SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MORGAN STANLEY GROUP INC.
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(Exact name of registrant as specified in charter)
Delaware 13-2838811
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(State of incorporation or (I.R.S. Employer
organization) Identification No.)
1585 Broadway
New York, New York 10036
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(Address of principal (Zip Code)
executive offices)
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Depositary Shares, each New York Stock Exchange, Inc.
representing ownership of a 1/4 interest
in a share of Morgan Stanley Group Inc.'s
Series A Fixed/Adjustable Rate Cumulative
Preferred Stock, without par value,
stated value $200.00 per share
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
6,900,000 Depositary Shares, each representing ownership of a 1/4
interest in a share of Morgan Stanley Group Inc.'s Series A
Fixed/Adjustable Rate Cumulative Preferred Stock, without par value,
stated value $200.00 per share (the "Series A Fixed/Adjustable Rate
Preferred Stock"), evidenced by Depositary Receipts that were issued
under the Deposit Agreement dated as of November 14, 1996, among the
Registrant, The Bank of New York and the holders from time to time of
the Depositary Receipts evidencing the Depositary Shares.
The descriptions of the Depositary Shares set forth under the captions
(i) "Description of Capital Stock - Depositary Shares" in the
Prospectus dated May 1, 1996 (the "Prospectus") that is part of the
Registrant's Registration Statement on Form S-3 (Registration No.
333-01655) and (ii) "Description of Depositary Shares" in the
Prospectus Supplement dated November 8, 1996 (the "Prospectus
Supplement") supplementing the Prospectus, each as filed by the
Registrant pursuant to the Securities Act of 1933 on April 26, 1996 and
November 12, 1996, respectively, are incorporated herein by this
reference.
The descriptions of the Series A Fixed/Adjustable Rate Preferred Stock
set forth under the captions "Description of Capital Stock - Offered
Preferred Stock" in the Prospectus and "Description of Series A
Fixed/Adjustable Rate Preferred Stock" in the Prospectus Supplement are
incorporated herein by this reference.
Item 2. Exhibits.
1. Form of Certificate of Designation of Preferences and Rights of
the Series A Fixed/Adjustable Rate Preferred Stock.
2. Form of Deposit Agreement among the Registrant, The Bank of New
York and the holders from time to time of the Depositary Receipts
evidencing the Depositary Shares (previously filed as an exhibit
to Morgan Stanley Group Inc.'s Registration Statement on Form S-3
(File No. 33-43542) and incorporated by this reference).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
MORGAN STANLEY GROUP INC.
(Registrant)
By: /s/ Patricia A. Kurtz
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Patricia A. Kurtz
Assistant Secretary
Date: November 12, 1996
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Exhibit 1
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
SERIES A FIXED/ADJUSTABLE RATE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY GROUP INC.
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of Morgan
Stanley Group Inc., a Delaware corporation (hereinafter called the
"Corporation"), by unanimous written consent in lieu of a meeting dated as of
March 12, 1996, with certain of the designations, preferences and rights having
been fixed by the Pricing Committee of the Board (the "Committee") at a meeting
on November 8, 1996, pursuant to authority delegated to it by the Board pursuant
to the provisions of Section 141(c)(1) of the General Corporation Law of the
State of Delaware:
RESOLVED that, pursuant to authority expressly granted to and
vested in the Committee by the Board and in the Board by provisions of
the Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation"), the issuance of a series
of Preferred Stock, without par value (the "Preferred Stock"), which
shall consist of 1,725,000 of the 30,000,000 shares of Preferred Stock
which the Corporation now has authority to issue, is authorized, and
the Board and the Committee, pursuant to the authority expressly
granted to the Committee by the Board pursuant to the provisions of
Section 141(c)(1) of the General Corporation Law of the State of
Delaware and the Certificate of Incorporation, fix the powers,
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
powers, designations, preferences and relative participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, set
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forth in the Certificate of Incorporation which may be applicable to
the Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares. The
designation for such series of the Preferred Stock authorized
by this resolution shall be the Series A Fixed/Adjustable Rate
Cumulative Preferred Stock, without par value, with a stated
value of $200.00 per share (the "Series A Fixed/Adjustable
Rate Preferred Stock"). The stated value per share of Series A
Fixed/Adjustable Rate Preferred Stock shall not for any
purpose be considered to be a determination by the Board or
the Committee with respect to the capital and surplus of the
Corporation. The number of shares of Series A Fixed/Adjustable
Rate Preferred Stock shall be 1,725,000. The Series A
Fixed/Adjustable Rate Preferred Stock is issuable in whole
shares only.
