities 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 STRYPES under the Securities 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 STRYPES
may bear either or both of the following legends:
(a) "These securities have not been registered under the Securities
Act of 1933, as amended. 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 WBK STRYPES Trust that such
registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
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Exhibit (p)
The Purchaser and the Trust agree that the legend contained in the
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 SPLIT OF STRYPES. The Purchaser consents to the split of such
Purchaser's STRYPES. Subsequent to the determination of the public offering
price per STRYPES and related underwriting discount for the STRYPES to be sold
to the Underwriter (as defined in the Amended and Restated Trust Agreement of
the Trust dated as of _____ __, 1997, ML IBK Positions, Inc., as sponsor, and
the trustees named therein) but prior to the sale of the STRYPES to the
Underwriter, each STRYPES purchased hereby shall be split into a greater number
of STRYPES so that immediately following such split the value of each STRYPES
held by the Purchasers will equal the aforesaid public offering price per
STRYPES.
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 and to be performed wholly within such state.
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Exhibit (p)
IN WITNESS WHEREOF, the parties have executed this Subscription Agreement
as of the date first above written.
WBK STRYPES TRUST
By
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
ML IBK POSITIONS, INC.
By
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Name:
Title: