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EXHIBIT T
AMENDED AND RESTATED
TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT (this "Agreement"), made as
of the 30th day of November, 2000, by and between MORGAN STANLEY DEAN WITTER &
CO., a Delaware corporation (the "Company"), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company (in its individual capacity, "State
Street" and, as trustee under this Agreement, the "Trustee"), hereby amends and
restates the Trust Agreement dated as of March 5, 1991, as amended, between the
Company and State Street.
RECITALS:
WHEREAS, certain Managing Directors, Principals, officers, other key
employees and consultants of the Company or certain subsidiaries thereof
("Participants") are eligible to receive shares (the "Benefits") of the
Company's common stock, par value $0.01 per share (the "Stock"), pursuant to
awards of stock units under any of the following plans of the Company:
. the 1988 Equity Incentive Compensation Plan;
. the 1995 Equity Incentive Compensation Plan;
. the Employees' Equity Accumulation Plan; and
. each other plan which the Company identifies to the Trustee in
accordance with Section 11 of this Agreement,
as each may be amended, supplemented, replaced or extended, or any successor
plan providing for similar benefits or awards, being hereinafter referred to
collectively as the "Plans". Copies of the first three of which plans cited
above are attached hereto as Exhibits A, B and C, respectively, and made a part
hereof; and
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WHEREAS, the Company and State Street are parties to this Agreement,
pursuant to which State Street serves as trustee for a trust (the "Managing
Director Trust") which currently holds shares of Stock underlying stock unit
awards under the Plans made to employees of the Company who hold the title of
Managing Director and certain other officers of the Company; and
WHEREAS, the Company and State Street are parties to a trust agreement
dated as of April 1, 1994, as amended (the "Principal/V.P. Trust Agreement"),
pursuant to which State Street serves as trustee for a trust (the
"Principal/V.P. Trust") which currently holds shares of Stock underlying stock
unit awards under the Plans made to Principals, Vice Presidents and certain
other officers and key employees of the Company; and
WHEREAS, the Company wishes to establish a single trust (a "Universal
Trust"), for the purpose of holding all of the shares of Stock underlying stock
unit awards under the Plans, and to transfer to the Universal Trust shares of
Stock to be held therein, subject to the Company's power to revoke the Trust in
accordance with the terms thereof, in whole or in part, at any time or from time
to time, until distributed to the Participants and their beneficiaries ("Trust
Beneficiaries") as Benefits in such manner and at such time as specified in the
Plans;
NOW, THEREFORE, for good and valuable consideration, the parties do
hereby agree to amend and restate this Agreement and agree that the Trust shall
be composed, held and disposed of as follows:
Section 1. Trust Fund.
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(a) Subject to the claims of its creditors and the creditors of Morgan
Stanley & Co. Incorporated, Morgan Stanley & Co. International Limited, Discover
Bank (formerly known as Greenwood Trust Company), Dean Witter Reynolds Inc. or
any subsidiary succeeding to any substantial part of the business now conducted
by any of such corporations (collectively,
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the "Material Subsidiaries") as set forth in Section 3, the Company has
deposited with the Trustee in trust one share of Stock and cash in the amount of
one thousand dollars ($1,000.00) which shall become the initial principal of the
Trust to be held, administered and disposed of by the Trustee as provided in
this Agreement together with additional deposits by the Company of cash or Stock
from time to time.
The Trust shall be funded only with shares of Stock, or cash to
purchase such shares. Shares of Stock contributed to the Trust or purchased with
cash so contributed shall either be allocated to stock units awarded under the
Plan ("Allocated Shares") or be held in the Trust pending allocation to such
stock units or other equity-based awards ("Unallocated Shares"). For purposes
hereof, Unallocated Shares include shares of Stock held in the Trust that were
considered Allocated Shares when contributed to, or purchased with cash held by,
the Trust, but for which the corresponding stock units awarded under the Plan
have been forfeited. In addition, the Trustee may retain up to one thousand
dollars ($1,000.00) in cash or short term instruments for payment of expenses
and liabilities of the Trust.
(b) Except as otherwise provided herein, the Trust hereby established
shall be revocable by the Company, in whole or in part, at any time or from time
to time, without the consent of any other person or entity. Subject to the
provisions of Section 3 and notwithstanding any other provision in this
agreement to the contrary, (i) the Company may not revoke the Trust to the
extent of any shares corresponding to a stock unit award of a Trust Beneficiary
which award at the time of such revocation is unsettled but currently payable,
all in accordance with the terms of the Plans and the award granted thereunder
and (ii) the Company may not revoke the Trust to the extent of any dividend
payable to the Trustee as record owner on the record date
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which dividend is distributable by the Trustee to any Trust Beneficiary in
accordance with paragraph (f) of this Section 1.
(c) The Trust is intended to be a grantor trust, within the meaning of
Sections 671-677 of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The assets of the Trust shall be held separate and apart from other
funds of the Company and shall be used exclusively for the uses and purposes
herein set forth. Notwithstanding any other provision of this Agreement to the
contrary and subject to the provisions of Section 3, no Trust Beneficiary shall
have any claim on, or any beneficial ownership interest in, any assets of the
Trust other than assets to which the Trust Beneficiary is entitled to a
distribution as provided in Section 2 and paragraph (f) of this Section 1. No
rights to a distribution of a Benefit or dividends declared thereon shall be
created under this Agreement independently of any Trust Beneficiary's right to a
distribution or payment under the Plans and the awards granted thereunder.
Neither the Company nor the Trustee shall have any power to create a security
interest in the assets of the Trust in favor of any Trust Beneficiary, any
person entitled to Benefits by reason of the death of any Trust Beneficiary or
any creditor of either the Company or any Material Subsidiary. Nothing contained
herein or in any provision of the Plans shall operate to create a security
interest in any part of the assets of the Trust on behalf of any Trust
Beneficiary or any person entitled to Benefits upon the death of any Trust
Beneficiary.
(e) The Company may at any time or from time to time make additional
deposits of cash or shares of Stock to the Trust to augment the assets to be
held, administered and disposed of by the Trustee as provided in this Agreement.
The Trustee shall have no duty or obligation to require the Company to make any
contribution to the Trust.
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(f) Any cash dividend paid in respect of Allocated Shares held in the
Trust shall be distributed by the Trustee to Trust Beneficiaries as directed by
the Company, and any such cash dividend paid in respect of Unallocated Shares
held in the Trust shall be paid to a charitable, educational or similar not-for-
profit foundation, institution or other organization designated by the Company
at the time of payment (a "Designated Charity"). In no event shall any such cash
dividend be distributed to the Company. The Company shall act as agent for the
Trustee in making such distributions unless the Trustee gives the Company 90
days notice, in writing, that the Trustee does not want the Company to act as
its agent. The Trustee may require the Company to provide certification of its
distributions to Trust Beneficiaries in respect of Allocated Shares and other
parties in respect of Unallocated Shares. Any other dividend or distribution
made with respect to the shares of Stock held in the Trust shall be distributed
to the Trustee and delivered by the Trustee to the Company for disposition by
the Company (i) in the case of Allocated Shares, in accordance with the Plan and
awards granted thereunder and (ii) in the case of Unallocated Shares, to a
Designated Charity as directed by the Company at the time of payment, but in no
event shall any such dividend or distribution, or any proceeds resulting from a
sale or other disposition thereof, be distributed to the Company.
Section 2. Payments to Trust Beneficiary.
