Exhibit 99.(P)
[FORM OF SUBSCRIPTION AGREEMENT]
This SUBSCRIPTION AGREEMENT dated as of the 25th day of
October, 1999, is entered into between DECS Trust VI, 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 has heretofore transferred to the Trust
the amount of $100.00 (the "PURCHASE PRICE") for the purpose and with the intent
of purchasing one DECS (the "Subscription DECS"), representing an undivided
beneficial interest in the Trust; and
WHEREAS, the Trust wishes to transfer to the Purchaser, in
consideration of the Purchase Price, the Subscription DECS.
NOW THEREFORE, the parties hereto 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 in
consideration of the Purchaser's delivery to the Trust of the Purchase Price,
and the Purchaser agrees to purchase from the Trust, one DECS (the "SUBSCRIPTION
DECS"), representing an undivided beneficial interest in the Trust.
1.2. CLOSING. (a) The closing of the purchase and sale of the
Subscription DECS shall take place at the offices of Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., on October
25, 1999, or at such other time (the "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.
(b) The Trust hereby acknowledges Purchaser's delivery to the
Trust of the Purchase Price on October 25, 1999.
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 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
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 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 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
under the Act.
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 VI 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.
2.6. SPLIT OF DECS. The Purchaser consents to 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 Underwriters 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 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 VI
By
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By
Name:
Title: