As filed with the Securities and Exchange Commission on March 30, 1999
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MORGAN STANLEY DEAN WITTER & CO.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3145972
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
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1585 Broadway
New York, New York 10036
(212) 761-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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Christine A. Edwards, Esq.
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, including zip code, and telephone number,
including area code, of agent for service)
---------------
Copies To:
Joseph W. Armbrust, Esq. John M. Brandow, Esq.
Brown & Wood LLP Davis Polk & Wardwell
One World Trade Center 450 Lexington Avenue
New York, New York 10048 New York, New York 10017
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Approximate date of commencement of proposed sale to the
public: As soon as practicable after this registration statement becomes
effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), other than
securities offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
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Title of each class of Amount to Proposed maximum Proposed maximum Amount of
securities to be registered be registered offering price per security(1) aggregate offering price(1) registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities..............
Warrants (2).................
Preferred Stock (3).......... $12,000,000,000 (7)(8) 100% $12,000,000,000 $3,336,000
Depositary Shares (4)........
Purchase Contracts (5).......
Units (6)....................
===================================================================================================================================
(1) Estimated solely for purposes of calculating the registration fee.
(2) There are being registered hereby such indeterminate number of Warrants as
may be issued at indeterminate prices. Such Warrants may be issued
together with any Debt Securities or Purchase Contracts or both.
Warrants may be exercised to purchase Debt Securities registered hereby
or to purchase or sell (i) securities of an entity unaffiliated with
the Registrant, a basket of such securities, an index or indices of
such securities or any combination of the above, (ii) currencies or
(iii) commodities.
(3) There are being registered hereby such indeterminate number of shares of
Preferred Stock as may from time to time be issued at indeterminate
prices.
(4) There are being registered hereby such indeterminate number of Depositary
Shares as may be issued in the event that the Registrant elects to
offer fractional or multiple interests in shares of the Preferred Stock
registered hereby.
(5) There are being registered hereby such indeterminate number of Purchase
Contracts as may be issued at indeterminate prices. Such Purchase
Contracts may be issued together with any Debt Securities or Warrants
or both. Purchase Contracts may require the holders thereof to
purchase or sell (i) securities of an entity unaffiliated with the
Registrant, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or (iii)
commodities.
(6) There are being registered hereby such indeterminate number of Units as
may be issued at indeterminate prices. Units may consist of one or
more Purchase Contracts, Warrants and Debt Securities or any
combination of the above.
(7) This registration statement also relates to offers and sales of Debt
Securities, Warrants, Preferred Stock, Depositary Shares, Purchase
Contracts and Units (collectively, "Securities") in connection with
market-making transactions by and through affiliates of the Registrant
(subject, with respect to Preferred Stock and Depositary Shares, to
approval of the New York Stock Exchange, Inc. in connection with
market-making transactions by and through Morgan Stanley & Co.
Incorporated and Dean Witter Reynolds Inc.).
(8) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as shall result in aggregate net proceeds not in excess
of $12,000,000,000 to the Registrant or, if any Securities are issued
with an offering price payable in a foreign currency, such amount as
shall result in an aggregate initial offering price equivalent to
$12,000,000,000 at the time of initial offering.
</TABLE>
The Registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act or until the registration statement shall
become effective on such date as the Securities and Exchange Commission (the
"Commission"), acting pursuant to Section 8(a), may determine.
Pursuant to Rule 429 of the General Rules and Regulations under
the Securities Act, the Prospectus which is a part of this registration
statement is a combined Prospectus relating also to $5,721,843,684 of
securities registered and remaining unissued under registration statement no.
333-46935 previously filed by the Registrant and declared effective by the
Commission.
==============================================================================
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and we are not soliciting offers to
buy these securities in any state where the offer or sale is not permitted.
PROSPECTUS (Subject to Completion, Issued March 30, 1999)
$17,721,843,684
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.
-----------
MORGAN STANLEY DEAN WITTER
, 1999
You should rely only on the information we incorporate by reference or provide
in this prospectus or the relevant prospectus supplement. 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.
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- .
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 ours or 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.