2. Dividends. (a) Holders of shares of Series A
Fixed/Adjustable Rate Preferred Stock will be entitled to
receive cash dividends, when, as and if declared by the Board
or the Committee out of assets of the Corporation legally
available for payment. Dividends on the Series A
Fixed/Adjustable Rate Preferred Stock, calculated as a
percentage of the stated value, will be payable quarterly on
February 28, May 30, August 30 and November 30 of each year
(each a "dividend payment date"), commencing February 28,
1997. From the date of issuance of the Series A
Fixed/Adjustable Rate Preferred Stock and continuing through
November 30, 2001, the rate of such dividend will be 5.91% per
annum.
After November 30, 2001, dividends on the Series A
Fixed/Adjustable Rate Preferred Stock will be payable
quarterly on each dividend payment date at the Applicable Rate
(as defined in paragraph 3) from time to time in effect. The
Applicable Rate per annum for any dividend period beginning on
or after November 30, 2001 will be equal to .37% plus the
highest of the Treasury Bill Rate, the Ten-Year Constant
Maturity Rate and the Thirty-Year Constant Maturity Rate (each
as defined in paragraph 3), as determined in advance of such
dividend period. The Applicable Rate per annum for any
dividend period beginning on or after November 30, 2001, will
not be less than 6.41% nor greater than 12.41% (without taking
into account any adjustments set forth in paragraph 2(b)).
Dividends on shares of the Series A
Fixed/Adjustable Rate Preferred Stock will be cumulative from
the date of initial issuance of such shares of Series A
Fixed/Adjustable Rate Preferred Stock. Dividends will be
payable, in arrears, to holders of record as they appear on
the stock books of the Corporation on such record dates, not
more than 60 days nor less than 10 days preceding the payment
dates thereof, as shall be fixed by the Board or the
Committee. The amount of dividends payable for the initial
dividend period or
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any period shorter than a full dividend period shall be
calculated on the basis of a 360-day year of twelve 30-day
months. No dividends may be declared or paid or set apart for
payment on any Parity Preferred Stock (as defined in paragraph
10(b)) with regard to the payment of dividends unless there
shall also be or have been declared and paid or set apart for
payment on the Series A Fixed/Adjustable Rate Preferred Stock,
like dividends for all dividend payment periods of the Series
A Fixed/Adjustable Rate Preferred Stock ending on or before
the dividend payment date of such Parity Preferred Stock
ratably in proportion to the respective amounts of dividends
(x) accumulated and unpaid or payable on such Parity Preferred
Stock, on the one hand, and (y) accumulated and unpaid through
the dividend payment period or periods of the Series A
Fixed/Adjustable Rate Preferred Stock next preceding such
dividend payment date, on the other hand.
Except as set forth in the preceding sentence, unless
full cumulative dividends on the Series A Fixed/Adjustable
Rate Preferred Stock have been paid, no dividends (other than
in Common Stock of the Corporation) may be paid or declared
and set aside for payment or other distribution made upon the
Common Stock or on any other stock of the Corporation ranking
junior to or on a parity with the Series A Fixed/Adjustable
Rate Preferred Stock as to dividends, nor may any Common Stock
or any other stock of the Corporation ranking junior to or on
a parity with the Series A Fixed/Adjustable Rate Preferred
Stock as to dividends be redeemed, purchased or otherwise
acquired for any consideration (or any payment be made to or
available for a sinking fund for the redemption of any shares
of such stock; provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred
stock of the Corporation in compliance with the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the
terms of such sinking fund, regardless of whether at the time
of such application full cumulative dividends upon shares of
the Series A Fixed/Adjustable Rate Preferred Stock outstanding
to the last dividend payment date shall have been paid or
declared and set apart for payment) by the Corporation;
provided that any such junior or parity Preferred Stock or
Common Stock may be converted into or exchanged for stock of
the Corporation ranking junior to the Series A
Fixed/Adjustable Rate Preferred Stock as to dividends.
