As filed with the Securities and Exchange Commission on May 28, 1997
Registration No. 333-
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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DEAN WITTER, DISCOVER & CO. MORGAN STANLEY FINANCE PLC
(to be renamed Morgan Stanley, (Exact name of registrant
Dean Witter, Discover & Co.) as specified in its charter)
(Exact name of registrant as
specified in its charter)
DELAWARE 36-3145972
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
ENGLAND Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
25 Cabot Square
Two World Trade Center Canary Wharf
New York, New York 10048 London, E14 4QA England
(212) 392-2222 (44-171) 425-8000
(Address, including zip code, (Address, including zip code,
and telephone number, and telephone number,
including area code, of registrant's including area code, of registrant's
principal executive offices) principal executive offices)
-----------------
Christine A. Edwards, Esq.
Executive Vice President and General Counsel
Dean Witter, Discover & Co.
Two World Trade Center
New York, New York 10048
(212) 392-2222
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies To:
Joseph W. Armbrust, Esq. John M. Brandow, Esq.
Brown & Wood LLP Davis Polk & Wardwell
One World Trade Center 450 Lexington Avenue
New York, New York 10048 New York, New York 10017
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after this registration statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 check the following box.[X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
Title of each class of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per security aggregate offering price registration fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities..................
Guarantees of Debt Securities....
Preferred Stock..................
Depositary Shares................ (1) (1) (1) (1)
Preferred Stock Purchase
Contracts......................
Capital Units....................
Depositary Interests.............
=================================================================================================================================
</TABLE>
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(1) This registration statement relates solely to offers and sales of Debt
Securities, Guarantees, Preferred Stock, Depositary Shares, Preferred
Stock Purchase Contracts and Capital Units in connection with market-
making transactions by and through affiliates of the registrants.
Since registration fees with respect to such securities were paid
previously in connection with the registration of the initial offerings
of such securities to the public, no registration fee is payable with
respect to this registration statement.
As previously disclosed in Dean Witter, Discover & Co.'s Current Report
on Form 8-K dated February 4, 1997, Dean Witter, Discover & Co. and Morgan
Stanley Group Inc. announced a definitive agreement to merge (the "Merger").
It is expected that, effective May 31, 1997, Morgan Stanley Group Inc. will
merge with and into Dean Witter, Discover & Co., which will be the surviving
corporation in the Merger and will continue its corporate existence under
Delaware law under the name "Morgan Stanley, Dean Witter, Discover & Co." The
following Prospectus relates to Morgan Stanley, Dean Witter, Discover & Co.
giving effect to the completion of the Merger.
The Registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Securities and Exchange Commission
(the "Commission"), acting pursuant to Section 8(a), may determine.
=============================================================================
PROSPECTUS (Subject to Completion, Issued May 28, 1997)
Morgan Stanley, Dean Witter, Discover & Co.
Morgan Stanley Finance plc
DEBT SECURITIES
GUARANTEES OF DEBT SECURITIES
PREFERRED STOCK
PREFERRED STOCK PURCHASE CONTRACTS
CAPITAL UNITS
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Morgan Stanley Group Inc. ("Morgan Stanley"), a predecessor of
Morgan Stanley, Dean Witter, Discover & Co. (the "Company"), offered and
issued from time to time contracts that require the holders thereof to
purchase preferred stock of Morgan Stanley ("Purchase Contracts") on terms
determined at the time of sale. Purchase Contracts issued by Morgan Stanley
were offered together with debt securities (the "Debt Securities") of Morgan
Stanley Finance plc ("MS plc"), an indirect wholly owned subsidiary of the
Company (and formerly of Morgan Stanley), and full and unconditional
guarantees of Morgan Stanley (the "Guarantees") in the form of units ("Capital
Units").
Effective , 1997, Morgan Stanley merged with and into
Dean Witter, Discover & Co. (the "Merger"), which, pursuant to the Merger, was
renamed Morgan Stanley, Dean Witter, Discover & Co. The Company has assumed
all of the obligations of Morgan Stanley under the Guarantees and Purchase
Contracts and, upon any acceleration of the Purchase Contracts, will issue one
share of the preferred stock, par value $0.01 per share, of the Company (the
"Preferred Stock"), having terms otherwise identical to those of the
underlying Morgan Stanley preferred stock, for each share of Morgan Stanley
preferred stock required to be delivered pursuant to the terms of the Purchase
Contracts. The Debt Securities, Guarantees, Preferred Stock, Purchase
Contracts and Capital Units are hereinafter referred to as the "Securities."
The accompanying Prospectus Supplement prepared by Morgan
Stanley and MS plc in connection with the initial offering of the Capital
Units (the "Prospectus Supplement") sets forth the specific terms of the
Capital Units, including the specific terms of the Debt Securities, the
Purchase Contracts and the Preferred Stock issuable pursuant to such Purchase
Contracts, listing, if any, on a securities exchange, whether such Capital
Units were issued as Definitive Capital Units, Book-Entry Capital Units or
both and the name of the depositary with respect to such Capital Units.
------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Dean Witter Reynolds, Inc. ("DWR"), Morgan Stanley & Co. Incorporated
("MS & Co."), Dean Witter International Ltd. ("DWIL"), Morgan Stanley & Co.
International Limited ("MSIL") and other affiliates of the Company may offer
and sell previously issued Securities in the course of their businesses as
broker-dealers. DWR, MS & Co., DWIL, MSIL and such other affiliates may act
as principal or agent in such transactions. This Prospectus and the
accompanying Prospectus Supplements may be used by DWR, MS & Co., DWIL, MSIL
and such other affiliates in connection with such transactions. Such sales, if
any, will be made at varying prices related to prevailing market prices at the
time of sale.
MORGAN STANLEY DEAN WITTER
June , 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE
----------------
No dealer, salesman or any other person has been authorized to
give any information or to make any representations other than those contained
or incorporated by reference in this Prospectus or in any Prospectus
Supplement and, if given or made, such information or representations must not
be relied upon as having been authorized by the Company, MS plc or any
underwriter, dealer or agent. Neither this Prospectus nor any Prospectus
Supplement constitutes an offer to sell or a solicitation of an offer to buy
Securities by anyone in any jurisdiction in which such offer or solicitation
is not authorized or in which the person making such offer or solicitation is
not qualified to do so or to any person to whom it is unlawful to make such
offer or solicitation.
----------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities
and Exchange Commission (the "Commission"). MS plc is not (and will not become
as a result of the effectiveness of the Registration Statement of which this
Prospectus is a part) subject to the informational requirements of the
Exchange Act. Reports, proxy statements and other information filed by the
Company with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 or at its Regional Offices located at
Suite 1400, Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661
and at Seven World Trade Center, 13th Floor, New York, New York 10048, and
copies of such material can be obtained from the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, the Commission maintains a Website that contains reports,
proxy and other information regarding registrants that file electronically,
such as the Company. The address of the Commission's Website is
http:/www.sec.gov. The Company's Common Stock, par value $0.01 per share (the
"Common Stock"), is listed on the New York Stock Exchange, Inc. (the "NYSE")
and the Pacific Stock Exchange, Inc. Reports, proxy statements and other
information concerning the Company can be inspected at the offices of the
NYSE, 20 Broad Street, New York, New York 10005 and the Pacific Stock
Exchange, Inc., 301 Pine Street, San Francisco, California 94104 or 618 South
Spring Street, Los Angeles, California 90012.
This Prospectus constitutes a part of a Registration Statement
filed by the Company and MS plc with the Commission under the Securities Act
of 1933, as amended (the "Securities Act"). This Prospectus omits certain of
the information contained in the Registration Statement in accordance with the
rules and regulations of the Commission. Reference is hereby made to the
Registration Statement and related exhibits for further information with
respect to the Company, MS plc and the Securities. Statements contained herein
concerning the provisions of any document are not necessarily complete and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
----------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission
under the Exchange Act by the Company are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal period ended
December 31, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended March
31, 1997; and
(c) Current Reports on Form 8-K dated January 22, 1997, February
4, 1997 (two reports), February 20, 1997, February 27, 1997, February 28,
1997, April 15, 1997, April 17, 1997 (two reports), April 30, 1997 and June 2,
1997.
The following documents previously filed with the Commission
under the Exchange Act by Morgan Stanley, a predecessor of the Company, are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal period ended
November 30, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended February
28, 1997; and
(c) Current Reports on Form 8-K dated December 18, 1996,
December 26, 1996, January 7, 1997, January 24, 1997, February 4, 1997,
February 5, 1997, February 20, 1997, February 21, 1997, February 28, 1997,
March 27, 1997, April 14, 1997, April 17, 1997 and April 30, 1997.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the date on which DWR, MS & Co., DWIL, MSIL and other
affiliates of the Company cease offering and selling previously issued
Securities shall be deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits) may be
obtained upon request without charge from the Company, 1585 Broadway, New
York, New York 10036, Attention: Investor Relations (telephone number (212)
762-8131).
----------------
No action has been or will be taken in any jurisdiction by the
Company, MS plc or any underwriter, dealer or agent that would permit a public
offering of the Securities or possession or distribution of this Prospectus in
any jurisdiction where action for that purpose is required, other than (i) in
the United States and (ii) with respect to Debt Securities of MS plc, in the
United Kingdom. Persons into whose possession this Prospectus comes are
required by the Company, MS plc and the underwriters, dealers and agents to
inform themselves about and to observe any restrictions as to the offering of
the Securities and the distribution of this Prospectus.
In this Prospectus, references to "dollars" and "$" are to
United States dollars, and the terms "United States" and "U.S." mean the
United States of America, its states, its territories, its possessions and all
areas subject to its jurisdiction.
MORGAN STANLEY, DEAN WITTER DISCOVER & CO.
Dean Witter, Discover & Co. ("Dean Witter Discover") and Morgan
Stanley Group Inc. ("Morgan Stanley") have entered into a merger agreement
pursuant to which the parties agreed to merge Morgan Stanley with and into Dean
Witter Discover (the "Merger"). The Merger is subject to customary closing
conditions, including the approval of the stockholders of both companies.
Meetings of the stockholders of both companies were held on May 28, 1997 and
stockholder approvals were obtained. The Merger is expected to be effective
as of May 31, 1997. The following description of the Company and all
references to the Company in this Registration Statement, assume that the
Merger has occurred. Pursuant to the Merger, the combined company will be
named Morgan Stanley, Dean Witter, Discover & Co.
Morgan Stanley, Dean Witter, Discover & Co. is a preeminent
global financial services firm that maintains leading market positions in each
of its three primary businesses -- securities, asset management and credit
services. The Company is a combination of Dean Witter Discover and Morgan
Stanley pursuant to a merger (the "Merger") that was effected on May 31, 1997
in which Morgan Stanley was merged with and into Dean Witter Discover. The
Company combines three well recognized brands in the financial services
industry: Discover([Registered]) Card, Morgan Stanley and Dean Witter. The
Company combines Morgan Stanley's global strengths in investment banking,
including in the origination of quality underwritten public offerings and
mergers and acquisitions, institutional sales and trading and global asset
management with Dean Witter Discover's strengths in providing investment and
asset management services to its customers and in providing quality consumer
credit products to its customers, primarily through its Discover Card brand.
At December 31, 1996, the Company had the third largest account executive
sales organization in the United States, with approximately 9,100 professional
account executives and 371 branches, and one of the largest global asset
management operations, with total assets under management and administration
of approximately $279 billion. In addition, based on its approximately 39
million general purpose credit card accounts as of December 31, 1996, the
Company is the nation's largest credit card issuer as measured by number of
accounts and cardmembers.
The Company conducts its business from its head office in New
York City, regional offices and branches throughout the United States, and
through 28 principal offices in 19 countries outside the United States. Dean
Witter Discover was incorporated under the laws of the State of Delaware in
1981 and its predecessor companies date back to 1924. Morgan Stanley was
incorporated under the laws of the State of Delaware in 1975 and its
predecessor companies date back to 1935. The Company's principal executive
offices are at 1585 Broadway, New York, New York 10036, and its telephone
number is (212) 761-4000. Unless the context otherwise requires, the term
"Company" means Morgan Stanley, Dean Witter, Discover & Co. and its
consolidated subsidiaries.
MORGAN STANLEY FINANCE PLC
Morgan Stanley Finance plc was incorporated in 1993 under the
Companies Act 1985 of Great Britain solely for the purpose of issuing
securities to raise capital for the purposes described below under "Use of
Proceeds". Morgan Stanley International Incorporated, a Delaware corporation
that is a wholly owned subsidiary of the Company, indirectly owns all of the
ordinary shares of MS plc. MS plc has no independent operations. MS plc's
principal executive offices are at 25 Cabot Square, Canary Wharf, London E14
4QA, England, and its telephone number is (44-171) 425-8000.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the consolidated ratios of
earnings to fixed charges and earnings to fixed charges and preferred stock
dividends for the Company for the periods indicated. Information for the
fiscal first quarter 1997 and 1996 was derived from unaudited condensed
consolidated financial statements.
<TABLE>
<CAPTION>
First Fiscal Quarter Fiscal Year
--------------------- --------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges.......... 1.4 1.4 1.3 1.3 1.3 1.4 1.3
Ratio of earnings to
fixed charges and
preferred stock
dividends.............. 1.3 1.4 1.3 1.3 1.3 1.4 1.3
</TABLE>
For the purpose of calculating the ratio of earnings to fixed
charges and the ratio of earnings to fixed charges and preferred stock
dividends, earnings consist of income before income taxes and fixed charges
(exclusive of preferred stock dividends). Additionally, "earnings" in 1992
excludes a nonrecurring gain of $32.1 million from the initial public offering
of 25.7% of SPS Transaction Services, Inc. For the purposes of calculating
both ratios, fixed charges include interest expense, capitalized interest and
that portion of rentals representative of an interest factor. Additionally,
for the purposes of calculating the ratio of earnings to fixed charges and
preferred stock dividends, preferred stock dividends (on a pre-tax basis) are
included in the denominator of the ratio.
DESCRIPTION OF DEBT SECURITIES OF MS PLC
The Debt Securities constitute subordinated debt of MS plc and
were issued under a Subordinated Indenture dated as of November 15, 1993,
among MS plc, Morgan Stanley, as guarantor, and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee. Following the Merger, the
Subordinated Indenture was supplemented by a First Supplemental Subordinated
Indenture dated as of June 1, 1997 among MS plc, the Company, as guarantor,
and The Chase Manhattan Bank, as Trustee. The Indenture, as so supplemented,
is hereinafter referred to as the "Indenture". The Chase Manhattan Bank, in
its capacity as trustee under the Indenture, is hereinafter referred to as the
"Trustee". As used in this section and under "Description of Capital Stock of
the Company" and "Description of the Capital Units" below, the term "Company"
means Morgan Stanley, Dean Witter, Discover & Co.
The following summaries of certain provisions of the Indenture
and the Debt Securities do not purport to be complete and such summaries are
subject to the detailed provisions of the Indenture to which reference is
hereby made for a full description of such provisions, including the
definition of certain terms used herein, and for other information regarding
the Debt Securities. Numerical references in parentheses below are to sections
in the Indenture. Wherever particular sections or defined terms of the
Indenture are referred to, such sections or defined terms are incorporated
herein by reference as part of the statement made, and the statement is
qualified in its entirety by such reference. The Debt Securities and any
Guarantees offered by this Prospectus and the accompanying Prospectus
Supplements are referred to herein as the "Offered Debt Securities".
General
The Indenture does not limit the amount of additional
indebtedness that the Company or any of its subsidiaries (including MS plc)
may incur. The Debt Securities are unsecured, subordinated obligations of MS
plc and are fully and unconditionally guaranteed on a subordinated basis by
the Company. Most of the assets reflected on the Company's consolidated
balance sheet are owned by its subsidiaries. Therefore, the Company's rights
and the rights of its creditors, including holders of Debt Securities
guaranteed by the Company, to participate in the assets of any subsidiary upon
such subsidiary's liquidation or recapitalization will be subject to the prior
claims of such subsidiary's creditors, except to the extent that the Company
may itself be a creditor with recognized claims against the subsidiary. In
addition, dividends, loans and advances from certain subsidiaries to the
Company are restricted by legal requirements, including (in the case of DWR
and MS & Co.) net capital requirements under the Exchange Act and under rules
of certain exchanges and other regulatory bodies and (in the case of Greenwood
Trust Company, a Delaware chartered bank and an indirect wholly owned
subsidiary of the Company, and other bank subsidiaries) by banking
regulations. MS plc has no subsidiaries.
The Indenture provides that Debt Securities may be issued from
time to time in one or more series and may be denominated and payable in
foreign currencies or units based on or relating to foreign currencies,
including ECUs. Special United States federal income tax considerations
applicable to any Debt Securities so denominated are described in the relevant
Prospectus Supplement.
Reference is made to the applicable Prospectus Supplement for
the following terms of and information relating to the Offered Debt Securities
(to the extent such terms are applicable to such Offered Debt Securities): (i)
the specific designation, aggregate principal amount, purchase price and
denomination thereof; (ii) the currency or units based on or relating to
currencies in which such Debt Securities are denominated and/or in which
principal (and premium, if any) and/or interest will or may be payable; (iii)
any date of maturity; (iv) the interest rate or rates (or the method by which
such rate or rates is to be determined), if any; (v) the dates on which any
such interest is payable; (vi) the place or places where the principal of,
premium, if any, and interest, if any, on the Offered Debt Securities will be
payable; (vii) any repayment, redemption, prepayment or sinking fund
provisions; (viii) whether the Offered Debt Securities were issued in
registered form or bearer form ("Bearer Securities") or both and, if Bearer
Securities were issued, any restrictions applicable to the exchange of one
form for another and to the offer, sale and delivery of Bearer Securities;
(ix) the terms, if any, on which such Debt Securities may be converted into or
exchanged for stock or other securities of MS plc or other entities (including
the Company), any specific terms relating to the adjustment thereof and the
period during which such Debt Securities may be so converted or exchanged; (x)
any applicable United States federal or United Kingdom income tax
consequences, including whether and under what circumstances MS plc will pay
additional amounts on Offered Debt Securities held by a person who is a U.S.
person (as defined in the relevant Prospectus Supplement) in respect of any
tax, assessment or governmental charge withheld or deducted and, if so,
whether MS plc will have the option to redeem such Debt Securities rather than
pay such additional amounts; and (xi) any other specific terms of the Offered
Debt Securities, including any additional events of default or covenants
provided for with respect to such Debt Securities, and any terms which may be
required by or advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered
Debt Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the relevant
Prospectus Supplement. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the Indenture. Debt Securities in
bearer form and the coupons, if any, appertaining thereto are transferable by
delivery.
Debt Securities bear interest at a fixed rate (a "Fixed Rate
Security") or a floating rate (a "Floating Rate Security"), all as more fully
described in the relevant Prospectus Supplement.
Global Debt Securities
The Debt Securities of each series were issued in the form of
one or more fully registered or bearer global Securities (a "Global Debt
Security"). The specific terms of each Global Debt Security and the depositary
arrangements with respect to the portion of a series of Debt Securities
represented by such Global Debt Security are described in the Prospectus
Supplement relating to such series of Debt Securities.
Subordinated Debt
The Debt Securities and Coupons that constitute part of the
subordinated debt of MS plc and the Guarantees by the Company of such Debt
Securities and Coupons were issued under the Indenture and are subordinate and
junior in right of payment, to the extent and in the manner set forth in the
Indenture, to all "Senior Indebtedness" of MS plc or the Company, as the case
may be. The Indenture defines "MS plc Senior Indebtedness" as obligations
(other than nonrecourse obligations, the subordinated Debt Securities or any
other obligations specifically designated as being subordinate in right of
payment to Senior Indebtedness of MS plc) of, or guaranteed or assumed by, MS
plc for borrowed money or evidenced by bonds, debentures, notes or other
similar instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations. The Indenture defines
"Company Senior Indebtedness" as obligations (other than nonrecourse
obligations, Guarantees of subordinated Debt Securities of MS plc or any other
obligations specifically designated as being subordinate in right of payment
to Senior Indebtedness of the Company) of, or guaranteed or assumed by, the
Company for borrowed money or evidenced by bonds, debentures, notes or other
similar instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligations. (Indenture, Section 1.1)
In the event (a) of any insolvency or bankruptcy proceedings,
or any receivership, liquidation, reorganization or other similar proceedings
in respect of MS plc or the Company or a substantial part of their respective
properties, or of any proceedings for liquidation, dissolution or other
winding up of MS plc or the Company, whether or not involving insolvency or
bankruptcy, or (b) that (i) a default shall have occurred with respect to the
payment of principal of (and premium, if any) or any interest on or other
monetary amounts due and payable on any MS plc Senior Indebtedness or Company
Senior Indebtedness, as the case may be, or (ii) there shall have occurred an
event of default (other than a default in the payment of principal, premium,
if any, or interest, or other monetary amounts due and payable) with respect
to any MS plc Senior Indebtedness or Company Senior Indebtedness, as the case
may be, as defined therein or in the instrument under which the same is
outstanding, permitting the holder or holders thereof to accelerate the
maturity thereof (with notice or lapse of time, or both), and such event of
default shall have continued beyond the period of grace, if any, in respect
thereof, and such default or event of default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the principal of and
accrued interest on the subordinated Debt Securities shall have been declared
due and payable upon an Event of Default pursuant to Section 5.1 of the
Indenture and such declaration shall not have been rescinded and annulled as
provided therein, then the holders of all MS plc Senior Indebtedness or
Company Senior Indebtedness, as the case may be, shall first be entitled to
receive payment of the full amount unpaid thereon, or provision shall be made
for such payment in money or money's worth, before the holders of any of the
subordinated Debt Securities or Coupons are entitled to receive a payment on
account of the principal of (and premium, if any) or any interest on the
indebtedness evidenced by such subordinated Debt Securities or such Coupons.