Purchase Contracts.................. We may sell purchase contracts
requiring the holders to purchase or
sell (1) securities of ours or 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,
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 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.
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; and
(b) Current Reports on Form 8-K dated January 7, 1999,
January 19, 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.
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.
Fiscal Year
--------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
Ratio of earnings to fixed charges........ 1.4 1.4 1.3 1.3 1.3
Ratio of earnings to fixed charges and
preferred stock dividends............... 1.4 1.4 1.3 1.3 1.3
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.
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([Registered]) 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([Registered]) 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.
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;
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 MSDW or other entities, 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."
Indentures
Debt securities that will be senior debt will be issued under
an Amended and Restated Senior Indenture dated as of April , 1999 between
MSDW and The Chase Manhattan Bank, as trustee. We call that indenture, as
further 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 April , 1999 between MSDW and The
First National Bank of Chicago, as trustee. We call that indenture, as
further 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
(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;
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% aggregate in 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 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
reemption, 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 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)
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;
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 Holder
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 Holder Obligations. We have filed the form of Unit Agreement and Unit
Agreement Without Holder Obligations as exhibits to the registration
statement. Although we have described below the material provisions of the
Unit Agreement, the Unit Agreement Without Holder Obligations and the units,
these descriptions are not complete, and you should review the detailed
provisions of the Unit Agreement and Unit Agreement Without Holder 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
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.
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
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 corporaiton
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.
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 Holder Obligations
Remedies. The unit agent will act solely as our agent in
connection with the units governed by the Unit Agreement Without Holder
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 Holder 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 Holder 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 Holder 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
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 Holder
Obligations.
Pre-paid purchase contracts and any debt securities issued as
part of units governed by the Unit Agreement Without Holder 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 Holder 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 Holder Obligations; and
o immediately after the merger, consolidation, sale, lease
or conveyance, we, that person or that successor
corporaiton will not be in default in the performance of
the covenants and conditions of the Unit Agreement Without
Holder Obligations applicable to us.
Replacement of Unit Certificates or Pre-Paid Purchase Contract
Certificates. We will replace any mutilated certificate evidencing a
definitive unit or pre-paid 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 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 Holder
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.
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 ours or 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
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
with which the debt warrants are issued and the number of
the ts 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 agreement 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.
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 ours or 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;
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 Holder Obligations. See "Description of
Units--Significant Provisions of the Unit Agreement" and "--Significant
Provisions of the Unit Agreement Without Holder 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.
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.
Outstanding Capital Stock
Outstanding Common Stock. As of February 28, 1999, there were
approximately 570,589,670 shares of our common stock outstanding.
Outstanding Preferred Stock. On February 28, 1999, MSDW also
had outstanding the following series of preferred stock:
o approximately 3,559,639 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.
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
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.
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.
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, 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 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.
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.
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.
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.
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 15 directors but it is expected to be reduced to 13
directors at the time of our annual meeting of stockholders on April 9,
1999. 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 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 bylaws 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 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.
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
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 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.
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 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, as of fiscal year end 1998 and 1997
and for each of the three years in the period ended fiscal year end 1998
included in and incorporated by reference in MSDW's Annual Report on Form 10-K
dated November 30, 1998 have been audited by Deloitte & Touche llp,
independent auditors, as stated in their reports thereon and incorporated
herein by reference. 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.
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.
MORGAN STANLEY DEAN WITTER & CO.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following are the expenses of the issuance and distribution
of the securities being registered, all of which will be paid by the
registrant. Other than the registration fee and the NASD filing fee, all of
these expenses are estimated.
Registration fee............................................... $3,336,000
NASD filing fee................................................ 30,500
Blue Sky fees and expenses..................................... 15,000
Rating agency fees............................................. 375,000
Printing and engraving expenses................................ 1,162,500
Legal fees and expenses........................................ 450,000
Accounting fees and expenses................................... 112,500
Unit Agents', Warrant Agents', Trustees' and Preferred Stock
Depositary's fees and expenses (including counsel fees).. 202,500
Total.................................................... $5,684,000
Item 15. Indemnification of Officers and Directors
Article VIII of the Amended and Restated Certificate of
Incorporation of MSDW ("Certificate of Incorporation") and Section 6.07 of the
Amended and Restated By-laws of MSDW ("By-laws"), each as amended to date,
provide for the indemnification of MSDW's directors and officers. The
Certificate of Incorporation provides that any person who is a director or
officer of MSDW shall be indemnified by MSDW 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 MSDW 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 MSDW
(a "Subsidiary") shall be indemnified by MSDW 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 MSDW 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 MSDW.
MSDW's By-laws also provide that MSDW may, to the extent
authorized from time to time by the Board of Directors, provide rights to
indemnification, and rights to be paid by MSDW 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 MSDW
or a Subsidiary and to any person who is or was serving at the request of MSDW
or a Subsidiary as a director, officer, partner, member, employee or agent of
another corporation, partnership, limited liability company, joint venture,
trust or other enterprise at the request of MSDW 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 MSDW.
Under the By-laws, MSDW 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 MSDW or of its subsidiary, or of another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise, against any expense, liability or loss whether or not MSDW
or its subsidiary would have the power to indemnify that person against that
expense, liability or loss under the provisions of applicable law.
MSDW 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 our directors and
officers in some of the instances where by law they may not be indemnified by
MSDW.
The forms of Underwriting Agreements and Distribution
Agreements filed as Exhibits 1-a, 1-b, 1-c and 1-d hereto, and incorporated
herein by reference, contain some provisions relating to the indemnification
of MSDW's directors, officers and controlling persons.
Item 16. Exhibits
Exhibit
Number Description
------- -----------
1-a Form of Underwriting Agreements for Debt Securities, Warrants,
Purchase Contracts and Units (previously filed as an exhibit to
MSDW's Registration Statement on Form S-3, Registration
No. 333-27919, and incorporated herein by reference).
1-b Form of Underwriting Agreement for Preferred Stock and Depositary
Shares (previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-27919, and
incorporated herein by reference).
1-c * Form of U.S. Distribution Agreement.
1-d * Form of Euro Distribution Agreement.
4-a Amended and Restated certificate of incorporation of MSDW
(previously filed as an exhibit to MSDW's Annual Report on
Form 10-K dated November 30, 1998 and incorporated herein by
reference).
4-b Form of Certificate of Designation of Offered Preferred Stock
(previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-27919, and
incorporated herein by reference).
4-c Form of Certificate of Offered Preferred Stock (previously filed
as an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-d Form of Deposit Agreement (including Form of Depositary Receipt)
(previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-27919, and
incorporated herein by reference).
4-e * Amended and Restated Senior Indenture dated as of April , 1999
between Morgan Stanley Dean Witter & Co. and The Chase
Manhattan Bank, Trustee.
4-f * Amended and Restated Subordinated Indenture dated as of April ,
1999 between Morgan Stanley Dean Witter & Co. and The First
National Bank of Chicago, Trustee.
4-g * Form of Floating Rate Senior Note.
4-h * Form of Fixed Rate Senior Note.
4-i * Form of Senior Variable Rate Renewable Note.
4-j * Form of Floating Rate Subordinated Note.
4-k * Form of Fixed Rate Subordinated Note.
4-l * Form of Subordinated Variable Rate Renewable Note.
4-m * Form of Temporary Global Floating Rate Senior Bearer Note.
4-n * Form of Temporary Global Fixed Rate Senior Bearer Note.
4-o * Form of Permanent Global Floating Rate Senior Bearer Note.
4-p * Form of Permanent Global Fixed Rate Senior Bearer Note.
4-q * Form of Euro Fixed Rate Senior Bearer Note.
4-r * Form of Euro Fixed Rate Senior Registered Note.
4-s * Form of Floating/Fixed Rate Senior Note.
4-t * Form of Senior Dollarized Bull Note.
4-u * Form of S&P Indexed (Bull) Note.
4-v * Form of S&P Indexed (Bear) Note.
4-w * Form of Euro Fixed Rate Subordinated Registered Note.
4-x * Form of Fixed Rate Amortizing Senior Note.
4-y * Form of Senior Dollarized Yield Curve Note (Bond Basis).
4-z * Form of Senior Dollarized Yield Curve Note (Money Market Basis).
