As filed with the Securities and Exchange Commission on May 7, 1999
Registration Statement No. 333-
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------------------
MORGAN STANLEY DEAN WITTER & CO.
(Exact name of registrant as specified in its charter)
Delaware 36-3145972
(State or other jurisdiction (IRS Employer Identification Number)
of incorporation or organization)
1585 Broadway
New York, New York 10036
(Address of principal executive offices, including zip code)
MORGAN STANLEY DEAN WITTER & CO. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Christine A. Edwards
Executive Vice President, Chief Legal Officer and Secretary
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
(212) 761-4000
(Name, address and telephone number of agent for service)
---------------------
<TABLE>
<CAPTION>
Calculation of Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Proposed Maximum Amount of
Registered Registered(1) Share(2) Aggregate Offering Price Registration Fee
==============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par 25,000,000 $96.53125 $2,413,281,250 $670,892.19
value $.01 per share(3) shares
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of the anti-dilution provisions
of the plan. No additional registration fee is included for these shares.
(2) Estimated pursuant to Rule 457(h) solely for purposes of calculating the
amount of the registration fee based upon the average of the high and low
prices reported for the shares on the New York Stock Exchange on May 6, 1999.
(3) This Registration Statement also covers the associated preferred stock
purchase rights (the "Rights") issued pursuant to a Rights Agreement, dated as
of April 25, 1995 and amended as of February 4, 1997, between the Registrant
and The Chase Manhattan Bank (formerly Chemical Bank), as Rights Agent. Prior
to the occurrence of certain events, the Rights will not be exercisable or
evidenced separately from the Registrant's Common Stock.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form taken
together constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates the following documents herein by
reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
November 30, 1998;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1999;
(c) the Registrant's Current Reports on Form 8-K dated January 7, 1999,
January 12, 1999 and March 25, 1999;
(d) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 10 filed with the Commission
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on January 15, 1993, as amended by the description
contained in the Registrant's Forms 8 dated February 11, February 21 and
February 22, 1993;
(e) the description of the Registrant's Shareholder Rights Plan contained in
the Registrant's Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Exchange Act on April 26, 1995,
as amended by the Form 8-A/A dated May 4, 1995; and
(f) Amendment, dated February 4, 1997, to the Rights Agreement, dated as of
April 25, 1995, between the Registrant and The Chase Manhattan Bank
(formerly Chemical Bank), as Rights Agent (incorporated by reference to
Exhibit 4.1 to the Registrant's Current Report on Form 8-K dated February
4, 1997).
All documents subsequently filed by the Registrant pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15 of the Exchange Act prior to the
filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed incorporated herein by
reference from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not required.
<PAGE>
Item 5. Interests of Named Experts and Counsel.
No material interests.
Item 6. Indemnification of Directors and Officers.
Article VIII of the Amended and Restated Certificate of Incorporation of
the Registrant ("Certificate of Incorporation") and Section 6.07 of the
Amended and Restated By-Laws of the Registrant ("By-Laws"), each as amended to
date, provide for the indemnification of the Registrant's directors and
officers. The Certificate of Incorporation provides that any person who is a
director or officer of the Registrant shall be indemnified by the Registrant
to the fullest extent permitted from time to time by applicable law. In
addition, the By-Laws provide that each person who was or is made a party or
is threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she or a
person of whom he or she is the legal representative is or was a director or
officer of the Registrant or a director or elected officer of a corporation a
majority of the capital stock (other than directors' qualifying shares) of
which is owned directly or indirectly by the Registrant (a "Subsidiary") shall
be indemnified by the Registrant to the fullest extent permitted by applicable
law. The right to indemnification under the By-Laws includes the right to be
paid the expenses incurred in defending a proceeding in advance of its final
disposition upon receipt (unless the Registrant upon authorization of the
Board of Directors waives said requirement to the extent permitted by
applicable law) of an undertaking by or on behalf of such person to repay such
amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the Registrant.
The Registrant's By-Laws also provide that the Registrant may, to the
extent authorized from time to time by the Board of Directors, provide rights
to indemnification, and rights to be paid by the Registrant the expenses
incurred in defending any proceeding in advance of its final disposition, to
any person who is or was an employee or agent (other than a director or
officer) of the Registrant or a Subsidiary and to any person who is or was
serving at the request of the Registrant or a Subsidiary as a director,
officer, partner, member, employee or agent of another corporation,
partnership, limited liability Registrant, joint venture, trust or other
enterprise at the request of the Registrant or a Subsidiary, to the same
extent as the By-Laws provide with respect to indemnification of, and
advancement of expenses for directors and officers of the Registrant.
