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Exhibit (p)
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT dated as of this 18th day of May, 1998, by and
between Dollar General STRYPES Trust, a business trust created 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 capacities 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 (the "STRYPES"), at a purchase price of $100.
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 May 18, 1998, 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 funds, of an amount equal to the
purchase price of the STRYPES 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
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 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
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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 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
Dollar General STRYPES Trust that such registration is not
required."
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(b) Any legend required by the laws of any other applicable
jurisdiction.
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 the
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 to be dated as of May 1, 1998, by ML
IBK Positions, Inc., as sponsor, and the trustees named therein) but prior
to the sale of the STRYPES to the Underwriters, the 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 Purchaser will
equal the aforesaid public offering price per STRYPES.
2.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. No amendment or
modification of this Agreement shall be valid unless the amendment or
modification is in writing and is signed by all parties to this Agreement.
2.8 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.
2.9 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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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
DOLLAR GENERAL STRYPES TRUST
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
ML IBK POSITIONS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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