PROSPECTUS
$16,256,130,907
Morgan Stanley Dean Witter & Co.
DEBT SECURITIES
UNITS
WARRANTS
PURCHASE CONTRACTS
PREFERRED STOCK
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We, Morgan Stanley Dean Witter & Co., may offer from time to time debt
securities, units, warrants, purchase contracts and preferred stock. This
prospectus describes the general terms of these securities and the general
manner in which we will offer the securities. The specific terms of any
securities we offer will be included in a supplement to this prospectus. The
prospectus supplement will also describe the specific manner in which we will
offer the securities.
--------------------
The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities, or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
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MORGAN STANLEY DEAN WITTER
May 5, 1999
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You should rely only on the information we incorporate by reference or provide
in this prospectus or the relevant prospectus supplement. This prospectus
together with the prospectus supplement dated May 6, 1999, our Annual Report on
Form 10-K for the fiscal year ended November 30, 1998, pages 6 and 23 through 88
from our 1998 Annual Report on Shareholders, pages 4 through 16 and 21
(beginning at the heading "Section 16(a) Beneficial Ownership Reporting
Compliance") through 22 from the Proxy Statement for our 1999 Annual Meeting of
Stockholders, our Quarterly Report on Form 10-Q for the quarter ended February
28, 1999 and our Current Reports on Form 8-K dated January 7, 1999, January 12,
1999 and March 25, 1999 constitute the Listing Particulars for the purposes of
the London Stock Exchange. We have not authorized anyone else to provide you
with different or additional information. We are not making an offer of these
securities in any state where the offer is not permitted. Except as we indicate
under the headings "Morgan Stanley Dean Witter" and "Use of Proceeds," the terms
"MSDW," "we," "us," and "our" refer to Morgan Stanley Dean Witter & Co.
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SUMMARY
We, Morgan Stanley Dean Witter & Co., may offer any of the following securities:
debt securities, units, warrants, purchase contracts and preferred stock. The
following summary describes these securities in general terms only. You should
read the summary together with the more detailed information contained in the
rest of this prospectus and the applicable prospectus supplement.
Debt Securities.................. Our debt securities may be senior or
subordinated in priority of payment.
We will provide a prospectus
supplement that describes the ranking,
whether senior or subordinated, the
specific designation, the aggregate
principal amount, the purchase price,
the maturity, the redemption terms,
the interest rate or manner of
calculating the interest rate, the
time of payment of interest, if any,
the terms for any conversion or
exchange, including the terms relating
to the adjustment of any conversion or
exchange mechanism, the listing, if
any, on a securities exchange and any
other specific terms of the debt
securities.
The senior and subordinated debt
securities will be issued under
separate indentures between us and a
U.S. banking institution as trustee.
Neither of the indentures that govern
our debt securities limits the amount
of additional indebtedness that we or
any of our subsidiaries may incur. We
have summarized the general features
of the indentures under the heading
"Description of Debt Securities." We
encourage you to read the indentures,
which are exhibits to our registration
statement No. 333-75289.
Units............................ We may sell any combination of our debt
securities, warrants and purchase
contracts together as units. In a
prospectus supplement, we will
describe the particular combination of
purchase contracts, warrants and debt
securities constituting any units and
any other specific terms of the units.
Warrants......................... We may sell two types of warrants:
o warrants to purchase our debt
securities, or
o universal warrants to purchase or
sell (1) securities of an entity
not affiliated with us, a basket
of these securities, an index or
indices of these securities or
any combination of the above, (2)
currencies or (3) commodities.
In a prospectus supplement, we will
specify the type of warrant and inform
you of the exercise price and other
specific terms of the warrants,
including whether our or your
obligations, if any, under any
universal warrants may be satisfied by
delivering or purchasing the
underlying securities, currencies or
commodities, or their cash value.
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Purchase Contracts............... We may sell purchase contracts requiring
the holders to purchase or sell (1)
securities of an entity not affiliated
with us, a basket of these securities,
an index or indices of these
securities or any combination of the
above, (2) currencies or (3)
commodities. In a prospectus
supplement, we will describe the
specific terms of the purchase
contracts, including whether we will
satisfy our obligations, if any, or
you will satisfy your obligations, if
any, under any purchase contracts by
delivering the underlying securities,
currencies or commodities or their
cash value.
Form.............................. We may issue debt securities, units,
warrants and purchase contracts in
fully registered form or in bearer
form and, in each case, in definitive
form or global form.
Preferred Stock................... We may sell our preferred stock, par
value $0.01 per share, in one or more
series. In a prospectus supplement,
we will describe the specific
designation, the aggregate number of
shares offered, the dividend rate or
manner of calculating the dividend
rate, the dividend periods or manner
of calculating the dividend periods,
the stated value of the shares of the
series, the voting rights of the
shares of the series, whether or not
and on what terms the shares of the
series will be convertible or
exchangeable, whether and on what
terms we can redeem the shares of the
series, whether we will offer
depositary shares representing shares
of the series and if so, the fraction
or multiple of a share of preferred
stock represented by each depositary
share, whether we will list the
preferred stock or depositary shares
on a securities exchange and any other
specific terms of the series of
preferred stock.
Terms Specified in
Prospectus Supplements............ When we decide to sell particular
securities, we will prepare a
prospectus supplement describing the
securities offering and the specific
terms of the securities. You should
carefully read this prospectus and the
applicable prospectus supplement.
We will offer our debt securities,
warrants, purchase contracts, units
and preferred stock to investors on
terms determined by market and other
conditions. Our securities may be
sold for U.S. dollars or foreign
currency. Principal of and any
premium or interest on debt securities
and cash amounts payable under
warrants or purchase contracts may be
payable in U.S. dollars or foreign
currency, as we specifically designate
in the related prospectus supplement.
In any prospectus supplement we
prepare, we will provide the name of
and compensation to each dealer,
underwriter or agent, if any, involved
in the sale of the securities being
offered and the managing underwriters
for any securities sold to or through
underwriters. Any underwriters,
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including managing underwriters,
dealers or agents in the United States
will include Morgan Stanley & Co.
Incorporated and/or Dean Witter
Reynolds Inc. and any outside the
United States will include Morgan
Stanley & Co. International Limited
or other affiliates of ours.
Structural Subordination; Our Receipt
of Cash from Our Subsidiaries
May be Restricted................. The securities are unsecured senior or
subordinated obligations of ours, but
our assets consist primarily of equity
in our subsidiaries. As a result, our
ability to make payments on our debt
securities and/or pay dividends on our
preferred stock depends upon our
receipt of dividends, loan payments
and other funds from our subsidiaries.
In addition, if any of our
subsidiaries becomes insolvent, the
direct creditors of that subsidiary
will have a prior claim on its assets,
and our rights and the rights of our
creditors, including your rights as an
owner of our debt securities, units,
warrants, purchase contracts or
preferred stock, will be subject to
that prior claim, unless we are also a
direct creditor of that subsidiary.
This subordination of creditors of a
parent company to prior claims of
creditors of its subsidiaries is
commonly referred to as structural
subordination.
In addition, various statutes and
regulations restrict some of our
subsidiaries from paying dividends or
making loans or advances to us. These
restrictions could prevent those
subsidiaries from paying the cash to
us that we need in order to pay you.
These restrictions include:
o the net capital requirements under
the Securities Exchange Act of 1934,
and the rules of some exchanges and
other regulatory bodies, which apply
to some of our principal
subsidiaries, such as Morgan Stanley
& Co. Incorporated, Morgan Stanley
& Co. International Limited and
Dean Witter Reynolds Inc., and
o banking regulations, which apply to
Greenwood Trust Company, a Delaware
chartered bank, and other bank
subsidiaries of ours.
Market-making by Our Affiliates..... Following the initial distribution of
an offering of securities, Morgan
Stanley & Co. Incorporated, Morgan
Stanley & Co. International
Limited, Dean Witter Reynolds Inc.
and other affiliates of ours may
offer and sell those securities in
the course of their businesses as
broker-dealers, subject, in the case
of preferred stock and depositary
shares, to obtaining any necessary
approval of the New York Stock
Exchange, Inc. for any of these
offers and sales our United States
affiliates may make. Morgan Stanley
& Co. Incorporated, Morgan Stanley
& Co. International Limited, Dean
Witter Reynolds Inc. and other
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affiliates of ours may act as a
principal or agent in these
transactions. This prospectus and
the applicable prospectus supplement
will also be used in connection with
those transactions. Sales in any of
those transactions will be made at
varying prices related to prevailing
market prices and other
circumstances at the time of sale.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual reports, proxy statements and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
room 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. Please call the SEC at 1-800-SEC-0300 for further
information on the public reference room. In addition, the SEC maintains a
Website that contains reports, proxy statements and other information that we
electronically file. The address of the SEC's Website is http://www.sec.gov.
This prospectus is part of a registration statement we filed with the SEC.
This prospectus omits some information contained in the registration statement
in accordance with SEC rules and regulations. You should review the information
and exhibits in the registration statement for further information on us and our
consolidated subsidiaries and the securities we are offering. Statements in this
prospectus concerning any document we filed as an exhibit to the registration
statement or that we otherwise filed with the SEC are not intended to be
comprehensive and are qualified by reference to these filings. You should review
the complete document to evaluate these statements.
Our common stock, par value $0.01 per share, is listed on the New York
Stock Exchange, Inc. and the Pacific Exchange, Inc. under the symbol "MWD." You
may inspect reports, proxy statements and other information concerning us and
our consolidated subsidiaries at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005, and the Pacific Exchange, Inc.,
301 Pine Street, San Francisco, California 94104 or 233 South Beaudry Avenue,
Los Angeles, California 90012.
The SEC allows us to incorporate by reference much of the information we
file with them, which means that we can disclose important information to you by
referring you to those publicly available documents. The information that we
incorporate by reference in this prospectus is considered to be part of this
prospectus. Because we are incorporating by reference future filings with the
SEC, this prospectus is continually updated and those future filings may modify
or supersede some of the information included or incorporated in this
prospectus. This means that you must look at all of the SEC filings that we
incorporate by reference to determine if any of the statements in this
prospectus or in any document previously incorporated by reference have been
modified or superseded. This prospectus incorporates by reference the documents
listed below and any future filings we make with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we complete our
offering of the securities to be issued under the registration statement or, if
later, the date on which any of our affiliates cease offering and selling these
securities:
(a) Annual Report on Form 10-K for the fiscal year ended November 30,
1998;
(b) Quarterly Report on Form 10-Q for the quarter ended February 28, 1999;
and
(c) Current Reports on Form 8-K dated January 7, 1999, January 12, 1999
and March 25, 1999.
You can request a copy of these documents, excluding exhibits, at no cost,
by writing or telephoning us at the following address:
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention: Investor Relations
(212) 762-8131
We have not submitted and will not submit any document incorporated or
deemed to be incorporated by reference in this prospectus for review under the
clearance procedures of the Commission des Operations de Bourse of the Paris
Bourse, except as required in connection with the listing of any securities on
the Paris Bourse.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our consolidated ratios of earnings to
fixed charges and earnings to fixed charges and preferred stock dividends for
the periods indicated. The fiscal year information for 1996, 1995 and 1994
combines the historical financial information of Dean Witter, Discover & Co. for
the years ended December 31, 1996, 1995 and 1994 with the historical financial
information of Morgan Stanley Group Inc. for the fiscal years ended November 30,
1996, 1995 and 1994. Subsequent to the merger between Dean Witter, Discover &
Co. and Morgan Stanley Group Inc., in May 1997, we adopted a fiscal year end of
November 30. The fiscal year information for 1998 and 1997 reflects the change
in fiscal year end.
<TABLE>
(Unaudited)
Three Months Ended Fiscal Year
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February 28, February 28,
1999 1998 1998 1997 1996 1995 1994
------------ ------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges......... 1.6 1.4 1.4 1.4 1.3 1.3 1.3
Ratio of earnings to fixed charges and
preferred stock dividends............... 1.6 1.3 1.4 1.4 1.3 1.3 1.3
</TABLE>
For purposes of calculating the ratio of earnings to fixed charges and the
ratio of earnings to fixed charges and preferred stock dividends, earnings are
the sum of:
o pre-tax income;
o fixed charges; and
o amortization of capitalized interest;
less:
o capitalized interest.
For purposes of calculating both ratios, fixed charges are the sum of:
o interest expensed and capitalized;
o amortized premiums, discounts and capitalized expenses related to
indebtedness; and
o our estimate of the interest within rental expenses.
Additionally, for purposes of calculating the ratio of earnings to fixed
charges and preferred stock dividends, preferred stock dividends are included in
the denominator of the ratio on a pre-tax basis.
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MORGAN STANLEY DEAN WITTER
Morgan Stanley Dean Witter & 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 and transaction services.
MSDW combines global strength in investment banking (including the origination
of underwritten public offerings and in mergers and acquisitions advice) and
institutional sales and trading with strength in providing investment and global
asset management products and services and, primarily through its Discover(R)
Card brand, quality consumer credit products.
As of November 30, 1998, MSDW had the second largest financial advisor
sales organization in the United States, with 11,238 professional financial
advisors and 438 securities branch offices. MSDW also had one of the largest
global asset management operations of any full-service securities firm, with
total assets under management and supervision of $376 billion. In addition,
based on its approximately 38 million general purpose credit card accounts as of
November 30, 1998, MSDW was the nation's third largest credit card issuer as
measured by number of accounts, with the largest proprietary merchant and cash
access network in the United States.
MSDW, through its subsidiaries, provides a wide range of financial and
securities services on a global basis and provides credit and transaction
services nationally. Its securities businesses include securities underwriting,
distribution and trading; merger, acquisition, restructuring, real estate,
project finance and other corporate finance advisory activities; full-service
brokerage services; research services; the trading of foreign exchange and
commodities, as well as derivatives, on a broad range of asset categories, rates
and indices; and securities lending. MSDW's asset management businesses include
providing global asset management advice and services to individual and
institutional investors through a variety of product lines and brand names,
including Morgan Stanley Dean Witter Advisors (formerly known as Dean Witter
InterCapital), Van Kampen Investments, Morgan Stanley Dean Witter Investment
Management and Miller Anderson & Sherrerd; and principal investment activities.
MSDW's credit and transaction services businesses include the issuance of the
Discover Card and other proprietary general purpose credit cards, the operation
of the Discover/NOVUS(R) Network, a proprietary network of merchant and cash
access locations, and direct-marketed activities such as the on-line securities
services offered by Discover Brokerage Direct Inc. MSDW's products and services
are provided to a large and diversified group of clients and customers including
corporations, governments, financial institutions and individuals.
MSDW conducts its business from its headquarters in New York City, its
regional offices and branches throughout the United States, and its principal
offices in London, Tokyo, Hong Kong and other financial centers throughout the
world. At November 30, 1998, MSDW had 45,712 employees. None of MSDW's employees
is covered by a collective bargaining agreement. MSDW is a combination of Dean
Witter, Discover & Co. and Morgan Stanley Group Inc. and was formed in a merger
of equals that was effected on May 31, 1997. MSDW was originally incorporated
under the laws of the State of Delaware in 1981, and its predecessor companies
date back to 1924.
MSDW's principal executive offices are at 1585 Broadway, New York, New
York 10036, and its telephone number is (212) 761-4000. Under this heading and
"Use of Proceeds" below, the term "MSDW" includes Morgan Stanley Dean Witter &
Co. and its consolidated subsidiaries.
USE OF PROCEEDS
MSDW will use the net proceeds from the sale of the securities we offer by
this prospectus for general corporate purposes or for any other purposes
described in the applicable prospectus supplement. General corporate purposes
may include additions to working capital, the redemption of outstanding
preferred stock, the repurchase of outstanding common stock and the repayment of
indebtedness. MSDW anticipates that it will raise additional funds from time to
time through equity or debt financing, including borrowings under revolving
credit agreements, to finance its businesses worldwide.
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DESCRIPTION OF DEBT SECURITIES
Debt May Be Senior or Subordinated
We may issue senior or subordinated debt securities. The senior debt
securities and, in the case of debt securities in bearer form, any coupons to
these securities, will constitute part of our senior debt, will be issued under
our Senior Debt Indenture, as defined below, and will rank on a parity with all
of our other unsecured and unsubordinated debt. The subordinated debt securities
and any coupons will constitute part of our subordinated debt, will be issued
under our Subordinated Debt Indenture, as defined below, and will be subordinate
and junior in right of payment, as set forth in the Subordinated Debt Indenture,
to all of our "senior indebtedness," which is defined in our Subordinated Debt
Indenture. If this prospectus is being delivered in connection with a series of
subordinated debt securities, the accompanying prospectus supplement or the
information we incorporate in this prospectus by reference will indicate the
approximate amount of senior indebtedness outstanding as of the end of the most
recent fiscal quarter. We refer to our Senior Debt Indenture and our
Subordinated Debt Indenture individually as an "indenture" and collectively as
the "indentures."
We have summarized below the material provisions of the indentures and the
debt securities, or indicated which material provisions will be described in the
related prospectus supplement. These descriptions are only summaries, and each
investor should refer to the applicable indenture, which describes completely
the terms and definitions summarized below and contains additional information
regarding the debt securities. Where appropriate, we use parentheses to refer
you to the particular sections of the applicable indenture. Any reference to
particular sections or defined terms of the applicable indenture in any
statement under this heading qualifies the entire statement and incorporates by
reference the applicable section or definition into that statement. The
indentures are substantially identical, except for the provisions relating to
MSDW's negative pledge, which is included in the Senior Debt Indenture only, and
to subordination.
Payments
We may issue debt securities from time to time in one or more series. The
debt securities may be denominated and payable in U.S. dollars or foreign
currencies. We may also issue debt securities, from time to time, with the
principal amount or interest payable on any relevant payment date to be
determined by reference to one or more currency exchange rates, securities or
baskets of securities, commodity prices or indices. Holders of these types of
debt securities will receive payments of principal or interest that depend upon
the value of the applicable currency, security or basket of securities,
commodity or index on the relevant payment dates.
Debt securities may bear interest at a fixed rate, which may be zero, or a
floating rate. Debt securities bearing no interest or interest at a rate that at
the time of issuance is below the prevailing market rate may be sold at a
discount below their stated principal amount.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following
terms of and other information relating to any offered debt securities:
o classification as senior or subordinated debt securities and the
specific designation;
o aggregate principal amount, purchase price and denomination;
o currency in which the debt securities are denominated and/or in which
principal, and premium, if any, and/or interest, if any, is payable;
o date of maturity;
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o the interest rate or rates or the method by which the calculation
agent will determine the interest rate or rates, if any;
o the interest payment dates, if any;
o the place or places for payment of the principal of and any premium
and/or interest on the debt securities;
o any repayment, redemption, prepayment or sinking fund provisions,
including any redemption notice provisions;
o whether we will issue the debt securities in registered form or bearer
form or both and, if we are offering debt securities in bearer form,
any restrictions applicable to the exchange of one form for another
and to the offer, sale and delivery of those debt securities in bearer
form;
o whether we will issue the debt securities in definitive form and
under what terms and conditions;
o the terms on which holders of the debt securities may convert or
exchange these securities into or for stock or other securities of an
entity unaffiliated with us, any specific terms relating to the
adjustment of the conversion or exchange feature and the period during
which the holders may make the conversion or exchange;
o information as to the methods for determining the amount of principal
or interest payable on any date and/or the currencies, securities or
baskets of securities, commodities or indices to which the amount
payable on that date is linked;
o any agents for the debt securities, including trustees, depositories,
authenticating or paying agents, transfer agents or registrars.
o any applicable United States federal income tax consequences,
including, but not limited to:
o whether and under what circumstances we will pay additional
amounts on debt securities held by a person who is not a U.S.
person for any tax, assessment or governmental charge withheld or
deducted and, if so, whether we will have the option to redeem
those debt securities rather than pay the additional amounts;
o tax considerations applicable to any discounted debt securities
or to debt securities issued at par that are treated as having
been issued at a discount for United States federal income tax
purposes;
o tax considerations applicable to any debt securities denominated
and payable in foreign currencies; and
o any other specific terms of the debt securities, including any
additional events of default or covenants, and any terms required by
or advisable under applicable laws or regulations.
Registration and Transfer of Debt Securities
Holders may present debt securities for exchange, and holders of
registered debt securities may present these securities for transfer, in the
manner, at the places and subject to the restrictions stated in the debt
securities and described in the applicable prospectus supplement. We will
provide these services without charge except for any tax or other governmental
charge payable in connection with these services and subject to any limitations
provided in the applicable indenture.
Holders may transfer debt securities in bearer form and the related
coupons, if any, by delivery to the transferee. If any of the securities are
held in global form, the procedures for transfer of interests in those
securities will depend upon the procedures of the depositary for those global
securities. See "Forms of Securities."
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Indentures
Debt securities that will be senior debt will be issued under an Amended
and Restated Senior Indenture dated as of May 1, 1999 between MSDW and The Chase
Manhattan Bank, as trustee. We call that indenture, as it may be supplemented
from time to time, the Senior Debt Indenture. Debt securities that will be
subordinated debt will be issued under an Amended and Restated Subordinated
Indenture dated as of May 1, 1999 between MSDW and The First National Bank of
Chicago, as trustee. We call that indenture, as it may be supplemented from time
to time, the Subordinated Debt Indenture. We refer to The Chase Manhattan Bank
and The First National Bank of Chicago individually as a "trustee" and
collectively as the "trustees."
Subordination Provisions
Holders of subordinated debt securities should recognize that contractual
provisions in the Subordinated Debt Indenture may prohibit us from making
payments on these securities. Subordinated debt securities are subordinate and
junior in right of payment, to the extent and in the manner stated in the
Subordinated Debt Indenture, to all of our senior indebtedness. The Subordinated
Debt Indenture defines senior indebtedness as obligations of, or guaranteed or
assumed by, MSDW for borrowed money or evidenced by bonds, debentures, notes or
other similar instruments, and amendments, renewals, extensions, modifications
and refundings of any of that indebtedness or of those obligations. Nonrecourse
obligations, the subordinated debt securities and any other obligations
specifically designated as being subordinate in right of payment to senior
indebtedness are not senior indebtedness as defined under the Subordinated Debt
Indenture. (Subordinated Debt Indenture, Section 1.01).
The Subordinated Debt Indenture provides that, unless all principal of and
any premium or interest on the senior indebtedness has been paid in full, or
provision has been made to make these payments in full, no payment of principal
of, or any premium or interest on, any subordinated debt securities may be made
in the event:
o of any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings involving us
or a substantial part of our property;
o that (a) a default has occurred in the payment of principal, any
premium, interest or other monetary amounts due and payable on any
senior indebtedness or (b) there has occurred any other event of
default concerning senior indebtedness, that permits the holder or
holders of the senior indebtedness to accelerate the maturity of the
senior indebtedness, with notice or passage of time, or both, and that
event of default has continued beyond the applicable grace period, if
any, and that default or event of default has not been cured or waived
or has not ceased to exist; or
o that the principal of and accrued interest on any subordinated debt
securities have been declared due and payable upon an event of default
as defined under the Subordinated Debt Indenture and that declaration
has not been rescinded and annulled as provided under the Subordinated
Debt Indenture. (Subordinated Debt Indenture, Section 13.01)
Covenants Restricting Pledges, Mergers and Other Significant Corporate Actions
Negative Pledge. Because we are a holding company, our assets consist
primarily of the securities of our subsidiaries. The negative pledge provisions
of the Senior Debt Indenture limit our ability to pledge some of these
securities. The Senior Debt Indenture provides that we will not, and will not
permit any subsidiary to create, assume, incur or guarantee any indebtedness for
borrowed money that is secured by a pledge, lien or other encumbrance except for
liens specifically permitted by the Senior Debt Indenture on:
(1) the voting securities of Morgan Stanley & Co. Incorporated, Morgan
Stanley & Co. International Limited, Dean Witter Reynolds Inc., Greenwood
Trust Company, or any subsidiary succeeding to any substantial part of the
business now conducted by any of those corporations, which we refer to
collectively as the "principal subsidiaries," or
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(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the debt securities issued under the
Senior Debt Indenture will be secured equally and ratably with indebtedness so
secured.
For these purposes, "subsidiary" means any corporation, partnership or
other entity of which at the time of determination we own or control directly or
indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "voting securities" means stock of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened. (Senior Debt Indenture, Section
3.06)
The Subordinated Debt Indenture does not include negative pledge
provisions.
Merger, Consolidation, Sale, Lease or Conveyance. Each indenture provides
that we will not merge or consolidate with any other person and will not sell,
lease or convey all or substantially all of our assets to any person, unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the indenture
and the debt securities issued under the indenture; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
indenture applicable to us. (Indentures, Section 9.01)
Absence of Protections against All Potential Actions of MSDW. There are no
covenants or other provisions in the indentures that would afford holders of
debt securities additional protection in the event of a recapitalization
transaction, a change of control of MSDW or a highly leveraged transaction. The
merger covenant described above would only apply if the recapitalization
transaction, change of control or highly leveraged transaction were structured
to include a merger or consolidation of MSDW or a sale, lease or conveyance of
all or substantially all of our assets. However, we may provide specific
protections, such as a put right or increased interest, for particular debt
securities, which we would describe in the applicable prospectus supplement.
Events of Default
The indentures provide holders of debt securities with remedies if we fail
to perform specific obligations, such as making payments on the debt securities
or other indebtedness, or if we become bankrupt. Holders should review these
provisions and understand which of our actions trigger an event of default and
which actions do not. Each indenture permits the issuance of debt securities in
one or more series, and, in many cases, whether an event of default has occurred
is determined on a series by series basis.
An event of default is defined under each indenture, with respect to any
series of debt securities issued under that indenture, as being:
o default in payment of any principal of the debt securities of that
series, either at maturity or upon any redemption, by declaration or
otherwise;
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o default for 30 days in payment of any interest on any debt securities
of that series;
o default for 60 days after written notice in the observance or
performance of any other covenant or agreement in the debt securities
of that series or the related indenture, other than a covenant
included in that indenture solely for the benefit of a different
series of debt securities;
o events of bankruptcy, insolvency or reorganization;
o failure to make any payment at maturity, including any applicable
grace period, on other indebtedness in an amount in excess of
$10,000,000 and continuance of that failure for a period of 30 days
after written notice of the failure to us by the applicable trustee,
or to us and the applicable trustee by the holders of not less than
25% in principal amount of the outstanding debt securities, treated as
one class, issued under the indenture;
o default with respect to any other indebtedness, which default results
in the acceleration of indebtedness in an amount in excess of
$10,000,000 without the indebtedness having been discharged or the
acceleration having been cured, waived, rescinded or annulled for a
period of 30 days after written notice of the acceleration to us by
the applicable trustee, or to us and the applicable trustee by the
holders of not less than 25% in principal amount of the outstanding
debt securities, treated as one class, issued under the indenture; or
o any other event of default provided in the supplemental indenture
under which that series of debt securities is issued.
For purposes of the fifth and sixth clauses above, indebtedness means
obligations of, or guaranteed or assumed by, MSDW for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments, but does not
include non-recourse obligations. In addition, if a failure, default or
acceleration referred to in the fifth and sixth clauses above ceases or is
cured, waived, rescinded or annulled, then the event of default under the
applicable indenture caused by that failure, default or acceleration will also
be considered cured. (Indentures, Section 5.01)
Acceleration of Debt Securities Upon an Event of Default. Each indenture
provides that:
o if an event of default due to the default in payment of principal of,
or any premium or interest on, any series of debt securities issued
under that indenture, or due to the default in the performance or
breach of any other covenant or warranty of MSDW applicable to the
debt securities of that series but not applicable to all outstanding
debt securities issued under that indenture occurs and is continuing,
either the trustee or the holders of not less than 25% in aggregate
principal amount of the outstanding debt securities of each affected
series, voting as one class, by notice in writing to MSDW, may declare
the principal of all debt securities of each affected series and
interest accrued thereon to be due and payable immediately; and
o if an event of default due to a default in the performance of any
other of the covenants or agreements in that indenture applicable to
all outstanding debt securities issued under that indenture or due to
specified events of bankruptcy, insolvency or reorganization of MSDW,
occurs and is continuing, either the trustee or the holders of not
less than 25% in aggregate principal amount of all outstanding debt
securities issued under that indenture, voting as one class, by notice
in writing to MSDW may declare the principal of all those debt
securities and interest accrued thereon to be due and payable
immediately. (Indentures, Section 5.01)
Annulment of Acceleration and Waiver of Defaults. In some circumstances,
if any and all events of default under the indenture, other than the non-payment
of the principal of the securities, which has become due as a result of an
acceleration, have been cured, waived or otherwise remedied, then the holders of
a majority in principal amount of all series of outstanding debt securities
affected, voting as one class, may annul past declarations of acceleration of or
waive past defaults of the debt securities. (Indentures, Sections 5.01 and 5.10)
Indemnification of Trustee for Actions Taken on Your Behalf. Each
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
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by the holders of debt securities issued under that indenture before proceeding
to exercise any right or power at the request of holders. (Indentures, Section
6.02) Subject to these provisions and some other limitations, the holders of a
majority in principal amount of each series of outstanding debt securities of
each affected series, voting as one class, 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. (Indentures, Section
5.09)
Limitation on Actions by You as an Individual Holder. Each indenture
provides that no individual holder of debt securities may institute any action
against us under that indenture, except actions for payment of overdue principal
and interest, unless the following actions have occurred:
o the holder must have previously given written notice to the trustee of
the continuing default;
o the holders of not less than 25% in aggregate principal amount of the
outstanding debt securities of each affected series, treated as one
class, must have (1) requested the trustee to institute that action
and (2) offered the trustee reasonable indemnity;
o the trustee must have failed to institute that action within 60 days
after receipt of the request referred to above; and
o the holders of a majority in principal amount of the outstanding debt
securities of each affected series, voting as one class, must not have
given directions to the trustee inconsistent with those of the holders
referred to above. (Indentures, Sections 5.06 and 5.09)
Each indenture contains a covenant that we will file annually with the
trustee a certificate of no default or a certificate specifying any default that
exists. (Indentures, Section 3.05)
Discharge, Defeasance and Covenant Defeasance
We have the ability to eliminate most or all of our obligations on any
series of debt securities prior to maturity if we comply with the following
provisions. (Indentures, Section 10.01)
Discharge of Indenture. We may discharge all of our obligations, other
than as to transfers and exchanges, under the relevant indenture after we have:
o paid or caused to be paid the principal and interest on all of the
outstanding debt securities in accordance with their terms;
o delivered to the applicable trustee for cancellation all of the
outstanding debt securities; or
o irrevocably deposited with the applicable trustee cash or U.S.
government obligations in trust for the benefit of the holders of any
series of debt securities issued under the Indenture that have either
become due and payable, or are by their terms due and payable, or are
scheduled for redemption, within one year, in an amount certified to
be sufficient to pay on each date that they become due and payable,
the principal of and interest on, and any mandatory sinking fund
payments for, those debt securities, except that the deposit of cash
or U.S. government obligations for the benefit of holders of a series
of debt securities that are due and payable, or are scheduled for
redemption, within one year will discharge obligations under the
relevant indenture relating only to that series of debt securities.
Defeasance of a Series of Securities at Any Time. We may also discharge
all of our obligations, other than as to transfers and exchanges, under any
series of debt securities at any time, which we refer to as defeasance.
We may be released with respect to any outstanding series of debt
securities from the obligations imposed by Sections 3.06 (in the case of the
Senior Debt Indenture) and 9.01, which sections contain the covenants described
above
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limiting liens and consolidations, mergers, asset sales and leases, and elect
not to comply with those sections without creating an event of default.
Discharge under those procedures is called "covenant defeasance."
Defeasance or covenant defeasance may be effected only if, among other
things:
o we irrevocably deposit with the relevant 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 on each date that they become due and payable, the principal of
and interest on, and any mandatory sinking fund payments for, all
outstanding debt securities of the series being defeased;
o we deliver to the relevant trustee an opinion of counsel to the effect
that:
o the holders of the series of debt securities being defeased will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the defeasance or covenant
defeasance; and
o the defeasance or covenant defeasance will not otherwise alter
those holders' United States federal income tax treatment of
principal and interest payments on the series of debt securities
being defeased; in the case of a defeasance, this 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
this prospectus, since that result would not occur under current
tax law; and
o in the case of the Subordinated Debt Indenture:
o no event or condition will exist that, under the provisions
described under "--Subordination Provisions" above, would prevent
us from making payments of principal or interest on the
subordinated 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 that deposit date; and
o we deliver to the trustee for the Subordinated Debt Indenture an
opinion of counsel to the effect that (i) the trust funds will
not be subject to any rights of holders of senior indebtedness
and (ii) after the 91st day following the deposit, the trust
funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally, except that if a court were to rule under any
of those laws in any case or proceeding that the trust funds
remained our property, then the relevant trustee and the holders
of the subordinated debt securities would be entitled to some
enumerated rights as secured creditors in the trust funds.
(Subordinated Debt Indenture, Section 10.01)
Modification of the Indentures
Modification without Consent of Holders. We and the trustee may enter into
supplemental indentures without the consent of the holders of debt securities
issued under a particular indenture to:
o secure any debt securities;
o evidence the assumption by a successor corporation of our obligations;
o add covenants for the protection of the holders of debt securities;
o cure any ambiguity or correct any inconsistency;
o establish the forms or terms of debt securities of any series; or
o evidence the acceptance of appointment by a successor trustee.
(Indentures, Section 8.01)
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Modification with Consent of Holders. We and the trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of each
affected series of outstanding debt securities, voting as one class, may add any
provisions to, or change in any manner or eliminate any of the provisions of,
the indenture or modify in any manner the rights of the holders of those debt
securities. However, we and the trustee may not make any of the following
changes to any outstanding debt security without the consent of each potentially
affected holder:
o extend the final maturity of the principal;
o reduce the principal amount;
o reduce the rate or extend the time of payment of interest;
o reduce any amount payable on redemption;
o change the currency in which the principal, including any amount of
original issue discount, premium, or interest thereon is payable;
o modify or amend the provisions for conversion of any currency into
another currency;
o reduce the amount of any original issue discount security payable upon
acceleration or provable in bankruptcy;
o alter the terms on which holders of the debt securities may convert or
exchange debt securities for stock or other securities of MSDW or of
other entities or for other property or the cash value of the
property, other than in accordance with the antidilution provisions or
other similar adjustment provisions included in the terms of the debt
securities;
o impair the right to institute suit for the enforcement of any payment
on any debt security when due; or
o reduce the percentage of debt securities the consent of whose owners
is required for modification of the indentures.
Modification of Subordination Provisions. We may not amend the
Subordinated Debt Indenture to alter the subordination of any outstanding
subordinated debt securities without the written consent of each potentially
adversely affected holder of senior indebtedness then outstanding. (Subordinated
Debt Indenture, Section 8.06)
Concerning Our Relationship with the Trustees
We and our subsidiaries maintain ordinary banking relationships and credit
facilities with The Chase Manhattan Bank and The First National Bank of Chicago.
DESCRIPTION OF UNITS
Units will consist of one or more debt securities, universal warrants and
purchase contracts or any combination of them. The applicable prospectus
supplement will also describe:
o the designation and the terms of the units and of any combination of
debt securities, universal warrants and purchase contracts
constituting the units, including whether and under what circumstances
the debt securities, universal warrants or purchase contracts may be
traded separately;
o any additional terms of the governing Unit Agreement;
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o any additional provisions for the issuance, payment, settlement,
transfer or exchange of the units or of the debt securities, universal
warrants or purchase contracts constituting the units; and
o any applicable United States federal income tax consequences.
The terms and conditions described under "Description of Debt Securities,"
"Description of Warrants" and "Description of Purchase Contracts" and those
described below under "--Significant Provisions of the Unit Agreement" and
"--Significant Provisions of the Unit Agreement Without Holders' Obligations"
will apply to each unit and to any debt security, universal warrant or purchase
contract included in each unit, respectively, unless otherwise specified in the
applicable prospectus supplement.
We will issue the units under one or more Unit Agreements, each referred
to as a Unit Agreement, to be entered into between us and a bank or trust
company, as unit agent. We may issue units in one or more series, which will be
described in the applicable prospectus supplement. Units that include purchase
contracts that are all pre-paid purchase contracts, as defined below under
"Description of Purchase Contracts," will be governed by one or more Unit
Agreements designed for units where the holders do not have any further
obligations under the purchase contracts, which we refer to as Unit Agreements
Without Holders' Obligations. We have filed the form of Unit Agreement and Unit
Agreement Without Holders' Obligations as exhibits to the registration
statement. Although we have described below the material provisions of the Unit
Agreement, the Unit Agreement Without Holders' Obligations and the units, these
descriptions are not complete, and you should review the detailed provisions of
the Unit Agreement and Unit Agreement Without Holders' Obligations for a full
description, including the definition of some of the terms used in this
prospectus and for other information regarding the units.
Significant Provisions of the Unit Agreement
Obligations of Unit Holder. Under the terms of the Unit Agreement, each
owner of a unit:
o consents to and agrees to be bound by the terms of the Unit Agreement,
o appoints the unit agent as its authorized agent to execute, deliver
and perform any purchase contract included in the unit in which that
owner has an interest, except in the case of pre-paid purchase
contracts which require no further performance by the owner, and
o irrevocably agrees to be a party to and be bound by the terms of any
purchase contract, other than a pre-paid purchase contract, included
in the unit in which that owner has an interest.
Assumption of Obligations by Transferee. Upon the registration of transfer
of a unit, the transferee will assume the obligations, if any, of the transferor
under any purchase contract included in the unit and under any other security
constituting that unit, and the transferor will be released from those
obligations. Under the Unit Agreement, we consent to the transfer of these
obligations to the transferee, to the assumption of these obligations by the
transferee and to the release of the transferor, if the transfer is made in
accordance with the provisions of the Unit Agreement.
Remedies. Upon the acceleration of the debt securities constituting any
units, our obligations and those of the owners under any purchase contracts
constituting a part of the units may also be accelerated upon the request of the
owners of not less than 25% of the affected purchase contracts, on behalf of all
the owners.
Limitation on Actions by You as an Individual Holder. No owner of any unit
will have any right under the Unit Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise regarding the Unit
Agreement, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official, unless the owner will have given written notice to
the unit agent and to us of the occurrence and continuance of a default
thereunder and:
o in the case of an event of default under the debt securities or the
relevant indenture, unless the procedures, including notice to us and
the trustee, described in the indenture have been complied with; and
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o in the case of a failure by MSDW to observe or perform any of its
obligations under the Unit Agreement relating to any purchase
contracts, other than pre-paid purchase contracts, included in the
unit, unless:
o owners of not less than 25% of the affected purchase contracts
have (a) requested the unit agent to institute that action or
proceeding in its own name as unit agent under the Unit Agreement
and (b) offered the unit agent reasonable indemnity;
o the unit agent has failed to institute that action or proceeding
within 60 days of that request by the owners referred to above;
and
o the owners of a majority of the outstanding affected units have
not given directions to the unit agent inconsistent with those of
the owners referred to above.
If these conditions have been satisfied, any owner of an affected unit may then,
but only then, institute an action or proceeding. Notwithstanding the above, the
owner of any unit or purchase contract will have the unconditional right to
purchase or sell, as the case may be, purchase contract property under the
purchase contract and to institute suit for the enforcement of that right.
Purchase contract property is defined under "Description of Purchase Contracts"
below.
Negative Pledge. Because we are a holding company, our assets consist
primarily of the securities of our subsidiaries. The negative pledge provisions
of the Unit Agreement limit our ability to pledge some of these securities. The
Unit Agreement provides that we will not, and will not permit any subsidiary to
create, assume, incur or guarantee any indebtedness for borrowed money that is
secured by a pledge, lien or other encumbrance except for liens specifically
permitted by the Unit Agreement on:
(1) the voting securities of Morgan Stanley & Co. Incorporated, Morgan
Stanley & Co. International Limited, Dean Witter Reynolds Inc., Greenwood
Trust Company, or any subsidiary succeeding to any substantial part of the
business now conducted by any of those corporations, which we refer to
collectively as the "principal subsidiaries," or
(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the units and the securities
constituting the units under the Unit Agreement will be secured equally and
ratably with indebtedness so secured.
For these purposes, "subsidiary" means any corporation, partnership or other
entity of which at the time of determination we own or control directly or
indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "voting securities" means stock of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened.
Absence of Protections against All Potential Actions of MSDW. There are no
covenants or other provisions in the Unit Agreement providing for a put right or
increased interest or otherwise that would afford holders of units additional
protection in the event of a recapitalization transaction, a change of control
of MSDW or a highly leveraged transaction.