Under the By-Laws, the Registrant has the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, partner,
member, employee or agent of the Registrant or Subsidiary, or of another
corporation, partnership, limited liability Registrant, joint venture, trust
or other enterprise, against any expense, liability or loss whether or not the
Registrant or a Subsidiary would have the power to indemnify that person
against such expense, liability or loss under the provisions of applicable
law.
The Registrant has in effect insurance policies in the amount of $125
million for general officers' and directors' liability insurance and $25
million for fiduciary liability insurance covering all of the Registrant's
directors and officers in certain instances where by law they may not be
indemnified by the Registrant.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Employee Stock Purchase Plan, as amended to date.
4.2 Amended and Restated Certificate of Incorporation. Filed as Exhibit
3.1 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended November 30, 1998 and incorporated herein by reference.
4.3 Certificate of Elimination of the 7.80% Cumulative Preferred Stock
($200.00 Stated Value) of the Registrant. Filed as Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1999 and incorporated herein by reference.
4.4 Certificate of Elimination of the 7.82% Cumulative Preferred Stock
($200.00 Stated Value) of the Registrant. Filed as Exhibit 3.3 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1999 and incorporated herein by reference.
4.5 By-Laws, as amended to date. Filed as Exhibit 3.4 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended February 28, 1999
and incorporated herein by reference.
4.6 Rights Agreement dated as of April 25, 1995 between the Registrant
and Chemical Bank, as rights agent, which includes as Exhibit B
thereto the Form of Rights Certificate. Filed as Exhibit 1 to the
Registrant's Registration Statement on Form 8-A dated April 26, 1995
and incorporated by reference herein.
4.7 Amendment dated as of February 4, 1997 to the Rights Agreement
between the Registrant and The Chase Manhattan Bank (as successor to
Chemical Bank), as rights agent. Filed as Exhibit 4.1 to the
Registrant's Current Report on Form 8-K dated February 4, 1997 and
incorporated herein by reference.
5.1 Opinion of Brown & Wood LLP.
15.1 Letter of Awareness of Deloitte & Touche LLP
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Brown & Wood LLP (included as part of Exhibit 5.1).
24.1 Powers of Attorney (included in Part II of the Registration Statement
under the caption "Signatures").
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any increase
or decrease in the volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered)
and any deviation from the high or low end of the estimated maximum
offering range may be reflected in the form of a prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by a final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in The City of New York, State of New York, as of
this 7th day of May, 1999.
MORGAN STANLEY DEAN WITTER & CO.
(Registrant)
By: /s/ Philip J. Purcell
------------------------------
Philip J. Purcell
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below hereby constitutes and appoints Christine A. Edwards, Robert G.
Scott, Ronald T. Carman, Ralph L. Pellecchio, Martin M. Cohen and William J.
O'Shaughnessy, Jr. and each of them singly, his or her true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments, including post-effective
amendments, to this Registration Statement (any of which amendments may make
such changes and additions to this Registration Statement as such
attorneys-in-fact may deem necessary or appropriate) and to file the same,
with all exhibits thereto, and any other documents that may be required in
connection therewith, granting unto said attorneys-in-fact and agents full
power and authority to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities indicated as of this 7th day of
May, 1999.
SIGNATURE TITLE
/s/ Philip J. Purcell Chairman of the Board and
- --------------------------- Chief Executive Officer
Philip J. Purcell
/s/ John J. Mack President, Chief Operating
- --------------------------- Officer and Director
John J. Mack
/s/ Robert G. Scott Executive Vice President and Chief
- --------------------------- Financial Officer (Principal
Robert G. Scott Financial Officer)
/s/ Joanne Pace Controller
- --------------------------- (Principal Accounting Officer)
Joanne Pace
/s/ Robert P. Bauman Director
- ---------------------------
Robert P. Bauman
/s/ Edward A. Brennan Director
- ---------------------------
Edward A. Brennan
/s/ Diana D. Brooks Director
- ---------------------------
Diana D. Brooks
/s/ Daniel B. Burke Director
- ---------------------------
Daniel B. Burke
/s/ C. Robert Kidder Director
- ---------------------------
C. Robert Kidder
/s/ Charles F. Knight Director
- ---------------------------
Charles F. Knight
/s/ Miles L. Marsh Director
- ---------------------------
Miles L. Marsh
/s/ Michael A. Miles Director
- ---------------------------
Michael A. Miles
/s/ Allen E. Murray Director
- ---------------------------
Allen E. Murray
/s/ Clarence B. Rogers, Jr. Director
- ---------------------------
Clarence B. Rogers, Jr.