(b) If one or more amendments to the Internal Revenue
Code of 1986, as amended (the "Code"), are enacted that reduce
the percentage of the dividends received deduction as
specified in Section 243(a)(1) of the Code or any successor
provision (the "Dividends Received Percentage") to below the
existing Dividends Received Percentage (currently 70%), the
amount of each dividend payable per share of the Series A
Fixed/Adjustable Rate Preferred
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Stock for dividend payments made on or after the date of
enactment of such change will be adjusted by multiplying the
amount of the dividend payable determined as described above
(before adjustment) by a factor, which will be the number
determined in accordance with the following formula (the "DRD
Formula"), and rounding the result to the nearest cent:
1 - (.35 (1 - .70))
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1 - (.35 (1 - DRP))
For the purposes of the DRD Formula, "DRP" means the Dividends
Received Percentage applicable to the dividend in question. No
amendment to the Code, other than a change in the percentage
of the dividends received deduction set forth in Section
243(a)(1) of the Code or any successor provision, will give
rise to an adjustment. Notwithstanding the foregoing
provisions, in the event that, with respect to any such
amendment, the Corporation will receive either an unqualified
opinion of nationally recognized independent tax counsel
selected by the Corporation or a private letter ruling or
similar form of authorization from the Internal Revenue
Service to the effect that such an amendment would not apply
to dividends payable on the Series A Fixed/Adjustable Rate
Preferred Stock, then any such amendment will not result in
the adjustment provided for pursuant to the DRD Formula. The
opinion referenced in the previous sentence will be based upon
a specific exception in the legislation amending the DRP or
upon a published pronouncement of the Internal Revenue Service
addressing such legislation. Unless the context otherwise
requires, references to dividends in this Certificate of
Designation will mean dividends as adjusted by the DRD
Formula. The Corporation's calculation of the dividends
payable, as so adjusted and as certified accurate as to
calculation and reasonable as to method by the independent
certified public accountants then regularly engaged by the
Corporation, will be final and not subject to review absent
manifest error.
If any amendment to the Code which reduces the
Dividends Received Percentage to below 70% is enacted after a
dividend payable on a dividend payment date has been declared,
the amount of dividend payable on such dividend payment date
will not be increased. Instead, an amount, equal to the excess
of (x) the product of the dividends paid by the Corporation on
such dividend payment date and the DRD Formula (where the DRP
used in the DRD Formula would be equal to the reduced
Dividends Received Percentage) over (y) the dividends paid by
the Corporation on such dividend payment date, will be payable
on the next succeeding dividend payment date to holders of
record in addition to any other amounts payable on such date.
In addition, if prior to May 31, 1997, an amendment
to the Code is enacted that reduces the Dividends Received
Percentage to below 70% and
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such reduction retroactively applies to a dividend payment
date as to which the Corporation previously paid dividends on
the Series A Fixed/Adjustable Rate Preferred Stock (each an
"Affected Dividend Payment Date"), holders of the Series A
Fixed/Adjustable Rate Preferred Stock shall be entitled to
receive when, as and if declared by the Board out of assets of
the corporation legally available for payment, additional
dividends (the "Additional Dividends") on the next succeeding
dividend payment date (or if such amendment is enacted after
the dividend payable on such dividend payment date has been
declared and on or before such dividend is paid, on the second
succeeding dividend payment date following the date of
enactment) payable on such succeeding dividend payment date to
holders of record in an amount equal to the excess of (x) the
product of the dividends paid by the Corporation on each
Affected Dividend Payment Date and the DRD Formula (where the
DRP used in the DRD Formula would be equal to the reduced
Dividends Received Percentage applied to each Affected
Dividend Payment Date) over (y) the dividends paid by the
Corporation on each Affected Dividend Payment Date.
Additional Dividends will not be paid in respect of
the enactment of any amendment to the Code on or after May 31,
1997 which retroactively reduces the Dividends Received
Percentage to below 70%, or if prior to May 31, 1997, such
amendment would not result in an adjustment due to the
Corporation having received either an opinion of counsel or
tax ruling referred to in the third preceding paragraph. The
Corporation will only make one payment of Additional
Dividends.
In the event that the amount of dividends payable per
share of the Series A Fixed/Adjustable Rate Preferred Stock
will be adjusted pursuant to the DRD Formula and/or Additional
Dividends are to be paid, the Corporation will cause notice of
each such adjustment and, if applicable, any Additional
Dividends, to be sent to the holders of record as they appear
on the stock books of the Corporation on such record date, not
more than 60 days nor less than 10 days preceding the payment
date thereof as shall be fixed by the Board or the Committee.
In the event that the Dividends Received Percentage
is reduced to 50% or less, the Corporation may, at its option,
redeem the Series A Fixed/Adjustable Rate Preferred Stock, in
whole but not in part, as described in paragraph 7 hereof.
