As filed with the Securities and Exchange Commission on May 8, 2000
Registration No. 333-34392
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
AMENDMENT NO. 1
to
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)
-----------------------
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)
-----------------------
Donald G. Kempf, Jr., 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
-----------------------
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. [ ]
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 $3,878,337,777 of securities
registered and remaining unissued under registration statement no. 333-75289
previously filed by the Registrant and declared effective by the Commission.
===============================================================================
<PAGE>
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 May 8, 2000)
$15,878,337,777
Morgan Stanley Dean Witter & Co.
DEBT SECURITIES
UNITS
WARRANTS
PURCHASE CONTRACTS
PREFERRED STOCK
-----------------------
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
, 2000
<PAGE>
You should rely only on the information we incorporate by reference or provide
in this prospectus or the relevant prospectus supplement. This prospectus
together with the prospectus supplement dated , 2000, our Annual Report on Form
10-K for the fiscal year ended November 30, 1999, our Quarterly Report on Form
10-Q for the quarter ended February 29, 2000, pages 4 and 22 through 90 from
our 1999 Annual Report to Shareholders, pages 4 through 15 (excluding the
material included under the heading the "Report of the Compensation Committee
on Executive Compensation") and 19 (beginning at the heading "Section 16(a)
Beneficial Ownership Reporting Compliance") through 20 from the Proxy Statement
for our 2000 Annual Meeting of Stockholders and our Current Reports on Form 8-K
dated December 20, 1999 (3 reports) and March 23, 2000 constitute the Listing
Particulars for the purposes of the London Stock Exchange. We have not
authorized anyone else to provide you with different or additional information.
We are not making an offer of these securities in any state where the offer is
not permitted. Except as we indicate under the headings "Morgan Stanley Dean
Witter" and "Use of Proceeds," the terms "MSDW," "we," "us," and "our" refer to
Morgan Stanley Dean Witter & Co.
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<PAGE>
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. 333-34392.
Units............................ We may sell any combination of our debt
securities, warrants and purchase contracts
together as units. In a prospectus
supplement, we will describe the particular
combination of purchase contracts, warrants
and debt securities constituting any units
and any other specific terms of the units.
Warrants......................... We may sell two types of warrants:
o warrants to purchase our debt securities,
or
o universal warrants to purchase or sell (1)
securities of an entity not affiliated with
us, a basket of these securities, an index
or indices of these securities or any
combination of the above, (2) currencies or
(3) commodities.
In a prospectus supplement, we will specify
the type of warrant and inform you of the
exercise price and other specific terms of
the warrants, including whether our or your
obligations, if any, under any universal
warrants may be satisfied by delivering or
purchasing the underlying securities,
currencies or commodities, or their cash
value.
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<PAGE>
Purchase Contracts............... We may sell purchase contracts requiring the
holders to purchase or sell (1) securities
of an entity not affiliated with us, a
basket of these securities, an index or
indices of these securities or any
combination of the above, (2) currencies or
(3) commodities. In a prospectus supplement,
we will describe the specific terms of the
purchase contracts, including whether we
will satisfy our obligations, if any, or you
will satisfy your obligations, if any, under
any purchase contracts by delivering the
underlying securities, currencies or
commodities or their cash value.
Form............................. We may issue debt securities, units,
warrants and purchase contracts in fully
registered form or in bearer form and, in
each case, in definitive form or global
form.
Preferred Stock.................. We may sell our preferred stock, par value
$0.01 per share, in one or more series. In a
prospectus supplement, we will describe the
specific designation, the aggregate number
of shares offered, the dividend rate or
manner of calculating the dividend rate, the
dividend periods or manner of calculating
the dividend periods, the stated value of
the shares of the series, the voting rights
of the shares of the series, whether or not
and on what terms the shares of the series
will be convertible or exchangeable, whether
and on what terms we can redeem the shares
of the series, whether we will offer
depositary shares representing shares of the
series and if so, the fraction or multiple
of a share of preferred stock represented by
each depositary share, whether we will list
the preferred stock or depositary shares on
a securities exchange and any other specific
terms of the series of preferred stock.