/s/ Laura D'Andrea Tyson Director
- ---------------------------
Laura D'Andrea Tyson
<PAGE>
EXHIBIT INDEX
Exhibit
Number
4.1 Employee Stock Purchase Plan, as amended to date.
4.2 Amended and Restated Certificate of Incorporation. Filed as Exhibit
3.1 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended November 30, 1998 and incorporated herein by reference.
4.3 Certificate of Elimination of the 7.80% Cumulative Preferred Stock
($200.00 Stated Value) of the Registrant. Filed as Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1999 and incorporated herein by reference.
4.4 Certificate of Elimination of the 7.82% Cumulative Preferred Stock
($200.00 Stated Value) of the Registrant. Filed as Exhibit 3.3 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
February 28, 1999 and incorporated herein by reference.
4.5 By-Laws, as amended to date. Filed as Exhibit 3.4 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended February 28, 1999
and incorporated herein by reference.
4.6 Rights Agreement dated as of April 25, 1995 between the Registrant
and Chemical Bank, as rights agent, which includes as Exhibit B
thereto the Form of Rights Certificate. Filed as Exhibit 1 to the
Registrant's Registration Statement on Form 8-A dated April 26, 1995
and incorporated by reference herein.
4.7 Amendment dated as of February 4, 1997 to the Rights Agreement
between the Registrant and The Chase Manhattan Bank (as successor to
Chemical Bank), as rights agent. Filed as Exhibit 4.1 to the
Registrant's Current Report on Form 8-K dated February 4, 1997 and
incorporated herein by reference.
5.1 Opinion of Brown & Wood LLP.
15.1 Letter of Awareness of Deloitte & Touche LLP
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Brown & Wood LLP (included as part of Exhibit 5.1).
24.1 Powers of Attorney (included in Part II of the Registration Statement
under the caption "Signatures").
<PAGE>
EXHIBIT 4.1
MORGAN STANLEY DEAN WITTER & CO.
EMPLOYEE STOCK PURCHASE PLAN
AMENDED APRIL 30, 1999
SECTION 1 - PURPOSE
The purpose of the Plan is to secure for the Company and its stockholders the
benefits of the incentive inherent in the ownership of Common Stock by current
and future Eligible Employees. The Plan is intended to comply with the
provisions of Code Section 423 and shall be administered, interpreted and
construed in accordance with such provisions.
SECTION 2 - DEFINITIONS
When used herein, the following terms shall have the following meanings:
2.1 "Board of Directors" means the Board of Directors of the Company, or
any committee of such Board of Directors, as the Board of Directors
may determine from time to time.
2.2 "Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute thereto.
2.3 "Committee" means the committee appointed by the Board of Directors
to administer the Plan pursuant to Section 12.
2.4 "Common Stock" means common stock, par value $0.01 per share, of the
Company.
2.5 "Common Stock Account" means the account established with, and
maintained by, the Custodian for the purpose of holding Common Stock
purchased pursuant to this Plan.
2.6 "Company" means Morgan Stanley Dean Witter & Co., a Delaware
corporation, and its successors and assigns.
2.7 "Custodian" means the agent selected by the Company to hold Common
Stock purchased under the Plan.
2.8 "Disability" means disability as defined under any qualified, defined
benefit plan sponsored by the Company or any Subsidiary in which an
Eligible Employee is a participant on the date such Eligible Employee
terminates employment with the Company or any Subsidiary.
2.9 "Eligible Compensation" means the sum of the types and amounts of
compensation determined from time to time by the Committee in its
sole discretion to be eligible to be taken into account under the
Plan, provided that no such determination shall include or exclude
any type or amount of compensation contrary to the requirements of
Section 423 of the Code and any regulations promulgated thereunder.
2.10 "Eligible Employee" means all employees of the Company and its
Subsidiaries that have been designated as eligible to participate in
the Plan pursuant to and in accordance with rules prescribed by the
Committee from time to time, which rules, however, shall neither
permit nor deny participation in the Plan contrary to the
requirements of the Code (including, but not limited to, Section
423(b)(3), (4), (5), and (8) thereof) and the regulations promulgated
thereunder.