Modification without Consent of Holders. We and the unit agent may amend
the Unit Agreement and the terms of the purchase contracts and the purchase
contract certificates without the consent of the holders to:
o cure any ambiguity;
o correct or supplement any defective or inconsistent provision; or
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o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
Modification with Consent of Holders. We and the unit agent, with the
consent of the holders of not less than a majority of all series of outstanding
units affected, voting as one class, may modify the rights of the holders of the
units of each series so affected or the terms of any purchase contracts included
in any of those series of units and the terms of the Unit Agreement relating to
the purchase contracts of each series so affected. However, we and the unit
agent may not make any of the following modifications without the consent of the
holder of each outstanding unit affected by the modification:
o impair the right to institute suit for the enforcement of any purchase
contract;
o materially adversely affect the holders' rights under any purchase
contract;
o reduce the percentage of purchase contracts constituting part of
outstanding units the consent of whose owners is required for the
modification of the provisions of the Unit Agreement relating to those
purchase contracts or for the waiver of any defaults under the Unit
Agreement relating to those purchase contracts;
o materially adversely affect the holders' units or the terms of the
Unit Agreement (other than terms related to the first three clauses
above); or
o reduce the percentage of outstanding units the consent of whose owners
is required for the modification of the provisions of the Unit
Agreement (other than terms related to the first three clauses above).
Modifications of any debt securities or pre-paid purchase contracts
included in units may only be made in accordance with the applicable indenture,
as described under "Description of Debt Securities--Modification of the
Indentures." Modifications of any universal warrants included in units may only
be made in accordance with the terms of the universal warrant agreement as
described under "Description of Warrants--Significant Provisions of the Warrant
Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
provides that we will not merge or consolidate with any other person and will
not sell, lease or convey all or substantially all of our assets to any person
unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the Unit
Agreement; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement applicable to us.
Replacement of Unit Certificates or Purchase Contract Certificates. We
will replace any mutilated certificate evidencing a definitive unit or purchase
contract at the expense of the holder upon surrender of that certificate to the
unit agent. We will replace certificates that have been destroyed, lost or
stolen at the expense of the holder upon delivery to us and the unit agent of
evidence satisfactory to us and the unit agent of the destruction, loss or theft
of the certificates. In the case of a destroyed, lost or stolen certificate, an
indemnity satisfactory to the unit agent and to us may be required at the
expense of the holder of the units or purchase contracts evidenced by that
certificate before a replacement will be issued.
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The Unit Agreement provides that, notwithstanding the foregoing, no
replacement certificate need be delivered:
o during the period beginning 15 days before the day of mailing of a
notice of redemption or of any other exercise of any right held by
MSDW with respect to the unit or any security constituting the unit
evidenced by the mutilated, destroyed, lost or stolen certificate and
ending on the day of the giving of that notice;
o if the mutilated, destroyed, lost or stolen certificate evidences any
security selected or called for redemption or other exercise of a
right held by MSDW; or
o at any time on or after the date of settlement or redemption for any
purchase contract included in the unit, or at any time on or after the
last exercise date for any universal warrant included in the unit,
evidenced by the mutilated, destroyed, lost or stolen certificate,
except with respect to any units that remain or will remain
outstanding following the date of settlement or redemption or the last
exercise date.
Unit Agreement Not Qualified under Trust Indenture Act. The Unit Agreement
will not be qualified as an indenture under, and the unit agent will not be
required to qualify as a trustee under, the Trust Indenture Act. Accordingly,
the holders of units and purchase contracts, other than pre-paid purchase
contracts, will not have the benefits of the protections of the Trust Indenture
Act. However, any debt securities or pre-paid purchase contracts issued as part
of a unit will be issued under an indenture qualified under the Trust Indenture
Act, and the trustee under that indenture will be qualified as a trustee under
the Trust Indenture Act.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner, notwithstanding
any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement, the units and the purchase
contracts constituting part of the units will be governed by, and construed in
accordance with, the laws of the State of New York.
Significant Provisions of the Unit Agreement Without Holders' Obligations
Remedies. The unit agent will act solely as our agent in connection with
the units governed by the Unit Agreement Without Holders' Obligations and will
not assume any obligation or relationship of agency or trust for or with any
holders of units or interests in those units. Any holder of units or interests
in those units may, without the consent of the unit agent or any other holder or
beneficial owner of units, enforce by appropriate legal action, on its own
behalf, its rights under the Unit Agreement Without Holders' Obligations.
However, the holders of units or interests in those units may only enforce their
rights under the purchase contracts and any debt securities or under any
universal warrants issued as parts of those units in accordance with the terms
of the applicable indenture and the warrant agreement.
Modification. We and the unit agent may amend the Unit Agreement Without
Holders' Obligations without the consent of the holders to:
o cure any ambiguity;
o cure, correct or supplement any defective or inconsistent provision in
the agreement; or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interest of the
affected holders of units in any material respect.
We and the unit agent, with the consent of the holders of not less than a
majority of units at the time outstanding, may modify or amend the rights of the
affected holders of the affected units and the terms of the Unit Agreement
Without Holders' Obligations. However, we and the unit agent may not, without
the consent of each affected holder of units, make any modifications or
amendments that would:
o materially and adversely affect the exercise rights of the affected
holders, or
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o reduce the percentage of outstanding units the consent of whose owners
is required to consent to a modification or amendment of the Unit
Agreement Without Holders' Obligations.
Pre-paid purchase contracts and any debt securities issued as part of
units governed by the Unit Agreement Without Holders' Obligations may be
modified only in accordance with the applicable indenture, as described above
under "Description of Debt Securities--Modification of the Indentures." Any
universal warrants issued as part of units may be modified only in accordance
with the terms of the warrant agreement as described in "Description of
Warrants--Significant Provisions of the Warrant Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
Without Holders' Obligations provides that we will not merge or consolidate with
any other person and will not sell, lease or convey all or substantially all of
our assets to any person unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the Unit
Agreement Without Holders' Obligations; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement Without Holders' Obligations applicable to us.
Replacement of Unit Certificates. We will replace any mutilated
certificate evidencing a definitive unit at the expense of the holder upon
surrender of that certificate to the unit agent. We will replace certificates
that have been destroyed, lost or stolen at the expense of the holder upon
delivery to us and the unit agent of evidence satisfactory to us and the unit
agent of the destruction, loss or theft of the certificates. In the case of a
destroyed, lost or stolen certificate, an indemnity satisfactory to the unit
agent and to us may be required at the expense of the holder of the units or
prepaid purchase contracts evidenced by that certificate before a replacement
will be issued.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner, notwithstanding
any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement Without Holders' Obligations,
the units and the pre-paid purchase contracts constituting part of the units
will be governed by, and construed in accordance with, the laws of the State of
New York.
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DESCRIPTION OF WARRANTS
Offered Warrants
We may issue warrants that are debt warrants or universal warrants. We may
offer warrants separately or together with one or more additional warrants,
purchase contracts or debt securities or any combination of those securities in
the form of units, as described in the applicable prospectus supplement. If we
issue warrants as part of a unit, the accompanying prospectus supplement will
specify whether those warrants may be separated from the other securities in the
unit prior to the warrants' expiration date. Universal warrants issued in the
United States may not be so separated prior to the 91st day after the issuance
of the unit, unless otherwise specified in the applicable prospectus supplement.
Debt Warrants. We may issue, together with debt securities or separately,
warrants for the purchase of debt securities on terms to be determined at the
time of sale. We refer to this type of warrant as a debt warrant.
Universal Warrants. We may also issue warrants to purchase or sell, on
terms to be determined at the time of sale:
o securities of an entity not affiliated with us, a basket of those
securities, an index or indices of those securities or any combination
of the above;
o currencies; or
o commodities.
We refer to the property in the above clauses as "warrant property." We
refer to this type of warrant as a "universal warrant." We may satisfy our
obligations, if any, with respect to any universal warrants by delivering the
warrant property or, in the case of warrants to purchase or sell securities or
commodities, the cash value of the securities or commodities, as described in
the applicable prospectus supplement.
Further Information in Prospectus Supplement
General Terms of Warrants. The applicable prospectus supplement will
contain, where applicable, the following terms of and other information relating
to the warrants:
o the specific designation and aggregate number of, and the price at
which we will issue, the warrants;
o the currency with which the warrants may be purchased;
o the date on which the right to exercise the warrants will begin and
the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the warrants;
o whether the warrants will be issued in fully registered form or bearer
form, in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a unit
will correspond to the form of the unit and of any debt security or
purchase contract included in that unit;
o any applicable United States federal income tax consequences;
o the identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents, registrars,
determination, or other agents;
o the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities exchange;
o whether the warrants are to be sold separately or with other
securities as part of units; and
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o any other terms of the warrants.
Additional Terms of Debt Warrants. The prospectus supplement will contain,
where applicable, the following terms of and other information relating to any
debt warrants:
o the designation, aggregate principal amount, currency and terms of the
debt securities that may be purchased upon exercise of the debt
warrants;
o if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of the debt warrants
issued with each of the debt securities;
o if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable; and
o the principal amount of debt securities purchasable upon exercise of
each debt warrant, the price at which and the currency in which the
debt securities may be purchased and the method of exercise.
Additional Terms of Universal Warrants. The applicable prospectus
supplement will contain, where applicable, the following terms of and other
information relating to any universal warrants:
o whether the universal warrants are put warrants or call warrants and
whether you or we will be entitled to exercise the warrants;
o the specific warrant property, and the amount or the method for
determining the amount of the warrant property, purchasable or
saleable upon exercise of each universal warrant;
o the price at which and the currency with which the underlying
securities, currencies or commodities may be purchased or sold upon
the exercise of each universal warrant, or the method of determining
that price;
o whether the exercise price may be paid in cash, by the exchange of any
other security offered with the universal warrants or both and the
method of exercising the universal warrants; and
o whether the exercise of the universal warrants is to be settled in
cash or by delivery of the underlying securities, commodities, or
both.
Significant Provisions of the Warrant Agreements
We will issue the warrants under one or more warrant agreements to be
entered into between us and a bank or trust company, as warrant agent, in one or
more series, which will be described in the prospectus supplement for the
warrants. The forms of warrant agreements are filed as exhibits to the
registration statement. The following summaries of significant provisions of the
warrant agreements and the warrants are not intended to be comprehensive and
holders of warrants should review the detailed provisions of the relevant
warrant agreement for a full description and for other information regarding the
warrants.
Modifications without Consent of Warrantholders. We and the warrant agent
may amend the terms of the warrants and the warrant certificates without the
consent of the holders to:
o cure any ambiguity,
o cure, correct or supplement any defective or inconsistent provision,
or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
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Modifications with Consent of Warrantholders. We and the warrant agent,
with the consent of the holders of not less than a majority in number of the
then outstanding unexercised warrants affected, may modify or amend the warrant
agreement. However, we and the warrant agent may not make any of the following
modifications or amendments without the consent of each affected warrantholder:
o change the exercise price of the warrants;
o reduce the amount receivable upon exercise, cancellation or expiration
of the warrants other than in accordance with the antidilution
provisions or other similar adjustment provisions included in the
terms of the warrants;
o shorten the period of time during which the warrants may be exercised;
o materially and adversely affect the rights of the owners of the
warrants; or
o reduce the percentage of outstanding warrants the consent of whose
owners is required for the modification of the applicable warrant
agreement.
Merger, Consolidation, Sale or Other Disposition. If at any time there
will be a merger or consolidation of MSDW or a transfer of substantially all of
our assets, the successor corporation will succeed to and assume all of our
obligations under each warrant agreement and the warrant certificates. We will
then be relieved of any further obligation under each of those warrant
agreements and the warrants issued under those warrant agreements. See
"Description of Debt Securities--Covenants Restricting Pledges, Mergers and
other Significant Corporate Actions."
Enforceability of Rights of Warrantholders. The warrant agents will act
solely as our agents in connection with the warrant certificates and will not
assume any obligation or relationship of agency or trust for or with any holders
of warrant certificates or beneficial owners of warrants. Any holder of warrant
certificates and any beneficial owner of warrants may, without the consent of
any other person, enforce by appropriate legal action, on its own behalf, its
right to exercise the warrants evidenced by the warrant certificates in the
manner provided for in that series of warrants or pursuant to the applicable
warrant agreement. No holder of any warrant certificate or beneficial owner of
any warrants will be entitled to any of the rights of a holder of the debt
securities or any other warrant property purchasable upon exercise of the
warrants, including, without limitation, the right to receive the payments on
those debt securities or other warrant property or to enforce any of the
covenants or rights in the relevant indenture or any other similar agreement.
Registration and Transfer of Warrants. Subject to the terms of the
applicable warrant agreement, warrants in registered, definitive form may be
presented for exchange and for registration of transfer, at the corporate trust
office of the warrant agent for that series of warrants, or at any other office
indicated in the prospectus supplement relating to that series of warrants,
without service charge. However, the holder will be required to pay any taxes
and other governmental charges as described in the warrant agreement. The
transfer or exchange will be effected only if the warrant agent for the series
of warrants is satisfied with the documents of title and identity of the person
making the request.
New York Law to Govern. The warrants and each warrant agreement will be
governed by, and construed in accordance with, the laws of the State of New
York.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including purchase contracts issued as
part of a unit with one or more debt securities or universal warrants, for the
purchase or sale of:
o securities of an entity not affiliated with MSDW, a basket of those
securities, an index or indices of those securities or any combination
of the above;
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o currencies; or
o commodities.
We refer to this property in the above clauses as "purchase contract property."
Each purchase contract will obligate the holder to purchase or sell, and
obligate MSDW to sell or purchase, on specified dates, the purchase contract
property at a specified price or prices, all as described in the applicable
prospectus supplement. The applicable prospectus supplement will also specify
the methods by which the holders may purchase or sell the purchase contract
property and any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract.
Pre-paid Purchase Contracts
Purchase contracts may require holders to satisfy their obligations under
the purchase contracts at the time they are issued. We refer to these purchase
contracts as "pre-paid purchase contracts." MSDW's obligation to settle pre-paid
purchase contracts on the relevant settlement date will constitute senior
indebtedness or subordinated indebtedness of MSDW. Accordingly, pre-paid
purchase contracts will be issued under the Senior Debt Indenture or the
Subordinated Debt Indenture, as specified in the applicable prospectus
supplement.
Purchase Contracts Issued as Part of Units
Purchase contracts issued as part of a unit will be governed by the terms
and provisions of a Unit Agreement or, in the case of pre-paid purchase
contracts issued as part of a unit that contains no other purchase contracts, a
Unit Agreement Without Holders' Obligations. See "Description of
Units--Significant Provisions of the Unit Agreement" and "--Significant
Provisions of the Unit Agreement Without Holders' Obligations." The applicable
prospectus supplement will specify the following:
o whether the purchase contract obligates the holder to purchase or sell
the purchase contract property;
o whether a purchase contract issued as part of a unit may be separated
from the other securities constituting part of that unit prior to the
purchase contract's settlement date, except that purchase contracts
issued in the United States may not be so separated prior to the 91st
day after the issuance of a unit;
o the methods by which the holders may purchase or sell the purchase
contract property;
o any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract; and
o whether the purchase contracts will be issued in fully registered or
bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a purchase contract
included in a unit will correspond to the form of the unit and of any
debt security or universal warrant included in that unit.
Settlement of Purchase Contracts. Where purchase contracts issued together
with debt securities as part of a unit require the holders to buy purchase
contract property, the unit agent may apply principal payments from the debt
securities in satisfaction of the holders' obligations under the related
purchase contract as specified in the prospectus supplement. The unit agent will
not so apply the principal payments if the holder has delivered cash to meet its
obligations under the purchase contract. To settle the purchase contract and
receive the purchase contract property, the holder must present and surrender
the unit certificates at the office of the unit agent. If a holder settles its
obligations under a purchase contract that is part of a unit in cash rather than
by delivering the debt security that is part of the unit, that debt security
will remain outstanding if the maturity extends beyond the relevant settlement
date and, as more fully described in the applicable prospectus supplement, the
holder will receive that debt security or an interest in the relevant global
debt security.
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Pledge by Purchase Contract Holders to Secure Performance. To secure the
obligations of the purchase contract holders contained in the Unit Agreement and
in the purchase contracts, the holders, acting through the unit agent, as their
attorney-in-fact, will grant, sell, convey, assign, transfer and pledge the
items in the following sentence, which we refer to as the "pledge," to The Chase
Manhattan Bank, in its capacity as collateral agent, for our benefit. The pledge
is a security interest in and to, and a lien upon and right of set-off against,
all of the holders' right, title and interest in and to:
o any debt securities that are part of units that include the purchase
contracts, or other property as may be specified in the applicable
prospectus supplement, which we refer to as the "pledged items";
o all additions to and substitutions for the pledged items as may be
permissible, if so specified in the applicable prospectus supplement;
o all income, proceeds and collections received or to be received, or
derived or to be derived, at any time from or in connection with the
pledged items described in the two clauses above; and
o all powers and rights owned or thereafter acquired under or with
respect to the pledged items.
The pledge constitutes collateral security for the performance when due by
each holder of its obligations under the Unit Agreement and the applicable
purchase contract. The collateral agent will forward all payments from the
pledged items to us, unless the payments have been released from the pledge in
accordance with the Unit Agreement. We will use the payments received from the
pledged items to satisfy the obligations of the holder of the Unit under the
related purchase contract.
Property Held in Trust by Unit Agent. If a holder fails to settle in cash
its obligations under a purchase contract that is part of a unit and fails to
present and surrender its unit certificate to the unit agent when required, that
holder will not receive the purchase contract property. Instead, the unit agent
will hold that holder's purchase contract property, together with any
distributions, as the registered owner in trust for the benefit of the holder
until the holder presents and surrenders the certificate or provides
satisfactory evidence that the certificate has been destroyed, lost or stolen.
The unit agent or MSDW may require an indemnity from the holder for liabilities
related to any destroyed, lost or stolen certificate. If the holder does not
present the unit certificate, or provide the necessary evidence of destruction
or loss and indemnity, on or before the second anniversary of the settlement
date of the related purchase contract, the unit agent will pay to us the amounts
it received in trust for that holder. Thereafter, the holder may recover those
amounts only from us and not the unit agent. The unit agent will have no
obligation to invest or to pay interest on any amounts it holds in trust pending
distribution.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, MSDW'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.
The rights of holders of preferred stock offered by this prospectus will
be subject to, and may be adversely affected by, issuances of preferred stock in
the future. Under some circumstances, alone or in combination with other
provisions of our certificate of incorporation, described under "--Additional
Provisions of MSDW's Certificate of Incorporation and By-laws" below, our
issuances of preferred stock may discourage or make more difficult an
acquisition of MSDW that the Board of Directors deems undesirable.
The Board of Directors of MSDW 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 other
terms applicable to the preferred stock to be issued. The Board of Directors may
issue preferred stock to obtain additional financing, in connection with
acquisitions, to officers, directors or employees of MSDW and its subsidiaries
in accordance with benefit plans or otherwise and for other proper corporate
purposes.
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Outstanding Capital Stock
Outstanding Common Stock. As of March 31, 1999, there were approximately
570,574,025 shares of our common stock outstanding.
Outstanding Preferred Stock. On March 31, 1999, MSDW also had outstanding
the following series of preferred stock:
o approximately 3,548,234 shares of ESOP Convertible Preferred Stock,
with a liquidation value of $35.875 per share, which we refer to as
the ESOP Preferred Stock, issued in connection with MSDW's Employee
Stock Ownership Plan;
o 1,000,000 shares of 7-3/4% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 7-3/4% Preferred
Stock; and
o 1,725,000 shares of Series A Fixed/Adjustable Rate Cumulative
Preferred Stock, with a stated value of $200.00 per share, which we
refer to as the Series A Fixed/Adjustable Rate Preferred Stock.
We refer to the 7-3/4% Preferred Stock and the Series A Fixed/Adjustable
Rate Preferred Stock as the Existing Cumulative Preferred Stock.
Cumulative Preferred Stock Issuable under the Capital Units. In addition,
we and our wholly-owned subsidiary Morgan Stanley Finance plc have outstanding
Capital Units. Each Capital Unit consists of a subordinated debenture issued by
Morgan Stanley Finance plc, which we guaranteed on a subordinated basis, and a
related purchase contract we issued that requires the holder to purchase one
depositary share representing ownership of a fraction or multiple of a share of
our preferred stock. The Capital Units may result in the issuance at any time of
up to:
o 720,900 shares of our 9.00% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 9.00% Preferred
Stock;
o 996,776 shares of our 8.40% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.40% Preferred
Stock;
o 847,500 shares of our 8.20% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.20% Preferred
Stock; and
o 670,000 shares of our 8.03% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.03% Preferred
Stock.
We refer to the 9.00% Preferred Stock, the 8.40% Preferred Stock, the
8.20% Preferred Stock and the 8.03% Preferred Stock collectively as the Capital
Units Cumulative Preferred Stock.
Series A Junior Participating Preferred Stock Issuable under Rights Plan.
In addition, we have authorized for issuance up to 450,000 shares of Series A
Junior Participating Preferred Stock, par value $0.01 per share, which may be
issued upon the exercise of rights issued to the holders of our common stock
under our Rights Plan. See "--The Rights Plan."
The preceding summary and the following summary of the terms of the
offered preferred stock do not purport to be complete and are qualified by our
certificate of incorporation and by the Certificates of Designation of
Preferences and Rights for each of the ESOP Preferred Stock, each series of
Existing Cumulative Preferred Stock, each series of Capital Units Cumulative
Preferred Stock and the Series A Junior Participating Preferred Stock.
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Offered Preferred Stock
Our Board of Directors has authorized the issuance in series of additional
shares of preferred stock and has authorized a committee of the Board of
Directors to establish and designate series and to fix the number of shares and
the relative rights, preferences and limitations of the respective series of the
preferred stock offered by this prospectus and the applicable prospectus
supplement. The shares of offered preferred stock, when issued and sold, will be
fully paid and nonassessable.
Terms Specified in Prospectus Supplement. The following description sets
forth some general terms and provisions of the offered preferred stock. The
number of shares and all of the relative rights, preferences and limitations of
the respective series of offered preferred stock that the Board of Directors or
the committee establishes will be described in the applicable prospectus
supplement. The terms of particular series of offered preferred stock may
differ, among other things, in:
o designation;
o number of shares that constitute the series;
o dividend rate, or the method of calculating the dividend rate;
o dividend periods, or the method of calculating the dividend periods;
o redemption provisions, including whether or not, on what terms and at
what prices the shares will be subject to redemption at our option;
o voting rights;
o preferences and rights upon liquidation or winding-up;
o whether or not and on what terms the shares will be convertible into
or exchangeable for shares of any other class, series or security of
MSDW or any other corporation or any other property;
o whether depositary shares representing the offered preferred stock
will be offered and, if so, the fraction or multiple of a share that
each depositary share will represent; and
o the other rights and privileges and any qualifications, limitations or
restrictions of those rights or privileges.
We have summarized below the material provisions of a certificate of
designation authorizing the issuance of any series of offered preferred stock.
These summaries are not complete and each investor should refer to the form of
certificate of designation which has been filed as an exhibit to the
registration statement and to our certificate of incorporation for a complete
description of the terms and definitions. The Board of Directors or a duly
authorized committee of the Board of Directors will adopt the resolutions to be
included in the certificate of designation prior to the issuance of a series of
offered preferred stock, and the certificate of designation will be filed with
the Secretary of State of the State of Delaware as soon thereafter as reasonably
practicable.
Rank. Each series of offered preferred stock will rank, with respect to
voting powers, preferences or relative, participating, optional and other
special rights, including with respect to the payment of dividends and the
distribution of assets, whether upon liquidation or otherwise:
o junior to any series of capital stock of MSDW expressly stated to be
senior to that series of offered preferred stock,
o senior to the common stock of MSDW and any class of capital stock of
MSDW expressly stated to be junior to that series of offered preferred
stock; and
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o on a parity with each other series of offered preferred stock and all
other classes of capital stock of MSDW.
The offered preferred stock will rank, as to payment of dividends and amounts
payable on liquidation, on a parity with the ESOP Preferred Stock, each series
of the Existing Cumulative Preferred Stock and, if issued, the Capital Units
Cumulative Preferred Stock.
Dividends. If described in the applicable prospectus supplement, we will
pay cumulative cash dividends to the holders of offered preferred stock, when
and as declared by the Board of Directors or the committee out of funds legally
available for payment. The prospectus supplement will detail the annual rate of
dividends or the method or formula for determining or calculating them, and the
payment dates and payment periods for dividends. The Board of Directors or the
committee will fix a record date for the payment of dividends not more than 60
or less than 10 days preceding the dividend payment date. We will pay dividends
on the offered preferred stock to the holders of record on that record date.
Dividends will be cumulative from the date of original issue of the series. A
series of offered preferred stock will be junior as to payment of dividends to
any series of preferred stock that may be issued in the future that is expressly
stated to be senior as to payment of dividends to that series. If at any time we
have failed to pay accrued dividends on any of those senior shares when payable,
we may not pay any dividend on that series of offered preferred stock or redeem
or otherwise repurchase any shares of that series until we have paid or set
aside for payment the full amount of the accumulated but unpaid dividends on the
senior shares.
We will not declare, pay or set aside for payment any dividends on any
preferred stock ranking on a parity as to payment of dividends with the offered
preferred stock unless we declare, pay or set aside for payment, dividends on
all the outstanding shares of offered preferred stock for all dividend payment
periods ending on or before the dividend payment date for any parity stock. We
must declare, pay or set aside for payment any amounts on the offered preferred
stock ratably in proportion to the respective amounts of dividends (1)
accumulated and unpaid or payable on that parity stock, on the one hand, and (2)
accumulated and unpaid or payable through the dividend payment period or periods
of the offered preferred stock next preceding the dividend payment date, on the
other hand.
Except as described above, unless we have paid the full cumulative
dividends on the outstanding shares of offered preferred stock, we may not take
any of the following actions with respect to our common stock or any other
preferred stock of MSDW ranking junior or on parity with the offered preferred
stock as to dividend payments:
o declare, pay or set aside for payment any dividends, other than
dividends payable in our common stock,
o make other distributions,
o redeem, purchase or otherwise acquire our common stock or junior
preferred stock for any consideration, or
o make any payment to or available for a sinking fund for the redemption
of our common stock or junior preferred stock.
Preferred stock on a parity with offered preferred stock currently includes the
ESOP Preferred Stock and the Existing Cumulative Preferred Stock and, if issued,
would include the Capital Units Cumulative Preferred Stock.
The provisions of the immediately preceding paragraph will not apply to
any monies we deposit in any sinking fund with respect to any preferred stock in
compliance with the provisions of the sinking fund. We may apply monies so
deposited to the purchase or redemption of the preferred stock in accordance
with the terms of the sinking fund, regardless of whether at the time of
application we have paid or declared and set aside for payment full cumulative
dividends upon shares of the offered preferred stock outstanding on the last
dividend payment date for any series of offered preferred stock. The provisions
of the immediately preceding paragraph also do not restrict the ability of a
holder of any junior or parity preferred stock or common stock to convert those
securities into or exchange those securities for MSDW capital stock ranking
junior to the offered preferred stock as to dividend payments.
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We will compute the amount of dividends payable for the initial dividend
period or any period shorter than a full dividend period on the basis of a
360-day year of twelve 30-day months, unless otherwise indicated in the
prospectus supplement. Accrued but unpaid dividends will not bear interest.
Redemption. The prospectus supplement will indicate whether, and on what
terms, shares of any series of offered preferred stock will be subject to
mandatory redemption or sinking fund provision. The prospectus supplement will
also indicate whether, and on what terms, including the date on or after which
redemption may occur, we may redeem shares of a series of the offered preferred
stock. We will effect any optional redemption upon not less than 30 days' notice
at a redemption price of not less than the stated value per share of the
applicable series of offered preferred stock plus accrued and accumulated but
unpaid dividends to but excluding the date fixed for redemption. If we have not
paid full cumulative dividends on all outstanding shares of offered preferred
stock we may not redeem any shares of offered preferred stock in part and we may
not purchase or acquire any shares of offered preferred stock, otherwise than by
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, we will select those to be redeemed
by lot or a substantially equivalent method.