Terms Specified in
Prospectus Supplements........... When we decide to sell particular
securities, we will prepare a prospectus
supplement describing the securities
offering and the specific terms of the
securities. You should carefully read this
prospectus and the applicable prospectus
supplement.
We will offer our debt securities, warrants,
purchase contracts, units and preferred
stock to investors on terms determined by
market and other conditions. Our securities
may be sold for U.S. dollars or foreign
currency. Principal of and any premium or
interest on debt securities and cash amounts
payable under warrants or purchase contracts
may be payable in U.S. dollars or foreign
currency, as we specifically designate in
the related prospectus supplement.
In any prospectus supplement we prepare, we
will provide the name of and compensation to
each dealer, underwriter or agent, if any,
involved in the sale of the securities being
offered and the managing underwriters for
any securities sold to or through
underwriters. Any underwriters, including
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<PAGE>
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
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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.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual reports, proxy statements and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
room at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at its
Regional Offices located at Suite 1400, Citicorp Center, 500 West Madison
Street, Chicago, Illinois 60661 and at Seven World Trade Center, 13th Floor,
New York, New York 10048. Please call the SEC at 1-800-SEC-0300 for further
information on the public reference room. In addition, the SEC maintains a
Website that contains reports, proxy statements and other information that we
electronically file. The address of the SEC's Website is http://www.sec.gov.
This prospectus is part of a registration statement we filed with the SEC.
This prospectus omits some information contained in the registration statement
in accordance with SEC rules and regulations. You should review the information
and exhibits in the registration statement for further information on us and
our consolidated subsidiaries and the securities we are offering. Statements in
this prospectus concerning any document we filed as an exhibit to the
registration statement or that we otherwise filed with the SEC are not intended
to be comprehensive and are qualified by reference to these filings. You should
review the complete document to evaluate these statements.
Our common stock, par value $0.01 per share, is listed on the New York
Stock Exchange, Inc. and the Pacific Exchange, Inc. under the symbol "MWD." You
may inspect reports, proxy statements and other information concerning us and
our consolidated subsidiaries at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005, and the Pacific Exchange,
Inc., 301 Pine Street, San Francisco, California 94104 or 233 South Beaudry
Avenue, Los Angeles, California 90012.
The SEC allows us to incorporate by reference much of the information we
file with them, which means that we can disclose important information to you
by referring you to those publicly available documents. The information that we
incorporate by reference in this prospectus is considered to be part of this
prospectus. Because we are incorporating by reference future filings with the
SEC, this prospectus is continually updated and those future filings may modify
or supersede some of the information included or incorporated in this
prospectus. This means that you must look at all of the SEC filings that we
incorporate by reference to determine if any of the statements in this
prospectus or in any document previously incorporated by reference have been
modified or superseded. This prospectus incorporates by reference the documents
listed below and any future filings we make with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we complete our
offering of the securities to be issued under the registration statement or, if
later, the date on which any of our affiliates cease offering and selling these
securities:
(a) Annual Report on Form 10-K for the fiscal year ended November 30,
1999;
(b) Quarterly Report on Form 10-Q for the quarter ended February 29,
2000; and
(c) Current Reports on Form 8-K dated December 20, 1999 (3 reports)
and March 23, 2000.
You can request a copy of these documents, excluding exhibits, at no cost,
by writing or telephoning us at the following address:
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention: Investor Relations
(212) 762-8131
We have not submitted and will not submit any document incorporated or
deemed to be incorporated by reference in this prospectus for review under the
clearance procedures of the Commission des Operations de Bourse of the Paris
Bourse, except as required in connection with the listing of any securities on
the Paris Bourse.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our consolidated ratios of earnings to
fixed charges and earnings to fixed charges and preferred stock dividends for
the periods indicated. The fiscal year information for 1996 and 1995 combines
the historical financial information of Dean Witter, Discover & Co. for the
years ended December 31, 1996 and 1995 with the historical financial
information of Morgan Stanley Group Inc. for the fiscal years ended November
30, 1996 and 1995. 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 1997 and subsequent periods
reflects the change in fiscal year end.