4-aa * Form of Permanent Global Senior Bull Note.
4-bb * Form of Definitive Floating Rate Senior Bearer Note.
4-cc Form of Debt Warrant Agreement for Warrants Sold Attached to Debt
Securities (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No. 333-27919,
and incorporated herein by reference).
4-dd Form of Debt Warrant Agreement for Warrants Sold Alone (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-ee Form of Warrant Agreement for Universal Warrants (previously filed
as an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-ff Form of Unit Agreement (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No. 333-27919,
and incorporated herein by reference).
4-gg Form of Put Warrant (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No. 333-27919,
and incorporated herein by reference).
4-hh Form of Call Warrant (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No. 333-27919,
and incorporated herein by reference).
4-ii Form of Purchase Contract (Issuer Sale)(previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-jj Form of Purchase Contract (Issuer Purchase) (previously filed as
an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-27919, and incorporated herein by
reference).
4-kk Form of Unit Certificate (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No. 333-27919,
and incorporated herein by reference).
4-ll Form of Pre-Paid Purchase Contract (previously filed as an exhibit
to MSDW's Registration Statement on Form S-3, Registration No.
333-46935, and incorporated herein by reference).
4-mm Form of Unit Agreement For Units Without Holder Obligations
(previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-46935, and
incorporated herein by reference).
5 * Opinion of Brown & Wood LLP.
12-a Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b Computation of Consolidated Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Ernst & Young LLP
23-c * Consent of Brown & Wood LLP (included in Exhibit 5).
24 Powers of Attorney (included on the signature pages).
25-a Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Senior Debt Indenture.
25-b Statement of Eligibility of The First National Bank of Chicago,
Trustee under the Amended and Restated Subordinated Debt
Indenture.
- ------------
* To be filed by amendment.
Item 17. Undertakings
(1) 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 this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by a registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(3) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
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 this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (3)(a)(i) and (3)(a)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York, state of New York, as of
this 30th day of March, 1999.
MORGAN STANLEY DEAN WITTER & CO.
By: /s/ Philip J. Purcell
-----------------------------------------
Name: Philip J. Purcell
Title: 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 requirement 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
30th day of March, 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/ Thomas C. Schneider
- ----------------------------------- Executive Vice President and Director
Thomas C. Schneider
/s/ Richard B. Fisher Chairman of the Executive Committee of
- ----------------------------------- Board of Directors and Director
Richard B. Fisher
/s/ Robert G. Scott Executive Vice President and
- ----------------------------------- Chief Financial Officer
Robert G. Scott (Principal 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
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
1-c * Form of U.S. Distribution Agreement.
1-d * Form of Euro Distribution Agreement.
4-e * Amended and Restated Senior Indenture dated as of April , 1999
between Morgan Stanley Dean Witter & Co. and The Chase
Manhattan Bank, Trustee.
4-f * Amended and Restated Subordinated Indenture dated as of
April , 1999 between Morgan Stanley Dean Witter & Co. and The
First National Bank of Chicago, Trustee.
4-g * Form of Floating Rate Senior Note.
4-h * Form of Fixed Rate Senior Note.
4-i * Form of Senior Variable Rate Renewable Note.
4-j * Form of Floating Rate Subordinated Note.
4-k * Form of Fixed Rate Subordinated Note.
4-l * Form of Subordinated Variable Rate Renewable Note.
4-m * Form of Temporary Global Floating Rate Senior Bearer Note.
4-n * Form of Temporary Global Fixed Rate Senior Bearer Note.
4-o * Form of Permanent Global Floating Rate Senior Bearer Note.
4-p * Form of Permanent Global Fixed Rate Senior Bearer Note.
4-q * Form of Euro Fixed Rate Senior Bearer Note.
4-r * Form of Euro Fixed Rate Senior Registered Note.
4-s * Form of Floating/Fixed Rate Senior Note.
4-t * Form of Senior Dollarized Bull Note.
4-u * Form of S&P Indexed (Bull) Note.
4-v * Form of S&P Indexed (Bear) Note.
4-w * Form of Euro Fixed Rate Subordinated Registered Note.