(Indenture, Sections 13.1 and 15.1) The information incorporated herein by
reference will set forth the approximate amount of MS plc Senior Indebtedness
and Company Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
Guarantee of Debt Securities by the Company
Debt Securities issued by MS plc are fully and unconditionally
guaranteed pursuant to a Guarantee of the Company as to the payment of
principal of, premium, if any, interest and any Additional Amounts (as defined
below) on such Debt Securities when and as the same shall become due and
payable, whether at maturity or otherwise. Under the terms of the Guarantee,
holders of such Debt Securities will not be required to exercise their
remedies against MS plc prior to proceeding directly against the Company. The
Company will not be entitled to offset its obligations under the Guarantee
that forms part of a Capital Unit against the holders' obligations under the
related Purchase Contracts or the provisions of the Capital Unit Agreement
relating thereto and the failure by the Company to satisfy its obligations
under the Guarantee will not result in the termination of or otherwise affect
the obligations of the holders under such Purchase Contracts or the Capital
Unit Agreement. Guarantees of Debt Securities and Coupons are subordinated to
the Company Senior Indebtedness.
Payment of Additional Amounts with Respect to Debt Securities
All amounts of principal of, premium, if any, and interest on
any Debt Securities will be paid by MS plc without deduction or withholding
for any withholding taxes, levies, imposts and charges whatsoever imposed by
or for the account of the United Kingdom or any political subdivision or
taxing authority thereof or therein, or if deduction or withholding of any
such taxes, levies, imposts or charges shall at any time be required by the
United Kingdom or any such subdivision or authority, MS plc will pay such
additional amounts ("Additional Amounts") as may be necessary in order that
the net amounts paid to the holders of such Debt Securities (or, in the
case of Book-Entry Capital Units, holders of beneficial interests in the
Debt Securities included in such Capital Units) or the Trustee, after such
deduction or withholding, shall equal the respective amounts of principal,
premium, if any, and interest to which the holders of such Debt Securities
(or the holders of such beneficial interests) or the Trustee are entitled;
provided that the foregoing will not apply to any such tax, levy, impost or
charge which would not be payable or due but for the fact that (i) the
holder of the Debt Security (or, in the case of a Book-Entry Capital Unit,
a holder of a beneficial interest in the Debt Security included in such
Capital Unit) is a citizen, national or resident of, or engaging in
business or maintaining a permanent establishment or being physically
present in, the United Kingdom or such political subdivision or otherwise
having some connection with the United Kingdom other than the holding or
ownership of a Debt Security, or the collection of principal of and
interest on, or the enforcement of, a Debt Security or (ii) the Debt
Security is presented for payment more than 30 days after the date payment
became due or was provided for, whichever is later, except to the extent
that the holder would have been entitled to such additional amount on
presenting the same for payment at the close of such 30-day period. The
relevant Prospectus Supplement describes any additional circumstances under
which Additional Amounts will not be paid with respect to Debt Securities.
Service of Process, Enforcement of Liabilities
MS plc is incorporated under the laws of England and Wales.
Certain of the directors of MS plc are non-residents of the United States. As
a result, it may not be possible for investors to effect service of process
within the United States upon such persons or to enforce against them
judgments of U.S. courts predicated upon the civil liability provisions of the
federal securities laws of the United States. MS plc has been advised by its
English solicitors, Linklaters & Paines, that there is doubt as to the
enforceability in the United Kingdom, in original actions or in actions to
enforce judgments of U.S. courts, of liabilities predicated solely upon the
federal securities laws of the United States. MS plc has expressly submitted
to the jurisdiction of New York State and the federal courts of the United
States sitting in the Borough of Manhattan, in The City of New York for the
purpose of any suit, action or proceeding arising out of the Debt Securities
or the Indenture and has appointed the Company as an agent in the Borough of
Manhattan, in The City of New York to accept service of process in any such
action.
Certain Covenants
Merger, Consolidation, Sale, Lease or Conveyance. The Indenture
provides that neither MS plc nor the Company will merge or consolidate with
any other person and neither MS plc nor the Company will sell, lease or convey
all or substantially all its assets to any person, unless MS plc or the
Company, as the case may be, shall be the continuing corporation, or the
successor corporation or person that acquires all or substantially all the
assets of MS plc or the Company, as the case may be, shall be (i) with respect
to MS plc, a company incorporated under the laws of England and Wales or (ii)
with respect to the Company, a corporation organized under the laws of the
United States or a state thereof or the District of Columbia, and shall
expressly assume all obligations of MS plc or the Company, as the case may be,
under the Indenture and the Debt Securities or Guarantees issued thereunder,
as the case may be, and immediately after such merger, consolidation, sale,
lease or conveyance, the Company, MS plc, such person or such successor
corporation shall not be in default in the performance of the covenants and
conditions of the Indenture to be performed or observed by MS plc or the
Company, as the case may be. (Indenture, Section 9.1) This covenant would not
apply to a recapitalization transaction, a change of control of the Company or
MS plc or a highly leveraged transaction unless such transactions or change of
control were structured to include a merger or consolidation or sale, lease or
conveyance of all or substantially all of the assets of the Company or MS plc.
There are no covenants or other provisions in the Indenture
providing for a put or increased interest or otherwise that would afford
holders of Debt Securities additional protection in the event of a
recapitalization transaction, a change of control of MS plc or the Company or
a highly leveraged transaction.
Events of Default
An Event of Default is defined under the Indenture with respect
to Debt Securities of any series issued under such Indenture as being: (a)
default in payment of any principal of the Debt Securities of such series,
either at maturity (or upon any redemption), by declaration or otherwise; (b)
default for 30 days in payment of any interest on any Debt Securities of such
series; (c) default for 60 days after written notice in the observance or
performance of any other covenant or agreement of the Company or MS plc in the
Debt Securities of such series or the Indenture other than a covenant included
in the Indenture solely for the benefit of a series of Debt Securities other
than such series; (d) certain events of bankruptcy, insolvency, reorganization
or administration involving MS plc; (e) failure by MS plc to make any payment
at maturity, including any applicable grace period, in respect of
indebtedness, which term as used in the Indenture means obligations (other
than nonrecourse obligations or the Debt Securities of such series issued
under the Indenture) of, or guaranteed or assumed by, MS plc for borrowed
money or evidenced by bonds, debentures, notes or other similar instruments
("Indebtedness") in an amount in excess of $10,000,000 and continuance of such
failure for a period of 30 days after written notice thereof to MS plc and the
Company by the Trustee, or to MS plc, the Company and the Trustee by the
holders of not less than 25% in principal amount of such outstanding Debt
Securities (treated as one class) issued under the Indenture; or (f) a default
with respect to any Indebtedness, which default results in the acceleration of
Indebtedness in an amount in excess of $10,000,000 without such Indebtedness
having been discharged or such acceleration having been cured, waived,
rescinded or annulled for a period of 30 days after written notice thereof to
MS plc and the Company by the Trustee, or to MS plc, the Company and the
Trustee by the holders of not less than 25% in principal amount of such
outstanding Debt Securities (treated as one class) issued under the Indenture;
provided, however, that if any such failure, default or acceleration referred
to in clause (e) or clause (f) above shall cease or be cured, waived,
rescinded or annulled, then the Event of Default by reason thereof shall be
deemed likewise to have been thereupon cured. (Indenture, Section 5.1)
The Indenture provides that (a) if an Event of Default due to
the default in payment of principal of, premium, if any, or interest on, any
series of Debt Securities issued under the Indenture or due to the default in
the performance or breach of any other covenant or warranty of MS plc or the
Company applicable to the Debt Securities of such series but not applicable to
all outstanding Debt Securities issued under such Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of such Debt Securities of each affected series
(treated as one class) issued under the Indenture and then outstanding, by 45
days' written notice to MS plc or the Company after the occurrence of such
Event of Default, may then declare the principal of all Debt Securities of
each such affected series and interest accrued thereon to be due and
payable immediately; and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Indenture
applicable to all outstanding Debt Securities issued under the Indenture
and then outstanding or due to certain events of bankruptcy, insolvency,
reorganization or administration of MS plc shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of all Debt Securities issued under the Indenture and then
outstanding (treated as one class), by 45 days' written notice to MS plc or
the Company after the occurrence of such Event of Default, may declare the
principal of all such Debt Securities and interest accrued thereon to be
due and payable immediately, but upon certain conditions such declarations
may be annulled and past defaults may be waived (except a continuing
default in payment of principal of (or premium, if any) or interest on such
Debt Securities) by the holders of a majority in principal amount of the
Debt Securities of all such affected series then outstanding. (Indenture,
Sections 5.1 and 5.10)
The Indenture contains a provision entitling the Trustee,
subject to the duty of the Trustee during a default to act with the required
standard of care, to be indemnified by the holders of Debt Securities (treated
as one class) issued under such Indenture before proceeding to exercise any
right or power under such Indenture at the request of such holders.
(Indenture, Section 6.2) Subject to such provisions in the Indenture for the
indemnification of the Trustee and certain other limitations, the holders of a
majority in principal amount of the outstanding Debt Securities (treated as
one class) issued under such Indenture may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee. (Indenture,
Section 5.9)
The Indenture provides that no holder of Debt Securities issued
under the Indenture may institute any action against MS plc or the Company
under such Indenture (except actions for payment of overdue principal or
interest) unless such holder previously shall have given to the Trustee
written notice of default and continuance thereof and unless the holders of
not less than 25% in principal amount of the Debt Securities of each affected
series (treated as one class) issued under such Indenture and then outstanding
shall have requested the Trustee, in writing, to institute such action and
shall have offered the Trustee reasonable indemnity, the Trustee shall not
have instituted such action within 60 days of such request and the Trustee
shall not have received direction inconsistent with such written request by
the holders of a majority in principal amount of the Debt Securities of
each affected series (treated as one class) issued under such Indenture and
then outstanding. (Indenture, Sections 5.6 and 5.9)
The Indenture contains a covenant that MS plc and the Company
will file annually with the Trustee a certificate of no default or a
certificate specifying any default that exists. (Indenture, Section 3.6)
Discharge, Defeasance and Covenant Defeasance
MS plc and the Company, as guarantor, can discharge or defease
their obligations under the Indenture as set forth below. (Indenture, Section
10.1)
MS plc and the Company may discharge certain obligations to
holders of any series of Debt Securities issued under the Indenture which have
not already been delivered to the Trustee for cancellation and which have
either become due and payable or are by their terms due and payable within one
year (or scheduled for redemption within one year) by irrevocably depositing
with the Trustee cash or, in the case of Debt Securities payable only in U.S.
dollars, U.S. Government Obligations (as defined in such Indenture) as trust
funds in an amount certified to be sufficient to pay at maturity (or upon
redemption) the principal of, premium, if any, and interest on such Debt
Securities.
MS plc and the Company may also discharge any and all of their
obligations to holders of any series of Debt Securities issued under the
Indenture at any time ("defeasance"), but may not thereby avoid any duty to
register the transfer or exchange of such series of Debt Securities, to
replace any temporary, mutilated, defaced, destroyed, lost or stolen Debt
Securities of such series or to maintain an office or agency in respect of
such series of Debt Securities. MS plc and the Company may instead be released
with respect to any outstanding series of Debt Securities issued under the
Indenture from the obligations imposed by Section 9.1 (which contains the
covenant described above limiting consolidations, mergers, asset sales and
leases), and omit to comply with such Section without creating an Event of
Default ("covenant defeasance"). Defeasance or covenant defeasance may be
effected only if, among other things: (i) MS plc or the Company irrevocably
deposits with the Trustee cash or, in the case of Debt Securities payable only
in U.S. dollars, U.S. Government Obligations, as trust funds in an amount
certified to be sufficient to pay at maturity (or upon redemption) the
principal of, premium, if any, and interest on all outstanding Debt Securities
of such series issued under the Indenture; (ii) MS plc or the Company delivers
to the Trustee an opinion of counsel to the effect that the holders of such
series of Debt Securities will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance or covenant
defeasance and that defeasance or covenant defeasance will not otherwise alter
such holders' United States federal income tax treatment of principal and
interest payments on such series of Debt Securities (in the case of a
defeasance, such opinion must be based on a ruling of the Internal Revenue
Service or a change in United States federal income tax law occurring after
the date of the Indenture, since such a result would not occur under current
tax law); (iii) no event or condition shall exist that, pursuant to certain
provisions described under "Subordinated Debt" above, would prevent MS plc
from making payments of principal of (and premium, if any) and interest on the
Debt Securities at the date of the irrevocable deposit referred to above or at
any time during the period ending on the 91st day after such deposit date; and
(iv) MS plc or the Company, as applicable, delivers to the Trustee an opinion
of counsel to the effect that (a) the trust funds will not be subject to any
rights of holders of Senior Indebtedness and (b) after the 91st day following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally, except that if a court were to rule under any
such law in any case or proceeding that the trust funds remained property of
MS plc or the Company, as the case may be, then the Trustee and the holders of
the Debt Securities would be entitled to certain rights as secured creditors
in such trust funds.
Modification of the Indenture
The Indenture provides that MS plc, the Company and the
Trustee may enter into supplemental indenture without the consent of the
holders of Debt Securities to: (a) secure any Debt Securities, (b) evidence
the assumption by a successor corporation of the obligations of MS plc or the
Company, (c) add covenants for the protection of the holders of Debt
Securities, (d) cure any ambiguity or correct any inconsistency in such
Indenture, (e) establish the forms or terms of Debt Securities of any series
and any coupons thereto and (f) evidence the acceptance of appointment by a
successor trustee. (Indenture, Section 8.1)
The Indenture also contains provisions permitting MS plc, the
Company and the Trustee, with the consent of the holders of not less than a
majority in principal amount of Debt Securities of all series issued under
such Indenture then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each series so affected; provided that MS plc, the Company and
the Trustee may not, without the consent of the holder of each outstanding
Debt Security affected thereby, (a) extend the stated maturity of the
principal of any Debt Security, or reduce the principal amount thereof or
reduce the rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption thereof or change the currency in which the
principal thereof (including any amount in respect of original issue
discount), premium, if any, or interest thereon is payable or reduce the
amount of any original issue discount security payable upon acceleration or
provable in bankruptcy, or alter the provisions of any Guarantee of the Debt
Securities in any manner adverse to the holders, or alter certain provisions
of the Indenture relating to the Debt Securities issued thereunder not
denominated in U.S. dollars or impair the right to institute suit for the
enforcement of any payment on any Debt Security when due or (b) reduce the
aforesaid percentage in principal amount of Debt Securities of any series
issued under the Indenture, the consent of the holders of which is required
for any such modification. (Indenture, Section 8.2)
The Indenture may not be amended to alter the subordination of
any outstanding subordinated Debt Securities or of any Guarantee thereof
without the written consent of each holder of MS plc Senior Indebtedness or
Company Senior Indebtedness, as the case may be, then outstanding that would
be adversely affected thereby. (Indenture, Section 8.6)
Concerning the Trustee
The Chase Manhattan Bank is one of a number of banks with which
the Company and its subsidiaries maintain ordinary banking relationships and
with which the Company and its subsidiaries maintain credit facilities.
DESCRIPTION OF CAPITAL STOCK OF THE COMPANY
As of the date of this Prospectus, the Company's authorized
capital stock consists of 1,750,000,000 shares of Common Stock, par value
$0.01 per share, and 30,000,000 shares of Preferred Stock, par value $0.01 per
share ("Preferred Stock"). The Board of Directors of the Company has the
power, without further action by the stockholders unless action is required by
applicable laws or regulations or by the terms of outstanding Preferred Stock,
to issue Preferred Stock in one or more series and to fix the voting rights,
designations, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions
applicable thereto.
The rights of holders of the Preferred Stock required to be
purchased pursuant to the Purchase Contracts will be subject to, and may be
adversely affected by, the rights of holders of any Preferred Stock that may
be issued in the future. The Board of Directors may cause shares of Preferred
Stock to be issued to obtain additional financing, in connection with
acquisitions, to officers, directors or employees of the Company and its
subsidiaries pursuant to benefit plans or otherwise and for other proper
corporate purposes. Shares of Preferred Stock issued by the Company may have
the effect, under certain circumstances, alone or in combination with certain
other provisions of the Company's Amended and Restated Certificate of
Incorporation ("Certificate of Incorporation") described below, of rendering
more difficult or discouraging an acquisition of the Company deemed
undesirable by the Board of Directors.
As of June 2, 1997, there were approximately shares of
Common Stock outstanding. On June 2, 1997, the Company also had outstanding
the following series of Preferred Stock: approximately shares of ESOP
Convertible Preferred Stock, with a liquidation value of $35.875 per share
(the "ESOP Preferred Stock"), issued in connection with the Company's Employee
Stock Ownership Plan (the "ESOP"), 1,000,000 shares of 7 3/8% Cumulative
Preferred Stock, with a stated value of $200.00 per share (the "7 3/8%
Preferred Stock"), 1,000,000 shares of 7 3/4% Cumulative Preferred Stock, with
a stated value of $200.00 per share (the "7 3/4% Preferred Stock") and
1,725,000 shares of Series A Fixed/Adjustable Rate Cumulative Preferred Stock,
with a stated value of $200.00 per share (the "Series A Fixed/Adjustable Rate
Preferred Stock"). The 7 3/8% Preferred Stock, the 7 3/4% Preferred Stock and
the Series A Fixed/Adjustable Rate Preferred Stock are collectively referred
to herein as the "Existing Cumulative Preferred Stock." In addition, the
Company and its wholly owned subsidiary Morgan Stanley Finance plc have
outstanding Capital Units that may result in up to 611,238 shares of the
Company's 7.82% Cumulative Preferred Stock, with a stated value of $200.00 per
share (the "7.82% Preferred Stock"), being issued at any time, up to 1,150,000
shares of the Company's 7.80% Cumulative Preferred Stock, with a stated value
of $200.00 per share (the "7.80% Preferred Stock"), being issued at any time,
up to 720,900 shares of the Company's 9.00% Cumulative Preferred Stock, with a
stated value of $200.00 per share (the "9.00% Preferred Stock"), being issued
at any time, up to 996,776 shares of the Company's 8.40% Cumulative Preferred
Stock, with a stated value of $200.00 per share (the "8.40% Preferred Stock"),
being issued at any time, up to 847,500 shares of the Company's 8.20%
Cumulative Preferred Stock, with a stated value of $200.00 per share (the
"8.20% Preferred Stock"), being issued at any time, and up to 670,000 shares
of the Company's 8.03% Cumulative Preferred Stock, with a stated value of
$200.00 per share (the "8.03% Preferred Stock"), being issued at any time on
or after February 28, 1998. The 7.82% Preferred Stock, the 7.80% Preferred
Stock, the 9.00% Preferred Stock, the 8.40% Preferred Stock, the 8,20%
Preferred Stock and the 8.03% Preferred Stock are collectively referred to
herein as "Offered Preferred Stock".
The following summary does not purport to be complete and is
qualified by the Company's Certificate of Incorporation, by a Certificate of
Designation of Preferences and Rights of the ESOP Preferred Stock, by a
Certificate of Designation of Preferences and Rights for each series of
Offered Preferred Stock and by a Certificate of Designation of Preferences and
Rights of each series of Existing Cumulative Preferred Stock.
Offered Preferred Stock
The Board of Directors of the Company has authorized the
issuance of the Offered Preferred Stock. The shares of Offered Preferred
Stock, if issued, will be fully paid and nonassessable, are not convertible
into Common Stock of the Company and have no preemptive rights.
The following description of the terms of the Offered Preferred
Stock sets forth certain general terms and provisions of the Offered Preferred
Stock to which a Prospectus Supplement relates. If so indicated in the
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below. The number of shares and all of the terms and conditions of
the relative rights, preferences and limitations of the respective series of
Offered Preferred Stock as established by the Board of Directors or any
committee thereof are set forth in the Prospectus Supplement accompanying this
Prospectus relating to the particular series of Offered Preferred Stock. The
terms of particular series of Offered Preferred Stock may differ, among other
things, in (i) the number of shares that constitute such series, (ii) the
dividend rate (or the method of calculation thereof) on the shares of such
series, (iii) the dividend periods (or the method of calculation thereof),
(iv) the stated value of the shares of such series, (v) the voting rights of
the shares of such series, (vi) the preferences and rights of the shares of
such series upon any liquidation or winding-up of the Company, (vii) whether
or not and on what terms the shares of such series will be subject to
redemption at the option of the Company, (viii) whether depositary shares
representing shares of such series of Offered Preferred Stock were offered
and, if so, the fraction of a share of such series of Offered Preferred Stock
represented by each depositary share and (ix) the other rights and privileges
and any qualifications, limitations or restrictions of such rights or
privileges of such series.
As described under "Depositary Shares" below, the Company has
elected to offer depositary shares (the "Depositary Shares") evidenced by
depositary receipts, each representing a fraction (specified in the Prospectus
Supplement relating to the particular series of Offered Preferred Stock) of a
share of the particular series of Offered Preferred Stock issued and deposited
with a depositary, in lieu of offering full shares of such series of Offered
Preferred Stock.
The following statements are brief summaries of certain
provisions that are contained in the Certificate of Designation authorizing
the issuance of a series of Offered Preferred Stock, do not purport to be
complete and are qualified in their entirety by reference to such Certificate
of Designation, the form of which has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part, and by the
Company's Certificate of Incorporation. The resolutions set forth in the
Certificate of Designation were adopted by the Board of Directors or a
committee thereof prior to the issuance of a series of Offered Preferred
Stock, and such Certificate of Designation was filed with the Secretary of
State of the State of Delaware. Subject to the terms of the Deposit Agreement
(as defined below), each Depositary Share is entitled, in proportion to the
applicable fraction of a share of Offered Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Offered Preferred
Stock represented thereby (including dividends, voting, redemption and
liquidation rights). See "Depositary Shares" below. The following statements
concerning Depositary Shares, Depositary Receipts (as defined below) and the
Deposit Agreement do not purport to be complete and are qualified in their
entirety by reference to the forms of such documents, which have been filed as
exhibits to the Registration Statement of which this Prospectus is a part.
Rank. Each series of Offered Preferred Stock, if issued, will
rank, with respect to voting powers, preferences or relative, participating,
optional and other special rights and the qualifications, limitations and
restrictions thereof, including with respect to the payment of dividends and
the distribution of assets, whether upon liquidation or otherwise, junior to
any series of capital stock of the Company expressly stated to be senior to
such series of the Offered Preferred Stock, senior to any class of capital
stock expressly stated to be junior to such series of the Offered Preferred
Stock, and on a parity with each other series of Offered Preferred Stock and
all other classes of capital stock of the Company. Each series of the Offered
Preferred Stock, if issued, will rank, as to payment of dividends and amounts
payable on liquidation, prior to the Common Stock (see "Common Stock" below)
and on a parity with each other and with the ESOP Preferred Stock and each
series of the Existing Cumulative Preferred Stock.
Dividends. Holders of shares of the Offered Preferred Stock, if
issued, will be entitled to receive, when and as declared by the Board of
Directors or any committee thereof out of funds legally available for payment,
cumulative cash dividends at an annual rate of 7.82% per annum (with respect
to the 7.82% Preferred Stock, if issued), 7.80% per annum (with respect to the
7.80% Preferred Stock, if issued), 9.00% per annum (with respect to the 9.00%
Preferred Stock, if issued), 8.40% per annum (with respect to the 8.40%
Preferred Stock, if issued), 8.20% per annum (with respect to the 8.20%
Preferred Stock, if issued) on the dates, for the periods and otherwise as
specified in the relevant Prospectus Supplement. Dividends on the Offered
Preferred Stock will be payable to holders of record as they appear on the
stock books of the Company 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 of Directors or any committee thereof. Dividends are cumulative from
the date of original issue of such series. The Offered Preferred Stock, if
issued, will be junior as to dividends to any Preferred Stock that may be
issued in the future that is expressly senior as to dividends to the Offered
Preferred Stock. If at any time the Company has failed to pay accrued
dividends on any such senior shares at the time such dividends are payable,
the Company may not pay any dividend on any series of Offered Preferred Stock
or redeem or otherwise repurchase any shares of any series of Offered
Preferred Stock until such accumulated but unpaid dividends on such senior
shares have been paid (or set aside for payment) in full by the Company.
No dividends may be declared or paid or set apart for payment
on any Preferred Stock ranking on a parity as to dividends with the Offered
Preferred Stock unless there shall also be or have been declared and paid or
set apart for payment on the outstanding shares of Offered Preferred Stock
dividends for all dividend payment periods of each series of the Offered
Preferred Stock ending on or before the dividend payment date of such parity
stock, ratably in proportion to the respective amounts of dividends (i)
accumulated and unpaid or payable on such parity stock, on the one hand, and
(ii) accumulated and unpaid or payable through the dividend payment period or
periods of each series of the Offered Preferred Stock next preceding such
dividend payment date, on the other hand.
Except as set forth above, unless full cumulative dividends on
the outstanding shares of Offered Preferred Stock have been paid, dividends
(other than in Common Stock) may not be paid or declared and set aside for
payment and other distributions may not be made upon the Common Stock or on
any other Preferred Stock of the Company ranking junior to or on a parity with
the Offered Preferred Stock as to dividends (which parity Preferred Stock
currently includes the ESOP Preferred Stock and the Existing Cumulative
Preferred Stock), nor may any Common Stock or such other Preferred Stock of
the Company be redeemed, purchased or otherwise acquired by the Company 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
monies theretofore deposited in any sinking fund with respect to any Preferred
Stock 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 Offered Preferred
Stock outstanding on the last dividend payment date for any series of Offered
Preferred Stock shall have been paid or declared and set apart for payment;
and provided further that any such junior or parity Preferred Stock or Common
Stock may be converted into or exchanged for stock of the Company ranking
junior to the Offered Preferred Stock as to dividends.
The amount of dividends payable for the initial dividend period
or any period shorter than a full dividend period shall be computed on the
basis of a 360-day year of twelve 30-day months. Accrued but unpaid dividends
will not bear interest.
The ability of the Company, as a holding company, to pay
dividends on the Offered Preferred Stock will be dependent upon, among other
factors, the Company's earnings, financial condition and cash requirements at
the time such payment is considered, and the payment to it of dividends or
principal and interest by, or the availability of other funds from, its
subsidiaries. Dividends, loans and advances from certain subsidiaries to the
Company are restricted by legal requirements, including (in the case of DWR
and MS & Co.), net capital requirements under the Exchange Act and under rules
of certain exchanges and other regulatory bodies and (in the case of Greenwood
Trust Company, a Delaware chartered bank and an indirect wholly owned
subsidiary of the Company, and other bank subsidiaries) by banking
regulations.
Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Company, the holders of shares of Offered
Preferred Stock will be entitled to receive out of the assets of the Company
available for distribution to stockholders, before any distribution is made to
holders of (i) any other shares of Preferred Stock ranking junior to the
Offered Preferred Stock as to rights upon liquidation, dissolution or winding
up that may be issued in the future or (ii) Common Stock, liquidating
distributions in an amount equal to the stated value per share of each series
of Offered Preferred Stock, as set forth in the applicable Prospectus
Supplement, plus accrued and accumulated but unpaid dividends to the date of
final distribution; but the holders of the shares of Offered Preferred Stock
will not be entitled to receive the liquidation price of such shares until the
liquidation preference of any other shares of the Company's capital stock
ranking senior to the Offered 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. If upon any liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Offered Preferred Stock and any other Preferred Stock ranking as to rights
upon liquidation, dissolution or winding up on a parity with the Offered
Preferred Stock are not paid in full, the holders of the Offered Preferred
Stock and of such other Preferred Stock will share ratably in any such
distribution in proportion to the full respective preferential amounts to
which they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of the Offered Preferred
Stock will not be entitled to any further participation in any distribution of
assets by the Company. Neither a consolidation or merger of the Company with
or into another corporation nor a merger of another corporation with or into
the Company nor a sale or transfer of all or part of the Company's assets for
cash or securities shall be considered a liquidation, dissolution or winding
up of the Company.
Because the Company is a holding company, its rights and the
rights of its creditors and its stockholders, including the holders of the
shares of Offered Preferred Stock, to participate in the assets of any
subsidiary upon the latter's liquidation or recapitalization may be subject to
the prior claims of the subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the subsidiary.
Optional Redemption. The Offered Preferred Stock will not be
subject to any mandatory redemption or sinking fund provision. If issued, the
7.82% Preferred Stock will not be redeemable prior to November 30, 1998; if
issued, the 7.80% Preferred Stock will not be redeemable prior to February 28,
1999; if issued, the 9.00% Preferred Stock will not be redeemable prior to
February 28, 2000; if issued, the 8.40% Preferred Stock will not be redeemable
prior to August 30, 2000; if issued, the 8.20% Preferred Stock will not be
redeemable prior to November 30, 2000; and, if issued, the 8.03% Preferred
Stock will not be redeemable prior to February 28, 2007, except that under
certain circumstances prior thereto, it may be redeemed at specified prices.
On or after such dates, the applicable series of Offered Preferred Stock will
be redeemable at the option of the Company, in whole or in part, upon not less
than 30 days' notice at a redemption price equal to $200.00 per share and, in
each case, plus accrued and accumulated but unpaid dividends to but excluding
the date fixed for redemption. If full cumulative dividends on all
outstanding shares of Offered Preferred Stock have not been paid, no shares of
Offered Preferred Stock may be redeemed in part and the Company may not
purchase or acquire any shares of Offered Preferred Stock otherwise than
pursuant to a purchase or exchange offer made on the same terms to all holders
of the Offered Preferred Stock. If fewer than all the outstanding shares of a
series of Offered Preferred Stock are to be redeemed, the Company will select
those to be redeemed by lot or a substantially equivalent method.
Voting Rights. Holders of the Offered Preferred Stock will not
have any voting rights except as set forth below or as otherwise from time to
time required by law. Whenever dividends on any shares of Offered Preferred
Stock or any other class or series of stock ranking on a parity with the
Offered Preferred Stock with respect to the payment of dividends shall be in
arrears for dividend periods, whether or not consecutive, containing in the
aggregate a number of days equivalent to six calendar quarters, the holders of
shares of each series of Offered Preferred Stock (voting separately as a class
with all other series of Preferred Stock (including the Existing Cumulative
Preferred Stock) upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two of the
authorized number of directors of the Company at the next annual meeting of
stockholders and at each subsequent meeting until all dividends accumulated on
such series of Offered Preferred Stock have been fully paid or set apart for
payment. The term of office of all directors elected by the holders of
Preferred Stock shall terminate immediately upon the termination of the right
of the holders of Preferred Stock to vote for directors. Each holder of shares
of the Offered Preferred Stock will have one vote for each share of Offered
Preferred Stock held.
So long as any shares of the Offered Preferred Stock remain
outstanding, the Company shall not, without the consent of the holders of at
least two-thirds of the shares of Offered Preferred Stock outstanding at the
time, voting separately as a class with all other series of Preferred Stock
(including the Existing Cumulative Preferred Stock) upon which like voting
rights have been conferred and are exercisable, (i) issue or increase the
authorized amount of any class or series of stock ranking prior to the
outstanding Offered Preferred Stock as to dividends or upon liquidation or
(ii) amend, alter or repeal the provisions of the Company's Certificate of
Incorporation or of the resolutions contained in the relevant Certificate of
Designation, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any power, preference or special right of the
outstanding Offered Preferred Stock or the holders thereof; provided, however,
that any increase in the amount of the authorized Common Stock or authorized
Preferred Stock or the creation and issuance of other series of Common Stock
or Preferred Stock ranking on a parity with or junior to the Offered Preferred
Stock as to dividends and upon liquidation shall not be deemed to materially
and adversely affect such powers, preferences or special rights.
The transfer agent, dividend disbursing agent and registrar for
each series of Offered Preferred Stock is The Bank of New York.
Depositary Shares
General. As indicated in the applicable Prospectus Supplement,
the Company has elected to issue fractional shares of the Offered Preferred
Stock, rather than full shares of the Offered Preferred Stock. Accordingly,
the Company will issue receipts for Depositary Shares, each of which will
represent a fraction (set forth in the Prospectus Supplement relating to a
particular series of Offered Preferred Stock) of a share of a particular
series of Offered Preferred Stock as described below.
The shares of any series of Offered Preferred Stock represented
by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit
Agreement") among the Company, The Bank of New York, as depositary (the
"Preferred Stock Depositary"), and the holders from time to time of depositary
receipts issued thereunder. Subject to the terms of the Deposit Agreement,
each holder of a Depositary Share will be entitled, in proportion to the
applicable fraction of a share of Offered Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Offered Preferred
Stock represented thereby (including dividend, voting and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts
issued pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional shares
of the related series of Offered Preferred Stock. Copies of the forms of
Deposit Agreement and Depositary Receipt are filed as exhibits to the
Registration Statement of which this Prospectus is a part, and the following
summary is qualified in its entirety by reference to such exhibits.
Immediately following the issuance of shares of a series of Offered Preferred
Stock by the Company, the Company will deposit such shares with the Preferred
Stock Depositary, which will then issue and deliver the Depositary Receipts to
the purchasers thereof. Depositary Receipts will only be issued evidencing
whole Depositary Shares. A Depositary Receipt may evidence any number of whole
Depositary Shares.
Pending the preparation of definitive engraved Depositary
Receipts, the Preferred Stock Depositary may, upon the written order of the
Company, issue temporary Depositary Receipts substantially identical to (and
entitling the holders thereof to all the rights pertaining to) the definitive
Depositary Receipts but not in definitive form. Definitive Depositary Receipts
will be prepared thereafter without unreasonable delay, and such temporary
Depositary Receipts will be exchangeable for definitive Depositary Receipts at
the Company's expense.
Dividends and Other Distributions. The Preferred Stock
Depositary will distribute all cash dividends or other cash distributions
received in respect of the related series of Offered Preferred Stock to the
record holders of Depositary Shares relating to such series of Offered
Preferred Stock in proportion to the number of such Depositary Shares owned
by such holders.
In the event of a distribution other than in cash, the
Preferred Stock Depositary will distribute property received by it to the
record holders of Depositary Shares entitled thereto in proportion to the
number of Depositary Shares owned by such holders, unless the Preferred Stock
Depositary determines that such distribution cannot be made proportionately
among such holders or that it is not feasible to make such distribution, in
which case the Preferred Stock Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders in proportion to the number of Depositary Shares owned by such
holders.
The amount distributed in any of the foregoing cases will be
reduced by any amounts required to be withheld by the Company or the Preferred
Stock Depositary on account of taxes or other governmental charges.
Withdrawal of Stock. Upon surrender of the Depositary Receipts
at the corporate trust office of the Preferred Stock Depositary and upon
payment of the taxes, charges and fees provided for in the Deposit Agreement
and subject to the terms thereof, the holder of the Depositary Shares
evidenced thereby is entitled to delivery at such office, to or upon his or
her order, of the number of whole shares of the related series of Offered
Preferred Stock and any money or other property, if any, represented by such
Depositary Shares. Holders of Depositary Shares will be entitled to receive
whole shares of the related series of Offered Preferred Stock, but holders of
such whole shares of Offered Preferred Stock will not thereafter be entitled
to deposit such shares of Offered Preferred Stock with the Preferred Stock
Depositary or to receive Depositary Shares therefor. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of the related series of Offered Preferred Stock to be withdrawn, the
Preferred Stock Depositary will deliver to such holder, or upon his or her
order, at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares.
Voting the Offered Preferred Stock. Upon receipt of notice of
any meeting at which the holders of any series of the Offered Preferred Stock
are entitled to vote, the Preferred Stock Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such series of Offered Preferred Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as
the record date for the related series of Offered Preferred Stock) will be
entitled to instruct the Preferred Stock Depositary as to the exercise of the
voting rights pertaining to the number of shares of the series of Offered
Preferred Stock represented by such holder's Depositary Shares. The Preferred
Stock Depositary will endeavor, insofar as practicable, to vote or cause to
be voted the number of shares of the Offered Preferred Stock represented by
such Depositary Shares in accordance with such instructions, provided the
Preferred Stock Depositary receives such instructions sufficiently in advance
of such meeting to enable it to so vote or cause to be voted the shares of
Offered Preferred Stock, and the Company will agree to take all reasonable
action that may be deemed necessary by the Preferred Stock Depositary in order
to enable the Preferred Stock Depositary to do so. The Preferred Stock
Depositary will abstain from voting shares of the Offered Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Shares representing such Offered Preferred Stock.
Redemption of Depositary Shares. If a series of the Offered
Preferred Stock underlying the Depositary Shares is subject to redemption, the
Depositary Shares will be redeemed from the proceeds received by the Preferred
Stock Depositary resulting from any redemption, in whole or in part, of such
series of the Offered Preferred Stock held by the Preferred Stock Depositary.
The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Offered Preferred Stock. If the Company redeems shares of a series of
Offered Preferred Stock held by the Preferred Stock Depositary, the Preferred
Stock Depositary will redeem as of the same redemption date the number of
Depositary Shares representing the shares of Offered Preferred Stock so
redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or substantially
equivalent method determined by the Preferred Stock Depositary.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and all
rights of the holders of the Depositary Shares will cease, except the right to
receive the moneys payable upon such redemption and any money or other
property to which the holders of such Depositary Shares were entitled upon
such redemption, upon surrender to the Preferred Stock Depositary of the
Depositary Receipts evidencing such Depositary Shares. Any funds deposited by
the Company with the Preferred Stock Depositary for any Depositary Shares that
the holders thereof fail to redeem will be returned to the Company after a
period of two years from the date such funds are so deposited.
Amendment and Termination of the Deposit Agreement. The form of
Depositary Receipt evidencing the Depositary Shares and any provision of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Preferred Stock Depositary. However, any amendment
that materially and adversely alters the rights of the holders of Depositary
Shares will not be effective unless such amendment has been approved by the
holders of at least a majority of the Depositary Shares then outstanding.
Notwithstanding the foregoing, in no event may any amendment impair the right
of any holder of any Depositary Shares, upon surrender of the Depositary
Receipts evidencing such Depositary Shares and subject to any conditions
specified in the Deposit Agreement, to receive shares of the related series of
Offered Preferred Stock and any money or other property represented thereby,
except in order to comply with mandatory provisions of applicable law. The
Deposit Agreement may be terminated by the Company at any time upon not less
than 60 days' prior written notice to the Depositary, in which case, on a date
that is not later than 30 days after the date of such notice, the Preferred
Stock Depositary shall deliver or make available for delivery to holders of
Depositary Shares, upon surrender of the Depositary Receipts evidencing such
Depositary Shares, such number of whole or fractional shares of the related
series of Offered Preferred Stock as are represented by such Depositary
Shares. The Deposit Agreement shall automatically terminate after there has
been a final distribution in respect of the related series of Offered
Preferred Stock in connection with any liquidation, dissolution or winding up
of the Company and such distribution has been distributed to the holders of
Depositary Shares.
Charges of Preferred Stock Depositary. The Company will pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company will pay charges of the
Preferred Stock Depositary, including charges in connection with the initial
deposit of the related series of Offered Preferred Stock and the initial
issuance of the Depositary Shares and all withdrawals of shares of the related
series of Offered Preferred Stock, except that holders of Depositary Shares
will pay other transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreement to be for
their accounts.