<TABLE>
(Unaudited)
Three Months Ended Fiscal Year
--------------------------- --------------------------------
February 29, February 28,
2000 2000 1999 1998 1997 1996 1995
------------ ------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges........ 1.6 1.5 1.6 1.4 1.4 1.3 1.3
Ratio of earnings to fixed charges and
preferred stock dividends............... 1.6 1.5 1.6 1.4 1.4 1.3 1.3
</TABLE>
For purposes of calculating the ratio of earnings to fixed charges and the
ratio of earnings to fixed charges and preferred stock dividends, earnings are
the sum of:
o pre-tax income;
o fixed charges; and
o amortization of capitalized interest;
less:
o capitalized interest.
For purposes of calculating both ratios, fixed charges are the sum of:
o interest expensed and capitalized;
o amortized premiums, discounts and capitalized expenses related to
indebtedness; and
o our estimate of the interest within rental expenses.
Additionally, for purposes of calculating the ratio of earnings to fixed
charges and preferred stock dividends, preferred stock dividends are included
in the denominator of the ratio on a pre-tax basis.
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MORGAN STANLEY DEAN WITTER
Morgan Stanley Dean Witter & Co. is a preeminent global financial services
firm that maintains leading market positions in each of its three primary
businesses--securities, asset management and credit services. MSDW combines
global strength in investment banking and institutional sales and trading with
strength in providing full-service and on- line brokerage services, investment
and global asset management services and, primarily through its Discover(R)
Card brand, quality consumer credit products. MSDW provides its products and
services to a large and diversified group of clients and customers, including
corporations, governments, financial institutions and individuals.
As of November 30, 1999, MSDW had the second largest financial advisor
sales organization in the United States and had 12,674 professional financial
advisors and 475 securities branch offices globally. MSDW also had one of the
largest global asset management operations of any full-service securities firm,
with total assets under management or supervision of $425 billion. In addition,
based on its approximately 38.5 million general purpose credit card accounts as
of November 30, 1999, MSDW was one of the nation's largest credit card issuers,
with the largest proprietary merchant and cash access network in the United
States.
MSDW's securities businesses include securities underwriting and
distribution; financial advisory services, including advice on mergers and
acquisitions, restructurings, real estate and project finance; sales, trading
and market- making activities in equity and fixed income securities, foreign
exchange, commodities and derivatives, including proprietary trading and
arbitrage activities and securities lending; full-service and on-line brokerage
services for individual investors and financial advisory services for high net
worth clients; and principal investing, including private equity activities.
MSDW's asset management businesses include asset management products and
services for individual investors, primarily through Morgan Stanley Dean Witter
Advisors and Van Kampen Investments; and global asset and portfolio management
for institutional investors, primarily through Morgan Stanley Dean Witter
Investment Management and Miller Anderson & Sherrerd. MSDW's credit services
businesses include the Discover(R) Card, other proprietary general purpose
credit cards and the Morgan Stanley Dean Witter Card(sm) and the
Discover/NOVUS(R) Network, a proprietary network of merchant and cash access
locations.
MSDW believes that technological advancements on the Internet and the
growth of electronic commerce will continue to present both challenges and
opportunities to MSDW and could lead to significant changes and innovations.
MSDW's initiatives in this area have included Web-enabling existing businesses
and enhancing client communication and access to information and services. For
example, ClientLinkSM, the focal point of MSDW's institutional client
connectivity strategy, provides clients with a private, secure Internet
platform that delivers browser-based information, products and services across
many of MSDW's business units. MSDW has also been making investments or
otherwise participating in alternative trading systems, electronic
communication networks and related businesses or technologies.
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, 1999, MSDW had 55,288 employees. 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
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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;
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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 an
entity unaffiliated with us, any specific terms relating to the
adjustment of the conversion or exchange feature and the period
during which the holders may make the conversion or exchange;
o information as to the methods for determining the amount of principal
or interest payable on any date and/or the currencies, securities or
baskets of securities, commodities or indices to which the amount
payable on that date is linked;
o any agents for the debt securities, including trustees, depositories,
authenticating or paying agents, transfer agents or registrars;
o any applicable United States federal income tax consequences,
including, but not limited to:
o whether and under what circumstances we will pay additional
amounts on debt securities held by a person who is not a U.S.
person for any tax, assessment or governmental charge withheld
or deducted and, if so, whether we will have the option to
redeem those debt securities rather than pay the additional
amounts;
o tax considerations applicable to any discounted debt securities
or to debt securities issued at par that are treated as having
been issued at a discount for United States federal income tax
purposes;
o tax considerations applicable to any debt securities denominated
and payable in foreign currencies; and
o any other specific terms of the debt securities, including any
additional events of default or covenants, and any terms required by
or advisable under applicable laws or regulations.