2.11 "Fair Market Value" means the average of the high and low sales
prices of a share of Common Stock as reported on the New York Stock
Exchange Composite Tape on the date in question or, if the Common
Stock shall not have been traded on such date, the average of the
high and low sales prices on the first day prior thereto on which the
Common Stock was so traded or, if the Common Stock was not so traded,
such other amount as may be determined by the Committee in its sole
discretion.
2.12 "Investment Date" means for each Eligible Employee, each date on
which he receives his Eligible Compensation in each Plan Year, or
such other dates as may be determined by the Committee in its sole
discretion.
2.13 "Participant" means an Eligible Employee who has met the requirements
of Section 3 and has elected to participate in the Plan pursuant to
Section 4.1.
2.14 "Payroll Deduction Account" means the bookkeeping entry established
by the Company for each Participant pursuant to Section 4.3.
2.15 "Plan" means the Morgan Stanley Dean Witter & Co. Employee Stock
Purchase Plan as set forth herein and as amended from time to time.
2.16 "Plan Year" means a calendar year.
2.17 "Retirement" means retirement as defined by any qualified or
non-qualified defined benefit plan sponsored by the Company or a
Subsidiary in which an Eligible Employee is a participant on the date
such Eligible Employee terminates employment with the Company or any
Subsidiary.
2.18 "Subsidiary" means any corporation designated by the Committee which
constitutes a "subsidiary" of the Company, within the meaning of Code
Section 424(f).
SECTION 3 - ELIGIBILITY
3.1 GENERAL RULE. Subject to Section 3.3, each Eligible Employee shall be
eligible to participate in the Plan beginning on the later of (i) the
Eligible Employee's date of hire by the Company or any Subsidiary and
(ii) the date such employee becomes an Eligible Employee.
3.2 LEAVE OF ABSENCE. Unless the Committee otherwise determines, a
Participant on a paid leave of absence shall continue to be a
Participant in the Plan so long as such Participant is on such paid
leave of absence. Unless otherwise determined by the Committee, a
Participant on an unpaid leave of absence shall not be entitled to
participate in any offering commencing after such unpaid leave has
begun but shall not be deemed to have terminated employment for
purposes of the Plan. A Participant who, upon failing to return to
work following a leave of absence, is deemed not to be an employee,
shall not be entitled to participate in any offering commencing after
such termination of employment, and such Participant's Payroll
Deduction Account shall be paid out in accordance with Section 6.1.
3.3 COMMON STOCK ACCOUNT. As a condition to participation in this Plan,
each Eligible Employee shall be required to hold shares purchased
hereunder in a Common Stock Account and such employee's decision to
participate in the Plan shall constitute the appointment of the
Custodian as custodial agent for the purpose of holding such shares.
Such Common Stock Account will be governed by, and subject to, the
terms and conditions of a written agreement between the Company and
the Custodian.
SECTION 4 - PARTICIPATION AND PAYROLL DEDUCTIONS
4.1 ENROLLMENT. Each Eligible Employee may elect to participate in the
Plan for a Plan Year by completing a Company-specified enrollment
process. Upon completing the enrollment process, an Eligible Employee
shall commence participation in the Plan on the next practicable
Investment Date. Each Eligible Employee shall be advised of the
purchase price (expressed as a percentage of Fair Market Value)
determined under Section 5.2(b) before enrolling in the Plan.
4.2 AMOUNT OF DEDUCTION. When enrolling, the Eligible Employee shall
specify a payroll deduction amount of a percentage (in whole numbers)
of Eligible Compensation which shall be withheld from such Eligible
Employee's regular paychecks, including bonus paychecks, for the Plan
Year, provided, however, that the Committee may determine and
specify, from time to time, (i) the range of permissible percentages
of Eligible Compensation an Eligible Employee may specify to be
withheld and (ii) the maximum amount, if any, of Eligible
Compensation that may be deducted for an Eligible Employee in any
Plan Year, and provided further, that no such determination shall be
contrary to the requirements of Code Section 423 and the regulations
promulgated thereunder.. The Committee, in its sole discretion, may
authorize payment in respect of any option exercised hereunder by
personal check.
4.3 PAYROLL DEDUCTION ACCOUNTS. Each Participant's payroll deduction
shall be credited, as soon as practicable following the relevant pay
date, to a Payroll Deduction Account, pending the purchase of Common
Stock in accordance with the provisions of the Plan. All such amounts
shall be assets of the Company and may be used by the Company for any
corporate purpose. No interest shall accrue or be paid on amounts
credited to a Payroll Deduction Account.