Miscellaneous. The Preferred Stock Depositary will forward to
the holders of Depositary Shares all reports and communications from the
Company that are delivered to the Preferred Stock Depositary and which the
Company is required to furnish to the holders of the Offered Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be
liable if it is prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the Deposit Agreement. The
obligations of the Company and the Preferred Stock Depositary under the
Deposit Agreement will be limited to performance with best judgment and in
good faith of their duties thereunder, except that they are liable for
negligence and willful misconduct in the performance of their duties
thereunder, and they will not be obligated to appear in, prosecute or defend
any legal proceeding in respect of any Depositary Receipts, Depositary Shares
or series of Offered Preferred Stock unless satisfactory indemnity is
furnished. The Preferred Stock Depositary and the Company may rely on advice
of legal counsel or accountants of their choice, or information provided by
persons presenting Offered Preferred Stock for deposit, holders of
Depositary Shares or other persons believed in good faith to be competent
and on documents believed to be genuine.
The Preferred Stock Depositary's corporate trust office is
currently located at 101 Barclay Street, New York, New York 10286. The
Preferred Stock Depositary will act as transfer agent and registrar for
Depositary Receipts and if shares of a series of Offered Preferred Stock are
redeemable, the Preferred Stock Depositary will act as redemption agent for
the corresponding Depositary Receipts.
Resignation and Removal of Preferred Stock Depositary. The
Preferred Stock Depositary may resign at any time by delivering to the Company
written notice of its election to do so, and the Company may at any time
remove the Preferred Stock Depositary, any such resignation or removal to take
effect upon the appointment of a successor Preferred Stock Depositary, which
successor Preferred Stock Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
Common Stock
Each holder of Common Stock is entitled to one vote per share
on all matters voted on generally by the stockholders, including the election
of directors, and except as otherwise required by law or except as provided
with respect to any series of Preferred Stock (including the ESOP Preferred
Stock), the holders of such shares, together with the holders of ESOP
Preferred Stock, will possess all voting power. The Board is divided into
three classes of directors with the term of one class expiring at each annual
meeting of stockholders. Because the Company's Certificate of Incorporation
does not provide for cumulative voting rights, the holders of a plurality of
the voting power of the then outstanding shares of capital stock entitled to
be voted generally in the election of directors (the "Voting Stock")
represented at a meeting will be able to elect all the directors standing for
election at such meeting. As of June 2, 1997, certain current and former
Managing Directors and Principals of MS & Co. owned in the aggregate
approximately 79,546,500 shares of Common Stock subject to voting restrictions
contained in certain agreements (the "Voting Agreements"). As of such date,
such shares constituted approximately % of the votes that are entitled to
be cast by the Common Stock and ESOP Preferred Stock at any meeting of the
Company's stockholders.
The holders of the Common Stock are entitled to share equally
in such dividends as may be declared by the Board of Directors out of funds
legally available therefor, but only after payment of dividends required to be
paid on outstanding shares of ESOP Preferred Stock, Existing Cumulative
Preferred Stock and any other class or series of stock having preference over
the Common Stock as to dividends, including, if issued, the Offered Preferred
Stock. The ability of the Company, as a holding company, to pay dividends on
its Common Stock will be dependent upon, among other factors, the Company's
earnings, financial condition and cash requirements at the time such
payment is considered, and payment to it of dividends or principal and
interest by, or the availability of other funds from, its subsidiaries.
Dividends, loans and advances from certain subsidiaries to the Company are
restricted by legal requirements, including (in the case of DWR and MS &
Co.) net capital requirements under the Exchange Act and under rules of
certain exchanges and other regulatory bodies and (in the case of Greenwood
Trust Company and other bank subsidiaries) by banking regulations. Such
restrictions could limit the ability of the Company to pay dividends to its
stockholders.
Upon voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of the Common Stock share pro rata in
the assets remaining after payments to creditors and provision for the
preference of any the ESOP Preferred Stock, Existing Cumulative Preferred
Stock and any other class or series of stock having preference over the Common
Stock upon liquidation, dissolution or winding up that may be then
outstanding, including, if issued, the Offered Preferred Stock. There are no
preemptive or other subscription rights, conversion rights or redemption or
sinking fund provisions with respect to shares of Common Stock.
All of the outstanding shares of Common Stock are fully paid
and nonassessable.
The transfer agent and registrar for the Common Stock is Dean
Witter Trust Company.
ESOP Convertible Preferred Stock
The ESOP Preferred Stock is senior to the Company's Common
Stock and ranks on a parity with the Existing Cumulative Preferred Stock
(and, if issued, the Offered Preferred Stock) as to the payment of
dividends and upon liquidation. The holders of shares of the ESOP
Preferred Stock are entitled to receive, when declared out of funds legally
available therefor, cash dividends in the amount of $2.78 per share per
annum, subject to adjustment, payable either annually or semiannually, at
the election of the Board of Directors of the Company. Holders of ESOP
Preferred Stock are entitled to receive $35.875 per share, subject to
adjustment (the "ESOP Preferred Stock Liquidation Price"), upon dissolution
or liquidation of the Company.
So long as any shares of ESOP Preferred Stock shall be
outstanding, no dividend shall be declared or paid or set apart for payment on
any other series of stock ranking on a parity with the ESOP Preferred Stock as
to dividends (which parity Preferred Stock currently includes the Existing
Cumulative Preferred Stock and, if issued, would include the Offered Preferred
Stock), unless there shall also be or have been declared and paid or set apart
for payment on the ESOP Preferred Stock like dividends for all dividend
payment periods of the ESOP Preferred Stock ending on or before the dividend
payment date of such parity stock, ratably in proportion to the respective
amounts of dividends (i) accumulated and unpaid or payable on such parity
stock, on the one hand, and (ii) accumulated and unpaid through the dividend
payment period or periods of the ESOP Preferred Stock next preceding such
dividend payment date, on the other hand.
Holders of ESOP Preferred Stock are entitled to vote on all
matters submitted to a vote of the holders of shares of Common Stock, voting
together with the holders of shares of Common Stock as one class. Each share
of ESOP Preferred Stock is entitled to the number of votes equal to 1.35 times
the number of shares of Common Stock into which such share of ESOP Preferred
Stock could be converted on the record date for such vote. Shares of ESOP
Preferred Stock are allocated to each participant in the ESOP on December 31
in each year.
Each share of ESOP Preferred Stock is convertible into shares
of Common Stock by the trustee of the ESOP at any time prior to the date fixed
for redemption of the ESOP Preferred Stock at a conversion rate of one share
of ESOP Preferred Stock to 3.3 shares of Common Stock, which rate is subject
to adjustment. The conversion price per share at which shares of Common Stock
will be issued upon conversion of any shares of ESOP Preferred Stock is
$35.875, subject to adjustment.
The ESOP Preferred Stock is redeemable at the Company's option
at the ESOP Preferred Stock Liquidation Price plus accrued dividends at any
time after September 19, 2000 and prior thereto under certain circumstances at
specified prices. The Company may pay the redemption price of the ESOP
Preferred Stock in cash, in shares of Common Stock or a combination thereof.
Neither ESOP Preferred Stock nor shares of Common Stock issued to participants
in the ESOP are subject to the restrictions on voting and disposition
contained in the Voting Agreements.
Existing Cumulative Preferred Stock
Other than as described below, the terms of the 7 3/8%
Preferred Stock, the 7 3/4% Preferred Stock and the Series A Fixed/Adjustable
Rate Preferred Stock are identical. Unless otherwise indicated, the terms and
provisions described below relate to each of the 7 3/8% Preferred Stock, the 7
3/4% Preferred Stock and the Series A Fixed/Adjustable Rate Preferred Stock,
which are collectively referred to as the "Existing Cumulative Preferred
Stock."
Each series of the Existing Cumulative Preferred Stock ranks on
a parity with each other and with the Offered Preferred Stock and the ESOP
Preferred Stock and prior to the Common Stock as to payment of dividends and
amounts payable on liquidation. The shares of Existing Cumulative Preferred
Stock are fully paid and nonassessable, are not convertible into Common Stock
of the Company and have no preemptive rights.
Dividends. Holders of the shares of Existing Cumulative
Preferred Stock (except for the Series A Fixed/Adjustable Rate Preferred
Stock) are entitled to receive, when and as declared by the Board of Directors
of the Company out of funds legally available therefor, cumulative cash
dividends payable quarterly at the rate of 7 3/8% per annum (with respect to
the 7 3/8% Preferred Stock) and 7 3/4% per annum (with respect to the 7 3/4%
Preferred Stock). Holders of the shares of Series A Fixed/Adjustable Rate
Preferred Stock are entitled to receive, when and as declared by the Board of
Directors of the Company out of funds legally available therefor, cumulative
cash dividends payable quarterly at a rate of 5.91% per annum through
November 30, 2001 and thereafter at a rate of .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 the applicable Certificate of
Designation); provided, however, that the dividends so payable will not be
less than 6.41% nor greater than 12.41% per annum (subject to certain
adjustments described below). The amount of dividends payable in respect
of the 7 3/4% Preferred Stock and the Series A Fixed/Adjustable Rate
Preferred Stock will be adjusted in the event of certain amendments to the
Internal Revenue Code of 1986, as amended (the "Code"), in respect of the
dividends received deduction. The Existing Cumulative Preferred Stock will
be junior as to dividends to any Preferred Stock that may be issued in the
future that is expressly senior as to dividends to the Existing Cumulative
Preferred Stock. If at any time the Company has failed to pay accrued
dividends on any such senior shares at the time such dividends are payable,
the Company may not pay any dividend on the Existing Cumulative Preferred
Stock or redeem or otherwise repurchase any shares of Existing Cumulative
Preferred Stock until such accumulated but unpaid dividends on such senior
shares have been paid (or set aside for payment) in full by the Company.
No dividends may be declared or paid or set apart for payment
on any Preferred Stock ranking on a parity as to dividends with the Existing
Cumulative Preferred Stock unless there shall also be or have been declared
and paid or set apart for payment on each series of the Existing Cumulative
Preferred Stock dividends for all dividend payment periods of the Existing
Cumulative Preferred Stock ending on or before the dividend payment date of
such parity stock, ratably in proportion to the respective amounts of
dividends (i) accumulated and unpaid or payable on such parity stock, on the
one hand, and (ii) accumulated and unpaid or payable through the dividend
payment period or periods of the Existing Cumulative Preferred Stock next
preceding such dividend payment date, on the other hand.
Except as set forth above, unless full cumulative dividends on
the Existing Cumulative Preferred Stock have been paid, dividends (other than
in Common Stock) may not be paid or declared and set aside for payment and
other distributions may not be made upon the Common Stock or on any other
Preferred Stock of the Company ranking junior to or on a parity with the
Existing Cumulative Preferred Stock as to dividends (which parity Preferred
Stock includes the Offered Preferred Stock, if issued, and the ESOP Preferred
Stock), nor may any Common Stock or such other Preferred Stock of the Company
be redeemed, purchased or otherwise acquired by the Company 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 monies
theretofore deposited in any sinking fund with respect to any Preferred Stock
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 each series of the
Existing Cumulative Preferred Stock outstanding on the last dividend payment
date shall have been paid or declared and set apart for payment; and provided
further that any such junior or parity Preferred Stock or Common Stock may be
converted into or exchanged for stock of the Company ranking junior to the
Existing Cumulative Preferred Stock as to dividends.
Optional Redemption. The Existing Cumulative Preferred Stock is
not subject to any mandatory redemption or sinking fund provision. The 7 3/8%
Preferred Stock is not redeemable prior to August 30, 1998; the 7 3/4%
Preferred Stock is not redeemable prior to August 30, 2001, except that under
certain circumstances prior thereto, it may be redeemed at specified prices;
and the Series A Fixed/Adjustable Rate Preferred Stock is not redeemable prior
to November 30, 2001, except that under certain circumstances prior thereto,
it may be redeemed at specified prices. On or after such dates, the
applicable series of Existing Cumulative Preferred Stock will be redeemable at
the option of the Company, in whole or in part, upon not less than 30 days'
notice at a redemption price equal to $200.00 per share, in each case plus
accrued and accumulated but unpaid dividends to but excluding the date fixed
for redemption.
Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Company, the holders of shares of Existing
Cumulative Preferred Stock will be entitled to receive out of the assets of
the Company available for distribution to stockholders, before any
distribution is made to holders of (i) any other shares of Preferred Stock
ranking junior to the Existing Cumulative Preferred Stock as to rights upon
liquidation, dissolution or winding up which may be issued in the future and
(ii) Common Stock, liquidating distributions in the amount of $200.00 per
share, in each case plus accrued and accumulated but unpaid dividends to the
date of final distribution, but the holders of the shares of Existing
Cumulative Preferred Stock will not be entitled to receive the liquidation
price of such shares until the liquidation preference of any other shares of
the Company's capital stock ranking senior to the Existing Cumulative
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. If upon any liquidation, dissolution or winding up of
the Company, the amounts payable with respect to the Existing Cumulative
Preferred Stock and any other Preferred Stock ranking as to rights upon
liquidation, dissolution or winding up on a parity with the Existing
Cumulative Preferred Stock (including the Offered Preferred Stock, if
issued) are not paid in full, the holders of the Existing Cumulative
Preferred Stock and of such other Preferred Stock will share ratably in any
such distribution in proportion to the full respective preferential amounts
to which they are entitled. After payment of the full amount of the
liquidating distribution to which they are entitled, the holders of
Existing Cumulative Preferred Stock will not be entitled to any further
participation in any distribution of assets by the Company.
Voting Rights. Holders of Existing Cumulative Preferred Stock
do not have any voting rights except as set forth below or as otherwise from
time to time required by law. Whenever dividends on any series of Existing
Cumulative Preferred Stock or any other class or series of stock ranking on a
parity with such series of Existing Cumulative Preferred Stock (including the
Offered Preferred Stock, if issued) with respect to the payment of dividends
shall be in arrears for dividend periods, whether or not consecutive,
containing in the aggregate a number of days equivalent to six calendar
quarters, the holders of shares of such series of Existing Cumulative
Preferred Stock (voting separately as a class with all other series of
Preferred Stock upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two of the
authorized number of directors of the Company at the next annual meeting of
stockholders and at each subsequent meeting until all dividends accumulated on
such series of Existing Cumulative Preferred Stock have been fully paid or set
aside for payment. The term of office of all directors elected by the holders
of Preferred Stock shall terminate immediately upon the termination of the
right of the holders of Preferred Stock to vote for directors. Each holder of
shares of Existing Cumulative Preferred Stock will have one vote for each
share of Existing Cumulative Preferred Stock held.
So long as any shares of Existing Cumulative Preferred Stock
remain outstanding, the Company shall not, without the consent of the holders
of at least two-thirds of the shares of each series of Existing Cumulative
Preferred Stock outstanding at the time, voting separately as a class with all
other series of Preferred Stock upon which like voting rights have been
conferred and are exercisable (including the Offered Preferred Stock, if
issued), (i) issue or increase the authorized amount of any class or series of
stock ranking prior to the Existing Cumulative Preferred Stock as to dividends
or upon liquidation or (ii) amend, alter or repeal the provisions of the
Company's Certificate of Incorporation or of the resolutions contained in the
Certificate of Designation relating to such series of Existing Cumulative
Preferred Stock, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any power, preference or special right of such
series of Existing Cumulative Preferred Stock or the holders thereof;
provided, however, that any increase in the amount of the authorized Common
Stock or authorized Preferred Stock or the creation and issuance of other
series of Common Stock or Preferred Stock ranking on a parity with or junior
to the Existing Cumulative Preferred Stock as to dividends and upon
liquidation shall not be deemed to materially and adversely affect such
powers, preferences or special rights.
The transfer agent and registrar for each series of Existing
Cumulative Preferred Stock is The Bank of New York.
Additional Provisions of the Company's Amended and Restated Certificate of
Incorporation and By-laws
Size of the Board of Directors, Removal of Directors and
Filling Vacancies on the Board of Directors. The Company's Certificate of
Incorporation provides for a Board of Directors initially consisting of 14
directors, divided into classes initially consisting of four, four and six
directors, respectively, with initial terms expiring at the annual meetings of
stockholders to be held in 1998, 1999 and 2000, respectively. Thereafter,
directors shall hold office for a term expiring at the third succeeding annual
meeting of stockholders after their election. Under the Company's Amended and
Restated By-Laws ("By-Laws"), a majority of the Board may increase or decrease
the number of directors, except that until December 31, 2000, a three-quarters
vote of the Board will be required to change the number of directors to an odd
number. The Company's Certificate of Incorporation also provides that
directors may be removed only for cause and with the approval of the holders
of at least 80% of the voting power of the Voting Stock, voting together as a
single class. Any vacancy on the Board of Directors or newly created
directorship shall be filled by a majority of the remaining directors then in
office though less than a quorum, and such newly elected director shall serve
for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires.
Calling Special Meetings of Stockholders. The Company's By-Laws
provide that special meetings of the stockholders may be called at any time
only by the Secretary of the Company at the direction of the Board.
Amendment of Governing Documents. The Company's Certificate of
Incorporation provides that, generally, it can be amended pursuant to the
provisions of the laws of the State of Delaware. Under Section 242 of the
Delaware General Corporation Law (the "DGCL"), the Board may propose, and the
stockholders may adopt by a majority vote of the Voting Stock, an amendment to
the Company's Certificate of Incorporation. However, the Company's
Certificate of Incorporation also provides that the approval of 80% of the
voting power of the Voting Stock, voting together as a single class, is
required in order to amend, repeal or adopt any provision inconsistent with
the provisions in the Certificate relating to amendment of the By-Laws, action
of stockholders and the Board of Directors and to change the provisions
establishing such 80% vote requirement.
The Company's Certificate of Incorporation provides that the
Company's By-Laws may be altered, amended or repealed or new provisions may be
adopted by a majority of the Company's Board of Directors or with the approval
of at least 80% of the voting power of the Voting Stock of the Company, voting
together as a single class. Furthermore, the By-Laws provide that they may be
altered, amended or repealed or new provisions may be adopted by a majority
of the Board of Directors or with the approval of at least 80% of the voting
power of the Voting Stock of the Company; provided, however, that a
three-quarters vote of the Board of Directors is required for the Board of
Directors to amend, alter, repeal or adopt new By-Laws in conflict with the
provisions of the By-Laws relating to the removal of certain officers and
certain amendments of the By-Laws; and provided further, however, that until
December 31, 2000, a three-quarters vote of the Board of Directors is
required for the Board of Directors to amend, alter, repeal or adopt new
By-Laws in conflict with certain provisions of the By-Laws relating to
committees, committee members and chairmen, certain changes to the number
of directors and certain other amendments of the By-Laws.
Limitation of Directors' Liability. Section 102 of the DGCL
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary
damages for a breach of fiduciary duty as a director, except in the case where
the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of the DGCL
or obtained an improper personal benefit. Under the Company's Certificate of
Incorporation, a director of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as in effect or as the same may be
amended.
DESCRIPTION OF THE CAPITAL UNITS
The following description of the terms of the Capital Units
sets forth certain general terms and provisions of the Capital Units to which
a Prospectus Supplement relates. If so indicated in the Prospectus Supplement,
the terms of any such Capital Units may differ from the terms set forth below.
Particular terms of the Capital Units offered by a Prospectus Supplement are
described in the Prospectus Supplement relating to such Capital Units. The
following summary of certain provisions of the Capital Unit Agreement and the
Capital Units does not purport to be complete and such summary is subject to
the detailed provisions of the Capital Unit Agreement to which reference is
hereby made for a full description of such provisions, including the
definition of certain terms used herein, and for other information regarding
the Capital Units.
General
Capital Units consist of (i) a Debt Security of MS plc, (ii) a
full and unconditional Guarantee by the Company of the payment of principal,
premium, if any, interest and any Additional Amounts on such Debt Security and
(iii) a related Purchase Contract requiring the purchase on the settlement
date of the Purchase Contract of a share of Preferred Stock of the Company (or
a Depositary Share representing an interest in a share of such Preferred
Stock). The Debt Security, the Guarantee thereof and the related Purchase
Contract may be purchased and transferred only as part of a Capital Unit.
Capital Units were issued as Definitive Capital Units or Book-Entry Capital
Units. Definitive Capital Units consist of definitive registered Purchase
Contracts and definitive registered Debt Securities and Guarantees of such
Debt Securities. Book-Entry Capital Units are represented by
certificateless depositary interests issued to The Depository Trust Company
or its nominee by a depositary (the "Book-Entry Unit Depositary") holding a
global registered Purchase Contract and a global Debt Security and a
Guarantee of such Debt Security.
Reference is made to the Prospectus Supplement for the
following terms of and information relating to a particular series of Capital
Units: (i) the terms of the Debt Securities, including the maturity date, any
interest rate and any interest payment dates with respect to such Debt
Securities, any redemption or repayment provisions and whether such Debt
Securities were issued in registered or bearer form or both and in definitive
or global form or both; (ii) the terms of the related Purchase Contracts,
including the term thereof, any redemption provisions, any acceleration,
cancellation or termination provisions and whether the Purchase Contracts were
issued in definitive or global form or both; (iii) the terms of the series of
Preferred Stock to be issued upon settlement of the related Purchase
Contracts, including the number of shares constituting such series, the
dividend rate, dividend period, stated value and any voting rights with
respect to such series, the preferences and rights of the shares of such
series upon any liquidation or winding-up of the Company, any redemption
provisions and whether the shares of such series will initially be represented
by depositary shares and, if so, the fraction of a share of such series to be
represented by each depositary share; (iv) any applicable United States
federal or United Kingdom income tax consequences; (v) any listing of such
series of Capital Units on a national securities exchange; (vi) whether such
Capital Units were issued as Definitive Capital Units, Book-Entry Capital
Units or both and the name of the Book-Entry Unit Depositary with respect to
Book-Entry Capital Units; (vii) any circumstances (in addition to the
circumstances described under "Description of Debt Securities of MS plc --
Payment of Additional Amounts with Respect to Debt Securities") under which
Additional Amounts will not be paid with respect to the Debt Securities; and
(viii) any other specific terms of the Debt Securities and Purchase Contracts.
Each series of Purchase Contracts was issued under a Capital
Unit Agreement entered into by Morgan Stanley (as predecessor to the Company),
MS plc and The Chase Manhattan Bank (formerly known as Chemical Bank), as
capital unit agent (together with any successor thereto in such capacity, the
"Capital Unit Agent") and, with respect to any Book-Entry Capital Units, as
Book-Entry Unit Depositary, and the holders from time to time of Capital
Units. Upon the consummation of the Merger, each such agreement was amended
to provide for the Company's succession to the rights and obligations of
Morgan Stanley thereunder. The Capital Unit Agreements are not qualified as
indentures under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), the Capital Unit Agent is not required to qualify as a
trustee thereunder and the holders of Purchase Contracts do not have the
benefits of the protections of the Trust Indenture Act. However, any Debt
Securities and Guarantees issued as part of a Capital Unit were issued under
an indenture qualified under the Trust Indenture Act and the trustee
thereunder has qualified as a trustee under the Trust Indenture Act.
Description of the Purchase Contracts
Each Purchase Contract obligates the holder thereof to
purchase, and the Company to sell, on dates specified in the accompanying
Prospectus Supplement, a share of Preferred Stock of the Company (or a
Depositary Share representing an interest in a share of such Preferred Stock)
at a specified purchase price. The applicable Prospectus Supplement also
specifies the methods by which the holders' obligations to purchase Preferred
Stock or a Depositary Share relating thereto may be satisfied and any
acceleration, cancellation or termination provisions relating to the
settlement of a Purchase Contract.
Certain Provisions of the Capital Unit Agreement
General. Under the terms of the Capital Unit Agreement,
each holder of a Definitive Capital Unit and each beneficial owner of a
Book-Entry Capital Unit, by its acceptance thereof, appoints the Capital
Unit Agent as its authorized agent to execute, deliver and perform each
Purchase Contract in which such holder or beneficial owner has an interest
on behalf of such holder or beneficial owner, as the case may be, and
consents to the terms of the Capital Unit Agreement. Under the terms of
the Capital Unit Agreement, each holder of a Definitive Capital Unit and
each beneficial owner of a Book-Entry Capital Unit, by acceptance thereof,
irrevocably agrees to be a party to and be bound by the terms of each
Purchase Contract in which such holder or beneficial owner has an interest.
Upon the registration of transfer of a Capital Unit, the transferee will
assume the obligations of the transferor under each Purchase Contract in
which such holder or beneficial owner has an interest and the transferor
will be released from such obligations.
The specific terms of the depositary arrangement with respect
to the Book-Entry Capital Units are described in the applicable Prospectus
Supplement. MS plc has appointed the Book-Entry Unit Depositary as its agent
for purposes of maintaining a register recording the right to principal of and
interest on Debt Securities that relate to Book-Entry Capital Units.
Payment, Settlement, Transfer and Exchange of Definitive
Capital Units. Principal of, and interest on, any Debt Securities constituting
part of a Definitive Capital Unit will be payable, and transfers of Definitive
Capital Units will be registrable, at the office of The Chase Manhattan Bank
in the Borough of Manhattan, The City of New York or at such other location as
may be determined by MS plc and The Chase Manhattan Bank. Under circumstances
specified in the applicable Prospectus Supplement, payments in respect of
principal of Debt Securities that are part of Definitive Capital Units may be
applied by the Capital Unit Agent in satisfaction of the obligations of the
holders of the Definitive Capital Units under the related Purchase Contracts
(unless a holder has delivered cash in respect of its obligations under such
Purchase Contract) and Preferred Stock or Depositary Shares will be delivered
only upon presentation and surrender of the certificates evidencing Definitive
Capital Units at the office of the Capital Unit Agent. If a holder delivers
cash in settlement of its obligations under a Purchase Contract that is part
of a Definitive Capital Unit, the related Debt Security that is a part of such
Definitive Capital Unit will remain outstanding and, as more fully described
in the applicable Prospectus Supplement, the holder will receive a definitive
registered Debt Security.
In the event that a holder does not elect to deliver cash in
settlement of its obligations under a Purchase Contract that is part of a
Definitive Capital Unit and fails to present and surrender the certificate
evidencing the Definitive Capital Units held by such holder to the Capital
Unit Agent when required, the Preferred Stock or Depositary Shares to be
purchased under the Purchase Contracts evidenced thereby shall be registered
in the name of, and together with any distributions thereon shall be held by,
the Capital Unit Agent in trust for the benefit of such holder until such
certificate is presented and surrendered or the holder provides satisfactory
evidence that such certificate has been destroyed, lost or stolen, together
with any indemnity that may be required by the Capital Unit Agent, the Company
or MS plc in respect thereof. In the event that a certificate is not presented
(or such evidence and indemnity are not provided) on or prior to the date two
years after the relevant settlement date with respect to the related Purchase
Contract, any payments received by the Capital Unit Agent in respect of the
Preferred Stock or the Depositary Shares issued in respect of the Definitive
Capital Units evidenced by such certificate will be paid by the Capital Unit
Agent to the Company and such holder will thereafter be required to look
solely to the Company for payment thereof. The Capital Unit Agent will have
no obligation to invest or to pay interest on any amounts held by the Capital
Unit Agent pending distribution, as described above.
No service charge will be made for any registration of transfer
or exchange of the Capital Units or interest therein, except for any tax or
other governmental charge that may be imposed in connection therewith.
Remedies. No holder of any Capital Unit or interest therein
shall have any right by virtue of or by availing itself of any provision of
the Capital Unit Agreement to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to the
Capital Unit Agreement, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official, unless such holder shall have
given written notice to the Capital Unit Agent, MS plc and the Company of the
occurrence and continuance of a default thereunder and, (i) in the case of an
Event of Default under the Debt Securities or the Indenture governing such
Debt Securities, the procedures (including notice to the Trustee, MS plc and
the Company) described in Article Five of the Indenture (see "Description of
Debt Securities -- Events of Default") have been complied with and (ii) in the
case of certain defaults under the Purchase Contracts, unless the holders of
not less than 25% of the Capital Units then outstanding shall have made
written request upon the Capital Unit Agent to institute such action or
proceedings in its own name as Capital Unit Agent under the Capital Unit
Agreement and shall have offered to the Capital Unit Agent such reasonable
indemnity as it may require, and the Capital Unit Agent for 60 days after its
receipt of such notice, request and offer of indemnity shall have failed to
institute such action or proceedings and no direction inconsistent with such
request shall have been given to the Capital Unit Agent pursuant to the
Capital Unit Agreement in writing by the holders of a majority of the
outstanding Capital Units, any holder of a Capital Unit may then (but only
then) seek to enforce the performance of the covenant or agreement with
respect to which such Purchase Contract default exists.
There are no covenants or other provisions in the Capital Unit
Agreement providing for a put or increased interest or otherwise that would
afford holders of Capital Units additional protection in the event of a
recapitalization transaction, a change of control of the Company or MS plc or
a highly leveraged transaction.
Modification. Each Capital Unit Agreement contains provisions
permitting the Company and the Capital Unit Agent, with the consent of the
holders of not less than a majority of all series of Capital Units at the time
outstanding under such Capital Unit Agreement and affected thereby (voting as
one class), to modify the terms of the Purchase Contracts and the terms of the
Capital Unit Agreement relating to the Purchase Contracts of each series so
affected or the rights of the holders of the Capital Units of each series so
affected in respect of the Purchase Contracts, except that no such
modification may, without the consent of the holder of each outstanding
Capital Unit affected thereby, (i) impair the right to institute suit for the
enforcement of any Purchase Contract, (ii) materially adversely affect the
holders' rights under any Purchase Contract, (iii) modify or affect (in any
manner materially adverse to the holders) the terms of the Preferred Stock or
the Depositary Shares (determined as if the Preferred Stock and Depositary
Shares were outstanding), or (iv) reduce the aforesaid percentage of
outstanding Capital Units of any series issued under the Capital Unit
Agreement, the consent of the holders of which is required for the
modification or amendment of the provisions of the Capital Unit Agreement
relating to the Purchase Contracts or for any waiver of compliance with
certain provisions of the Capital Unit Agreement or waiver of certain defaults
relating to the Purchase Contracts, provided that the holders of not less than
66 2/3% of the Capital Units of any series outstanding at the time of an
issuance of shares of a class of stock that ranks prior to the Preferred Stock
that is required to be purchased under the related Purchase Contracts of such
series as to dividends or upon liquidation may consent to such an issuance,
and such an issuance, if so consented to, will not relieve the holders of
their obligations to purchase such Preferred Stock under the Purchase
Contracts.
Title. The Company, MS plc, the Capital Unit Agent and any
agent of the Company, MS plc or the Capital Unit Agent will treat the
registered owner of any Capital Unit as the owner thereof (whether or not the
Debt Security constituting a part thereof shall be overdue and notwithstanding
any notice to the contrary) for the purpose of making payment, the performance
of the Purchase Contracts and for all other purposes.
Replacement of Capital Unit Certificates. Any mutilated
certificate evidencing a Definitive Capital Unit will be replaced at the
expense of the holder upon surrender of such certificate to the Capital Unit
Agent. Certificates that become destroyed, lost or stolen will be replaced at
the expense of the holder upon delivery to the Company, MS plc and the Capital
Unit Agent of evidence of the destruction, loss or theft thereof satisfactory
to the Company, MS plc and the Capital Unit Agent. In the case of a destroyed,
lost or stolen certificate, an indemnity satisfactory to the Capital Unit
Agent, MS plc and the Company may be required at the expense of the holder of
the Definitive Capital Units evidenced by such certificate before a
replacement will be issued.
Each Capital Unit Agreement provides that, notwithstanding the
foregoing, no such replacement certificate need be delivered (i) during the
period beginning 15 days before the day of mailing of a notice of redemption
or acceleration of the Purchase Contracts evidenced by the mutilated,
destroyed, lost or stolen certificate and ending on the day of the giving of
such notice, (ii) if such mutilated, destroyed, lost or stolen certificate
evidences Purchase Contracts selected or called for redemption or acceleration
or (iii) at any time on or after the date of settlement or redemption, as
applicable, with respect to the Purchase Contracts evidenced by such
mutilated, destroyed, lost or stolen certificate, except with respect to any
Definitive Capital Units that remain or will remain outstanding following such
date of settlement or redemption.
Governing Law. The Capital Unit Agreement and the Capital Units
will be governed by, and construed in accordance with, the laws of the State
of New York.
Consent to Service. The Capital Unit Agreement provides that MS
plc irrevocably designates the Company as its authorized agent for service of
process in connection with any legal action or proceeding arising out of or
relating to any applicable Debt Securities or the Capital Unit Agreement and
for actions brought under federal or state securities laws brought in any
federal or state court in the Borough of Manhattan, in The City of New York,
New York, and irrevocably submits to the jurisdiction of such courts.
PLAN OF DISTRIBUTION
DWR, MS & Co., DWIL and MSIL are wholly owned subsidiaries of
the Company. DWR, MS & Co., DWIL, MSIL and other affiliates of the Company
may offer and sell Securities in the course of their business as
broker-dealers. DWR, MS & Co., DWIL, MSIL and such other affiliates may act
as principals or agents in such transactions. This Prospectus and the
accompanying Prospectus Supplements may be used by DWR, MS & Co., DWIL, MSIL
and such other affiliates in connection with such transactions. Such sales, if
any, will be made at varying prices related to prevailing market prices at the
time of sale or otherwise. Neither DWR, MS & Co., DWIL, MSIL nor such other
affiliates are obligated to make a market in any Securities and may
discontinue any market-making activities at any time without notice.
LEGAL MATTERS
The validity of the Guarantees, the Preferred Stock and the
Purchase Contracts will be passed upon for the Company by Brown & Wood LLP, or
other counsel who is satisfactory to DWR, MS & Co., DWIL or MSIL, as the case
may be, and who may be an officer of the Company. Certain legal matters
relating to the Debt Securities governed by the laws of England will be passed
upon for MS plc by Linklaters & Paines.
EXPERTS
The supplemental consolidated financial statements and
supplemental financial statement schedule of the Company and subsidiaries,
except Morgan Stanley, as of fiscal year end 1996 and 1995 and for each of the
three years in the period ended fiscal year end 1996 included in the Company's
Current Report on Form 8-K dated June 2, 1997 have been audited by Deloitte &
Touche LLP, independent auditors, as set forth in their report thereon and
incorporated herein by reference. The financial statements and financial
statement schedule of Morgan Stanley (supplementally consolidated with those
of the Company) have been audited by Ernst & Young LLP, independent auditors,
as stated in their reports incorporated herein by reference. Such
supplemental consolidated financial statements and supplemental financial
statement schedule have been incorporated herein by reference in reliance upon
the respective reports given upon the authority of such firms as experts in
accounting and auditing.
The consolidated financial statements of Dean Witter Discover
incorporated by reference and included in Dean Witter Discover's Annual Report
on Form 10-K for the fiscal year ended December 31, 1996 have been audited by
Deloitte & Touche LLP, independent auditors, as set forth in their reports
thereon and incorporated herein by reference. Such consolidated financial
statements have been incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
The consolidated financial statements of Morgan Stanley
incorporated by reference and included in Morgan Stanley's Annual Report on
Form 10-K for the fiscal year ended November 30, 1996 have been audited by
Ernst & Young LLP, independent auditors, as stated in their report thereon and
incorporated herein by reference. Such consolidated financial statements have
been incorporated herein by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
With respect to the unaudited interim financial information of
Dean Witter Discover for the periods ended March 31, 1997 and 1996, which is
incorporated herein by reference, Deloitte & Touche LLP have applied limited
procedures in accordance with professional standards for review of such
information. However, as stated in their report included in Dean Witter
Discover's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997
and incorporated by reference herein, they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their report on such information should be restricted in
light of the limited nature of the review procedures applied. Deloitte &
Touche LLP are not subject to the liability provisions of Section 11 of the
Securities Act for their reports on the unaudited interim financial
information because these reports are not "reports" or a "part" of the
registration prepared or certified by an accountant within the meaning of
Sections 7 and 11 of the Securities Act.
ERISA MATTERS FOR PENSION PLANS AND INSURANCE COMPANIES
The Company and certain affiliates of the Company, including
DWR, MS & Co., DWIL and MSIL, may each be considered a "party in interest"
within the meaning of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or a "disqualified person" within the meaning of the Code
with respect to many employee benefit plans. Prohibited transactions within
the meaning of ERISA or the Code may arise, for example, if the Debt
Securities or Guarantees are acquired by or with the assets of a pension or
other employee benefit plan with respect to which DWR, MS & Co. or any of
their affiliates is a service provider, unless such Debt Securities or
Guarantees are acquired pursuant to an exemption for transactions effected
on behalf of such plan by a "qualified professional asset manager" or
pursuant to any other available exemption. The assets of a pension or
other employee benefit plan may include assets held in the general account
of an insurance company that are deemed to be "plan assets" under ERISA.
Any insurance company or pension or employee benefit plan proposing to
invest in the Debt Securities or Guarantees should consult with its legal
counsel.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution*
Commission Registration fee............................... None
Blue Sky fees and expenses................................ $ **
Printing and engraving expenses........................... **
Legal fees and expenses................................... **
Accounting fees and expenses.............................. **
Trustees', Preferred Stock Depositary's and Capital Unit
Agent's fees and expenses (including counsel fees)........ **
Miscellaneous............................................. **
Total..................................................... $ **
- -------------
* All amounts are estimated except for the Commission registration fee.
** To be filed by amendment.
Item 15. Indemnification of Officers and Directors
MS plc
The indemnification of officers and directors of MS plc is
governed by Sections 144, 310 and 727 of the UK Companies Act 1985, as
amended, and the provisions of Article 12 of MS plc's Articles of
Association.
Section 310 of the Companies Act makes void any provision,
whether contained in the Articles of Association of a company or any
contract with a company or otherwise, for exempting any officer of the
company or any person (whether an officer or not) employed by the company
as auditor from, or indemnifying such person against, any liability which
by virtue of any rule of law would otherwise attach to such person in
respect of any negligence, default, breach of duty or breach of trust of
which such person may be guilty in relation to the company. However,
Section 310 does not prevent a company from purchasing and maintaining for
any officer or auditor insurance against the liabilities referred to above.
In addition, Section 310 does not prevent a company from indemnifying any
officer or auditor who is a successful defendant in criminal or civil
proceedings or who successfully applies for relief under Sections 144 or
727 of the Companies Act.
Sections 144 (Acquisition of a company's own shares by a
nominee) and 727 (Power of court to grant relief in certain cases) of the
Companies Act contain provisions for protecting directors in proceedings
for negligence, default, breach of duty or breach of trust on the basis
that the relevant director acted honestly and reasonably and that, having
regard to all circumstances of the case, the director ought fairly to be
excused. The court may relieve the director wholly or partially on such
terms as it thinks fit.
Article 12(A) of MS plc's Articles of Association mirrors
the exceptions to Section 310 of the Companies Act. That is, any director,
auditor, secretary or other officer of MS plc will be indemnified by MS plc
out of its own funds from all costs, charges, losses, expenses and
liabilities incurred by him in relation to or in connection with his
duties, powers or office where the relevant director, auditor, secretary or
other officer is a successful defendant in criminal or civil proceedings,
or successfully applies for relief by the court. Article 12(B) provides
that the directors have the power to purchase and maintain insurance
against any liability incurred, inter alia, by directors and officers of
the Company in respect of any act or omission in relation to or in
connection with their duties, powers or office.
The indemnification provisions described below under "The
Company" also apply to officers and directors of MS plc.
The Company
Article VIII of the Amended and Restated Certificate of
Incorporation of the Company ("Certificate of Incorporation") and Section
6.07 of the Amended and Restated By-Laws of the Company ("By-Laws"), each
as amended to date, provide for the indemnification of directors and
officers. Under these provisions, any person who is a director or officer
of the Company or a corporation a majority of the capital stock (other than
directors' qualifying shares) of which is owned directly or indirectly by
the Company (a "Subsidiary") shall be indemnified by the Company to the
fullest extent permitted by applicable law. The Company's Certificate of
Incorporation and By-Laws also provide that the Company may, by action of
the Board of Directors, provide indemnification to any person who is or was
an employee or agent (other than a director or officer) of the Company or a
Subsidiary and to any person serving as a director, officer, partner,
member, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise at the request
of the Company or a Subsidiary, to the same scope and effect as the
foregoing indemnification of directors and officers of the Company.
The right to indemnification under the By-Laws includes the
right to be paid the expenses incurred in connection with any proceeding in
advance of its final disposition upon receipt (unless the Company upon
authorization of the Board of Directors waives said requirement to the
extent permitted by applicable law) of an undertaking by or on behalf of
such person to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the Company.
Under the By-Laws, the Company has the power to purchase and
maintain insurance, at its expense, to protect itself and any person who is
or was a director, officer, partner, member, employee or agent of the
Company or a Subsidiary, or of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise, against any
expense, liability or loss whether or not the Company or a Subsidiary would
have the power to indemnify him against such expense, liability or loss
under the provisions of applicable law.
The Company has in effect insurance policies in the amount
of $75 million for general officers' and directors' liability insurance and
$25 million for fiduciary liability insurance covering all of the Company's
directors and officers in certain instances where by law they may not be
indemnified by the Company.
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
4-a* Amended and Restated Certificate of Incorporation of the Company.
4-b Form of Certificate of Designation of Offered Preferred Stock.
4-c Form of Certificate of Offered Preferred Stock.
4-d Form of Deposit Agreement (including Form of Depositary Receipt).
4-e Subordinated Indenture dated as of November 15, 1993 among MS plc, Morgan
Stanley, as Guarantor, and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee (previously filed as an exhibit to the Registration
Statement filed by Morgan Stanley and MS plc on Form S-3 (File No. 33-
51067) and incorporated herein by this reference).
4-f* First Supplemental Subordinated Indenture, dated as of June 1, 1997, to the
Subordinated Indenture dated as of November 15, 1993 among MS plc, the
Company, as Guarantor, and The Chase Manhattan Bank, as Trustee.
4-g Form of Capital Unit Agreement among MS plc, Morgan Stanley, The Chase
Manhattan Bank (formerly known as Chemical Bank), as Agent and Book-
Entry Unit Depositary, and as Trustee, and holders from time to time of Capital
Units (including Form of Purchase Contract) (previously filed as an exhibit to
Morgan Stanley's Current Report on Form 8-K dated November 19, 1993 and
incorporated herein by this reference).
4-h Form of First Supplemental Agreement, dated as of June 1, 1997, to the Capital
Unit Agreement dated as of December 18, 1996, to the Capital Unit Agreement
dated as of October 18, 1995, to the Capital Unit Agreement dated as of August
1, 1995, to the Capital Unit Agreement dated as of February 21, 1995, to the
Capital Unit Agreement dated as of February 8, 1994 and to the Capital Unit
Agreement dated as of November 29, 1993, each among MS plc, the Company,
The Chase Manhattan Bank, as Agent and Book-Entry Unit Depositary, and as
Trustee, and the respective holders from time to time of each series of Capital
Units.
5-a* Opinion of Brown & Wood LLP.
5-b Opinion of Linklaters & Paines.
12-a* Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b* Computation of Consolidated Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends.
15 Letter of Awareness from Deloitte & Touche LLP Concerning Unaudited
Financial Information.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Ernst & Young LLP.
23-c* Consent of Brown & Wood LLP. (included in Exhibit 5-a).
23-d Consent of Linklaters & Paines (included in Exhibit 5-b).
24 Powers of Attorney (included on signature pages).
25 Statement of Eligibility of The Chase Manhattan Bank, Trustee under the
Subordinated Indenture.
</TABLE>
- ----------
* To be filed by amendment.
Item 17. Undertakings
(1) Each of the undersigned registrants hereby undertakes that,
for purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by a registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(3) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information
set forth in this registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (3)(a)(i) and (3)(a)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of London, England, on the 28th day of
May, 1997.
MORGAN STANLEY FINANCE PLC
(Registrant)
By: /s/ Richard S. Rosenthal
--------------------------------
Name: Richard S. Rosenthal
Title: Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose
signature appears below hereby constitutes and appoints Christine A. Edwards,
Mitchell M. Merin, Ronald T. Carman, Michael T. Gregg, Jonathan M. Clark,
Ralph L. Pellecchio and Martin M. Cohen and each of them singly, his or her
true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments, including post-effective
amendments, to this Registration Statement (any of which amendments may make
such changes and additions to this Registration Statement as such
attorneys-in-fact may deem necessary or appropriate) and to file the same,
with all exhibits thereto, and any other documents that may be required in
connection therewith, granting unto said attorneys-in-fact and agents full
power and authority to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 28th of May, 1997.
Signature Title
--------- ----
/s/ Richard S. Rosenthal Director
- ----------------------------------------
Richard S. Rosenthal
/s/ Daniel McHugh Director
- ----------------------------------------
Daniel McHugh
/s/ Stephen Allery Director
- ----------------------------------------
Stephen Allery
/s/ Eileen K. Murray Director
- ----------------------------------------
Eileen K. Murray
DEAN WITTER, DISCOVER & CO. Authorized Representative in the United States
By: /s/ Ronald T. Carman
------------------------------------------------
Name: Ronald T. Carman
Title: Senior Vice President, Associate
General Counsel and Assistant Secretary
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York and State of New York, on
the 28th day of May, 1997.
DEAN WITTER, DISCOVER & CO.
(Registrant)
By: /s/ Philip J. Purcell
------------------------------------------------
Name: Philip J. Purcell
Title: Chairman of the Board, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose
signature appears below hereby constitutes and appoints Christine A. Edwards,
Mitchell M. Merin, Ronald T. Carman and Michael T. Gregg and each of them
singly, his or her true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments,
including post-effective amendments, to this Registration Statement (any of
which amendments may make such changes and additions to this Registration
Statement as such attorneys-in-fact may deem necessary or appropriate) and to
file the same, with all exhibits thereto, and any other documents that may be
required in connection therewith, granting unto said attorneys-in-fact and
agents full power and authority to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated on the 28th day of May 1997.
<TABLE>
<CAPTION>
Signature Title
- ------------------------------------------- ----------------------------------------------------
<S> <C>
/s/ Philip J. Purcell Chairman of the Board, Chief Executive Officer,
- ------------------------------------------- and Director (Principal Executive Officer)
Philip J. Purcell
/s/ Thomas C. Schneider Executive Vice President and Chief Financial
- ------------------------------------------- Officer and Director (Principal Financial Officer)
Thomas C. Schneider
/s/ Robert P. Seass Senior Vice President and Controller
- ------------------------------------------- (Principal Accounting Officer)
Robert P. Seass
/s/ Edward A. Brennan
- ------------------------------------------- Director
Edward A. Brennan
/s/ C. Robert Kidder
- ------------------------------------------- Director
C. Robert Kidder
/s/ Miles L. Marsh
- ------------------------------------------- Director
Miles L. Marsh
/s/ Michael A. Miles
- ------------------------------------------- Director
Michael A. Miles
/s/ Clarence B. Rogers, Jr.
- ------------------------------------------- Director
Clarence B. Rogers, Jr.
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
-------1 -----------
<S> <C>
4-a * Amended and Restated Certificate of Incorporation of the Company.
4-b Form of Certificate of Designation of Offered Preferred Stock.
4-c Form of Certificate of Offered Preferred Stock.
4-d Form of Deposit Agreement (including Form of Depositary Receipt).
4-f * First Supplemental Subordinated Indenture, dated as of June 1, 1997, to the
Subordinated Indenture dated as of November 15, 1993 among MS plc, the
Company, as Guarantor, and The Chase Manhattan Bank, as Trustee.
4-h Form of First Supplemental Agreement, dated as of June 1, 1997, to the Capital
Unit Agreement dated as of December 18, 1996, to the Capital Unit Agreement
dated as of October 18, 1995, to the Capital Unit Agreement dated as of August
1, 1995, to the Capital Unit Agreement dated as of February 21, 1995, to the
Capital Unit Agreement dated as of February 8, 1994 and to the Capital Unit
Agreement dated as of November 29, 1993, each among MS plc, the Company,
The Chase Manhattan Bank, as Agent and Book-Entry Unit Depositary, and as
Trustee, and the respective holders from time to time of each series of Capital
Units.
5-a * Opinion of Brown & Wood LLP.
5-b Opinion of Linklaters & Paines.
12-a* Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b* Computation of Consolidated Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends.
15 Letter of Awareness from Deloitte & Touche LLP Concerning Unaudited
Financial Information.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Ernst & Young LLP.
23-c * Consent of Brown & Wood LLP (included in Exhibit 5-a).
23-d Consent of Linklaters & Paines (included in Exhibit 5-b).
24 Powers of Attorney (included on signature pages).
25 Statement of Eligibility of The Chase Manhattan Bank, Trustee under the
Subordinated Indenture.
</TABLE>
- ---------------
* To be filed by amendment.
EXHIBIT 4-b
CERTIFICATE OF DESIGNATION OF PREFERENCES AND RIGHTS
OF THE
% CUMULATIVE PREFERRED STOCK
($200.00 Stated Value)
OF
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
_________________________
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
_________________________
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors (the "Board") of
Morgan Stanley, Dean Witter, Discover & Co, a Delaware corporation
(hereinafter called the "Corporation"), by unanimous written consent in
lieu of a meeting dated as of _______________, 199__, with certain of the
designations, preferences and rights having been fixed by the Pricing
Committee of the Board (the "Committee") [at a meeting] on _______________,
199__, 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 _______________
of the _______________ 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 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 _______________ Cumulative
Preferred Stock, without par value, with a stated value of
$_______________ per share (the "Cumulative Preferred Stock").
The stated value per share of the Cumulative 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 the
Cumulative Preferred Stock shall be _______________. The
Cumulative Preferred Stock is issuable in whole shares only.
2. Dividends. (a) Holders of shares of the Cumulative
Preferred Stock will be entitled to receive, when, as and if
declared by the Board or the Committee out of assets of the
Corporation legally available for payment cash dividends at the
rate of _______________% per annum. Dividends on the
Cumulative Preferred Stock will be payable quarterly on ,
_______________, _______________ and _______________ of each
year (each a "dividend payment date"). Dividends on shares of
the Cumulative Preferred Stock will be cumulative from the date
of initial issuance of such shares of the Cumulative 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 any period shorter than a full
dividend period shall be calculated on the basis of a 360-day
year of twelve 30-day months. [Description of alternate method
of determining entitlement to and amount of dividends, and any
other terms of the Cumulative Preferred Stock.] No dividends
may be declared or paid or set apart for payment on any Parity
Preferred Stock (as defined in paragraph 9(b) below) 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
Cumulative Preferred Stock, like dividends for all dividend
payment periods of the Cumulative 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 Cumulative
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 Cumulative 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 Cumulative 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 Cumulative 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
Cumulative 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
Cumulative Preferred Stock as to dividends.
3. Liquidation Preference. The shares of the Cumulative
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 Cumulative Preferred Stock as to rights upon
liquidation, dissolution or winding up of the Corporation, so
that in the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, the
holders of the Cumulative 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 $_______________ per share (the "Liquidation
Preference" of a share of the Cumulative Preferred Stock) plus
an amount equal to all dividends (whether or not earned or
declared) accrued and accumulated and unpaid on the shares of
the Cumulative Preferred Stock to the date of final
distribution. The holders of the Cumulative 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 Cumulative 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 the Cumulative 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.
4. Conversion. The Cumulative Preferred Stock is not
convertible into shares of any other class or series of stock
of the Corporation.
5. Voting Rights. The holders of shares of the
Cumulative 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 Cumulative 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
the Cumulative 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 the Cumulative 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 the Cumulative 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
the Cumulative 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 the
Cumulative 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 the Cumulative 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 the Cumulative
Preferred Stock remain outstanding, the consent of the
holders of at least two-thirds of the shares of the
Cumulative 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 in paragraph 9(a) hereof) to
the shares of the Cumulative 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 the
Cumulative 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 the
Cumulative 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 the Cumulative
Preferred Stock shall have been redeemed or called for
redemption and sufficient funds shall have been deposited
in trust to effect such redemption.
6. Redemption. [Alternative 1] [The shares of the
Cumulative Preferred Stock may not be redeemed at any time.]
[Alternative 2] [The shares of the Cumulative 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 Cumulative
Preferred Stock shall not be redeemable prior to
_______________, ____, [except as stated below]. Subject to
the foregoing, on or after such date, shares of the Cumulative
Preferred Stock are redeemable at $____.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 Cumulative Preferred Stock
have not been paid, the Cumulative Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire any share of the Cumulative
Preferred Stock otherwise than pursuant to a purchase or exchange offer made
on the same terms to all holders of the Cumulative Preferred Stock. If fewer
than all the outstanding shares of the Cumulative 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 6 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 the Cumulative 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.
[Alternative 3] [Describe provisions of any mandatory
redemption or sinking fund arrangements applicable to the Cumulative Preferred
Stock.]
7. Authorization and Issuance of Other Securities. No
consent of the holders of the Cumulative 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 Cumulative
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.
8. 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 Cumulative 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.
9. 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 Cumulative 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 Cumulative Preferred Stock;
(b) on a parity with shares of the Cumulative
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 Cumulative 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
the Cumulative Preferred Stock (the term "Parity
Preferred Stock" being used to refer to any stock on a
parity with the shares of the Cumulative 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 Cumulative 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 Cumulative
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 Cumulative 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 (xi) the Corporation's
7-3/4% Cumulative Preferred Stock, with a liquidation value of
$200.00 per share and (xii) the Corporation's Series A
Fixed/Adjustable Rate Cumulative Preferred Stock, with a
liquidation value of $200.00 per share [insert other
outstanding series of preferred stock as applicable].
IN WITNESS WHEREOF, Morgan Stanley, Dean Witter, Discover &
Co. caused this Certificate to be made under the seal of the Corporation
and signed by ________________________________, its _____________, and
attested by ________________________________, [Assistant Secretary] of the
Corporation, this _________________day of ______________, 199__ .
MORGAN STANLEY
DEAN WITTER, DISCOVER & CO.
By:________________________________
Name:
Title:
[SEAL]
Attest:
_______________________________
[Assistant Secretary]
EXHIBIT 4-c
FORM OF CERTIFICATE
_____% CUMULATIVE PREFERRED STOCK
($_____.000 STATED VALUE)
NUMBER SHARES
___________ ____________
CUSIP 617446 - 489
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE
IN THE CITY OF NEW YORK, NEW YORK
This is to certify that _____________________________ is the
owner of _____________________________ fully paid and non-assessable shares
of ____ % Cumulative Preferred Stock, without par value, stated value
$ ________ per share, of Morgan Stanley, Dean Witter, Discover &
Co. transferable on the books of the Corporation by the holder hereof in
person or by duly authorized attorney upon surrender of this certificate
properly endorsed.
This certificate is not valid unless countersigned and
registered by the Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated ___________________
[SEAL]
_____________________________ ___________________________________
[Assistant Secretary] [Financing Officer]
Countersigned and Registered,
THE BANK OF NEW YORK,
Transfer Agent and Registrar
By _______________________________
Authorized Signature
[Reverse of Certificate]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
Morgan Stanley, Dean Witter, Discover & Co. (the "Corporation")
will furnish, without charge to each stockholder who so requests, a copy of
the designations, powers, preferences and relative participating, optional or
other special rights of each class of stock of the Corporation or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights applicable to each class of stock of the Corporation
or series thereof. Such information may be obtained by a request in writing to
the Secretary of the Corporation at its principal place of business.
This certificate and the share or shares represented hereby are
issued and shall be held subject to all of the provisions of the Corporation's
Restated Certificate of Incorporation, as amended, and the Certificate of
Designation of Preferences and Rights of the _________% Cumulative Preferred
Stock ($_______ Stated Value) (copies of which are on file with the Transfer
Agent), to all of which the holder, by acceptance hereof, assents.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ____ Custodian ______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act ____________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
------------
For value received, __________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________ shares
of the capital stock represented by the within certificate, and do hereby
irrevocably constitute and appoint _______________________________________ ,
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated ___________________________ ____________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as written
upon the face of this certificate in
every particular, without alteration or
enlargement or any change whatever.
EXHIBIT 4-d
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.,
THE BANK OF NEW YORK
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of _____________________________, 199__
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definitions............................................... 1
ARTICLE 2
Form of Receipts, Deposit of Stock, Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts............................. 2
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof............................. 4
Section 2.3. Registration of Transfer of Receipts...................... 5
Section 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of
Stock................................................... 5
Section 2.5. Limitations on Execution and Delivery,
Transfers, Surrender and Exchange of
Receipts................................................ 6
Section 2.6. Lost Receipts, Etc........................................ 6
Section 2.7. Optional Redemption of Stock.............................. 7
Section 2.8. Cancellation and Destruction of Surrendered
Receipts................................................ 8
Section 3.1. Filing Proofs, Certificates and Other
Information............................................. 9
Section 3.2. Payment of Taxes or Other Governmental
Charges................................................. 9
Section 3.3. Warranty as to Stock...................................... 9
ARTICLE 4
The Deposited Securities; Notices
Section 4.1. Cash Distributions........................................ 9
Section 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges............................... 10
Section 4.3. Subscription Rights, Preferences or Privileges............ 10
Section 4.4. Notice of Dividends, Etc.; Fixing Record
Date for Holders of Receipts............................ 12
Section 4.5. Voting Rights............................................. 12
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc............... 13
Section 4.7. Delivery of Reports....................................... 13
Section 4.8. Lists of Receipt Holders.................................. 13
ARTICLE 5
The Depositary, the Depositary's Agents, the Registrar and the Company
Section 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar............................................... 14
Section 5.2. Prevention of or Delay in Performance by
the Depositary or the Company........................... 14
Section 5.3. Obligation of the Depositary and the Company.............. 15
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary..................... 16
Section 5.5. Corporate Notices and Reports............................. 17
Section 5.6. Indemnification........................................... 17
Section 5.7. Charges and Expenses...................................... 18
ARTICLE 6
Amendment and Termination
Section 6.1. Amendment................................................. 19
Section 6.2. Termination............................................... 19
ARTICLE 7
Miscellaneous
Section 7.1. Counterparts.............................................. 20
Section 7.2. Exclusive Benefit of Parties.............................. 21
Section 7.3. Invalidity of Provisions.................................. 21
Section 7.4. Notices................................................... 21
Section 7.5. Depositary's Agents....................................... 22
Section 7.6. Holders of Receipts Are Parties........................... 22
Section 7.7. Governing Law............................................. 22
Section 7.8. Inspection of Deposit Agreement........................... 22
Section 7.9. Headings.................................................. 22
EXHIBIT A -- Form of Receipt
DEPOSIT AGREEMENT dated as of ____________________________,
199___, among MORGAN STANLEY, DEAN WITTER, DISCOVER & CO., a Delaware
corporation, THE BANK OF NEW YORK, a New York banking corporation, and the
holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide as hereinafter set forth
in this Deposit Agreement, for the deposit from time to time of shares of
[specify designation of Series of Preferred Stock], without par value,
stated value $______ per share, of Morgan Stanley, Dean Witter, Discover &
Co. with the Depositary for the purposes set forth in this Deposit
Agreement and for the issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modification and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. The following definitions shall
for all purposes, unless otherwise indicated, apply to the respective terms
used in this Deposit Agreement:
"Certificate" shall mean the Certificate of Designation of
Preferences and Rights filed or to be filed with the Secretary of State of the
State of Delaware establishing the Stock as a series of preferred stock,
without par value, of the Company.
"Company" shall mean Morgan Stanley, Dean Witter, Discover &
Co., a Delaware corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time.
"Depositary" shall mean The Bank of New York, or any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing [specify fraction] share(s) of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the principal corporate trust
office of the Depositary in New York City, at which at any particular time its
depositary receipt business shall be administered.
"Holder" as applied to a Receipt shall mean the person in
whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Receipt" shall mean one of the Depositary Receipts,
substantially in the form set forth as Exhibit A hereto, issued hereunder,
whether in definitive or temporary form and evidencing the number of
Depositary Shares held of record by the holder of such Depositary Shares.
"Registrar" shall mean the Depositary or such other bank or
trust company that shall be appointed to register ownership and transfers of
Receipts as herein provided as well as to effect transfers and the
distribution of dividends with respect to the Stock.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's ________ Cumulative
Preferred Stock, par value $0.01 per share , stated value $ ____________ per
share.
ARTICLE 2
Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
Section 2.1. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved
borders, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.2, shall execute and deliver temporary Receipts that are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the
tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at an office described in the penultimate
paragraph of Section 2.2, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall
execute and deliver in exchange therefor definitive Receipts representing the
same number of Depositary Shares as are represented by the surrendered
temporary Receipt or Receipts. Such exchange shall be made at the Company's
expense and without any charge therefor. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits under this
Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary and, if a
Registrar for the Receipts shall have been appointed, countersigned by the
manual signature of a duly authorized signatory of the Registrar; provided
that no Receipt shall be entitled to any benefits under this Deposit Agreement
or be valid or obligatory for any purpose unless it shall have been executed
manually by a duly authorized signatory of the Depositary or, if a Registrar
for the Receipts shall have been appointed, by facsimile signature of a duly
authorized signatory of the Depositary and countersigned manually by a duly
authorized signatory of such Registrar. The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any regulation thereunder or
with the rules and regulations of any securities exchange upon which the
Stock, the Depositary Shares or the Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is
properly endorsed or accompanied by a properly executed instrument of transfer
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until transfer of a Receipt
shall be registered on the books of the Depositary as provided in Section 2.3,
the Depositary may, notwithstanding any notice to the contrary, treat the
holder of record at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
Section 2.2. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company may from time to time deposit shares of Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of
the Company directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited
Stock.
Deposited Stock shall be held by the Depositary at the
Depositary's office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the number of Depositary Shares representing the Stock so deposited and
registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than ________________ shares of Stock.
Section 2.3. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, including payment of the
fees of the Depositary as provided in Section 5.7, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer. Thereupon the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares as those evidenced
by the Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to or upon the order of the person entitled thereto.
Section 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt
or Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of
whole shares of Stock may withdraw the Stock and all money and other property,
if any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or at such other offices as the Depositary may designate
for such withdrawals. Upon payment of the fees of the Depositary for the
withdrawal of Stock as provided in Section 5.7 and payment of all taxes and
without unreasonable delay, the Depositary shall deliver to such holder or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
represented by the Depositary Shares evidenced by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of Stock will
not thereafter be entitled to deposit such Stock hereunder or to receive
Depositary Shares therefor. If a Receipt delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing
the number of whole shares of Stock to be so withdrawn, the Depositary
shall at the same time, in addition to such number of whole shares of Stock
and such money and other property, if any, to be so withdrawn, deliver to
such holder, or pursuant to his order, upon payment of the fees of the
Depositary for the withdrawal of Stock as provided in Section 5.7 and
payment of all taxes, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other property, if
any, being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem
appropriate.
If the Stock and the money and other property, if any, being
withdrawn are to be delivered to a person or persons other than the holder of
the Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for the withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place
as may be designated by such holder.
Section 2.5. Limitations on Execution and Delivery, Transfers,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or
the Company may establish consistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender or
exchange of outstanding Receipts may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission or under any provision of this Deposit Agreement.
Section 2.6. Lost Receipts, Etc. In case any receipt shall
be mutilated, destroyed, lost or stolen, the Depositary in its discretion
may execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in
substitution for a destroyed, lost or stolen Receipt, the holder thereof
shall have (i) filed with the Depositary (a) a request for such execution
and delivery before the Depositary has received notice that the Receipt has
been acquired by a bona fide purchaser and (b) a sufficient indemnity bond
(if so requested by the Depositary) and (ii) satisfied any other reasonable
requirements imposed by the Depositary.
Section 2.7. Optional Redemption of Stock. If the Company
shall elect to redeem shares of Stock pursuant to the Certificate, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary
not less than 45 days' notice of the date of such proposed redemption of Stock
and of the number of shares of Stock held by the Depositary to be redeemed. On
the date of such redemption, provided that the Company shall then have paid in
full to the Depositary the redemption price (determined pursuant to the
Certificate) of the Stock deposited with the Depositary to be redeemed, the
Depositary shall redeem (using the proceeds of such redemption) the Depositary
Shares relating to such Stock. The Depositary shall mail, first class postage
prepaid, notice of the redemption of Stock and the proposed simultaneous
redemption of the Depositary Shares relating to the Stock to be redeemed, not
less than 30 days and not more than 60 days prior to the date fixed for
redemption of such Stock and Depositary Shares (the "Redemption Date"), to the
holders on the record date fixed for such redemption pursuant to Section 4.4
of the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same appear on the records of the Depositary;
but neither failure to mail any such notice to one or more such holders nor
any defect in any notice shall affect the sufficiency of the proceedings for
redemption as to the other holders. The Company shall provide the Depositary
with such notice, and each such notice shall state: (i) the record date for
purposes of such redemption; (ii) the Redemption Date; (iii) the number of
Depositary Shares to be redeemed and, if fewer than all the Depositary Shares
held by any holder are to be redeemed, the number of Depositary Shares held by
such holder to be so redeemed; (iv) the redemption price; (v) the place or
places where Receipts evidencing Depositary Shares to be redeemed are to be
surrendered for payment of the redemption price; and (vi) that dividends in
respect of the Stock represented by the Depositary Shares to be redeemed will
cease to accrue at the close of business on such Redemption Date. In case
fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by lot or by any other
substantially equivalent method determined by the Depositary.
Notice having been mailed by the Depositary as aforesaid,
from and after the Redemption Date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph) all dividends in
respect of the shares of Stock called for redemption shall cease to accrue,
the Depositary Shares called for redemption shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall,
to the extent of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed at a
redemption price per Depositary Share equal to five (5) times the
redemption price per share paid in respect of shares of Stock pursuant to
the Certificate plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Company in
respect of dividends that on the Redemption Date have accrued on the shares
of Stock to be so redeemed and that have not theretofore been paid. The
foregoing shall be subject further to the terms and conditions of the
Certificate.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the holder
of such Receipt upon its surrender to the Depositary, together with payment of
the redemption price for the Depositary Shares called for redemption, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
Except as provided in the preceding paragraph of this Section
2.7, the Depositary shall not be required to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption in whole or in part.
The Depositary shall remit to the Company any funds deposited
by or for the account of the Company for the purpose of redeeming any
Depositary Shares that the holders thereof have failed to redeem after two
years from the date of such deposit, without further action necessary on the
part of the Company.
Section 2.8. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by applicable
law or regulation, the Depositary is authorized to destroy all Receipts so
cancelled.
ARTICLE 3
Certain Obligations of Holders of Receipts and the Company
Section 3.1. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to
file such proof of residence, or other matters or other information, to
execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal of the
Stock represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any property
or rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
Section 3.2. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Receipt or any withdrawal of Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is made, and any dividends,
interest payments or other distributions may be withheld or any part of or all
the Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder
prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment
of such charges or expenses, the holder of such Receipt remaining liable for
any deficiency.
Section 3.3. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly authorized,
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
ARTICLE 4
The Deposited Securities; Notices
Section 4.1. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to holders of Receipts on
the record date fixed pursuant to Section 4.4 (net of the fees of the
Depositary as provided in Section 5.7 hereof) such amounts of such dividend
or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to holders of Receipts then outstanding.
Section 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges. Whenever the Depositary shall receive any
distribution other than cash, rights, preferences or privileges upon Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to holders
of Receipts on the record date fixed pursuant to Section 4.4 such amounts of
the securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the
opinion of the Depositary such distribution cannot be made proportionately
among such holders, or if for any other reason (including any requirement that
the Company or the Depositary withhold an amount on account of taxes or
governmental charges) the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or
any part thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.1 and
3.2, be distributed or made available for distribution, as the case may be, by
the Depositary to such holders of Receipts as provided by Section 4.1 in the
case of a distribution received in cash. The Company shall not make any
distribution of such securities unless the Company shall have provided an
opinion of counsel stating that such securities have been registered under the
Securities Act or do not need to be so registered.
Section 4.3. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons
in whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or
any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the holders of Receipts in such manner as the Depositary may
determine, either by the issue to such holders of warrants representing such
rights, preferences or privileges or by such other method as may be determined
by the Depositary with the approval of the Company; provided, however, that
(i) if at the time of issue or offer of any such rights, preferences or
privileges the Depositary determines that it is not lawful or (after
consultation with the Company) not feasible to make such rights, preferences
or privileges available to holders of Receipts by the issue of warrants or
otherwise, or (ii) if and to the extent so instructed by holders of Receipts
who do not desire to exercise such rights, preferences or privileges, then the
Depositary may (with approval of the Company in any case where the Depositary
has determined that it is not feasible to make such rights, preferences or
privileges available), if applicable laws or the terms of such rights,
preferences or privileges permit such transfer, sell such rights, preferences
or privileges at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall, subject
to Sections 3.1 and 3.2, be distributed by the Depositary to the holders of
Receipts entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that
it will file promptly a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such registration
statement shall have become effective, or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions
of the Securities Act and the Company shall have provided to the Depositary an
opinion of counsel to such effect.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges.
Section 4.4. Notice of Dividends, Etc.; Fixing Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be offered with respect to
Stock, or whenever the Depositary shall receive notice of (i) any meeting at
which holders of Stock are entitled to vote or of which holders of Stock are
entitled to notice or (ii) any election on the part of the Company to
redeem any shares of Stock, or whenever the Depositary and the Company
shall decide it is appropriate, the Depositary shall in each such instance
fix a record date (which shall be the same date as the record date fixed by
the Company with respect to or otherwise in accordance with the terms of
the Stock) for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting, or whose Depositary Shares are to be
redeemed or for any other appropriate reasons.
Section 4.5. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the holders of Receipts
entitled thereto a notice that shall contain (i) such information as is
contained in such notice of meeting and (ii) a statement that such holders
may, subject to any applicable restrictions, instruct the Depositary as to the
exercise of the voting rights pertaining to the amount of Stock represented by
their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to a
person designated by the Company) and a brief statement as to the manner in
which such instructions may be given. Upon the written request of the holders
of Receipts on the relevant record date, the Depositary shall endeavor insofar
as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock represented by the Depositary Shares evidenced by all Receipts as to
which any particular voting instructions are received, provided that the
Depositary receives such instructions sufficiently in advance of such voting
to enable it to so vote or cause to be voted. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting (but, in its discretion, not from
appearing at any meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
stated value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation
or consolidation affecting the Company or to which it is a party, the
Depositary may in its discretion with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments as are certified
by the Company in the fraction of an interest represented by one Depositary
Share in one share of Stock as may be necessary fully to reflect the
effects of such change in par or stated value, split-up, combination or
other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation and (ii) treat any
securities that shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so
received in exchange for or upon conversion or in respect of such Stock.
In any such case the Depositary may in its discretion, with the approval of
the Company, execute and deliver additional Receipts or may call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right
from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Stock or any
such recapitalization, reorganization, merger, amalgamation or
consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock represented
thereby only into or for, as the case may be, the kind and amount of shares
of stock and other securities and property and cash into which the Stock
represented by such Receipts might have been converted or for which such
Stock might have been exchanged or surrendered immediately prior to the
effective date of such transaction.
Section 4.7. Delivery of Reports. The Depositary shall
furnish to holders of Receipts any reports and communications received from
the Company that are received by the Depositary as the holder of Stock.
Section 4.8. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list,
as of a recent date, of the names, addresses and holdings of all holders of
Receipts.
ARTICLE 5
The Depositary, the Depositary's Agents,
the Registrar and the Company
Section 5.1. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit Agreement,
the Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Stock, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange,
split-up, combination and redemption of Receipts and deposit and withdrawal
of Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office
for the registration and registration of transfer of Receipts, which books
at all reasonable times shall be open for inspection by the holders of
Receipts; provided that any such holder requesting to exercise such right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any time or from
time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary will appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be
removed and a substitute registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts, such
Depositary Shares or such Stock are listed on one or more other stock
exchanges, the Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such
Stock as may be required by law or applicable stock exchange regulation.
Section 5.2. Prevention of or Delay in Performance by the
Depositary or the Company. Neither the Depositary nor the Company shall
incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of the
United States of America or of any other governmental authority or by
reason of any provision, present or future, of the Company's Restated
Certificate of Incorporation, as amended (including the Certificate) or of
the Depositary Shares or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary or
the Company shall be prevented or forbidden from, delayed in, or subjected
to any penalty on account of, doing or performing any act or thing which
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary or the Company incur liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as aforesaid,
in the performance of any act or thing which the terms of this Deposit
Agreement shall provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement except, in the case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
Where, by the terms of a distribution pursuant to Sections 4.1
or 4.2 of this Deposit Agreement, or an offering or distribution pursuant to
Section 4.3 of this Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to holders of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such holders and make the net proceeds available to such holders, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
Section 5.3. Obligation of the Depositary and the Company.
Neither the Depositary nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of
Receipts except that each of them agrees (i) to use its best judgment and
good faith in the performance of such duties as are specifically set forth
in this Deposit Agreement and (ii) that it shall be liable for negligence
or willful misconduct in the performance of such duties as are specifically
set forth in this Deposit Agreement.
Neither the Depositary nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Stock, the Depositary Shares or the Receipts that
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as
often as may be required.
Neither the Depositary nor the Company shall be liable for any
action or any failure to act by it in reliance upon the advice of legal
counsel or accountants, or information from any person presenting Stock for
deposit, any holder of a Receipt or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary and
the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to
carry out any instruction to vote any of the shares of Stock or for the manner
or effect of any such vote made, as long as any such action or non-action is
in good faith. The Depositary undertakes to perform such duties and only such
duties as are specifically set forth in this Deposit Agreement, and no implied
covenants or obligations shall be read into this Deposit Agreement against the
Depositary. The Depositary may also act as transfer agent or registrar of any
of the securities of the Company and its affiliates.
The Depositary undertakes not to issue any Receipt other
than to evidence the Depositary Shares then on deposit with the Depositary.
The Depositary also undertakes not to sell (except as provided herein),
pledge or lend Depositary Shares held by it as Depositary.
No disclaimer of liability under the Securities Act is intended
by any provision of this Deposit Agreement.
Section 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by delivering written notice of its election to do so to
the Company, such resignation to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the delivery
of the notice of resignation or removal, as the case may be, appoint a
successor Depositary, which shall be a bank or trust company having its
principal office in the United States of America and having a combined
capital and surplus of at least $50,000,000. If no successor Depositary
shall have been so appointed and have accepted appointment within 60 days
after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a
successor Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor Depositary, without
any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes
shall be the Depositary under this Deposit Agreement, and such predecessor,
upon payment of all sums due it and upon the written request of the
Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and
any moneys or property held hereunder to such successor, and shall deliver
to such successor a list of the holders of all outstanding Receipts and
such records, books and other information in its possession relating
thereto. Any successor Depositary shall promptly mail notice of its
appointment to the holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act, and
notice thereof shall not be required hereunder.
Section 5.5. Corporate Notices and Reports. The Company
agrees that it will transmit to the holders of Receipts, in each case at
the addresses furnished to it pursuant to Section 4.8, all notices and
reports (including without limitation financial statements) required by law
or by the rules of any national securities exchange upon which the Stock,
the Depositary Shares or the Receipts are listed, to be furnished to the
holders of Receipts. Such transmission will be at the Company's expense.
Section 5.6. Indemnification. The Company agrees to indemnify
the Depositary, its directors, employees, agents and affiliates and any
Depositary's Agent against, and hold each of them harmless from, any liability
or expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted in accordance with
the provisions of this Deposit Agreement and of the Receipts, as the same may
be amended, modified or supplemented from time to time, (i) by either the
Depositary or a Depositary's Agent or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted by the Depositary
or a Depositary's Agent or their respective directors, employees, agents and
affiliates due to their negligence or bad faith. The obligations set forth in
this Section 5.6 shall survive the termination of this Deposit Agreement and
any succession or substitution of any Depositary.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification in
writing (the "indemnifying person") of the commencement of any action or claim
in respect of which indemnification may be sought promptly after such
indemnified person becomes aware of such commencement (provided that the
failure to make such notification shall not affect such indemnified person's
rights under this Section 5.6) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim,
which shall be reasonable in the circumstances. No indemnified person shall
compromise or settle any such action or claim without the consent of the
indemnifying person.
Section 5.7. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges
of the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of the
Stock by owners of Depositary Shares and the registration of transfer of title
to any Depositary Shares. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it or the Company is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar
(including, in each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid by the
Company upon consultation and agreement between the Depositary and the Company
as to the amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the Depositary may agree.
ARTICLE 6
Amendment and Termination
Section 6.1. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided, however, that no such
amendment which shall materially and adversely alter the rights of the holders
of Receipts shall be effective unless such amendment shall have been approved
by the holders of at least a majority of the Depositary Shares then
outstanding. Notwithstanding the foregoing, in no event may any amendment
impair the right of any holder of any Receipts, upon surrender of such
Receipts and subject to any conditions specified in this Deposit Agreement, to
receive shares of Stock and any money or other property represented thereby,
except in order to comply with mandatory provisions of applicable law. Every
holder of an outstanding Receipt at the time any such amendment becomes
effective in accordance with its terms shall be deemed, by continuing to hold
such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby.
Section 6.2. Termination. This Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days' prior
written notice to the Depositary, in which case, upon a date that is not later
than 30 days after the date of such notice, the Depositary shall deliver or
make available for delivery to holders of Receipts, upon surrender of the
Receipt or Receipts held by such holder, and upon payment of any applicable
taxes or governmental charges, such number of whole shares of Stock
represented by such Receipt or Receipts. The Depositary may likewise
terminate this Deposit Agreement by mailing notice of such termination to
the Company and the holders of all Receipts then outstanding if at any time
60 days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.4. If the holder of any Receipt or Receipts shall
not have surrendered such Receipt or Receipts in exchange for whole shares
of Stock on or prior to the effective date of termination of this Deposit
Agreement, such holder shall for all purposes, including the payment of
dividends, be deemed to be a holder of the appropriate number of whole
shares of Stock previously represented by such Receipt or Receipts and
shall thereafter surrender to the Company such Receipt or Receipts in
exchange for whole shares of Stock.
If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue
to collect dividends and other distributions pertaining to the Stock, shall
sell rights as provided in this Deposit Agreement, and shall continue to
deliver such Stock, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights
or other property, in exchange for Receipts surrendered to the Depositary
(after deducting, in each case, the fee of the Depositary for the surrender of
a Receipt, any expenses for the account of the holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration of
one year from the date of termination, the Depositary may sell such Stock then
held hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, without
liability for interest, for the pro rata benefit of the holders which have not
theretofore surrendered their Receipts. After making such sale, the Depositary
shall be discharged from all obligations under this Deposit Agreement, except
to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses
for the account of the holder of such Receipt in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges).
This Deposit Agreement shall automatically terminate after
there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Receipts
pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement except
for its obligations to the Depositary and any Depositary's Agent and any
Registrar under Sections 5.6 and 5.7.
ARTICLE 7
Miscellaneous
Section 7.1. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
Section 7.2. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
Section 7.4. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter, addressed to the
Company at
1585 Broadway
New York, New York 10036
Attention:
Telephone No.: (212) 761-4000
or at any other address of which the Company shall have notified the
Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or facsimile
transmission confirmed by letter, addressed to the Depositary at the
Depositary's Office at 101 Barclay Street, New York, New York 10286, or at any
other address of which the Depositary shall have notified the Company in
writing.
Any and all notices to be given to any holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to such holder at the
address of such holder as it appears on the books of the Depositary, or if
such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telegram or
facsimile transmission shall be deemed to be effected at the time when a
duly addressed letter containing the same (or a confirmation thereof in the
case of a telegram or facsimile transmission) is deposited, first class
postage prepaid, in a post office letter box. The Depositary or the
Company may, however, without liability, act upon any telegram or facsimile
transmission received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
Section 7.5. Depositary's Agents. The Depositary may from
time to time appoint Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action and shall remain responsible for the performance
of its obligations hereunder as if no Depositary Agent were appointed.
The Company hereby also appoints the Depositary as Registrar
and Transfer Agent in respect of the Receipts and the Depositary hereby
accepts such appointments.
Section 7.6. Holders of Receipts Are Parties. The holders
of Receipts from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the
Receipts by acceptance of delivery thereof.
Section 7.7. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of
the State of New York.
Section 7.8. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
Section 7.9. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit
A hereto have been inserted for convenience only and are not to be regarded as
a part of this Deposit Agreement or the Receipts or to have any bearing upon
the meaning or interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By _____________________________
Name:
Title:
THE BANK OF NEW YORK
By _____________________________
Name:
Title:
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
DEPOSITARY SHARES
DRB
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING _______ % CUMULATIVE PREFERRED STOCK OF
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
CUSIP ______________
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE. SEE REVERSE FOR CERTAIN
DEFINITIONS
THE BANK OF NEW YORK, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction]
Cumulative Preferred Stock, without par value, stated value $_______________
per share (the "Stock"), of Morgan Stanley, Dean Witter, Discover & Co., a
Delaware corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of ________________, 199__ (the "Deposit Agreement"), among the
Corporation, the Depositary and the holders from time to time of the
Depositary Receipts issued thereunder. By accepting this Depositary Receipt
the holder hereof becomes a party to and agrees to be bound by all the terms
and conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual signature of a duly authorized signatory or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by the manual signature of a duly authorized signatory thereof.
Dated:
Countersigned and Registered:
THE BANK OF NEW YORK THE BANK OF NEW YORK
Registrar Depositary
By By
[FORM OF REVERSE OF RECEIPT]
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPTHOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE
CERTIFICATE OF THE DESIGNATIONS, POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER RIGHTS, AND OF THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF THE STOCK OF THE CORPORATION. ANY
SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS
RECEIPT.
___________________
The following abbreviations, when used in the instructions on the face of this
receipt, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM- as tenants in common UNIF GIFT MIN ACT - _____ Custodian ______
(Minor) (Cust)
TEN ENT- as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with __________________________________
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
For value received, _______ hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________________________________
_____________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
_____________________________________________________________________________
________________________________________Depositary Shares represented by the
within Receipt, hereby irrevocably constituting and appointing
___________________________ Attorney to transfer the said Depositary Shares on
the books of the within named Depositary with full power of substitution in
the premises.
Dated: __________________
_______________________________________________
NOTICE: The signature to the assignment must
correspond with the name as written upon the
face of this Receipt in every particular,
without alteration or enlargement or any change
whatever
EXHIBIT 4-h
- ------------------------------------------------------------------------------
FIRST SUPPLEMENTAL AGREEMENT
AMONG
MORGAN STANLEY FINANCE PLC,
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.,
THE CHASE MANHATTAN BANK,
as Agent, as Book-Entry Unit Depositary
and as Trustee under the Indenture referred to
in the Capital Unit Agreement
AND
THE HOLDERS FROM TIME TO TIME
OF THE CAPITAL UNITS DESCRIBED IN THE CAPITAL UNIT
AGREEMENT
------------
Dated as of June 1, 1997
------------
SUPPLEMENTAL TO CAPITAL UNIT AGREEMENT
DATED AS OF [ ]
AMONG MORGAN STANLEY FINANCE PLC,
MORGAN STANLEY GROUP INC.,
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
AND THE HOLDERS FROM TIME TO TIME
OF THE CAPITAL UNITS DESCRIBED IN THE CAPITAL UNIT
AGREEMENT
- ------------------------------------------------------------------------------
FIRST SUPPLEMENTAL AGREEMENT, dated as of June 1, 1997 among
MORGAN STANLEY FINANCE PLC, a company incorporated under the laws of
England and Wales ("MS plc"), MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.,
a Delaware corporation (the "Successor Corporation" and hereinafter the
"Corporation"), THE CHASE MANHATTAN BANK (formerly known as Chemical Bank),
as Agent and Book-Entry Unit Depositary (in its capacity as capital unit
agent, the "Agent," and, in its capacity as book-entry unit depositary, the
"Book-Entry Unit Depositary") and THE HOLDERS FROM TIME TO TIME OF THE
CAPITAL UNITS DESCRIBED IN THE CAPITAL UNIT AGREEMENT (the "Holders").
W I T N E S S E T H :
WHEREAS, MS plc, Morgan Stanley Group Inc. ("Morgan Stanley"),
the Agent and Book-Entry Unit Depositary and the Holders are parties to that
certain Capital Unit Agreement dated as of [ ];
WHEREAS, as of May 31, 1997, Morgan Stanley merged with and
into Dean Witter, Discover & Co., which continued as the successor corporation
and changed its name to Morgan Stanley, Dean Witter, Discover & Co. (the
"Merger");
WHEREAS, Section 801 of the Capital Unit Agreement requires the
Successor Corporation to expressly assume the obligations of Morgan Stanley
under the Capital Unit Agreement in a supplemental agreement satisfactory to
the Agent and Book-Entry Unit Depositary;
WHEREAS, pursuant to and in compliance with Section 802 of the
Capital Unit Agreement, the Successor Corporation shall succeed to and be
substituted for Morgan Stanley under the Capital Unit Agreement as the
"Corporation," with the same effect as if it had been named therein;
WHEREAS, Section 406 of the Capital Unit Agreement requires the
Successor Corporation to execute and deliver to the Agent an amendment of the
Capital Unit Agreement to provide that each Holder shall have the right and
obligation to purchase on the Purchase Date the number of shares, property or
other assets which a holder of the number of shares of Preferred Stock to
which a Purchase Contract related was entitled to receive in connection with
the Merger;
WHEREAS, Section 701 of the Capital Unit Agreement provides
that, without the consent of the Holders, each of MS plc and the Corporation,
when authorized by a resolution of its Board of Directors, and the Agent and
Book-Entry Unit Depositary may enter into agreements supplemental to the
Capital Unit Agreement for the purpose of evidencing the succession of another
Person to Morgan Stanley and the assumption by such successor of the covenants
of Morgan Stanley and supplementing or amending any provisions with respect
to matters arising under the Capital Unit Agreement, subject to the
conditions set forth therein;
WHEREAS, the Corporation desires to modify certain provisions
of the Capital Unit Agreement to reflect a modification of the officers of the
Corporation who are authorized to execute certain documents in connection with
the issuance of Capital Units;
WHEREAS, the entry into this First Supplemental Agreement by
the parties hereto is in all respects authorized by the provisions of the
Capital Unit Agreement; and
WHEREAS, all things necessary to make this First Supplemental
Agreement a valid agreement according to its terms have been done;
NOW, THEREFORE, for and in consideration of the premises, MS
plc, the Corporation, the Agent and the Book-Entry Unit Depositary mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders as follows:
ARTICLE 1
Section 1.1. Assumption of Obligations by Successor
Corporation. Pursuant to Section 801 of the Capital Unit Agreement, the
Successor Corporation does hereby: (i) expressly assume the due and
punctual performance and observance of all of the covenants and conditions
of the Capital Unit Agreement to be performed or observed by Morgan
Stanley; (ii) agrees to succeed to and be substituted for Morgan Stanley
under the Capital Unit Agreement, with the same effect as if it had been
named therein; and (iii) represent that it is not in default in the
performance of any such covenant and condition.
Section 1.2. Amendment of Section 101. Section 101 of the
Capital Unit Agreement is hereby amended by
(a) deleting the definition of "Issuer Order" or "Issuer Request"
and inserting in lieu thereof the following:
"'Issuer Order' or 'Issuer Request,' with respect to MS plc means a
written order or request signed in the name of MS plc by the Chairman
or Vice Chairman of the Board of Directors, the President, General
Counsel, Chief Financial Officer, Treasurer, Secretary, Assistant
Secretary or any Managing Director of MS plc and delivered to the
Agent. 'Issuer Order' or 'Issuer Request' with respect to the
Corporation means a written order or request signed in the name of the
Corporation by any one of the following: the Chairman of the Board,
the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any
Assistant Treasurer or any such other person specifically designated
by the Board of Directors of the Corporation to execute any such
written order or request and delivered to the Agent.";
(b) deleting the definition of "Officer's Certificate" and
inserting in lieu thereof the following:
"'Officer's Certificate' when used with respect to MS plc means a
certificate signed by the Chairman or Vice Chairman of the Board of
Directors, the President, General Counsel, Chief Financial Officer,
Treasurer, Secretary, Assistant Secretary or any Managing Director of
MS plc and delivered to the Agent. 'Officer's Certificate' when used
with respect to the Corporation means a certificate signed by any one
of the following: the Chairman of the Board, the President, the Chief
Financial Officer, the Chief Strategic and Administrative Officer, the
Chief Legal Officer, the Treasurer, any Assistant Treasurer or any
such other person specifically designated by the Board of Directors of
the Corporation to execute any such certificate and delivered to the
Agent.";
(c) deleting the definition of "Preferred Stock" and inserting
in lieu thereof the following:
"'Preferred Stock' means the [ ]% Cumulative Preferred Stock,
par value $0.01 per share, stated value $200.00 per share, of the
Corporation issuable pursuant to the Purchase Contracts."
Section 1.3. Amendment of Section 401. Section 401 of the
Capital Unit Agreement shall be amended by deleting the second sentence of
the first paragraph and inserting in lieu thereof the following:
"The Purchase Contracts shall be executed on behalf of the Corporation
by any one of the following: the Chairman of the Board, the President,
the Chief Financial Officer, the Chief Strategic and Administrative
Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer or any such other person specifically designated by the
Board of Directors of the Corporation to execute Purchase Contracts
and such Purchase Contracts may, but need not, be attested."
ARTICLE 2
Section 2.1. Rights and Obligations of the Holders as a Result
of the Merger. Pursuant to Section 406 of the Capital Unit Agreement, the
Successor Corporation does hereby agree that the Holder of each Outstanding
Capital Unit shall have the right and obligation on the Purchase Date to
purchase the number of shares of Preferred Stock which a holder of such number
of shares of Morgan Stanley's [ ]% Cumulative Preferred Stock, without par
value, stated value $200 per share, to which a Purchase Contract related
was entitled to receive in connection with the Merger, to wit: [ ] share[s]
of Preferred Stock.
ARTICLE 3
Miscellaneous
Section 3.1. Further Assurances. The Corporation will,
upon request by the Agent and Book-Entry Unit Depositary, execute and
deliver such further instruments and do such further acts as may reasonably
be necessary or proper to carry out more effectively the purposes of this
First Supplemental Agreement.
Section 3.2. Other Terms of Capital Unit Agreement. Except
insofar as herein otherwise expressly provided, all the provisions, terms and
conditions of the Capital Unit Agreement are in all respects ratified and
confirmed and shall remain in full force and effect.
Section 3.3. Terms Defined. All terms defined elsewhere in the
Capital Unit Agreement shall have the same meanings when used herein.
Section 3.4. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF
NEW YORK SHALL GOVERN THIS FIRST SUPPLEMENTAL AGREEMENT.
Section 3.5. Multiple Counterparts. This First Supplemental
Agreement may be executed in any number of counterparts, each of which shall
be deemed to be an original for all purposes, but such counterparts shall
together be deemed to constitute but one and the same instrument.
Section 3.6. Responsibility of Agent and Book-Entry Unit
Depositary. The recitals contained herein shall be taken as the statements of
MS Plc and the Corporation, and the Agent and Book-Entry Unit Depositary
assume no responsibility for the correctness of the same. The Agent and
Book-Entry Unit Depositary make no representations as to the validity or
sufficiency of this First Supplemental Agreement.
Section 3.7. Agency Appointments. The Corporation hereby
confirms and agrees to all agency appointments made by Morgan Stanley under or
with respect to the Capital Unit Agreement or the Capital Units and hereby
expressly assumes the due and punctual performance and observance of all the
covenants and conditions to have been performed or observed by Morgan Stanley
contained in any agency agreement entered into by Morgan Stanley under or with
respect to the Capital Unit Agreement or the Capital Units.
* * * * * * * * * * * * * *
IN WITNESS WHEREOF, this First Supplemental Agreement has been
duly executed by MS plc, the Corporation and the Agent and Book-Entry Unit
Depositary as of the day and year first written above.
MORGAN STANLEY FINANCE PLC
By:______________________________
Title:
Attest:
By: ____________________
Title:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:______________________________
Title:
Attest:
By: ___________________
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Agent
By:______________________________
Title:
Attest:
By: ____________________
Title:
THE CHASE MANHATTAN BANK,
as Book-Entry Unit Depositary
By:______________________________
Title:
Attest:
By: ____________________
Title:
28 May 1997
Morgan Stanley Finance plc
25 Cabot Square
Canary Wharf
London E14 4QA
Dear Sirs:
We have acted as English solicitors to Morgan Stanley Finance plc ("MSF
plc") in connection with the registration under the U.S. Securities Act of
1933, as amended (the "Securities Act") pursuant to the registration statement
on Form S-3 (as may be amended or supplemented from time to time, the
"Registration Statement") filed on 28 May 1997 under the Securities Act with
the Securities and Exchange Commission, of Debt Securities of MSF plc (the
"Debt Securities"). The Debt Securities were issued under a Subordinated
Indenture dated as of 15 November 1993 among MSF plc, the Morgan Stanley
Group Inc. (a predecessor of Morgan Stanley, Dean Witter, Discover & Co.)
(the "Company") as guarantor and The Chase Manhattan Bank (formerly known
as Chemical Bank) as trustee (the "Original Subordinated Debt Indenture")
to be supplemented by a First Supplemental Subordinated Debt Indenture
dated as of June 1, 1997 among MSF plc, the Company, as guarantor and The
Chase Manhattan Bank, as trustee (the "First Supplemental Subordinated Debt
Indenture" and together with the Original Subordinated Debt Indenture, the
"Subordinated Debt Indenture").
This opinion is limited to English law as applied by the English courts
and is given on the basis that it will be governed by and construed in
accordance with English law. We have made no investigation of the laws of any
jurisdiction other than England and neither express nor imply any opinion as
to any other laws and in particular the laws of the State of New York and the
United States of America.
For the purposes of this opinion, we have examined the documents listed
in a schedule to this letter (the "Schedule") and we have assumed that each of
the Original Subordinated Debt Indenture and the First Supplemental
Subordinated Debt Indenture were executed in the form of the documents we have
examined and neither of such indentures has been amended since the date of
execution.
For the purposes of this opinion, words and phrases used but not defined
herein shall have the same meaning as those contained in the Registration
Statement.
Subject as mentioned herein, we are of the opinion that:
(a) MSF plc is a company duly incorporated and validly existing under the
laws of England; and
(b) assuming the Debt Securities have been duly authorized by MSF plc
and such Debt Securities have been duly issued in accordance with the
Subordinated Indenture and duly delivered to and paid for by the purchasers
thereof, insofar as English law is concerned, the Debt Securities constitute
valid and binding obligations of MSF plc.
As regards the opinion expressed in paragraph 5(a), we have relied upon a
search made on May 28, 1997 at the Companies Registry which revealed no order
or resolution for the winding-up or order for the administration of MSF plc.
However, it should be noted that such a search is not capable of revealing
whether or not a petition for a winding-up order or for an administration
order has been presented in a county court or district registry or in the High
Court of Justice. Notice of a winding-up order or administration order made
or a resolution passed or a receiver of an administrator appointed may not be
filed at the Companies Registry immediately.
This opinion is addressed to you on the understanding that it may not be
transmitted to any person for any purpose, or quoted or referred to in any
public documen or filed with any government agency or other person without our
prior written consent. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the use of our name under the
heading "Legal Matters" in the Registration Statement.
Yours faithfully,
/s/ Linklaters & Paines
Linklaters & Paines
SCHEDULE
1. Memorandum and Articles of Association of MSF plc.
2. Extracts from the Minutes of a Meeting of the Directors of
MSF plc held on 6 April 1995 and 28 May 1997.
3. A copy of the Registration Statement.
4. An execution copy of the Subordinated Debt Indenture dated
as of November 15, 1993.
5. Form of First Supplemental Subordinated Debt Indenture dated
as of June 1, 1997.
Exhibit 15
To the Directors and Shareholders of Dean Witter, Discover & Co. (to
be renamed Morgan Stanley, Dean Witter, Discover & Co.):
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited
interim consolidated financial information of Dean Witter, Discover & Co.
and subsidiaries as of March 31, 1997 and for the three month periods ended
March 31, 1997 and 1996, as indicated in our report dated April 30, 1997;
because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report referred to above, which is included in
your Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, is
incorporated by reference in the following Registration Statements of Dean
Witter, Discover & Co.:
Filed on Form S-3:
Registration Statement No. 33-57202
Registration Statement No. 33-60734
Registration Statement No. 33-89748
Registration Statement No. 33-92172
Registration Statement No. 333-7947
Registration Statement No. 333-22409
Filed on Form S-4:
Registration Statement No. 333-25003
Filed on Form S-8:
Registration Statement No. 33-62374
Registration Statement No. 33-63024
Registration Statement No. 33-63026
Registration Statement No. 33-78038
Registration Statement No. 33-79516
Registration Statement No. 33-82240
Registration Statement No. 33-82242
Registration Statement No. 33-82244
Registration Statement No. 333-4212
We are also aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1933, is not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
DELOITTE & TOUCHE LLP
New York, New York
May 28, 1997
Exhibit 23-a
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Dean Witter, Discover & Co. (to be renamed Morgan Stanley, Dean Witter,
Discover & Co.) on Form S-3 (relating to the registration of Debt
Securities, Guarantees, Preferred Stock, Depositary Shares and Capital
Units) of our reports dated February 21, 1997, appearing in and
incorporated by reference in the Annual Report on Form 10-K of Dean Witter,
Discover & Co. for the year ended December 31, 1996, and to the reference
to us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
May 28, 1997
Exhibit 23-b
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 for the registration of debt securities,
guarantees of debt securities, preferred stock, preferred stock purchase
contracts and capital units and in the related Prospectus of Dean Witter,
Discover & Co. (to be renamed Morgan Stanley, Dean Witter, Discover & Co.)
and Morgan Stanley Finance plc for the same securities and to the
incorporation by reference therein of our report, dated January 7, 1997,
with respect to the consolidated financial statements and financial
statement schedule of Morgan Stanley Group Inc. incorporated by reference
and included in its Annual Report on Form 10-K for the fiscal year ended
November 30, 1996, filed with the Securities and Exchange Commission.
Ernst & Young LLP
New York, New York
May 28, 1997
Exhibit 25
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
------------
FORM T-1
------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation if (I.R.S. employer
not a national bank) identification No.)
270 Park Avenue 10017
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
------------
MORGAN STANLEY FINANCE PLC
(Exact name of obligor as specified in its charter)
England (Not Applicable)
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification No.)
25 Cabot Square - Canary Wharf (Not Applicable)
London, E14 4QA England
(Address of principal executive offices) (Zip Code)
------------
Dean Witter, Discover & Co.
(to be renamed Morgan Stanley, Dean Witter, Discover & Co.)
(Exact name of obligor/guarantor as specified in its charter)
Delaware 36-3145972
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification No.)
Two World Trade Center 10048
New York, New York
(Address of principal executive offices) (Zip Code)
------------
Senior and Subordinated Debt Securities of Morgan Stanley Finance plc
Senior and Subordinated Guarantees of Debt Securities
(Title of the indenture securities)
==============================================================================
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York 12110
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now
in effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference. On
July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 333-06249,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, The Chase Manhattan Bank, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 22nd day
of May, 1997.
THE CHASE MANHATTAN BANK
By: /s/T.J. Foley
--------------------------
Name: T.J. Foley
Title: Vice President
EXHIBIT 7 TO FORM T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
----------------------
(in millions)
<S> <C> <C>
ASSETS:
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................ $ 11,721
Interest-bearing balances ..................................................... 3,473
Securities:
Held to maturity securities.......................................................... 2,965
Available for sale securities........................................................ 35,903
Federal Funds sold and securities purchased under agreements to resell .............. 24,025
Loans and lease financing receivables:
Loans and leases, net of unearned income ...................................... $123,957
Less: Allowance for loan and lease losses...................................... 2,853
13
-------
Less: Allocated transfer risk reserve .........................................
Loans and leases, net of unearned income, allowance, and reserve .............. 121,091
Trading Assets ...................................................................... 54,340
Premises and fixed assets (including capitalized leases)............................. 2,875
Other real estate owned ............................................................. 302
Investments in unconsolidated subsidiaries and associated companies.................. 139
Customers' liability to this bank on acceptances outstanding ........................ 2,270
Intangible assets ................................................................... 1,535
10,283
-------
Other assets ........................................................................
$270,922
=======
TOTAL ASSETS...................................................................
LIABILITIES:
Deposits:
In domestic offices............................................................ $ 84,776
Noninterest-bearing ........................................................... $32,492
52,284
------
Interest-bearing ..............................................................
In foreign offices, Edge and Agreement subsidiaries, and IBF's................. 69,171
Noninterest-bearing ........................................................... 4,181
Interest-bearing .............................................................. 64,990
Federal funds purchased and securities sold under agreements to repurchase........... 32,885
Demand notes issued to the U.S. Treasury............................................. 1,000
Trading liabilities.................................................................. 42,538
Other Borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ................................. 4,431
With a remaining maturity of more than one year ............................... 466
Bank's liability on acceptances executed and outstanding............................. 2,270
Subordinated notes and debentures.................................................... 5,911
Other liabilities.................................................................... 11,575
TOTAL LIABILITIES.............................................................. 255,023
EQUITY CAPITAL:
Perpetual Preferred stock and related surplus........................................ 0
Common stock......................................................................... 1,211
Surplus (exclude all surplus related to preferred stock)............................ 10,283
Undivided profits and capital reserves............................................... 4,941
Net unrealized holding gains (Losses)................................................
on available-for-sale securities..................................................... (552)
Cumulative foreign currency translation adjustments.................................. 16
TOTAL EQUITY CAPITAL................................................................. 15,899
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK AND EQUITY
CAPITAL.............................................................................. $270,922
=======
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the best
of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by
us, and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE )DIRECTORS
WILLIAM B. HARRISON, JR.)