Registration and Transfer of Debt Securities
Holders may present debt securities for exchange, and holders of
registered debt securities may present these securities for transfer, in the
manner, at the places and subject to the restrictions stated in the debt
securities and described in the applicable prospectus supplement. We will
provide these services without charge except for any tax
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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 May 1, 1999 between MSDW and The
Chase Manhattan Bank, as trustee. We call that indenture, as it may be
supplemented from time to time, the Senior Debt Indenture. Debt securities that
will be subordinated debt will be issued under an Amended and Restated
Subordinated Indenture dated as of May 1, 1999 between MSDW and Bank One Trust
Company, N.A., as successor to The First National Bank of Chicago, as trustee.
We call that indenture, as it may be supplemented from time to time, the
Subordinated Debt Indenture. We refer to The Chase Manhattan Bank and Bank One
Trust Company, N.A., 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,
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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 other 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
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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% in aggregate
principal amount of the outstanding debt securities of each affected
series, voting as one class, by notice in writing to MSDW, may
declare the principal of all debt securities of each affected series
and interest accrued thereon to be due and payable immediately; and
o if an event of default due to a default in the performance of any
other of the covenants or agreements in that indenture applicable to
all outstanding debt securities issued under that indenture or due to
specified events of bankruptcy, insolvency or reorganization of MSDW,
occurs and is continuing, either the trustee or the holders of not
less than 25% in aggregate principal amount of all outstanding debt
securities issued under that indenture, voting as one class, by
notice in writing to MSDW may declare the principal of all those debt
securities and interest accrued thereon to be due and payable
immediately. (Indentures, Section 5.01)
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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 that has become due as a result
of an acceleration, have been cured, waived or otherwise remedied, then the
holders of a majority in aggregate 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 aggregate 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 of 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, in the
case of a series of debt securities payable only in U.S. dollars,
U.S. government obligations in trust for the benefit of the holders
of any series of debt securities issued under the Indenture that have
either become due and payable, or are by their terms due and payable,
or are scheduled for redemption, within one year, in an amount
certified to be sufficient to pay on each date that they become due
and payable, the principal of and interest on, and any mandatory
sinking fund payments for, those debt securities, except that the
deposit of cash or U.S. government obligations for the
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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 relevant 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;
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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 of any holder 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 holders
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 affiliates of Bank One Trust
Company, N.A.
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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 Holders' Obligations"
will apply to each unit and to any debt security, universal warrant or purchase
contract included in each unit, respectively, unless otherwise specified in the
applicable prospectus supplement.
We will issue the units under one or more Unit Agreements, each referred
to as a Unit Agreement, to be entered into between us and a bank or trust
company, as unit agent. We may issue units in one or more series, which will be
described in the applicable prospectus supplement. Units that include purchase
contracts that are all pre-paid purchase contracts, as defined below under
"Description of Purchase Contracts," will be governed by one or more Unit
Agreements designed for units where the holders do not have any further
obligations under the purchase contracts, which we refer to as Unit Agreements
Without Holders' Obligations. We have filed the form of Unit Agreement and Unit
Agreement Without Holders' Obligations as exhibits to the registration
statement. Although we have described below the material provisions of the Unit
Agreement, the Unit Agreement Without Holders' Obligations and the units, these
descriptions are not complete, and you should review the detailed provisions of
the Unit Agreement and Unit Agreement Without Holders' Obligations for a full
description, including the definition of some of the terms used in this
prospectus and for other information regarding the units.