4-x * Form of Fixed Rate Amortizing Senior Note.
4-y * Form of Senior Dollarized Yield Curve Note (Bond Basis).
4-z * Form of Senior Dollarized Yield Curve Note (Money Market Basis).
4-aa * Form of Permanent Global Senior Bull Note.
4-bb * Form of Definitive Floating Rate Senior Bearer Note.
5 * Opinion of Brown & Wood LLP.
12-a Computation of Consolidated Ratio of Earnings to Fixed Charges.
12-b Computation of Consolidated Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Ernst & Young LLP.
23-c * Consent of Brown & Wood LLP (included in Exhibit 5).
24 Powers of Attorney (included on the signature pages).
25-a Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Senior Debt Indenture.
25-b Statement of Eligibility of The First National Bank of Chicago,
Trustee under the Amended and Restated Subordinated Debt
Indenture.
- -----------
* To be filed by amendment.
Exhibit 12-a
MORGAN STANLEY DEAN WITTER & CO.
Ratio of Earnings to Fixed Charges
(Dollars in millions)
Fiscal Year
1998 1997 1996
-------- -------- --------
Ratio of Earnings to Fixed Charges
Earnings:
Income before income taxes(l) $5,385 $4,274 $3,117
Add: Fixed charges, net 13,614 10,898 9,026
------- ------- -------
Income before income taxes and
fixed charges, net $18,999 $15,172 $12,143
======= ======= =======
Fixed charges:
Total interest expense $13,514 $10,806 $8,934
Interest factor in rents 100 92 92
------- ------- -------
Total fixed charges $13,614 $10,898 $9,026
======= ======= =======
Ratio of earnings to fixed charges 1.4 1.4 1.3
(1) 1998 Income before income taxes does not include a cumulative effect of
accounting change.
"Earnings" consist of income before income taxes and fixed charges. "Fixed
charges" consist of interest costs, including interest on deposits, and that
portion of rent expense estimated to be representative of the interest factor.
Exhibit 12-b
MORGAN STANLEY DEAN WITTER & CO.
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends
(Dollars in millions)
Fiscal Year
1998 1997 1996
-------- -------- --------
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends
Earnings:
Income before income taxes(l) $5,385 $4,274 $3,117
Add: Fixed charges, net 13,614 10,898 9,026
------- ------- -------
Income before income taxes and
fixed charges, net $18,999 $15,172 $12,143
======= ======= =======
Fixed charges:
Total interest expense $13,514 $10,806 $8,934
Interest factor in rents 100 92 92
Preferred stock dividends 87 110 101
------- ------- -------
Total fixed charges and preferred
stock dividends $13,701 $11,008 $9,127
======= ======= =======
Ratio of earnings to fixed charges and
preferred stock dividends 1.4 1.4 1.3
(1) 1998 Income before income taxes does not include a cumulative effect of
accounting change.
"Earnings" consist of income before income taxes and fixed charges. "Fixed
charges" consist of interest costs, including interest on deposits, and that
portion of rent expense estimated to be representative of the interest factor.
The preferred stock dividend amounts represent pre-tax earnings required to
cover dividends on preferred stock.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
(related to $12,000,000,000 of debt securities, warrants, preferred stock,
depositary shares, purchase contracts and units) of Morgan Stanley Dean
Witter & Co. (the "Registrant") on Form S-3 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 makes reference to the audit of Morgan Stanley Group Inc. for the
fiscal year ended November 30, 1996 by other auditors); and to the
reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
Deloitte & Touche LLP
New York, New York
March 29, 1999
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in this
Registration Statement on Form S-3 and related Prospectus of Morgan Stanley
Dean Witter & Co. (the "Company") for the registration of $12,000,000,000
of Debt Securities, Warrants, Preferred Stock, Purchase Contracts, and
Units of the Company and to the incorporation by reference therein of our
report with respect to the consolidated financial statements and financial
statement schedule of Morgan Stanley Group Inc. dated May 27, 1997 included
in the Company's Form 10-K for the fiscal year ended November 30, 1998,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
March 30, 1999
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)_____
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Morgan Stanley Dean Witter & Co.