4.4 SUBSEQUENT PLAN YEARS. Unless otherwise specified prior to the
beginning of any Plan Year by completing a Company-specified process,
a Participant shall be deemed to have elected to participate in each
subsequent Plan Year for which the Participant is eligible to the
same extent and in the same manner as at the end of the prior Plan
Year.
4.5 CHANGES IN PARTICIPATION.
(a) At any time during a Plan Year, a Participant may cease
participation in the Plan by completing a Company-specified
process. Such cessation will become effective as soon as
practicable following completion of such process, whereupon no
further payroll deductions will be made and the Company shall
pay to such Participant an amount equal to the balance in the
Participant's Payroll Deduction Account as soon as practicable
thereafter. To the extent then an Eligible Employee, any
Participant who ceased to participate may elect to participate
again as of any subsequent Investment Date in any calendar
quarter after the quarter in which such Participant ceased to
participate.
(b) At any time during a Plan Year (but not more than once in any
calendar quarter), a Participant may increase or decrease the
percentage of Eligible Compensation subject to payroll deduction
within the limits approved by the Committee pursuant to Section
4.2 by completing a Company-specified process. Such increase or
decrease shall become effective with the first pay period
following the completion of such process to which it may be
practically applied. Notwithstanding any increase in the
percentage of Eligible Compensation subject to pay deduction
pursuant to this Section 4.5(b), in no event may the amount of
Eligible Compensation deducted for an Eligible Employee for any
Plan Year exceed the maximum amount authorized to be deducted
pursuant to Section 4.2.
(c) Notwithstanding anything herein to the contrary, in the event
the Committee determines under Section 5.2(b) to change the
purchase price of a share of Common Stock, each Participant
shall be advised in advance of the effective date of such change
and afforded the opportunity to make a change in participation
under Section 4.5(a) or 4.5(b) before such change in the
purchase price takes effect.
SECTION 5 - OFFERINGS
5.1 MAXIMUM NUMBER OF SHARES. The Plan will be implemented by making
offerings of Common Stock on each Investment Date until the maximum
number of shares of Common Stock available under the Plan have been
issued pursuant to the exercise of options.
5.2 GRANT AND EXERCISE OF OPTIONS
(a) Subject to Section 5.3, on each Investment Date, each
Participant shall be deemed, subject to Section 5.4, to have
been granted an option to purchase, and shall be deemed, without
any further action, to have exercised such option and purchased
the number of shares of Common Stock determined by dividing the
amount credited to the Participant's Payroll Deduction Account
on such date by the purchase price (as determined in paragraph
(b) below). All such shares shall be credited to the
Participant's Common Stock Account.
(b) The purchase price for each share of Common Stock shall be
expressed as a percentage of Fair Market Value on the Investment
Date and shall be determined from time to time by the Committee,
but in no event shall such purchase price be less than 85
percent of the Fair Market Value of such share on the Investment
Date.
5.3 OVERSUBSCRIPTION OF SHARES. If the total number of shares for which
options are exercised on any Investment Date exceeds the maximum
number of shares available for the applicable offering, the Company
shall make an allocation of the shares available for delivery and
distribution among the Participants in as nearly a uniform manner as
shall be practicable, and the balance of all amounts credited to the
Payroll Deduction Accounts shall be applied to the next offering.
5.4 LIMITATIONS ON GRANT AND EXERCISE OF OPTIONS
(a) No option granted under this Plan shall permit a Participant to
purchase stock under all employee stock purchase plans (as defined by
Code Section 423(b)) of the Company and any Subsidiary in an amount
which, in the aggregate, would exceed $25,000 based on the Fair
Market Value of such stock (determined at the time the option is
granted) for each calendar year in which the option is outstanding at
any time.
(b) No employee who would own, immediately after the option is granted,
stock possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or any
Subsidiary (a "5% Owner") shall be granted an option. For purposes of
determining whether an employee is a 5% Owner, the rules of Code
Section 424(d) shall apply in determining the stock ownership of an
individual and stock which the employee may purchase under
outstanding options shall be treated as stock owned by the employee.
SECTION 6 - DISTRIBUTIONS OF COMMON STOCK ACCOUNT
6.1 TERMINATION OF EMPLOYMENT. If a Participant's employment with the
Company and its Subsidiaries terminates for any reason during a Plan
Year, all shares credited to the Participant's Common Stock Account
shall be distributed to the Participant, and any amount credited to
the Participant's Payroll Deduction Account shall be refunded to the
Participant or, in the event of the Participant's death, to the
Participant's estate, as soon as practicable.