Significant Provisions of the Unit Agreement
Obligations of Unit Holder. Under the terms of the Unit Agreement, each
owner of a unit:
o consents to and agrees to be bound by the terms of the Unit
Agreement,
o appoints the unit agent as its authorized agent to execute, deliver
and perform any purchase contract included in the unit in which that
owner has an interest, except in the case of pre-paid purchase
contracts which require no further performance by the owner, and
o irrevocably agrees to be a party to and be bound by the terms of any
purchase contract, other than a pre-paid purchase contract, included
in the unit in which that owner has an interest.
Assumption of Obligations by Transferee. Upon the registration of transfer
of a unit, the transferee will assume the obligations, if any, of the
transferor under any purchase contract included in the unit and under any other
security constituting that unit, and the transferor will be released from those
obligations. Under the Unit Agreement, we consent to the transfer of these
obligations to the transferee, to the assumption of these obligations by the
transferee and to the release of the transferor, if the transfer is made in
accordance with the provisions of the Unit Agreement.
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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.
Negative Pledge. Because we are a holding company, our assets consist
primarily of the securities of our subsidiaries. The negative pledge provisions
of the Unit Agreement limit our ability to pledge some of these securities. The
Unit Agreement provides that we will not, and will not permit any subsidiary
to, create, assume, incur or guarantee any indebtedness for borrowed money that
is secured by a pledge, lien or other encumbrance except for liens specifically
permitted by the Unit Agreement on:
(1) the voting securities of Morgan Stanley & Co. Incorporated,
Morgan Stanley & Co. International Limited, Dean Witter Reynolds Inc.,
Greenwood Trust Company, or any subsidiary succeeding to any substantial
part of the business now conducted by any of those corporations, which we
refer to collectively as the "principal subsidiaries," or
(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the units and the securities
constituting the units under the Unit Agreement will be secured equally and
ratably with indebtedness so secured.
For these purposes, "subsidiary" means any corporation, partnership or other
entity of which at the time of determination we own or control directly or
indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "voting securities" means stock of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened.
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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
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o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement applicable to us.
Replacement of Unit Certificates or Purchase Contract Certificates. We
will replace any mutilated certificate evidencing a definitive unit or purchase
contract at the expense of the holder upon surrender of that certificate to the
unit agent. We will replace certificates that have been destroyed, lost or
stolen at the expense of the holder upon delivery to us and the unit agent of
evidence satisfactory to us and the unit agent of the destruction, loss or
theft of the certificates. In the case of a destroyed, lost or stolen
certificate, an indemnity satisfactory to the unit agent and to us may be
required at the expense of the holder of the units or purchase contracts
evidenced by that certificate before a replacement will be issued.
The Unit Agreement provides that, notwithstanding the foregoing, no
replacement certificate need be delivered:
o during the period beginning 15 days before the day of mailing of a
notice of redemption or of any other exercise of any right held by
MSDW with respect to the unit or any security constituting the unit
evidenced by the mutilated, destroyed, lost or stolen certificate and
ending on the day of the giving of that notice;
o if the mutilated, destroyed, lost or stolen certificate evidences any
security selected or called for redemption or other exercise of a
right held by MSDW; or
o at any time on or after the date of settlement or redemption for any
purchase contract included in the unit, or at any time on or after
the last exercise date for any universal warrant included in the
unit, evidenced by the mutilated, destroyed, lost or stolen
certificate, except with respect to any units that remain or will
remain outstanding following the date of settlement or redemption or
the last exercise date.
Unit Agreement Not Qualified under Trust Indenture Act. The Unit Agreement
will not be qualified as an indenture under, and the unit agent will not be
required to qualify as a trustee under, the Trust Indenture Act. Accordingly,
the holders of units and purchase contracts, other than pre-paid purchase
contracts, will not have the benefits of the protections of the Trust Indenture
Act. However, any debt securities or pre-paid purchase contracts issued as part
of a unit will be issued under an indenture qualified under the Trust Indenture
Act, and the trustee under that indenture will be qualified as a trustee under
the Trust Indenture Act.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner,
notwithstanding any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement, the units and the purchase
contracts constituting part of the units will be governed by, and construed in
accordance with, the laws of the State of New York.