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(a) The Trustee shall distribute the Benefits in accordance with the
Plans as directed by the Compensation Committee (the "Committee") of the Board
of Directors of the Company or by an officer of the Company, as hereinafter set
forth, if and to the extent that neither the Company nor any of its Material
Subsidiaries is insolvent at the time of such distribution and shares of Stock
are available for such distribution. Subject to the provisions of Section 3, a
Trust Beneficiary shall be entitled to a distribution of Benefits from the Trust
at the time the stock unit award becomes currently payable and is no longer
subject to forfeiture, all in
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accordance with the terms of the Plans and the award granted thereunder,
provided that the Trust has not been revoked prior to such time and that the
Company's obligation under the stock unit award has not been satisfied
otherwise. The Committee or an officer of the Company will instruct the Trustee
as to the eligibility of any Trust Beneficiary for such distribution, the
correct amount of each distribution and when to make the distribution. The
Committee or its designee shall keep accurate records with respect to the
Benefits payable from the Trust and the Trustee may rely upon such records
without a duty of further inquiry in performing its duties under this Agreement.
To the extent benefits have been paid from the Trust hereunder the Company shall
be relieved of its obligation to pay such Benefits.
(b) If at any time the number of shares held in the Trust is not
sufficient to make any directed distribution of Benefits, in accordance with the
Plans, to any Trust Beneficiary then entitled to a distribution, the Trustee
shall distribute the balance of the shares held in the Trust to or on behalf of
all the Trust Beneficiaries then entitled to distributions in the following
manner: the Benefits distributed to any Trust Beneficiary shall be equal to the
balance of shares held in the Trust multiplied by a fraction the numerator of
which is the amount of Benefits such Trust Beneficiary is entitled to
distribution of at that time and the denominator of which is the amount of
Benefits all Trust Beneficiaries are entitled to distribution of at that time.
No provision of this Trust Agreement shall relieve the Company of its
liabilities to pay Benefits except to the extent that the same have been paid
from the Trust hereunder.
(c) The Trustee shall make provision for withholding of any federal,
state or local taxes that may be required to be withheld in respect of any
distribution from the Trust as directed by the Committee or by an officer of the
Company and the Trustee shall remit any
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shares or other amounts so withheld as instructed by the Committee or by an
officer of the Company, including to the Company if so instructed by the
Committee or by such officer.
Section 3. Trustee Responsibility Regarding Payments to a Trust
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Beneficiary When the Company or any Material Subsidiary Is
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Insolvent.
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(a) The Company or a Material Subsidiary of the Company shall be
considered "Insolvent" for purposes of this Trust Agreement if (i) the Company
or the Material Subsidiary, whichever is applicable, is unable or otherwise
fails to pay its debts, other than debts owed to the Company or to entities 50%
or more owned or controlled, directly or indirectly, by the Company, as they
mature in accordance with the terms of the relevant debt instruments or (ii) the
Company or the Material Subsidiary is subject to a pending proceeding as a
debtor under Title 11 of the United States Code (11 U.S.C. (S) 101 et seq.), as
amended from time to time, or any successor statute or under Title 15 of the
United States Code (15 U.S.C. (S) 78aaa et seq.), as amended from time to time,
or any successor statute. If the Company or a Material Subsidiary is Insolvent,
the Trustee promptly shall discontinue distributing benefits under Section 2 and
dividends or other income earned on the shares of Stock or other assets held in
Trust and thereafter, subject to paragraph (b) below, shall hold all of the
assets and income of this Trust for the benefit of the general creditors of the
Company or one or more Material Subsidiaries, or both, and shall make such
assets and income available to such general creditors at such times and in such
amounts as directed by a court of competent jurisdiction. The Company shall not
replace any shares of Stock paid to such general creditors. Notwithstanding the
foregoing, if new awards of stock units are made, shares of Stock corresponding
to such stock units may be contributed to the Trust.
(b) The Board of Directors or the Chairman or President of the Company
shall have the duty to inform the Trustee promptly if the Company or any of its
Material Subsidiaries
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becomes Insolvent. If a person claiming to be a creditor of the Company or any
of its Material Subsidiaries alleges in writing to the Trustee that the Company
or a Material Subsidiary has become Insolvent, the Trustee promptly shall
suspend the distribution of Benefits under Section 2 and of dividends or other
income earned on the shares of Stock or other assets held in Trust and shall
contact the Company's Chairman or President and the Board of Directors. If the
Company's Chairman or President or the Board of Directors fails to confirm or
deny such claim, the Trustee shall continue the suspension of Benefit
distributions to Trust Beneficiaries and of income on the assets held in Trust
until or unless a court of competent jurisdiction shall have determined that
neither the Company nor any of its Material Subsidiaries is Insolvent. The
Trustee shall also have the right at any time to apply to a court of competent
jurisdiction for instructions on how to proceed if the Trustee determines that
such action is necessary or appropriate in light of any uncertainty that may
reasonably exist regarding whether or not the Company or a Material Subsidiary
is Insolvent. Unless the Trustee has actual knowledge that the Company or a
Material Subsidiary is Insolvent, the Trustee shall have no duty to inquire
whether the Company or any of its Material Subsidiaries is Insolvent. In the
absence of actual knowledge to the contrary, if the Trustee is notified pursuant
to the foregoing provisions by a court of competent jurisdiction, by the
Company's Chairman or President or by the Board of Directors that the Company
and all its Material Subsidiaries are not or are no longer Insolvent, the
Trustee shall resume the distribution of Benefits under Section 2 and of
dividends or other income earned on the shares of Stock or other assets held in
the Trust. Upon resumption of the distribution of Benefits by the Trustee, the
first distribution to each Trust Beneficiary to whom distributions were so
suspended shall include (to the extent that shares are available therefor) the
amount by which the aggregate of all distributions which would have been made to
such Trust Beneficiary
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in accordance with instructions given by the Committee or by officers of the
Company, but for the discontinuance of distributions pursuant to paragraph (a)
above, exceeds the aggregate distributions on account of Benefits actually made
to such Trust Beneficiary by the Company (as certified to the Trustee by the
Company in writing) during such period of discontinuance.
Section 4. Term of the Trust and Payments to Company in Connection with
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Termination of the Trust.
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Unless sooner terminated, this Trust shall terminate upon the earlier
of (a) the satisfaction of all the Company's obligations under the Plans to the
Trust Beneficiaries, (b) the receipt of an offer (including but not limited to a
tender offer or exchange offer within the meaning of the Securities Exchange Act
of 1934 as from time to time amended and in effect) to acquire any shares of
Stock held by the Trustee in the Trust, other than an offer by the Company or
any affiliate 50% or more of which was owned or controlled directly or
indirectly by the Company prior to the transaction (a "Self-Tender"), or (c) the
twenty-first anniversary of the death of the last to survive of the employees of
the Company or its subsidiaries who are Trust Beneficiaries as of the date of
execution of this Agreement. Upon any termination of the Trust, all Unallocated
Shares of Stock and other assets, if any, held in the Trust shall be distributed
to such employees or groups of employees of the Company or the Material
Subsidiaries as determined or designated by the Committee or by an officer of
the Company at the time of such termination of the Trust. The Company shall
direct the Trustee as to the distribution of such shares and other assets no
later than the final payment date for any stock units to which there correspond
Allocated Shares held in the Trust.
Section 5. Investment of Trust Assets.
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Unless otherwise directed by the Committee or by an officer of the
Company and subject to the Trustee's discretion to retain up to one thousand
dollars ($1,000.00) in cash or
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short term instruments for the payment of expenses and liabilities of the Trust,
cash contributed by the Company shall be invested in shares of Stock. Except as
otherwise provided herein, assets of the Trust shall be invested in shares of
Stock at all times.
Section 6. Accounting by Trustee.