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of MSDW, the holders of shares of offered preferred stock will be
entitled to receive, out of the assets of MSDW available for distribution to
stockholders, liquidating distributions in an amount equal to the stated value
per share of offered preferred stock, as described in the applicable prospectus
supplement, plus accrued and accumulated but unpaid dividends to the date of
final distribution, before any distribution is made to holders of
o any other shares of preferred stock ranking junior to the offered
preferred stock as to rights upon liquidation, dissolution or winding
up or
o our common stock.
However, holders of the shares of offered preferred stock will not be entitled
to receive the liquidation price of their shares until we have paid or set aside
an amount sufficient to pay in full the liquidation preference of any other
shares of MSDW's capital stock ranking senior as to rights upon liquidation,
dissolution or winding up. Neither a consolidation or merger of MSDW with or
into another corporation nor a merger of another corporation with or into MSDW
nor a sale or transfer of all or part of MSDW's assets for cash or securities
will be considered a liquidation, dissolution or winding up of MSDW.
If upon any liquidation, dissolution or winding up of MSDW, we have not
paid the amounts payable with respect to the offered preferred stock and any
other preferred stock ranking on parity with the offered preferred stock as to
rights upon liquidation, dissolution or winding up, the holders of the offered
preferred stock and of that other preferred stock will share ratably in any
distribution in proportion to the full respective preferential amounts to which
they are entitled. After we have paid 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 MSDW.
Voting Rights. Unless otherwise determined by our Board of Directors and
indicated in the prospectus supplement, holders of the offered preferred stock
will not have any voting rights except as described 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 are 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 offered preferred stock, voting separately as a class with all other
series of preferred stock, including the Existing Cumulative Preferred Stock,
having similar voting rights that are exercisable, will be entitled to vote for
the election of two of the authorized number of directors of MSDW at the next
annual meeting of stockholders and at each subsequent meeting until we have paid
or set apart for payment all dividends accumulated on the offered preferred
stock. The term of office of all directors elected by the holders of preferred
stock will 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.
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So long as any shares of the offered preferred stock remain outstanding,
we will not, without the consent of the holders of at least two-thirds of the
shares of offered preferred stock outstanding at the time
o 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
o amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the 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 their holders.
Holders of the offered preferred stock will vote separately as a class with all
other series of preferred stock, including the Existing Cumulative Preferred
Stock and any issued Capital Units Cumulative Preferred Stock, having similar
voting rights have been conferred that are exercisable. For purposes of the
preceding sentence, 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 will not be
considered to materially and adversely affect those powers, preferences or
special rights.
Agents and Registrar for Offered Preferred Stock. The transfer agent,
dividend disbursing agent and registrar for each series of offered preferred
stock will be The Bank of New York.
Depositary Shares
We may, at our option, elect to offer fractional shares or some multiple
of shares of offered preferred stock, rather than individual shares of offered
preferred stock. If we choose to do so, we will issue depositary receipts for
depositary shares, each of which will represent a fraction or a multiple of a
share of a particular series of offered preferred stock as described below.
The following statements concerning depositary shares, depositary
receipts, and the deposit agreement are not intended to be comprehensive and are
qualified in their entirety by reference to the forms of these documents, which
we have filed as exhibits to the registration statement. Each investor should
refer to the detailed provisions of those documents, as we have explained under
the heading "Where You Can Find More Information" in the Summary.
The shares of any series of offered preferred stock represented by
depositary shares will be deposited under a deposit agreement among MSDW, The
Bank of New York, as depositary, which we refer to as the Preferred Stock
Depositary, and the holders from time to time of depositary receipts issued
under the agreement. Subject to the terms of the deposit agreement, each holder
of a depositary share will be entitled, in proportion to the fraction or
multiple of a share of offered preferred stock represented by that depositary
share, to all the rights and preferences of the offered preferred stock
represented by that depositary share, including dividend, voting and liquidation
rights.
The depositary shares will be evidenced by depositary receipts issued
under the deposit agreement. Depositary receipts will be distributed to those
persons purchasing the fractional or multiple shares of the related series of
offered preferred stock. Immediately following the issuance of shares of a
series of offered preferred stock, we will deposit those shares with the
Preferred Stock Depositary, which will then issue and deliver the depositary
receipts to the purchasers. Depositary receipts will only be issued evidencing
whole depositary shares. A depositary receipt may evidence any number of whole
depositary shares.
Dividends and Other Distributions. The Preferred Stock Depositary will
distribute all cash dividends or other cash distributions received on the
related series of offered preferred stock to the record holders of depositary
shares relating to those series in proportion to the number of the depositary
shares those holders own.
If we make a distribution other than in cash, the Preferred Stock
Depositary will distribute the property it receives to the record holders of
depositary shares in proportion to the number of depositary shares those holders
own, unless the Preferred Stock Depositary determines that the distribution
cannot be made proportionately among those holders or that it is not feasible to
make the distribution. In that event, the Preferred Stock Depositary may, with
our approval,
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sell the property and distribute the net proceeds to the holders in proportion
to the number of depositary shares they own.
The amount distributed to holders of depositary shares will be reduced by
any amounts required to be withheld by MSDW 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 compliance
with any other requirement of the deposit agreement, the holder of the
depositary shares evidenced by those depositary receipts is entitled to delivery
of the number of whole shares of the related series of offered preferred stock
and any money or other property, if any, represented by those shares. Holders of
depositary shares will be entitled to receive whole shares of the related series
of offered preferred stock, but holders of whole shares of offered preferred
stock will not thereafter be entitled to deposit their 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 representing whole shares of
the related series of offered preferred stock to be withdrawn, the Preferred
Stock Depositary will deliver to the holder, or upon his or her order, at the
same time a new depositary receipt evidencing the excess number of depositary
shares.
Voting the Offered Preferred Stock. Upon receiving 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
the notice to the record holders of the depositary shares relating to that
series of offered preferred stock. Each record holder of the depositary shares
on the record date, which will be the same date as the record date for the
related series of offered preferred stock, may instruct the Preferred Stock
Depositary how to exercise his or her voting rights. 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 those
depositary shares in accordance with those instructions, if the Preferred Stock
Depositary receives the instructions sufficiently in advance of the meeting, and
we 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 any shares of the
offered preferred stock if it does not receive specific instructions from the
holder of the depositary shares representing them.
Redemption of Depositary Shares. Depositary shares will be redeemed from
any proceeds received by the Preferred Stock Depositary resulting from the
redemption, in whole or in part, of the series of the offered preferred stock
represented by those depositary shares. The redemption price per depositary
share will equal the applicable fraction or multiple of the redemption price per
share payable with respect to the series of the offered preferred stock. If we
redeem 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 that we redeem. If less than all the depositary shares will 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 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
monies payable upon the redemption and any other property to which the holders
were entitled upon the redemption upon surrender to the Preferred Stock
Depositary of the depositary receipts evidencing the depositary shares. Any
funds deposited by us with the Preferred Stock Depositary for any depositary
shares that the holders fail to redeem will be returned to us after a period of
two years from the date the funds are deposited.
Amendment and Termination of the Deposit Agreement. We may amend the form
of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement at any time and from time to time by agreement with 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 it has been approved by the holders of at least a majority of the
depositary shares then outstanding, and no amendment may impair the right of any
holder of any depositary shares, described above under "--Withdrawal of Stock,"
to receive shares of the related series of offered preferred stock and any money
or other property represented by those depositary shares, except in order to
comply with mandatory provisions of applicable law. We may terminate the deposit
agreement at any time with at least 60 days' prior written
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notice to the Preferred Stock Depositary. Within 30 days of that date, the
Preferred Stock Depositary will deliver or make available for delivery to
holders of depositary shares, upon surrender of the depositary receipts
evidencing the depositary shares, the number of whole or fractional shares of
the related series of offered preferred stock as are represented by the
depositary shares. The deposit agreement will automatically terminate after
there has been a final distribution on the related series of offered preferred
stock in connection with any liquidation, dissolution or winding up of MSDW and
that distribution has been made to the holders of depositary shares.
Charges of Preferred Stock Depositary. We will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. We will pay charges of the Preferred Stock Depositary,
including charges in connection with the initial deposit of the related series
of offered preferred stock, the initial issuance of the depositary shares and
all withdrawals of shares of the related series of offered preferred stock.
However, holders of depositary shares will pay other transfer and other taxes
and governmental charges and the other charges expressly provided in the deposit
agreement to be for their accounts.
Limitation on Liability of Company and Preferred Stock Depositary. Neither
the Preferred Stock Depositary nor MSDW will be liable if it is prevented or
delayed by law or any circumstance beyond its control from performing its
obligations under the deposit agreement. The obligations of MSDW 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 will be liable for willful misconduct in the performance of
their duties thereunder, and they will not be obligated to appear in, prosecute
or defend any legal proceeding related to any depositary receipts, depositary
shares or series of offered preferred stock unless satisfactory indemnity is
furnished.
Corporate Trust Office of Preferred Stock Depositary. 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 us written notice of its
election to do so, and we may at any time remove the Preferred Stock Depositary.
Any resignation or removal will take effect upon the appointment of a successor
Preferred Stock Depositary. A successor 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 a combined capital
and surplus of at least $50,000,000.
Reports to Holders. We will deliver all required reports and
communications to holders of the offered preferred stock to the Preferred Stock
Depositary, and it will forward those reports and communications to the holders
of depositary shares.
Existing Common Stock
Each holder of our common stock has one vote per share on all matters
voted on generally by the stockholders, including the election of directors.
Except as otherwise required by law or as provided with respect to any series of
preferred stock, including the ESOP Preferred Stock, the holders of our common
stock, together with the holders of ESOP Preferred Stock, will possess all
voting power. The Board of Directors is divided into three classes of directors
with the term of one class expiring at each annual meeting of stockholders.
Because our 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, which we refer to as the "voting stock," represented at a meeting
will be able to elect all the directors standing for election at the meeting. As
of February 9, 1999, some of the current and former senior officers of MSDW and
its subsidiaries beneficially owned in the aggregate 71,303,320 shares of MSDW
common stock subject to voting restrictions contained in various voting
agreements. As of that date, those shares constituted approximately 12.15% of
the votes that are entitled to be cast at the 1999 annual meeting of our
stockholders.
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The holders of our common stock are entitled to share equally in 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 offered preferred stock, 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 Capital Units
Cumulative Preferred Stock.
Upon voluntary or involuntary liquidation, dissolution or winding up of
MSDW, the holders of the common stock will share pro rata in the assets
remaining after payments to creditors and holders of any offered preferred
stock, 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 Capital Units Cumulative Preferred Stock. There are no preemptive
or other subscription rights, conversion rights or redemption or sinking fund
provisions with respect to shares of our common stock.
All of the outstanding shares of our common stock are fully paid and
nonassessable.
The transfer agent and registrar for the common stock is Morgan Stanley
Dean Witter Trust FSB.
Existing ESOP Convertible Preferred Stock
The ESOP Preferred Stock is senior to our common stock and ranks on a
parity with the offered preferred stock, the Existing Cumulative Preferred Stock
and any issued Capital Units Cumulative 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 legally available funds,
cash dividends in the amount of $2.78 per share each year, payable either
annually or semiannually, at the election of the Board of Directors. Holders of
ESOP Preferred Stock are entitled to receive $35.875 per share, which we refer
to as the "ESOP Preferred Stock liquidation price," upon dissolution or
liquidation of MSDW.
So long as any shares of ESOP Preferred Stock are outstanding, we will not
declare or pay, or set aside for payment dividends, on any preferred stock
ranking on a parity as to payment of dividends with the ESOP Preferred Stock
unless we also declare or pay, or set aside for payment, dividends on the
outstanding shares of ESOP Preferred Stock for all dividend payment periods
ending on or before the dividend payment date of any parity stock. We must
declare, pay or set aside for payment any amounts on the ESOP Preferred Stock
ratably in proportion to the respective amounts of dividends (1) accumulated and
unpaid or payable on that parity stock, on the one hand, and (2) accumulated and
unpaid or payable through the dividend payment period or periods of the ESOP
Preferred Stock next preceding the dividend payment date, on the other hand.
Holders of ESOP Preferred Stock can vote on all matters submitted to a
vote of the holders of shares of our common stock, voting together with the
holders of shares of common stock as one class. Each share of ESOP Preferred
Stock has a number of votes equal to 1.35 times the number of shares of common
stock into which that share of ESOP Preferred Stock could be converted on the
record date for a 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.
We have the option to redeem the ESOP Preferred Stock at the ESOP
Preferred Stock liquidation price plus accrued dividends at any time after
September 19, 2000 and prior to that date under some circumstances at specified
prices. We may pay the redemption price of the ESOP Preferred Stock in cash, in
shares of common stock or a combination of the two. The restrictions on voting
and disposition contained in the voting agreements, described in the first
paragraph under "--Existing Common Stock" above, do not apply to the ESOP
Preferred Stock or the shares of common stock issued upon conversion of the ESOP
Preferred Stock.
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Existing Cumulative Preferred Stock and Capital Units Cumulative Preferred Stock
Unless otherwise indicated, the terms and provisions described below
relate to each of the 7-3/4% Preferred Stock, the Series A Fixed/Adjustable Rate
Preferred Stock and the Capital Units Cumulative Preferred Stock. Other than as
described below, the terms of the 7-3/4% Preferred Stock, the Series A
Fixed/Adjustable Rate Preferred Stock and, if issued, the Capital Units
Cumulative Preferred Stock are identical, and the discussion below relating to
the Existing Cumulative Preferred Stock also applies to the Capital Units
Cumulative Preferred Stock.