Significant Provisions of the Unit Agreement Without Holders' Obligations
Remedies. The unit agent will act solely as our agent in connection with
the units governed by the Unit Agreement Without Holders' Obligations and will
not assume any obligation or relationship of agency or trust for or with any
holders of units or interests in those units. Any holder of units or interests
in those units may, without the consent of the unit agent or any other holder
or beneficial owner of units, enforce by appropriate legal action, on its own
behalf, its rights under the Unit Agreement Without Holders' Obligations.
However, the holders of units or interests in those units may only enforce
their rights under the purchase contracts and any debt securities or under any
universal warrants issued as parts of those units in accordance with the terms
of the applicable indenture and the warrant agreement.
Modification. We and the unit agent may amend the Unit Agreement Without
Holders' Obligations without the consent of the holders to:
o cure any ambiguity;
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o cure, correct or supplement any defective or inconsistent provision
in the agreement; or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interest of the
affected holders of units in any material respect.
We and the unit agent, with the consent of the holders of not less than a
majority of units at the time outstanding, may modify or amend the rights of
the affected holders of the affected units and the terms of the Unit Agreement
Without Holders' Obligations. However, we and the unit agent may not, without
the consent of each affected holder of units, make any modifications or
amendments that would:
o materially and adversely affect the exercise rights of the affected
holders, or
o reduce the percentage of outstanding units the consent of whose
owners is required to consent to a modification or amendment of the
Unit Agreement Without Holders' Obligations.
Pre-paid purchase contracts and any debt securities issued as part of
units governed by the Unit Agreement Without Holders' Obligations may be
modified only in accordance with the applicable indenture, as described above
under "Description of Debt Securities--Modification of the Indentures." Any
universal warrants issued as part of units may be modified only in accordance
with the terms of the warrant agreement as described in "Description of
Warrants--Significant Provisions of the Warrant Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
Without Holders' Obligations provides that we will not merge or consolidate
with any other person and will not sell, lease or convey all or substantially
all of our assets to any person unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or
substantially all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of
Columbia; and
o will expressly assume all of our obligations under the Unit
Agreement Without Holders' Obligations; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement Without Holders' Obligations applicable to us.
Replacement of Unit Certificates. We will replace any mutilated
certificate evidencing a definitive unit at the expense of the holder upon
surrender of that certificate to the unit agent. We will replace certificates
that have been destroyed, lost or stolen at the expense of the holder upon
delivery to us and the unit agent of evidence satisfactory to us and the unit
agent of the destruction, loss or theft of the certificates. In the case of a
destroyed, lost or stolen certificate, an indemnity satisfactory to the unit
agent and to us may be required at the expense of the holder of the units or
prepaid purchase contracts evidenced by that certificate before a replacement
will be issued.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner,
notwithstanding any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement Without Holders' Obligations,
the units and the pre-paid purchase contracts constituting part of the units
will be governed by, and construed in accordance with, the laws of the State of
New York.
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DESCRIPTION OF WARRANTS
Offered Warrants
We may issue warrants that are debt warrants or universal warrants. We may
offer warrants separately or together with one or more additional warrants,
purchase contracts or debt securities or any combination of those securities in
the form of units, as described in the applicable prospectus supplement. If we
issue warrants as part of a unit, the accompanying prospectus supplement will
specify whether those warrants may be separated from the other securities in
the unit prior to the warrants' expiration date. Universal warrants issued in
the United States may not be so separated prior to the 91st day after the
issuance of the unit, unless otherwise specified in the applicable prospectus
supplement.
Debt Warrants. We may issue, together with debt securities or separately,
warrants for the purchase of debt securities on terms to be determined at the
time of sale. We refer to this type of warrant as a debt warrant.
Universal Warrants. We may also issue warrants to purchase or sell, on
terms to be determined at the time of sale:
o securities of an entity not affiliated with us, a basket of those
securities, an index or indices of those securities or any
combination of the above;
o currencies; or
o commodities.
We refer to the property in the above clauses as "warrant property." We
refer to this type of warrant as a "universal warrant." We may satisfy our
obligations, if any, with respect to any universal warrants by delivering the
warrant property or, in the case of warrants to purchase or sell securities or
commodities, the cash value of the securities or commodities, as described in
the applicable prospectus supplement.