6.2 DURING EMPLOYMENT. Prior to the Participant's termination of
employment with the Company and its Subsidiaries, a Participant may
withdraw some or all of the whole shares credited to the
Participant's Common Stock Account, subject to the provisions of
Section 10.3, provided, however, that a Participant may not withdraw
shares from the Participant's Common Stock Account (other than shares
acquired upon the automatic reinvestment of dividends pursuant to
Section 7) for a period of 12 months immediately following the
Investment Date on which they were purchased.
sECTION 7 - DIVIDENDS ON SHARES
All cash dividends paid with respect to shares of Common Stock held in a
participant's Common Stock Account shall be invested automatically in shares
of Common Stock purchased at 100 percent of Fair Market Value on the date such
dividend is paid. All non-cash distributions paid on Common Stock held in a
Participant's Common Stock Account shall be paid to the Participant as soon as
practicable.
SECTION 8 - RIGHTS AS A STOCKHOLDER
When a Participant purchases Common Stock pursuant to the Plan or when Common
Stock is credited to a Participant's Common Stock Account, subject to the
restrictions set forth in Sections 6.2 and 10.3, the Participant shall have
all of the rights and privileges of a stockholder of the Company with respect
to the shares so purchased or credited, whether or not certificates
representing shares shall have been issued.
SECTION 9 - OPTIONS NOT TRANSFERABLE
Neither a Participant's Payroll Deduction Account nor any options granted
under the Plan to a Participant may be transferred, pledged or otherwise
disposed of in any way (other than by will or the laws of descent and
distribution) by a Participant and such options are exercisable during the
Participant's lifetime only by the Participant. Any attempt at such
assignment, transfer, pledge or other disposition shall be without effect.
SECTION 10 - COMMON STOCK
10.1 RESERVED SHARES. There shall be reserved for issuance and purchase
under the Plan an aggregate of 25,691,156 shares of Common Stock (as
of April 30, 1999), subject to adjustment as provided in Section 11.
Shares subject to the Plan may be shares now or hereafter authorized
but unissued, treasury shares, or both.
10.2 RESTRICTIONS ON EXERCISE. In its sole discretion, the Board of
Directors may require as conditions to the exercise of any option
that shares of Common Stock reserved for issuance upon the exercise
of an option shall have been duly listed on any recognized national
securities exchange, and that either a registration statement under
the Securities Act of 1933, as amended, with respect to said shares
shall be effective, or the Participant shall have represented at the
time of purchase, in form and substance satisfactory to the Company,
that it is the Participant's intention to purchase the shares for
investment only and not for resale or distribution.
10.3 RESTRICTION ON SALE. Shares of Common Stock purchased hereunder
(other than shares of Common Stock acquired upon the automatic
investment of dividends pursuant to Section 7) shall not be
transferable by a Participant for a period of 12 months immediately
following the Investment Date on which such shares were purchased. In
addition, upon the expiration of such 12-month period, shares of
Common Stock purchased hereunder (other than shares of Common Stock
acquired upon the automatic investment of dividends pursuant to
Section 7) shall not be transferable by a Participant for an
additional succeeding 12-month period, without prior notice to the
Company in the manner approved by the Company.
SECTION 11 - ADJUSTMENT UPON CHANGES IN CAPITALIZATION
In the event of a subdivision or consolidation of the outstanding shares of
Common Stock, or the payment of a stock dividend thereon, the number of shares
reserved or authorized to be reserved under this Plan shall be increased or
decreased, as the case may be, proportionately, and such other adjustments
shall be made as may be deemed necessary or equitable by the Board of
Directors. In the event of any other change affecting the Common Stock, such
adjustments shall be made as may be deemed equitable by the Board of
Directors, in its sole discretion, to give proper effect to such event,
subject to the limitations of Code Section 424.
SECTION 12 - ADMINISTRATION
12.1 APPOINTMENT. The Plan shall be administered by the Committee. The
Committee shall consist of two or more members who shall serve at the
pleasure of the Board of Directors. The Board of Directors may from
time to time appoint members of the Committee in substitution for, or
in addition to, members previously appointed and may fill vacancies,
however caused, in the Committee.