Rank. Each series of the Existing Cumulative Preferred Stock and, if
issued, the Capital Units Cumulative Preferred Stock ranks on a parity with each
other, with the offered preferred stock and with the ESOP Preferred Stock, and
ranks 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 MSDW and have no
preemptive rights.
Dividends. Holders of the corresponding 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 out of
legally available funds, cumulative cash dividends payable quarterly at the rate
of:
o 7-3/4% per year (for the 7-3/4% Preferred Stock),
o 9.00% per year (if the 9.00% Preferred Stock is issued),
o 8.40% per year (if the 8.40% Preferred Stock is issued),
o 8.20% per year (if the 8.20% Preferred Stock is issued), and
o 8.03% per year (if the 8.03% Preferred Stock is issued).
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 out of
legally available funds, 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. However, the dividends payable on the Series A
Fixed/Adjustable Rate Preferred Stock will not be less than 6.41% nor greater
than 12.41% per year.
The amount of dividends payable on the 7-3/4% Preferred Stock and the
Series A Fixed/Adjustable Rate Preferred Stock will be adjusted in the event of
specified amendments to the Internal Revenue Code of 1986 relating to 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 we have
failed to pay accrued dividends on any of those senior shares at the time they
are payable, we may not pay any dividend on the Existing Cumulative Preferred
Stock or redeem or otherwise repurchase any shares of Existing Cumulative
Preferred Stock until we have paid in full, or set aside dividends for payment,
the accumulated but unpaid dividends on those senior shares.
We will not declare or pay or set aside for payment dividends on any
preferred stock ranking on a parity as to payment of dividends with the Existing
Cumulative Preferred Stock unless we also declare or pay or set aside for
payment dividends on the outstanding shares of Existing Cumulative Preferred
Stock for all dividend payment periods ending on or before the dividend payment
date of any parity stock. We must declare, pay or set aside for payment any
amounts on the Existing Cumulative Preferred Stock ratably in proportion to the
respective amounts of dividends (1) accumulated and unpaid or payable on that
parity stock, on the one hand, and (2) accumulated and unpaid or payable through
the dividend payment period or periods of each series of the Existing Cumulative
Preferred Stock next preceding the dividend payment date, on the other hand.
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Except as described above, unless we have paid the full cumulative
dividends on the outstanding shares of Existing Cumulative Preferred Stock, we
may not with respect to our common stock or any other preferred stock of MSDW
ranking junior to or on a parity with the Existing Cumulative Preferred Stock as
to dividend payments:
o declare, pay or set aside for payment any dividends, other than
dividends payable in our common stock,
o make other distributions,
o redeem, purchase or otherwise acquire our common stock or junior
preferred stock for any consideration, or
o make any payment to or available for a sinking fund for redemption of
our common stock or junior preferred stock.
The provisions of the immediately preceding paragraph do not apply to any
monies we deposit in any sinking fund with respect to any preferred stock in
compliance with the provisions of that sinking fund. We may apply monies so
deposited to the purchase or redemption of the preferred stock in accordance
with the terms of the sinking fund, regardless of whether at the time of
application we have paid or declared or set aside for payment full cumulative
dividends upon shares of any series of Existing Cumulative Preferred Stock. The
provisions of the immediately preceding paragraph also do not restrict the
ability of the holder of any junior or parity preferred stock or common stock to
convert their securities into or exchange those securities for MSDW capital
stock ranking junior to the Existing Cumulative Preferred Stock as to dividend
payments.
Redemption. The Existing Cumulative Preferred Stock is not and will not
be subject to any mandatory redemption or sinking fund provision and is
redeemable as follows:
o the 7-3/4% Preferred Stock is not redeemable prior to August 30, 2001,
except that under some circumstances it may be redeemed prior to that
date at specified prices;
o the Series A Fixed/Adjustable Rate Preferred Stock is not redeemable
prior to November 30, 2001, except that under some circumstances it
may be redeemed prior to that date at specified prices;
o if issued, the 9.00% Preferred Stock will not be redeemable prior to
February 28, 2000;
o if issued, the 8.40% Preferred Stock will not be redeemable prior to
August 30, 2000;
o if issued, the 8.20% Preferred Stock will not be redeemable prior to
November 30, 2000; and
o if issued, the 8.03% Preferred Stock will not be redeemable prior to
February 28, 2007, except that under some circumstances it may be
redeemed prior to that date at specified prices.
On or after these dates, the applicable series of Existing Cumulative Preferred
Stock will be redeemable at our option, in whole or in part, upon not less than
30 days' notice, in each case at a redemption price equal to $200.00 per share
(except that the 8.03% Preferred Stock is redeemable at specified prices during
specified periods following the indicated date) 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 MSDW, the holders of shares of Existing Cumulative Preferred Stock
and will be entitled to receive liquidating distributions in the amount of
$200.00 per share plus accrued and accumulated but unpaid dividends to the date
of final distribution before any distribution is made to holders of
o any other shares of preferred stock ranking junior to the Existing
Cumulative Preferred Stock, as to rights upon liquidation, dissolution
or winding up, and
o common stock.
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However, the holders of the shares of Existing Cumulative Preferred Stock will
not be entitled to receive the liquidation price of these shares until the
liquidation preference of any other shares of MSDW's capital stock ranking
senior as to rights upon liquidation, dissolution or winding up will have been
paid in full or a sum set aside therefor sufficient to provide for payment in
full.
If upon any liquidation, dissolution or winding up of MSDW, the amounts
payable with respect to the Existing Cumulative Preferred Stock and any other
preferred stock ranking on parity as to rights upon liquidation, dissolution or
winding up are not paid in full, the holders of the Existing Cumulative
Preferred Stock and of that other preferred stock will share ratably in any
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 MSDW.
Voting Rights. Holders of Existing Cumulative Preferred Stock do not have
any voting rights except as described 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
that series of Existing Cumulative Preferred Stock with respect to the payment
of dividends are 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 Existing Cumulative Preferred Stock, voting
separately as a class with all other series of preferred stock having similar
voting rights that are exercisable, will be entitled to vote for the election of
two of the authorized number of directors of MSDW at the next annual meeting of
stockholders and at each subsequent meeting until we have paid or set apart for
payment all dividends accumulated on the Existing Cumulative Preferred Stock.
The term of office of all directors elected by the holders of preferred
stock will 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, we will not, without the consent of the holders of at least
two-thirds of the shares 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
o 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
o amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the certificate of
designation relating to that 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 that series of Existing Cumulative Preferred Stock or of its
holders.
For purposes of the preceding sentence any increase in the authorized amount of
common stock or 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 will
not be deemed to materially and adversely affect those powers, preferences or
special rights.
Transfer Agent for Existing Cumulative Preferred Stock. The transfer agent
and registrar for each series of Existing Cumulative Preferred Stock is The Bank
of New York.
Additional Provisions of MSDW's Certificate of Incorporation and By-laws
Size of the Board of Directors, Removal of Directors and Filling Vacancies
on the Board of Directors. Our Board of Directors currently consists of 13
directors. The Board of Directors is divided into three classes. At each annual
meeting of stockholders, a class of directors is elected for a term expiring at
the third succeeding annual meeting of stockholders after its election, to
succeed that class of directors whose term then expires. Under our amended and
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restated by-laws, a majority vote of the Board of Directors may increase or
decrease the number of directors, except that a three-quarters vote of the Board
of Directors will be required to change the number of directors to an odd
number. However, the by-laws provide that the Board shall consist of not less
than three nor more than fifteen members. Our 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 will be filled by a majority vote of the remaining
directors then in office though less than a quorum, and those newly elected
directors will 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.
Limitations on Actions by Stockholders; Calling Special Meetings of
Stockholders. Our certificate of incorporation provides that, subject to the
rights of holders of any series of preferred stock or any other series of
capital stock set forth in the certificate of incorporation, any action required
or permitted to be taken by our stockholders must be effected at a duly called
annual or special meeting of stockholders and may not be effected by any consent
in writing in lieu of a meeting. Our by-laws provide that special meetings of
the stockholders may be called at any time only by the Secretary of MSDW at the
direction of and pursuant to a resolution of the Board of Directors.
Amendment of Governing Documents. Our certificate of incorporation
provides that, generally, it can be amended in accordance with the provisions of
the laws of the State of Delaware. Under Section 242 of the Delaware General
Corporation Law, the Board of Directors may propose, and the stockholders may
adopt by a majority vote of the voting stock, an amendment to our certificate of
incorporation. However, our 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 of incorporation relating to
amendment of the by-laws, actions of stockholders and the Board of Directors and
to change the provisions establishing this 80% vote requirement.
Our certificate of incorporation provides that our by-laws 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 MSDW, 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 MSDW. However, 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 or any modification of the
roles, duties or authority of the Chairman or President of MSDW as of May 31,
1997. In addition, 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 provisions of the by-laws relating to actions
requiring a supermajority vote of the Board of Directors, actions by the Board
of Directors designating one or more directors to fill any vacancies on the
Board of Directors or on a committee and this supermajority amendment provision
of the by-laws.
Limitation of Directors' Liability. Section 102 of the Delaware General
Corporation Law 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 or redemption in
violation of the Delaware General Corporation Law or obtained an improper
personal benefit. Under our certificate of incorporation, a director of MSDW
will not be liable to MSDW or its stockholders for monetary damages for breach
of fiduciary duty as a director, except to the extent the exemption from
liability or limitation of liability is not permitted under the Delaware General
Corporation Law as in effect or as that law may be amended.
The Rights Plan
Under a rights agreement, which we refer to as the Rights Plan, dated as
of April 25, 1995 and amended as of February 4, 1997, with The Chase Manhattan
Bank, as rights agent, holders of shares of our common stock have the right,
each referred to as a Right, to purchase from us a unit consisting of one
one-thousandth of a share of Series A Junior Participating Preferred Stock at a
purchase price of $175 per unit subject to adjustment under the specific
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circumstances described below. At present, each share of common stock is
entitled to one-half of one Right. These rights are sometimes referred to as a
poison pill.
The Rights will become exercisable upon the earlier of
o 10 days following a public announcement that a person or group of
affiliated or associated persons, each referred to as an "acquiring
person," has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of our common
stock, which we refer to as the "stock acquisition date," and
o 10 business days following the commencement of a tender offer or
exchange offer that would result in a person or group beneficially
owning 15% or more of the outstanding shares of our common stock.
After the Rights become exercisable, the Rights, other than rights held by an
acquiring person, will entitle the holders to purchase, under some
circumstances, either our common stock or common stock of the potential acquirer
at a substantially reduced price. We are generally entitled to redeem the Rights
at a price of $0.01 per Right at any time until ten days following the stock
acquisition date. The holder of a Right will have no rights as a stockholder of
MSDW, including, without limitation, the right to vote or to receive dividends,
until the Right is exercised. Unless earlier redeemed, the Rights will expire at
the close of business on April 21, 2005.
The foregoing description of the Rights is qualified in its entirety by
reference to the description of the Rights Plan contained in MSDW's Registration
Statement on Form 8-A dated April 26, 1995, as amended by a Form 8-A/A dated May
4, 1995 and as further amended by a Current Report on Form 8-K dated February
14, 1997.
FORMS OF SECURITIES
Each debt security, warrant, purchase contract and unit will be
represented either by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the entire issuance of
securities. Both certificated securities in definitive form and global
securities may be issued either (1) in registered form, where our obligation
runs to the holder of the security named on the face of the security or (2)
subject to the limitations explained below under "--Limitations on Issuance of
Bearer Securities and Bearer Debt Warrants," in bearer form, where our
obligation runs to the bearer of the security. Definitive securities name you or
your nominee as the owner of the security (other than definitive bearer
securities, which name the bearer as owner), and in order to transfer or
exchange these securities or to receive payments other than interest or other
interim payments, you or your nominee must physically deliver the securities to
the trustee, registrar, paying agent or other agent, as applicable. Global
securities name a depositary or its nominee as the owner of the debt securities,
warrants, purchase contracts or units represented by these global securities
(other than global bearer securities, which name the bearer as owner). The
depositary maintains a computerized system that will reflect each investor's
beneficial ownership of the securities through an account maintained by the
investor with its broker/dealer, bank, trust company or other representative, as
we explain more fully below.
Global Securities
Registered Global Securities. We may issue the registered debt securities,
warrants, purchase contracts and units in the form of one or more fully
registered global securities that will be deposited with a depositary or its
nominee identified in the applicable prospectus supplement and registered in the
name of that depositary or nominee. In those cases, one or more registered
global securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal or face amount of the securities
to be represented by registered global securities. Unless and until it is
exchanged in whole for securities in definitive registered form, a registered
global security may not be transferred except as a whole by and among the
depositary for the registered global security, the nominees of the depositary or
any successors of the depositary or those nominees.
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If not described below, any specific terms of the depositary arrangement
with respect to any securities to be represented by a registered global security
will be described in the prospectus supplement relating to those securities. We
anticipate that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with the depositary
or persons that may hold interests through participants. Upon the issuance of a
registered global security, the depositary will credit, on its book-entry
registration and transfer system, the participants' accounts with the respective
principal or face amounts of the securities beneficially owned by the
participants. Any dealers, underwriters or agents participating in the
distribution of the securities will designate the accounts to be credited.