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The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions, including such
specific records as shall be agreed upon in writing between the Company or the
Committee and the Trustee. All such accounts, books and records shall be open to
inspection and audit at all reasonable times by the Company, its officers and
the Committee. Within sixty (60) days following the close of each calendar year,
the removal or resignation of the Trustee or the termination of this Trust, the
Trustee shall deliver to the Company a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of such removal, resignation or termination, setting
forth all investments, receipts, disbursements and other transactions effected
by it, and showing all cash, securities and other property held in the Trust at
the end of such year or as of the date of such removal, resignation or
termination, as the case may be. Upon written request a Trust Beneficiary may
examine the Trustee's records and accounts regarding the number of shares of
Stock held in the Trust and the dividends paid on such shares during the current
year; provided that no Trust Beneficiary shall have any right to see such
records or accounts as they relate to individual interests in the Trust other
than his own.
Section 7. Responsibilities and Powers of Trustee.
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(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to anyone for (i) any action taken
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pursuant to a direction, request, or approval given by the Company, by the
Committee or by an officer of the Company contemplated by and complying with the
terms of this Trust Agreement or (ii) any inaction taken because of the failure
of the Company, the Committee or an officer of the Company to give such a
direction, request or approval, except in the case of the gross negligence or
willful misconduct or from the Trustee's breach of this Agreement. To the extent
that the Trustee is acting pursuant to such direction, request or approval or is
not acting because of the absence thereof and has not acted with gross
negligence or willful misconduct, the Trustee shall be relieved of the "prudent
man rule" for investments.
(b) Subject to the provisions of Section 3(b), the Trustee shall have
no duty to make an independent investigation as to the occurrence of any event
giving rise to a distribution hereunder or under the Plans, and shall be
entitled to rely conclusively on the determinations of the Company, the Board of
Directors, the Company's Chairman or President, the Committee or an officer of
the Company, as the case may be, as to the occurrence of any such event, which
determinations shall be binding upon the Trustee, the Company and the Trust
Beneficiaries. The Company shall indemnify the Trustee against losses,
liabilities, claims, costs and expenses in connection with the administration of
the Trust (including in connection with litigation undertaken or defended by the
Trustee and in connection with action taken or omitted in accordance with this
Agreement, unless resulting from the gross negligence or willful misconduct of
the Trustee). This indemnification shall also extend to the officers, employees
and agents of the Trustee. To the extent, but only to such extent, that the
Company fails to make any payment on account of an indemnity provided in this
Section 7, such payment shall be made from the Trust assets; provided, however,
that the amount of any such payment from the Trust shall thereafter constitute a
claim of the Trustee on behalf of the Trust against the Company and
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may be offset by the Trustee against any amount payable to the Company pursuant
to Section 2(c).
(c) The Trustee may hire agents, accountants and attorneys (including
the Company's attorneys) to assist with its responsibilities under this
Agreement subject to the consent of the Company.
(d) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law unless expressly provided otherwise herein.
(e) The Committee and the officers of the Company shall direct the
Trustee in administering the Trust, as provided in this Agreement.
(f) Any corporation into which the Trustee (or any other corporation
acting as Trustee) shall be merged or with which it shall be consolidated, or
any corporation resulting from any merger, reorganization or consolidation to
which it shall be a party, or any corporation to which all or substantially all
of its trust business shall be transferred, shall be the successor of the
Trustee (or of any other corporation acting as Trustee) as Trustee under this
Agreement, without the execution or filing of any instrument or the performance
of any further act or the order or judgment of any court and with the same
powers, authorities and discretions.
(g) Until such time as the Company amends the Trust to provide
otherwise, the Trustee shall have no discretion or authority to vote Stock held
in the Trust by the Trustee on any matter presented for a vote of the
stockholders of the Company except in accordance with the provisions of this
paragraph
(g). The Trustee shall solicit instructions from each Trust Beneficiary
who is an active employee (an "Active Employee") of the Company or any of its
subsidiaries or affiliates, as indicated by the Company, as to the manner in
which the shares of Stock held in the Trust corresponding to stock units awarded
to such Trust Beneficiary under the
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Plans shall be voted. The Trustee shall hold all such instructions in
confidence. The Trustee shall follow any such directions that are timely
received with respect to such shares of Stock and shall vote or tender all Stock
held in the Trust as to which no proper instructions are received (whether
corresponding to stock units awarded to Active Employees or not) in proportion
to Stock for which proper instructions have been received from Active Employees.