3. Applicable Rate. Except as provided above in
paragraph 2, the "Applicable Rate" per annum for any dividend
period beginning on or after November 30, 2001 will be equal
to .37% plus the Effective Rate (as defined herein), but not
less than 6.41% nor greater than 12.41% (without taking into
account any adjustments as described in paragraph 2(b)). The
"Effective Rate"
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for any dividend period beginning on or after November 30,
2001 will be equal to the highest of the Treasury Bill Rate,
the Ten-Year Constant Maturity Rate and the Thirty-Year
Constant Maturity Rate (each as defined herein) for such
dividend period. If the Corporation determines in good faith
that for any reason: (i) any one of the Treasury Bill Rate,
the Ten-Year Constant Maturity Rate or the Thirty-Year
Constant Maturity Rate cannot be determined for any dividend
period beginning on or after November 30, 2001, then the
Effective Rate for such dividend period will be equal to the
higher of whichever two of such rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten-Year Constant
Maturity Rate or the Thirty-Year Constant Maturity Rate can be
determined for any dividend period beginning on or after
November 30, 2001, then the Effective Rate for such dividend
period will be equal to whichever such rate can be so
determined; or (iii) none of the Treasury Bill Rate, the
Ten-Year Constant Maturity Rate or the Thirty-Year Constant
Maturity Rate can be determined for any dividend period
beginning on or after November 30, 2001, then the Effective
Rate for the preceding dividend period will be continued for
such dividend period.
The "Treasury Bill Rate" for each dividend period
will be the arithmetic average of the two most recent weekly
per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate is published
during the relevant Calendar Period (as defined herein) for
three-month U.S. Treasury bills, as published weekly by the
Federal Reserve Board (as defined herein) during the Calendar
Period immediately preceding the tenth calendar day preceding
the dividend period for which the dividend rate on the Series
A Fixed/Adjustable Rate Preferred Stock is being determined.
The "Ten-Year Constant Maturity Rate" for each
dividend period will be the arithmetic average of the two most
recent weekly per annum Ten-Year Average Yields (as defined
herein) (or the one weekly per annum Ten-Year Average Yield,
if only one such yield is published during the relevant
Calendar Period), as published weekly by the Federal Reserve
Board during the Calendar Period immediately preceding the
tenth calendar day preceding the dividend period for which the
dividend rate on the Series A Fixed/Adjustable Rate Preferred
Stock is being determined.
The "Thirty-Year Constant Maturity Rate" for each
dividend period will be the arithmetic average of the two most
recent weekly per annum Thirty-Year Average Yields (as defined
herein) the one weekly per annum Thirty-Year Average Yield, if
only one such yield is published during the relevant Calendar
Period), as published weekly by the Federal Reserve Board
during the Calendar Period immediately preceding the tenth
calendar day preceding the dividend period for which the
dividend rate on the Series A Fixed/Adjustable Rate Preferred
Stock is being determined.
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If the Federal Reserve Board does not publish a
weekly per annum market discount rate, Ten-Year Average Yield
or Thirty-Year Average Yield during any applicable Calendar
Period, then the Treasury Bill Rate, Ten-Year Constant
Maturity Rate or Thirty-Year Constant Maturity Rate, as the
case may be, for such dividend period will be the arithmetic
average of the two most recent weekly per annum market
discount rates for three-month U.S. Treasury bills, Ten-Year
Average Yields or Thirty-Year Average Yields, as the case may
be (or the one weekly per annum rate, if only one such rate is
published during the relevant Calendar Period), as published
weekly during such Calendar Period by any Federal Reserve Bank
or by any U.S. Government department or agency selected by the
Corporation. If any such rate is not published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period,
then the Treasury Bill Rate, Ten-Year Constant Maturity Rate
or Thirty-Year Constant Maturity Rate for such dividend period
will be the arithmetic average of the two most recent weekly
per annum (i) in the case of the Treasury Bill Rate, market
discount rates (or the one weekly per annum market discount
rate, if only one such rate is published during the relevant
Calendar Period) for all of the U.S. Treasury bills then
having remaining maturities of not less than 80 nor more than
100 days, and (ii) in the case of the Ten-Year Constant
Maturity Rate, average yields to maturity (or the one weekly
per annum average yield to maturity, if only one such yield is
published during the relevant Calendar Period) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities (as defined herein)
then having remaining maturities of not less than eight nor
more than twelve years, and (iii) in the case of the
Thirty-Year Constant Maturity Rate, average yields to maturity
(or the one weekly per annum average yield to maturity, if
only one such yield is published during the relevant Calendar
Period) for all of the actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special
Securities) then having remaining maturities of not less than
twenty-eight nor more than thirty years, in each case as
published during such Calendar Period by the Federal Reserve
Board or, if the Federal Reserve Board does not publish such
rates, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. If the
Corporation determines in good faith that for any reason (i)
no such U.S. Treasury bill rates are published as provided
above during such Calendar Period or (ii) the Corporation
cannot determine the Treasury Bill Rate for any dividend
period; then the Treasury Bill Rate for such dividend period
will be the arithmetic average of the per annum market
discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable
non-interest-bearing U.S. Treasury securities with a remaining
maturity of not less than 80 nor more than 100 days from the
date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if
daily quotations are not generally available) to the
Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation.