Ownership of beneficial interests in a registered global security will be shown
on, and the transfer of ownership interests will be effected only through,
records maintained by the depositary, with respect to interests of participants,
and on the records of participants, with respect to interests of persons holding
through participants. The laws of some states may require that some purchasers
of securities take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge beneficial
interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a
registered global security, that depositary or its nominee, as the case may be,
will be considered the sole owner or holder of the securities represented by the
registered global security for all purposes under the applicable indenture,
warrant agreement, purchase contract or unit agreement. Except as described
below, owners of beneficial interests in a registered global security will not
be entitled to have the securities represented by the registered global security
registered in their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be considered the
owners or holders of the securities under the applicable indenture, warrant
agreement, purchase contract or unit agreement. Accordingly, each person owning
a beneficial interest in a registered global security must rely on the
procedures of the depositary for that registered global security and, if that
person is not a participant, on the procedures of the participant through which
the person owns its interest, to exercise any rights of a holder under the
applicable indenture, warrant agreement, purchase contract or unit agreement. We
understand that under existing industry practices, if we request any action of
holders or if an owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to give or take
under the applicable indenture, warrant agreement, purchase contract or unit
agreement, the depositary for the registered global security would authorize the
participants holding the relevant beneficial interests to give or take that
action, and the participants would authorize beneficial owners owning through
them to give or take that action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities, and
any payments to holders with respect to warrants, purchase contracts or units,
represented by a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as the
case may be, as the registered owner of the registered global security. None of
MSDW, the trustees, the warrant agents, the unit agents or any other agent of
MSDW, agent of the trustees or agent of the warrant agents or unit agents will
have any responsibility or liability for any aspect of the records relating to
payments made on account of beneficial ownership interests in the registered
global security or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a
registered global security, upon receipt of any payment of principal, premium,
interest or other distribution of underlying securities or other property to
holders on that registered global security, will immediately credit
participants' accounts in amounts proportionate to their respective beneficial
interests in that registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners of beneficial
interests in a registered global security held through participants will be
governed by standing customer instructions and customary practices, as is now
the case with the securities held for the accounts of customers in bearer form
or registered in "street name," and will be the responsibility of those
participants.
If the depositary for any of these securities represented by a registered
global security is at any time unwilling or unable to continue as depositary or
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, and a successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 is not appointed by us within 90 days, we will
issue securities in definitive form in exchange for the registered global
security that had been held by the depositary. In addition, we may at any time
and in our sole discretion decide not to have any of the
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securities represented by one or more registered global securities. If we make
that decision, we will issue securities in definitive form in exchange for all
of the registered global security or securities representing those securities.
Any securities issued in definitive form in exchange for a registered global
security will be registered in the name or names that the depositary gives to
the relevant trustee, warrant agent, unit agent or other relevant agent of ours
or theirs. It is expected that the depositary's instructions will be based upon
directions received by the depositary from participants with respect to
ownership of beneficial interests in the registered global security that had
been held by the depositary.
Bearer Global Securities. The securities may also be issued in the form of
one or more bearer global securities that will be deposited with a common
depositary for the Euroclear System and Cedelbank or with a nominee for the
depositary identified in the prospectus supplement relating to those securities.
The specific terms and procedures, including the specific terms of the
depositary arrangement, with respect to any securities to be represented by a
bearer global security will be described in the prospectus supplement relating
to those securities.
Limitations on Issuance of Bearer Securities and Bearer Debt Warrants
In compliance with United States federal income tax laws and regulations,
bearer securities, including bearer securities in global form, and bearer debt
warrants will not be offered, sold, resold or delivered, directly or indirectly,
in the United States or its possessions or to United States persons, as defined
below, except as otherwise permitted by United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D). Any underwriters, agents or dealers participating
in the offerings of bearer securities or bearer debt warrants, directly or
indirectly, must agree that:
o they will not, in connection with the original issuance of any bearer
securities or during the restricted period, as defined in United
States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), which we
refer to as the "restricted period," offer, sell, resell or deliver,
directly or indirectly, any bearer securities in the United States or
its possessions or to United States persons, other than as permitted
by the applicable Treasury Regulations described above, and
o they will not, at any time, offer, sell, resell or deliver, directly
or indirectly, any bearer debt warrants in the United States or its
possessions or to United States persons, other than as permitted by
the applicable Treasury Regulations described above.
In addition, any underwriters, agents or dealers must have procedures reasonably
designed to ensure that their employees or agents who are directly engaged in
selling bearer securities or bearer debt warrants are aware of the above
restrictions on the offering, sale, resale or delivery of bearer securities or
bearer debt warrants.
Bearer securities, other than temporary global debt securities and bearer
securities that satisfy the requirements of United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(iii) and any coupons appertaining thereto will
not be delivered in definitive form, and no interest will be paid thereon,
unless MSDW has received a signed certificate in writing, or an electronic
certificate described in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(ii), stating that on the date of that certificate the
bearer security:
o is owned by a person that is not a United States person;
o is owned by a United States person that (a) is a foreign branch of a
United States financial institution, as defined in applicable United
States Treasury Regulations, which we refer to as a "financial
institution," purchasing for its own account or for resale, or (b) is
acquiring the bearer security through a foreign branch of a United
States financial institution and who holds the bearer security through
that financial institution through that date, and in either case (a)
or (b) above, each of those United States financial institutions
agrees, on its own behalf or through its agent, that MSDW may be
advised that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder; or
o is owned by a United States or foreign financial institution for the
purposes of resale during the restricted period and, in addition, if
the owner of the bearer security is a United States or foreign
financial institution described in this clause, whether or not also
described in the first or second clause above, the financial
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institution certifies that it has not acquired the bearer security for
purposes of resale directly or indirectly to a United States person or
to a person within the United States or its possessions.
We will not issue bearer debt warrants in definitive form.
We will make payments on bearer securities and bearer debt warrants only
outside the United States and its possessions except as permitted by the above
regulations.
Bearer securities, other than temporary global securities, and any coupons
issued with bearer securities will bear the following legend: "Any United States
person who holds this obligation will be subject to limitations under the United
States income tax laws, including the limitations provided in sections 165(j)
and 1287(a) of the Internal Revenue Code." The sections referred to in this
legend provide that, with exceptions, a United States person will not be
permitted to deduct any loss, and will not be eligible for capital gain
treatment with respect to any gain, realized on the sale, exchange or redemption
of that bearer security or coupon.
As used in the preceding three paragraphs, the term bearer securities
includes bearer securities that are part of units and the term bearer debt
warrants includes bearer debt warrants that are part of units. As used herein,
"United States person" means a citizen or resident of the United States for
United States federal income tax purposes, a corporation or partnership,
including an entity treated as a corporation or partnership for United States
federal income tax purposes, created or organized in or under the laws of the
United States, or any state of the United States or the District of Columbia, an
estate the income of which is subject to United States federal income taxation
regardless of its source, or a trust if a court within the United States is able
to exercise primary supervision of the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust. In addition, some trusts treated as United States
persons before August 20, 1996 may elect to continue to be so treated to the
extent provided in the Treasury Regulations.
Form of Securities Included in Units
The form of the universal warrant or purchase contract included in a unit
will correspond to the form of the unit and of any other security included in
that unit.
PLAN OF DISTRIBUTION
We may sell the securities being offered by this prospectus in three ways:
(1) through agents, (2) through underwriters and (3) through dealers. Any of
these agents, underwriters or dealers in the United States will include Morgan
Stanley & Co. Incorporated, which we refer to as MS & Co., and/or Dean Witter
Reynolds Inc., which we refer to as DWR, and any of these agents, underwriters,
or dealers outside the United States will include Morgan Stanley & Co.
International Limited, which we refer to as MSIL, or other affiliates of ours.
We may designate agents from time to time to solicit offers to purchase
these securities. We will name any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, and state any
commissions we are to pay to that agent in the applicable prospectus supplement.
That agent will be acting on a reasonable efforts basis for the period of its
appointment or, if indicated in the applicable prospectus supplement, on a firm
commitment basis.
If we use any underwriters to offer and sell these securities, we will
enter into an underwriting agreement with those underwriters when we and they
determine the offering price of the securities, and we will include the names of
the underwriters and the terms of the transaction in the applicable prospectus
supplement.
If we use a dealer to offer and sell these securities, we will sell the
securities to the dealer, as principal, and will name the dealer in the
applicable prospectus supplement. The dealer may then resell the securities to
the public at varying prices to be determined by that dealer at the time of
resale.
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Our net proceeds will be the purchase price in the case of sales to a
dealer, the public offering price less discount in the case of sales to an
underwriter or the purchase price less commission in the case of sales through
an agent -- in each case, less other expenses attributable to issuance and
distribution.
In order to facilitate the offering of these securities, the underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of these securities or any other securities the prices of which may be
used to determine payments on these securities. Specifically, the underwriters
may over-allot in connection with the offering, creating a short position in
these securities for their own accounts. In addition, to cover over-allotments
or to stabilize the price of these securities or of any other securities, the
underwriters may bid for, and purchase, these securities or any other securities
in the open market. Finally, in any offering of the securities through a
syndicate of underwriters, the underwriting syndicate may reclaim selling
concessions allowed to an underwriter or a dealer for distributing these
securities in the offering, if the syndicate repurchases previously distributed
securities in transactions to cover syndicate short positions, in stabilization
transactions or otherwise. Any of these activities may stabilize or maintain the
market price of these securities above independent market levels. The
underwriters are not required to engage in these activities, and may end any of
these activities at any time.
If so indicated in the applicable prospectus supplement, one or more
firms, including MS & Co., MSIL and DWR, which we refer to as "remarketing
firms," acting as principals for their own accounts or as agents for us, may
offer and sell these securities as part of a remarketing upon their purchase, in
accordance with their terms. We will identify any remarketing firm, the terms of
its agreement, if any, with us and its compensation in the applicable prospectus
supplement.
Remarketing firms, agents, underwriters and dealers may be entitled under
agreements with us to indemnification by us against some civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for us in the ordinary course of
business.
If so indicated in the prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers by some purchasers to purchase debt
securities or warrants, purchase contracts or units, as the case may be, from us
at the public offering price stated in the prospectus supplement under delayed
delivery contracts providing for payment and delivery on a specified date in the
future. These contracts will be subject to only those conditions described in
the prospectus supplement, and the prospectus supplement will state the
commission payable for solicitation of these offers.
Any underwriter, agent or dealer utilized in the initial offering of
securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
MS & Co., MSIL and DWR are wholly-owned subsidiaries of MSDW. Each initial
offering of securities will be conducted in compliance with the requirements of
Rule 2720 of the National Association of Securities Dealers, Inc., which is
commonly referred to as the NASD, regarding a NASD member firm's distributing
the securities of an affiliate. Following the initial distribution of any of
these securities, MS & Co., MSIL, DWR and other affiliates of MSDW may offer and
sell these securities in the course of their business as broker-dealers,
subject, in the case of preferred stock and depositary shares, to obtaining any
necessary approval of the New York Stock Exchange, Inc. for any of these offers
and sales MS & Co. and DWR may make. MS & Co., MSIL, DWR and other affiliates
may act as principals or agents in these transactions and may make any sales at
varying prices related to prevailing market prices at the time of sale or
otherwise. MS & Co., MSIL, DWR and other affiliates may use this prospectus in
connection with these transactions. None of MS & Co., MSIL, DWR or any other
affiliate is obligated to make a market in any of these securities and may
discontinue any market-making activities at any time without notice.
LEGAL MATTERS
The validity of these securities will be passed upon for MSDW by Brown &
Wood LLP, or other counsel who is satisfactory to MS & Co., MSIL or DWR, as the
case may be, and who may be an officer of MSDW. Davis Polk & Wardwell will pass
upon some legal matters relating to these securities for the underwriters. Davis
Polk & Wardwell
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has in the past represented MSDW and continues to represent MSDW on a regular
basis and in a variety of matters, including in connection with its private
equity and leveraged capital activities.
EXPERTS
The consolidated financial statements and financial statement schedules of
MSDW and its subsidiaries, at fiscal years ended 1998 and 1997 and for each of
the three fiscal years in the period ended 1998 included in and incorporated by
reference in MSDW's Annual Report on Form 10-K for the fiscal year ended
November 30, 1998 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports thereon and incorporated herein by
reference (which express an unqualified opinion and which report on the
consolidated financial statements includes an explanatory paragraph for a change
in the method of accounting for certain offering costs of closed-end funds). The
financial statements and financial statement schedule of Morgan Stanley Group
Inc. for the year ended November 30, 1996 have been audited by Ernst & Young
LLP, independent auditors, as stated in their report and relied upon by Deloitte
& Touche LLP in their reports that we incorporate by reference. These
consolidated financial statements have been incorporated by reference in
reliance upon the respective reports given upon the authority of these firms as
experts in accounting and auditing.
With respect to unaudited interim financial information for the periods
included in any of the Quarterly Reports on Form 10-Q which may be incorporated
herein by reference, Deloitte & Touche LLP have applied limited procedures in
accordance with professional standards for a review of such information.
However, as stated in their report included in any such Quarterly Report on Form
10-Q and incorporated by reference herein, they did not audit and they do not
express an opinion on such 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 of 1933 for their reports on the unaudited interim financial information
because those reports are not "reports" or a "part" of the registration
statement prepared or certified by an accountant within the meaning of Section 7
and 11 of the Securities Act of 1933.
ERISA MATTERS FOR PENSION PLANS AND INSURANCE COMPANIES
MSDW and some of our affiliates, including MS & Co. and DWR, may each be
considered a "party in interest" within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, which is commonly referred to as 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, warrants or purchase
contracts, or any units including debt securities, warrants or purchase
contracts, are acquired by or with the assets of a pension or other employee
benefit plan with respect to which MS & Co., DWR or any of their affiliates is a
service provider, unless those debt securities, warrants or purchase contracts,
or any units including debt securities, warrants or purchase contracts, are
acquired pursuant to an exemption for transactions effected on behalf of one of
these plans 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. In addition, employee benefit plans
subject to ERISA, or insurance companies deemed to be investing ERISA plan
assets that purchase universal warrants or purchase contracts should consider
the possible implications of owning the securities underlying those instruments
in the event of settlement by physical delivery. Any insurance company or
pension, employee benefit plan, or any person investing the assets of a pension
or employee benefit plan, proposing to invest in the debt securities, warrants
or purchase contracts, or any units including debt securities, warrants or
purchase contracts, should consult with its legal counsel.
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MORGAN STANLEY DEAN WITTER & CO.
