S&C Draft of May 8, 1998
EXHIBIT 2.p
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the __th
day of May 1998, between ▇▇▇▇ ▇. Efron (the "Trustee"), not in his individual
capacity, but solely as trustee of ▇▇▇▇▇ ▇▇▇▇▇▇ Automatic Common Exchange
Security Trust, a trust organized and existing under the laws of New York (the
"Trust"), and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or one of its affiliates (the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE SECURITY
1.1 SALE AND ISSUANCE OF UNITS. Subject to the terms and
conditions of this Agreement, the Trustee agrees to sell to the Purchaser, and
the Purchaser agrees to purchase from the Trustee, one ▇▇▇▇▇ ▇▇▇▇▇▇ Automatic
Common Exchange Security, representing an undivided beneficial interest in the
Trust (the "Security") at an aggregate purchase price of $100.
1.2 CLOSING. The purchase and sale of the Security shall
take place at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ at 9:30 a.m., on May __, 1998, or at such other time (the "Closing
Date") and place as the Trustee and the Purchaser mutually agree upon. At or
after the Closing, the Trustee shall deliver to the Purchaser a certificate
representing the Security, registered in the name of the Purchaser or its
nominee. Payment for the Security shall be made on the Closing Date by the
Purchaser 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 Security purchased by the Purchaser.
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 Trustee with the Purchaser in reliance upon the Purchaser's
representation to the Trustee, which by the Purchaser's execution of this
Agreement the Purchaser hereby confirms, that the Security is 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 the Security, and that the Purchaser has
no present intention of selling, granting any participation in, or otherwise
distributing the Security, 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 the
Security.
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 Security.
The Purchaser is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act of 1933, as amended (the "Act").
2.3 RESTRICTED SECURITIES. The Purchaser understands that
the Security is characterized as a "restricted security" under the United
States securities laws inasmuch as it is being acquired from the Trustee in a
transaction not involving a public offering and that under such laws and
applicable regulations such Security 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 Security 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;
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(b) The Purchaser shall have furnished the Trustee with an
opinion of counsel, reasonably satisfactory to the Trustee, that such
disposition will not require registration of such Securities under the Act; or
(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 Security 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 ▇▇▇▇▇ ▇▇▇▇▇▇
Automatic Common Exchange Security Trust that such registration is
not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
The Purchaser and the Trustee agree that the legend
contained in the 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 THE SECURITIES.
The Purchaser consents to (a) the execution and delivery by the Trustee and
▇▇▇▇▇▇▇, Sachs & Co., as sponsor of the Trust, of an Amended and Restated
Trust Agreement in the form attached hereto and (b) the split of the
Purchaser's Security. Subsequent to the determination of the public offering
price per Security and related underwriting discount for the Securities to be
sold to the Underwriters (as defined in the aforementioned Amended and
Restated Trust Agreement) but prior to the sale of the Securities to the
Underwriters, the Security purchased hereby shall be split into a greater
number of Securities so that immediately following such split the value of
each
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Security held by the Purchaser 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.
TRUSTEE
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▇▇▇▇ ▇. Efron
as Trustee
▇▇▇▇▇▇▇, SACHS & CO.
By:
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Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