The Trustee shall communicate or cause to be communicated to each
Trust Beneficiary the provisions of this Agreement relating to the right of such
Trust Beneficiary, while an Active Employee to direct the Trustee with respect
to the voting of shares of Stock corresponding to such Trust Beneficiary's stock
units. Such communication shall also discuss the consequences of an instruction
to abstain or withhold authority to vote and any failure to timely instruct the
Trustee.
(h) The Company shall promptly notify each Trust Beneficiary of the
existence of the Trust and such Beneficiary may examine a copy of this Agreement
upon request. The Trustee shall distribute or cause to be distributed any and
all communications required by paragraph (g) of this Section 7. The Company
shall provide the Trustee with such information and assistance as the Trustee
may reasonably request in connection with any communications or distributions to
Trust Beneficiaries.
(i) Notwithstanding anything in this Agreement to the contrary, any
cash, or income on other proceeds, received as a result of a transaction
presented to a vote of Stockholders or as a result of a Self-Tender shall,
unless otherwise directed by the Committee or by an officer of the Company, be
invested in the discretion of the Trustee in fixed-income investments issued or
guaranteed by the United States of America or any agency or instrumentality
thereof having a maturity of not more than one year from the time such
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investment is made until the Trustee is otherwise directed by the Committee or
by an officer of the Company or until the Trust Beneficiaries, to whose stock
unit awards the shares subject to such transaction corresponded, shall be
entitled to receive distributions from the Trust in accordance with the Plans.
Cash retained by the Trustee for the payment of expenses or liabilities shall be
invested by the Trustee in its discretion.
Section 8. Compensation and Expenses of Trustee.
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(a) The Trustee shall be entitled to receive such reasonable
compensation for its services and reimbursement for reasonable expenses incurred
with respect to the administration of the Trust, including fees incurred by the
Trustee pursuant to Section 7(c) of this Agreement, in either case as shall be
agreed upon between the Trustee and the Company. Such compensation and expenses
shall be paid by the Company but, if not paid by the Company after demand from
the Trustee, such compensation and expenses may be paid from the assets of the
Trust; provided, however, that the amount of any such payment from the Trust
shall thereafter constitute a claim of the Trustee on behalf of the Trust
against the Company and may be offset by the Trustee against any amount payable
to the Company pursuant to Section 2(c).
Section 9. Replacement of Trustee.
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(a) The Trustee may resign at any time, subject to the appointment and
qualification of a successor trustee, by giving 60 days prior notice of such
resignation in writing to the Company. The Trustee may be removed by the Company
at any time without prior notice. In the event of the resignation or removal of
the Trustee, a successor corporate trustee shall be appointed by the Company.
(b) In the event of the appointment of a successor trustee, such
successor trustee will succeed to all the right, title and estate of, and will
be, the Trustee; and the retiring trustee will after the settlement of its final
account and the receipt of any compensation or
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expenses due it, deliver the Trust to the successor trustee together with all
such instruments of transfer, conveyance, assignment and further assurance as
the successor trustee may reasonably require.
Section 10. Amendment.