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If the Corporation determines in good faith that for any
reason the Corporation cannot determine the Ten-Year Constant
Maturity Rate or Thirty-Year Constant Maturity Rate for any
dividend period as provided above, then the applicable rate
for such dividend period will be the arithmetic average of the
per annum average yields to maturity based upon the closing
bids during such Calendar Period for each of the issues of
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final
maturity date (i) in the case of the Ten-Year Constant
Maturity Rate, not less than eight nor more than twelve years
from the date of each such quotation, and (ii) in the case of
the Thirty-Year Constant Maturity Rate, not less than
twenty-eight nor more than thirty years from the date of each
such quotation, in each case as chosen and quoted daily for
each business day in New York City (or less frequently if
daily quotations are not generally available) to the
Corporation by at least three recognized dealers in the United
States.
The Treasury Bill Rate, the Ten-Year Constant
Maturity Rate and the Thirty-Year Constant Maturity Rate will
each be rounded to the nearest five hundredths of a percent,
with .025% being rounded upward.
The Applicable Rate with respect to each dividend
period beginning on or after November 30, 2001 will be
calculated as promptly as practicable by the Corporation
according to the appropriate method described above. The
Corporation will cause notice of each Applicable Rate to be
given to the holders of Series A Fixed/Adjustable Rate
Preferred Stock when payment is made of the dividend for the
immediately preceding dividend period.
As used in this paragraph 3, the term "Calendar
Period" means a period of fourteen calendar days; the term
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System; the term "Special Securities" means
securities which can, at the option of the holder, be
surrendered at face value in payment of any Federal estate tax
or which provide tax benefits to the holder and are priced to
reflect such tax benefits or which were originally issued at a
deep or substantial discount; the term "Ten-Year Average
Yield" means the average yield to maturity for actively traded
marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of ten years); and the term
"Thirty-Year Average Yield" means the average yield to
maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of
thirty years).
4. Liquidation Preference. The shares of Series A
Fixed/Adjustable Rate Preferred Stock shall rank, as to
liquidation, dissolution or winding up of the Corporation,
prior to the shares of Common Stock and any other class of
stock of the Corporation ranking junior to the Series A
Fixed/Adjustable Rate Preferred Stock as to rights upon
liquidation, dissolution or winding up of the
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Corporation, so that in the event of any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Series A
Fixed/Adjustable Rate Preferred Stock shall be entitled to
receive out of the assets of the Corporation available for
distribution to its stockholders, whether from capital,
surplus or earnings, before any distribution is made to
holders of shares of Common Stock or any other such junior
stock, an amount equal to $200.00 per share (the "Liquidation
Preference" of a share of Series A Fixed/Adjustable Rate
Preferred Stock) plus an amount equal to all dividends
(whether or not earned or declared) accrued and accumulated
and unpaid on the shares of Series A Fixed/Adjustable Rate
Preferred Stock to the date of final distribution. The holders
of the Series A Fixed/Adjustable Rate Preferred Stock will not
be entitled to receive the Liquidation Preference until the
liquidation preference of any other class of stock of the
Corporation ranking senior to the Series A Fixed/Adjustable
Rate Preferred Stock as to rights upon liquidation,
dissolution or winding up shall have been paid (or a sum set
aside therefor sufficient to provide for payment) in full.
After payment of the full amount of the Liquidation Preference
and such dividends, the holders of shares of Series A
Fixed/Adjustable Rate Preferred Stock will not be entitled to
any further participation in any distribution of assets by the
Corporation. If, upon any liquidation, dissolution or winding
up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of shares of
Parity Preferred Stock shall be insufficient to pay in full
the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributable among such holders
ratably in accordance with the respective amounts which would
be payable on such shares if all amounts payable thereon were
paid in full. For the purposes hereof, neither a consolidation
or merger of the Corporation with or into any other
corporation, nor a merger of any other corporation with or
into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash or securities shall
be considered a liquidation, dissolution or winding up of the
Corporation.