Further Information in Prospectus Supplement
General Terms of Warrants. The applicable prospectus supplement will
contain, where applicable, the following terms of and other information
relating to the warrants:
o the specific designation and aggregate number of, and the price at
which we will issue, the warrants;
o the currency with which the warrants may be purchased;
o the date on which the right to exercise the warrants will begin and
the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the warrants;
o whether the warrants will be issued in fully registered form or
bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a warrant included in
a unit will correspond to the form of the unit and of any debt
security or purchase contract included in that unit;
o any applicable United States federal income tax consequences;
o the identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents,
registrars, determination, or other agents;
o the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities exchange;
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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 securities with
which the debt warrants are issued and the number of the debt
warrants issued with each of the debt securities;
o if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable; and
o the principal amount of debt securities purchasable upon exercise of
each debt warrant, the price at which and the currency in which the
debt securities may be purchased and the method of exercise.
Additional Terms of Universal Warrants. The applicable prospectus
supplement will contain, where applicable, the following terms of and other
information relating to any universal warrants:
o whether the universal warrants are put warrants or call warrants and
whether you or we will be entitled to exercise the warrants;
o the specific warrant property, and the amount or the method for
determining the amount of the warrant property, purchasable or
saleable upon exercise of each universal warrant;
o the price at which and the currency with which the underlying
securities, currencies or commodities may be purchased or sold upon
the exercise of each universal warrant, or the method of determining
that price;
o whether the exercise price may be paid in cash, by the exchange of
any other security offered with the universal warrants or both and
the method of exercising the universal warrants; and
o whether the exercise of the universal warrants is to be settled in
cash or by delivery of the underlying securities, commodities, or
both.
Significant Provisions of the Warrant Agreements
We will issue the warrants under one or more warrant agreements to be
entered into between us and a bank or trust company, as warrant agent, in one
or more series, which will be described in the prospectus supplement for the
warrants. The forms of warrant agreements are filed as exhibits to the
registration statement. The following summaries of significant provisions of
the warrant agreements and the warrants are not intended to be comprehensive
and holders of warrants should review the detailed provisions of the relevant
warrant agreement for a full description and for other information regarding
the warrants.
Modifications without Consent of Warrantholders. We and the warrant agent
may amend the terms of the warrants and the warrant certificates without the
consent of the holders to:
o cure any ambiguity,
o cure, correct or supplement any defective or inconsistent provision,
or
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o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
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.
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DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including purchase contracts issued as
part of a unit with one or more debt securities or universal warrants, for the
purchase or sale of:
o securities of an entity not affiliated with MSDW, a basket of those
securities, an index or indices of those securities or any
combination of the above;
o currencies; or
o commodities.
We refer to this property in the above clauses as "purchase contract property."
Each purchase contract will obligate the holder to purchase or sell, and
obligate MSDW to sell or purchase, on specified dates, the purchase contract
property at a specified price or prices, all as described in the applicable
prospectus supplement. The applicable prospectus supplement will also specify
the methods by which the holders may purchase or sell the purchase contract
property and any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract.
Pre-paid Purchase Contracts
Purchase contracts may require holders to satisfy their obligations under
the purchase contracts at the time they are issued. We refer to these purchase
contracts as "pre-paid purchase contracts." MSDW's obligation to settle
pre-paid purchase contracts on the relevant settlement date will constitute
senior indebtedness or subordinated indebtedness of MSDW. Accordingly, pre-paid
purchase contracts will be issued under the Senior Debt Indenture or the
Subordinated Debt Indenture, as specified in the applicable prospectus
supplement.
Purchase Contracts Issued as Part of Units
Purchase contracts issued as part of a unit will be governed by the terms
and provisions of a Unit Agreement or, in the case of pre-paid purchase
contracts issued as part of a unit that contains no other purchase contracts, a
Unit Agreement Without Holders' Obligations. See "Description of
Units--Significant Provisions of the Unit Agreement" and "--Significant
Provisions of the Unit Agreement Without Holders' Obligations." The applicable
prospectus supplement will specify the following:
o whether the purchase contract obligates the holder to purchase or
sell the purchase contract property;
o whether a purchase contract issued as part of a unit may be separated
from the other securities constituting part of that unit prior to the
purchase contract's settlement date, except that purchase contracts
issued in the United States may not be so separated prior to the 91st
day after the issuance of a unit;
o the methods by which the holders may purchase or sell the purchase
contract property;
o any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract; and
o whether the purchase contracts will be issued in fully registered or
bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a purchase contract
included in a unit will correspond to the form of the unit and of any
debt security or universal warrant included in that unit.