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(a) This Agreement may be amended by a written instrument executed by
the Company at any time and to any extent except that, subject to the limitation
below, in no event shall the rights of the creditors of the Company or any
Material Subsidiary be diminished and no amendment may be made which would
permit the Company to revoke the Trust to the extent of (i) any shares
corresponding to a stock unit award of a Trust Beneficiary which award is
unsettled but currently payable or (ii) any dividend payable to the Trustee as
record owner on the record date which dividend is distributable by the Trustee
to any Trust Beneficiary in accordance with Section 1(f) hereof. In addition, no
amendment may be made without the Trustee's consent which would change the
Trustee's duties or responsibilities under this Agreement. Notwithstanding the
foregoing, if the business of an existing Material Subsidiary which is not
Insolvent ceases to be materially significant to the Company as a whole, or a
Material Subsidiary which is not Insolvent is no longer 50% or more owned or
controlled, directly or indirectly by the Company, the Company shall amend the
definition of Material Subsidiary to substitute an entity which is 50% or more
owned or controlled directly or indirectly by the Company, the business of which
is materially significant to the Company taken as a whole, as a Material
Subsidiary. Any entity which merges with or acquires substantially all the
business or assets of a Material Subsidiary in exchange for equity or
convertible securities shall thereupon become a Material Subsidiary for purposes
of this Agreement if such entity is 50% or more owned or controlled directly or
indirectly by the Company upon consummation of the transaction. If the Company
is unable to substitute an entity whose business is material to the Company
taken as a
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whole, in place of a Material Subsidiary which ceases to qualify as such, the
Company shall select a substitute from among those entities, if any, which are
at such time 50% or more owned or controlled directly or indirectly by the
Company and actively engaged in a trade or business.
(b) The Plans may be amended from time to time by the Company in
accordance with its terms without the consent or concurrence of the Trustee and
the Company will provide the Trustee with such amendments in a timely manner.
The Company shall provide the Trustee with a copy of any amendment, certified by
the Company's Secretary, Assistant Secretary or such person's designee, within
90 days after its adoption. In the event of any conflict between the Plans and
this Agreement concerning the Trustee's responsibilities, this Agreement shall
govern.
Section 11. Severability and Alienation.
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(a) Any provision of this Agreement prohibited by law shall be
ineffective to the extent of any such prohibition without invalidating the
remaining provisions hereof and this Agreement shall be reconstituted and
enforceable as if such illegal provision were never included.
(b) Subject to the provisions of Section 3, Benefits under this
Agreement may not be anticipated, assigned (either at law or in equity),
alienated or subject to attachment, garnishment, levy, execution or other legal
or equitable process.
In addition to the foregoing, the Company from time to time may
unilaterally amend the definition of "Plan" set forth in the first Whereas
clause of this Agreement to include additional plans of the Company or one of
its subsidiaries which provide for awards of stock units. The Company shall
effect any such amendment by providing the Trustee with written notice
identifying the plan or plans to be added to the definition of "Plan" and shall
furnish the Trustee with a copy of the relevant plan or plans. Following such
actions by the Company, the
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plan or plans so identified shall be included among the plans which collectively
constitute the "Plan" for purposes of this Agreement, and such plan or plans
shall be considered a part hereof.
Section 12. Governing Law.
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This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
Section 13. Notices.
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(a) Communications to the Company shall be addressed to the Company at
1585 Broadway, New York, New York 10036, Attn: General Counsel and Secretary,
provided, however, that upon the Company's written request, such communications
shall be sent to such other address as the Company may specify.
(b) Communications to the Trustee shall be addressed to CitiStreet at
Company Stock Management, 200 Newport Avenue, JQ3N, North Quincy, Massachusetts
02171, Attn: Anne Muir; provided, however, that upon the Trustee's written
request, such communications shall be sent to such other address as the Trustee
may specify.
(c) Communications to the Committee shall be addressed to the Committee
at 1221 Avenue of the Americas, 27th Floor, New York, New York 10020, Attn: Law,
Compliance and Governmental Affairs Department, provided, however, that upon the
Committee's written request, such communications shall be sent to such other
address as the Committee may specify.
(d) No communication shall be binding on the addressee thereof prior to
receipt thereof.
Section 14. Signature in Counterparts.
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This Agreement may be signed in counterparts, each of which shall be
an original but all of which together will constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and State Street have executed this
Agreement as of the date first above written.
MORGAN STANLEY DEAN WITTER & CO.
By: /s/ Martin M. Cohen
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Name: Martin M. Cohen
Title: Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
By: /s/ Christine R. Walsh
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Name: Christine R. Walsh
Title: Vice President
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