12.2 AUTHORITY. Subject to the express provisions of the Plan, the
Committee shall have authority to interpret the Plan, to prescribe,
amend and rescind rules and regulations relating to it, and to make
all other determinations necessary or advisable in administering the
Plan, all of which determinations shall be final and binding upon all
persons. If and to the extent required by Securities and Exchange
Commission Rule 16b-3 or any successor exemption under which the
Committee believes it is appropriate for the Plan to qualify, the
Committee may restrict a Participant's ability to participate in the
Plan or sell any Common Stock received under the Plan for such period
as the Committee deems appropriate or may impose such other
conditions in connection with participation or distributions under
the Plan as the Committee deems appropriate.
12.3 DUTIES OF COMMITTEE. The Committee shall provide for the
establishment and maintenance of records of the Plan and of each
Payroll Deduction Account and Common Stock Account established for
any Participant hereunder.
12.4 PLAN EXPENSES. The Company shall pay the fees and expenses of
accounts and counsel to the Company or the Committee, agents and
other personnel and all other costs of administration of the Plan.
12.5 INDEMNIFICATION. To the maximum extent permitted by law, no member of
the Committee shall be personally liable by reason of any contract or
other instrument executed by such member or on such member's behalf
in such member's capacity as a member of the Committee or for any
mistake of judgment made in good faith, and the Company shall
indemnify and hold harmless, directly from its own assets (including
the proceeds of any insurance policy the premiums of which are paid
from the Company's own assets), each member of the Committee and each
other officer, employee or director of the Company to whom any duty
or power relating to the administration or interpretation of the Plan
or to the management or control of the assets of the Plan may be
delegated or allocated, against any cost or expense (including fees,
disbursements and other charges of legal counsel) or liability
(including any sum paid in settlement of a claim with the approval of
the Company) arising out of any act or omission to act in connection
with the Plan unless arising out of such person's own fraud, willful
misconduct or bad faith. The foregoing shall not be deemed to limit
the Company's obligation to indemnify any member of the Committee
under the Company's Certificate of Incorporation or By-laws, or any
other agreement between the Company and such member.
SECTION 13 - AMENDMENT AND TERMINATION
13.1 AMENDMENT. Subject to the provisions of Code Section 423, the Board
of Directors may amend the Plan in any respect; provided, however,
that the Plan may not be amended in any manner that will
retroactively impair or otherwise adversely affect the rights of any
person to benefits under the Plan which have accrued prior to the
date of such action.
13.2 TERMINATION. The Plan will terminate on the Investment Date that
Participants become entitled to purchase a number of shares greater
than the number of shares remaining available for purchase. In
addition, the Plan may be terminated at any prior time, at the sole
discretion of the Board of Directors.
SECTION 14 - GOVERNMENTAL AND OTHER REGULATIONS
The Plan and the grant and exercise of options to purchase shares hereunder,
and the Company's obligation to sell and deliver shares upon the exercise of
options to purchase shares, shall be subject to all applicable Federal, state
and foreign laws, rules and regulations, and to such approvals by any
regulatory or governmental agency as, in the opinion of counsel to the
Company, may be required.
SECTION 15 - NO EMPLOYMENT RIGHTS
The Plan does not create, directly or indirectly, any right for the benefit of
any employee or class of employees to purchase any shares from the Company
(other than as expressly provided in, and subject to the terms and conditions
of, the Plan), or create in any employee or class of employees any right with
respect to continuation of employment by the Company or any Subsidiary, and it
shall not be deemed to interfere in any way with the Company's or any
Subsidiary's right to terminate, or otherwise modify, an employee's employment
at any time.
SECTION 16 - WITHHOLDING
As a condition to receiving shares hereunder, the Company may require the
Participant to make a cash payment to the Company of, or the Company may
withhold from any shares distributable under the Plan, an amount necessary to
satisfy all Federal, state, city or other taxes required to be withheld in
respect of such payments pursuant to any law or governmental regulation or
ruling.
SECTION 17 - OFFSETS
To the extent permitted by law, the Company shall have the absolute right to
withhold any amounts payable to any Participant under the terms of the Plan to
the extent of any amount owed for any reason by such Participant to the
Company or any Subsidiary and to set off and apply the amounts so withheld to
payment of any such amount owed to the Company or any Subsidiary, whether or
not such amount shall then be immediately due and payable and in such order or
priority as among such amounts owed as the Committee, in its sole discretion,
shall determine.
SECTION 18 - NOTICES, ETC.
