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EXHIBIT(p)
FORM OF SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is entered into as of the ___ day of March
1997, between Nextel STRYPES Trust, a trust created and existing under the laws
of Delaware (such trust and the trustees thereof acting in their capacity as
such being referred to herein as the "Trust"), and ML IBK Positions, Inc. and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation (each a "Purchaser" and,
collectively the "Purchasers").
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 each Purchaser, severally and not
jointly, and each Purchaser, severally and not jointly, 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 $50,000.
1.2 CLOSING. The purchase and sale of the STRYPES shall take place at
the offices of Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 at 9:00 a.m., on March , 1997, or at such other time ("Closing Date") and
place as the Trust and the Purchasers mutually agree upon. At or after the
Closing, the Trust shall deliver to each Purchaser a certificate representing
the STRYPES purchased by such Purchaser, registered in the name of such
Purchaser or its nominee. Payment for the STRYPES shall be made on the Closing
Date by each 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 STRYPES purchased by such Purchaser.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH PURCHASER. Each
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 such Purchaser in reliance upon such Purchaser's representation to
the Trust, which by such Purchaser's execution of this Agreement such Purchaser
hereby
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(SM) Service Xxxx of Xxxxxxx Xxxxx & Co., Inc
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confirms, that the STRYPES are being acquired for investment for such
Purchaser's own account, and not as a nominee or agent and not with a view to
the resale or distribution by such Purchaser of any of the STRYPES, and that
such 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 by within its control. By executing this Agreement, such
Purchaser further represents that such 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. Such 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. Such 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. Such 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 Act only in certain
circumstances. In this connection, such 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. Such 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
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) Such Purchaser shall have furnished the Trust with an
opinion of counsel, reasonably satisfactory to the Trust and such
disposition will not require registration of such STRYPES 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 such Purchaser to any affiliate of such
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.
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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. 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 Nextel STRYPES Trust that
such registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
Each Purchaser and the Trust 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 SPLIT OF STRYPES. Each 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 Underwriters (as defined in the Amended and Restated Trust Agreement of
the Trust, dated as of February 26, 1997, by and among ML IBK Positions, Inc.,
and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, as sponsors, and the
trustees of the Trust named therein) but prior to the sale of the STRYPES to the
Underwriters, 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 made and to be performed wholly within such state.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NEXTEL STRYPES TRUST
By ______________________________________
Xxxxxx X. Xxxxxxx, as Managing Trustee
ML IBK POSITIONS, INC.
By ______________________________________
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By ______________________________________
Name:
Title:
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