5. Conversion. The Series A Fixed/Adjustable Rate
Preferred Stock is not convertible into shares of any other
class or series of stock of the Corporation.
6. Voting Rights. The holders of shares of Series A
Fixed/Adjustable Rate Preferred Stock shall have no voting
rights whatsoever, except for any voting rights to which they
may be entitled under the laws of the State of Delaware, and
except as follows:
(a) Whenever, at any time or times,
dividends payable on the shares of Series A
Fixed/Adjustable Rate Preferred Stock or on any
Parity Preferred Stock with respect to payment of
dividends, shall be in arrears for an aggregate
number of days equal to six calendar quarters or
more, whether or not consecutive, the holders of the
outstanding shares of Series
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A Fixed/Adjustable Rate Preferred Stock shall have
the right, with holders of shares of any one or more
other class or series of stock upon which like voting
rights have been conferred and are exercisable
(voting together as a class), to elect two of the
authorized number of members of the Board at the
Corporation's next annual meeting of stockholders and
at each subsequent annual meeting of stockholders
until such arrearages have been paid or set apart for
payment, at which time such right shall terminate,
except as herein or by law expressly provided,
subject to revesting in the event of each and every
subsequent default of the character above mentioned.
Upon any termination of the right of the holders of
shares of Series A Fixed/Adjustable Rate Preferred
Stock as a class to vote for directors as herein
provided, the term of office of all directors then in
office elected by the holders of shares of Series A
Fixed/Adjustable Rate Preferred Stock shall terminate
immediately.
Any director who shall have been so elected pursuant
to this paragraph may be removed at any time, either
with or without cause. Any vacancy thereby created
may be filled only by the affirmative vote of the
holders of shares of Series A Fixed/Adjustable Rate
Preferred Stock voting separately as a class
(together with the holders of shares of any other
class or series of stock upon which like voting
rights have been conferred and are exercisable). If
the office of any director elected by the holders of
shares of Series A Fixed/Adjustable Rate Preferred
Stock voting as a class becomes vacant for any reason
other than removal from office as aforesaid, the
remaining director elected pursuant to this paragraph
may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy
occurred. At elections for such directors, each
holder of shares of Series A Fixed/Adjustable Rate
Preferred Stock shall be entitled to one vote for
each share held (the holders of shares of any other
class or series of preferred stock having like voting
rights being entitled to such number of votes, if
any, for each share of such stock held as may be
granted to them).
(b) So long as any shares of Series A
Fixed/Adjustable Rate Preferred Stock remain
outstanding, the consent of the holders of at least
two-thirds of the shares of Series A Fixed/Adjustable
Rate Preferred Stock outstanding at the time and all
other classes or series of stock upon which like
voting rights have been conferred and are exercisable
(voting together as a class) given in person or by
proxy, either in writing or at any meeting called for
the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(i) the issuance or increase of the
authorized amount of any class or series of
shares ranking prior (as that term is
defined
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in paragraph 10(a) hereof) to the shares of
the Series A Fixed/Adjustable Rate
Preferred Stock; or
(ii) the amendment, alteration or
repeal, whether by merger, consolidation or
otherwise, of any of the provisions of the
Certificate of Incorporation (including this
resolution or any provision hereof), that
would materially and adversely affect any
power, preference, or special right of the
shares of Series A Fixed/Adjustable Rate
Preferred Stock or of the holders thereof;
provided, however, that any increase in the amount of
authorized Common Stock or authorized Preferred Stock
or any increase or decrease in the number of shares
of any series of Preferred Stock or the creation and
issuance of other series of Common Stock or Preferred
Stock, in each case ranking on a parity with or
junior to the shares of Series A Fixed/Adjustable
Rate Preferred Stock with respect to the payment of
dividends and the distribution of assets upon
liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such
powers, preferences or special rights.
(c) The foregoing voting provisions shall
not apply if, at or prior to the time when the act
with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of
Series A Fixed/Adjustable Rate Preferred Stock shall
have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust
to effect such redemption.