All elections, designations, requests, notices, instructions and other
communications from a Participant to the Committee or the Company required or
permitted under the Plan shall be in Company-specified form, and if required
to be in writing shall be mailed by first-class mail or delivered to such
Company-specified location and shall be deemed to have been given and
delivered only upon actual receipt thereof at such location.
SECTION 19 - CAPTIONS, ETC.
The captions of the sections and paragraphs of this Plan have been inserted
solely as a matter of convenience and in no way define or limit the scope or
intent of any provision of the Plan. References to sections herein are to the
specified sections of this Plan unless another reference is specifically
stated. Wherever used herein, a singular number shall be deemed to include the
plural unless a different meaning is required by the context.
SECTION 20 - EFFECT OF PLAN
The provisions of the Plan shall be binding upon, and inure to the benefit of,
all successors of the Company and each Participant, including, without
limitation, such Participant's estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy
or representative of creditors of such Participant.
SECTION 21 - GOVERNING LAW
The internal laws of the State of New York shall govern all matters relating
to this Plan except to the extent superseded by the laws of the United States.
<PAGE>
EXHIBIT 5.1
May 7, 1999
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
We have acted as special counsel to Morgan Stanley Dean Witter & Co., a
Delaware corporation (the "Company"), in connection with the proposed offering
by the Company of an aggregate of 25,000,000 shares of Common Stock, par value
$.01 per share (the "Shares"), and associated preferred stock purchase rights
("Rights") pursuant to the Company's Employee Stock Purchase Plan (the
"Plan").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Securities Act").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
(i) a draft of the Registration Statement on Form S-8 relating to the Shares
and the Rights which we understand will be filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act (together with
all exhibits thereto, the "Registration Statement") on May 7, 1999, (ii) the
Amended and Restated Certificate of Incorporation, as amended, of the Company
as currently in effect, (iii) the Amended and Restated By-laws of the Company
as currently in effect, (iv) specimens of the certificates to be used to
represent the Shares and (v) resolutions of the Board of Directors of the
Company relating to the authorization of the issuance of the Shares and the
Rights, the adoption of the Plan and the filing of the Registration Statement.
We have also examined originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Company and such agreements,
certificates of public officials, certificates of officers or representatives
of the Company and others, and such other documents, certificates and records
as we have deemed necessary or appropriate as a basis for the opinions set
forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein that were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and
others.
Based upon the foregoing and subject to the limitations set forth herein,
we are of the opinion that:
1. The Shares have been duly authorized and, when issued and delivered in
accordance with the terms and conditions of the Plan and against payment
therefor, the Shares will be validly issued, fully paid and nonassessable.
2. The issuance of the Rights has been duly authorized by all necessary
corporate action of the Company.
We do not purport to be expert on, and we are not expressing an opinion
with respect to, laws other than the laws of the United States and the State
of New York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Brown & Wood LLP
<PAGE>
EXHIBIT 15.1
To the Directors and Shareholders of Morgan Stanley Dean Witter & Co.:
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
condensed consolidated financial information of Morgan Stanley Dean Witter &
Co. and subsidiaries as of February 28, 1999 and for the three month periods
ended February 28, 1999 and 1998, as indicated in our report dated April 14,
1999; because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report, which is included in your Quarterly Report on
Form 10-Q for the quarter ended February 28, 1999, is incorporated by
reference in this Registration Statement on Form S-8 relating to the Employee
Stock Purchase Plan.
We are also aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1933, is not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that
Act.
Deloitte & Touche LLP
New York, New York
May 7, 1999
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Morgan Stanley Dean Witter & Co. (the "Registrant") on Form S-8 relating to
the Employee Stock Purchase Plan of our reports dated January 22, 1999,
appearing in and incorporated by reference in the Annual Report on Form 10-K
of the Registrant for the fiscal year ended November 30, 1998 (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, and make reference
to the audit of Morgan Stanley Group Inc. for the fiscal year ended November
30, 1996 by other auditors).
DELOITTE & TOUCHE LLP
New York, New York
May 7, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Morgan Stanley Dean Witter & Co. (the "Company") for the
registration of 25,000,000 shares of the Company's Common Stock, par value
$0.01 per share, pertaining to the Company's Employee Stock Purchase Plan, of
our report dated May 27, 1997 with respect to the consolidated financial
statements and financial statement schedule of Morgan Stanley Group Inc. for
the fiscal year ended November 30, 1996, included in the Company's Annual
Report on Form 10-K for the year ended November 30, 1998, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
May 7, 1999