(Exact name of obligor as specified in its charter)
Delaware 36-3145972
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1585 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Debt Securities
(Title of the indenture securities)
---------------------------------------------------
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing
under the laws of the state of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and state of New York, on the 19th
day of March, 1999.
THE CHASE MANHATTAN BANK
By /s/ T.J. Foley
------------------------
T.J. Foley
Vice President
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 13,915
Interest-bearing balances ..................................... 7,805
Securities: ........................................................
Held to maturity securities......................................... 1,429
Available for sale securities....................................... 56,327
Federal funds sold and securities purchased under
agreements to resell .......................................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve ......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ........................................ 128,384
Trading Assets ..................................................... 48,949
Premises and fixed assets (including capitalized
leases)........................................................ 3,095
Other real estate owned ............................................ 239
Investments in unconsolidated subsidiaries and
associated companies........................................... 199
Customers' liability to this bank on acceptances
outstanding ................................................... 1,209
Intangible assets .................................................. 2,081
Other assets ....................................................... 11,352
TOTAL ASSETS ....................................................... $296,717
========
LIABILITIES
Deposits
In domestic offices ........................................... $105,879
Noninterest-bearing ............................$ 39,175
Interest-bearing .................................66,704
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ........................................ 79,294
Noninterest-bearing ............................$ 4,082
Interest-bearing .................................75,212
Federal funds purchased and securities sold under agreements
to repurchase ...................................................... 32,546
Demand notes issued to the U.S. Treasury ........................... 629
Trading liabilities ................................................ 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less .................. 4,478
With a remaining maturity of more than one year
through three years.......................................... 213
With a remaining maturity of more than three years........... 115
Bank's liability on acceptances executed and outstanding ........... 1,209
Subordinated notes and debentures .................................. 5,408
Other liabilities .................................................. 10,855
TOTAL LIABILITIES .................................................. 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ....................................................... 1,211
Surplus (exclude all surplus related to preferred stock)............ 11,016
Undivided profits and capital reserves ............................. 6,762
Net unrealized holding gains (losses)
on available-for-sale securities ................................... 279
Cumulative foreign currency translation adjustments ................ 16
TOTAL EQUITY CAPITAL ............................................... 19,284
------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................... $296,717
=======
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------
Morgan Stanley Dean Witter & Co.
(Exact name of obligor as specified in its charter)
Delaware 36-3145972
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1585 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C., Federal Deposit
Insurance Corporation, Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of
the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of
this Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and the state of Illinois, on this 22nd day of March,
1999.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25 to the Registration Statement on Form
S-3 of U S WEST Capital Funding, Inc. filed with the Securities and
Exchange Commission on May 6, 1998 (Registration No. 333-51907-01).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 22, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Morgan
Stanley Dean Witter & Co. and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act
of 1939, as amended, hereby consents that the reports of examinations of
the undersigned, made by Federal or State authorities authorized to make
such examinations, may be furnished by such authorities to the Securities
and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
RCFD BIL MIL THOU ----
---- ------------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) ............ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ..................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ........ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) ..... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C) ............................................................ 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ........................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ............................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c) ............................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ................................. 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ............ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ........................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ...................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ........ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .............................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ............................ 2170 74,200,906 12.
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
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Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<TABLE>
Dollar Amounts in
Thousands
LIABILITIES
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) ..................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ...................................... 6631 10,141,937 13.a1
(2) Interest-bearing ............................................ 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II) .............................. 2200 19,691,237 13.b
(1) Noninterest bearing ......................................... 6631 408,126 13.b1
(2) Interest-bearing ............................................ 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 120,599 15.a
b. Trading Liabilities(from Schedule RC-D)........................... RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less ....................... 2332 5,385,355 16.a
b. With original maturity of more than one year .................... A547 327,126 16.b
c. With original maturity of more than three years .................. A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ............. 2920 269,516 18.
19. Subordinated notes and debentures ................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .............................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) ...................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ....................... 3838 0 23.
24. Common stock ........................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ............ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ........................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ....................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ................. 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ............................... 3300 74,200,906 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement ---------
below that best describes the most auditors as of any date N/A
during 1996 ................................... RCFD 6724 --------- M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submists a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report ont he consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering attorney)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings
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