7. Redemption. The shares of the Series A
Fixed/Adjustable Rate Preferred Stock may be redeemed at the
option of the Corporation, as a whole, or from time to time in
part, at any time, upon not less than 30 days' prior notice
mailed to the holders of the shares to be redeemed at their
addresses as shown on the stock books of the Corporation;
provided, however, that shares of the Series A
Fixed/Adjustable Rate Preferred Stock shall not be redeemable
prior to November 30, 2001, except as stated below. Subject to
the foregoing, on or after such date, shares of the Series A
Fixed/Adjustable Rate Preferred Stock are redeemable at
$200.00 per share together with an amount equal to all
dividends (whether or not earned or declared) accrued and
accumulated and unpaid to, but excluding, the date fixed for
redemption.
If full cumulative dividends on the Series A
Fixed/Adjustable Rate Preferred Stock have not been paid, the
Series A Fixed/Adjustable Rate Preferred Stock may not be
redeemed in part and the Corporation may not purchase or
acquire any shares of the Series A Fixed/Adjustable Rate
Preferred Stock otherwise than pursuant to a purchase or
exchange offer made on the same terms
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<PAGE>
to all holders of the Series A Fixed/Adjustable Rate Preferred
Stock. If fewer than all the outstanding shares of Series A
Fixed/Adjustable Rate Preferred Stock are to be redeemed, the
Corporation will select those to be redeemed by lot or a
substantially equivalent method.
If a notice of redemption has been given pursuant to
this paragraph 7 and if, on or before the date fixed for
redemption, the funds necessary for such redemption shall have
been set aside by the Corporation, separate and apart from its
other funds, in trust for the pro rata benefit of the holders
of the shares of Series A Fixed/Adjustable Rate Preferred
Stock so called for redemption, then, notwithstanding that any
certificates for such shares have not been surrendered for
cancellation, on the redemption date dividends shall cease to
accrue on the shares to be redeemed, and at the close of
business on the redemption date the holders of such shares
shall cease to be stockholders with respect to such shares and
shall have no interest in or claims against the Corporation by
virtue thereof and shall have no voting or other rights with
respect to such shares, except the right to receive the moneys
payable upon surrender (and endorsement, if required by the
Corporation) of their certificates, and the shares evidenced
thereby shall no longer be outstanding. Subject to applicable
escheat laws, any moneys so set aside by the Corporation and
unclaimed at the end of two years from the redemption date
shall revert to the general funds of the Corporation, after
which reversion the holders of such shares so called for
redemption shall look only to the general funds of the
Corporation for the payment of the amounts payable upon such
redemption. Any interest accrued on funds so deposited shall
be paid to the Corporation from time to time.
Notwithstanding the foregoing provisions, if the
Dividends Received Percentage is equal to or less than 50%
and, as a result, the amount of dividends on the Series A
Fixed/Adjustable Rate Preferred Stock payable on any dividend
payment date will be or is adjusted upwards as described in
paragraph 2(b) hereof, the Corporation, at its option, may
redeem all, but not less than all, of the outstanding shares
of the Series A Fixed/Adjustable Rate Preferred Stock (the
Depositary Shares) (a "Dividends Received Deduction
Redemption") provided that within sixty days of the date on
which an amendment to the Code is enacted which reduces the
Dividends Received Percentage to 50% or less, the Corporation
sends notice to holders of the Series A Fixed/Adjustable Rate
Preferred Stock of such redemption. A Dividends Received
Deduction Redemption, in accordance with this paragraph, will
take place on the date specified in the notice, which shall be
not less than thirty nor more than sixty days from the date
such notice is sent to holders of the Series A
Fixed/Adjustable Rate Preferred Stock. A Dividends Received
Deduction Redemption shall be at the applicable redemption
price set forth in the following table, in each case plus
accrued and unpaid dividends (whether or not declared) thereon
to but excluding
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<PAGE>
the date fixed for redemption, including any changes in
dividends payable due to changes in the Dividends Received
Percentage and Additional Dividends, if any:
<TABLE>
<CAPTION>
Redeemable Price
----------------
Redemption Period Per Share Per Depositary Share
----------------- --------- --------------------
<S> <C> <C>
November 14, 1996 to November 29, 1997... $210.00 $ 52.50
November 30, 1997 to November 29, 1998... 208.00 52.00
November 30, 1998 to November 29, 1999... 206.00 51.50
November 30, 1999 to November 29, 2000... 204.00 51.00
November 30, 2000 to November 29, 2001... 202.00 50.50
On or after November 30, 2001............ 200.00 50.00
</TABLE>
8. Authorization and Issuance of Other Securities. No
consent of the holders of the Series A Fixed/Adjustable Rate
Preferred Stock shall be required for (a) the creation of any
indebtedness of any kind of the Corporation, (b) the creation,
or increase or decrease in the amount, of any class or series
of stock of the Corporation not ranking prior as to dividends
or upon liquidation, dissolution or winding up to the Series A
Fixed/Adjustable Rate Preferred Stock or (c) any increase or
decrease in the amount of authorized Common Stock or any
increase, decrease or change in the par value thereof or in
any other terms thereof.
9. Amendment of Resolution. The Board and the
Committee each reserves the right by subsequent amendment of
this resolution from time to time to increase or decrease the
number of shares that constitute the Series A Fixed/Adjustable
Rate Preferred Stock (but not below the number of shares
thereof then outstanding) and in other respects to amend this
resolution within the limitations provided by law, this
resolution and the Certificate of Incorporation.
10. Rank. For the purposes of this resolution, any
stock of any class or classes of the Corporation shall be
deemed to rank:
(a) prior to shares of the Series A
Fixed/Adjustable Rate Preferred Stock, either as to
dividends or upon liquidation, dissolution or winding
up, or both, if the holders of stock of such class or
classes shall be entitled by the terms thereof to the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
shares of the Series A Fixed/Adjustable Rate
Preferred Stock;
(b) on a parity with shares of the Series A
Fixed/Adjustable Rate Preferred Stock, either as to
dividends or upon liquidation, dissolution or winding
up, or both, whether or not the dividend rates,
dividend payment dates, or redemption or liquidation
prices per share thereof be different from those of
the Series A Fixed/Adjustable Rate
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<PAGE>
Preferred Stock, if the holders of stock of such
class or classes shall be entitled by the terms
thereof to the receipt of dividends or of amounts
distributed upon liquidation, dissolution or winding
up, as the case may be, in proportion to their
respective dividend rates or liquidation prices,
without preference or priority of one over the other
as between the holders of such stock and the holders
of shares of Series A Fixed/Adjustable Rate Preferred
Stock (the term "Parity Preferred Stock" being used
to refer to any stock on a parity with the shares of
Series A Fixed/Adjustable Rate Preferred Stock,
either as to dividends or upon liquidation,
dissolution or winding up, or both, as the context
may require); and
(c) junior to shares of the Series A
Fixed/Adjustable Rate Preferred Stock, either as to
dividends or upon liquidation, dissolution or winding
up, or both, if such class shall be Common Stock or
if the holders of the Series A Fixed/Adjustable Rate
Preferred Stock shall be entitled to the receipt of
dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case
may be, in preference or priority to the holders of
stock of such class or classes.
The Series A Fixed/Adjustable Rate Preferred Stock
shall rank prior, as to dividends and upon liquidation,
dissolution or winding up, to the Common Stock and on a parity
with (i) the Corporation's ESOP Convertible Preferred Stock,
with a liquidation value of $35.88 per share, (ii) the
Corporation's 9.36% Cumulative Preferred Stock, with a
liquidation value of $25.00 per share, (iii) the Corporation's
8.88% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share, (iv) the Corporation's 8-3/4% Cumulative
Preferred Stock, with a liquidation value of $200.00 per
share, (v) the Corporation's 7-3/8% Cumulative Preferred
Stock, with a liquidation value of $200.00 per share, (vi) if
issued, the Corporation's 7.82% Cumulative Preferred Stock,
with a liquidation value of $200.00 per share, (vii) if
issued, the Corporation's 7.80% Cumulative Preferred Stock,
with a liquidation value of $200.00 per share, (viii) if
issued, the Corporation's 9.00% Cumulative Preferred Stock,
with a liquidation value of $200.00 per share, (ix) if issued,
the Corporation's 8.40% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share, (x) if issued, the
Corporation's 8.20% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share and (xi) the
Corporation's 7-3/4% Cumulative Preferred Stock, with a
liquidation value of $200.00 per share.
18
<PAGE>
IN WITNESS WHEREOF, Morgan Stanley Group Inc. has caused this
Certificate to be made under the seal of the Corporation and signed by Richard
B. Fisher, its Chairman of the Board, and attested by Patricia Kurtz, Assistant
Secretary of the Corporation, this 8th day of November, 1996.
MORGAN STANLEY GROUP INC.
By: _____________________________
Name: Richard B. Fisher
Title: Chairman of the Board
[SEAL]
Attest:
- -------------------
Assistant Secretary
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