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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 3,500,000,000 shares of common stock, par value $0.01 per share,
and 30,000,000 shares of preferred stock, par value $0.01 per share.
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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 29, 2000, there were
approximately 1,134,181,285 shares of our common stock outstanding.
Outstanding Preferred Stock. On February 29, 2000, MSDW also had
outstanding the following series of preferred stock:
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 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 348,300 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 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."
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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 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:
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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 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
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
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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
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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.
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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.
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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, the holders of our common 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
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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 8, 2000, some of the current and former
senior officers of MSDW and its subsidiaries beneficially owned in the
aggregate 112,695,436 shares of MSDW common stock subject to voting
restrictions contained in various voting agreements. As of that date, those
shares constituted approximately 9.91% of the votes that are entitled to be
cast at the 2000 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, 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, 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 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 and with the offered 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 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
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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;
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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
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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 10
directors. The Board of Directors is divided into three classes. At each annual
meeting of stockholders, a class of directors is elected for a term expiring at
the third succeeding annual meeting of stockholders after its election, to
succeed that class of directors whose term then expires. Under our amended and
restated by-laws, a majority vote of the Board of Directors may increase or
decrease the number of directors, except that a three-quarters vote of the
Board of Directors will be required to change the number of directors to an odd
number. However, the by-laws provide that the Board shall consist of not less
than three nor more than fifteen members. Our certificate of incorporation also
provides that directors may be removed only for cause and with the approval of
the holders of at least 80% of the voting power of the voting stock, voting
together as a single class. Any vacancy on the Board of Directors or newly
created directorship will be filled by a majority vote of the remaining
directors then in office though less than a quorum, and those newly elected
directors will serve for a term expiring at the annual meeting of stockholders
at which the term of office of the class to which they have been elected
expires.
Limitations on Actions by Stockholders; Calling Special Meetings of
Stockholders. Our certificate of incorporation provides that, subject to the
rights of holders of any series of preferred stock or any other series of
capital stock set forth in the certificate of incorporation, any action
required or permitted to be taken by our stockholders must be effected at a
duly called annual or special meeting of stockholders and may not be effected
by any consent in writing in lieu of a meeting. Our by-laws provide that
special meetings of the stockholders may be called at any time only by the
Secretary of MSDW at the direction of and pursuant to a resolution of the Board
of Directors.
Amendment of Governing Documents. Our certificate of incorporation
provides that, generally, it can be amended in accordance with the provisions
of the laws of the State of Delaware. Under Section 242 of the Delaware General
Corporation Law, the Board of Directors may propose, and the stockholders may
adopt by a majority vote of the voting stock, an amendment to our certificate
of incorporation. However, our certificate of incorporation also provides that
the approval of 80% of the voting power of the voting stock, voting together as
a single class, is required in order to amend, repeal or adopt any provision
inconsistent with the provisions in the certificate of incorporation relating
to amendment of the by-laws, actions of stockholders and the Board of Directors
and to change the provisions establishing this 80% vote requirement.
Our certificate of incorporation provides that our by-laws may be altered,
amended or repealed or new provisions may be adopted by a majority of the Board
of Directors or with the approval of at least 80% of the voting power of the
voting stock of MSDW, voting together as a single class. Furthermore, the
by-laws provide that they may be altered, amended or repealed or new provisions
may be adopted by a majority of the Board of Directors or with the approval of
at least 80% of the voting power of the voting stock of MSDW. However, a
three-quarters vote of the Board of Directors is required for the Board of
Directors to amend, alter, repeal or adopt new by-laws in conflict with the
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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 and June 15, 1999, 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-quarter 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
all but not less than all 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, as further amended by Current Reports on Form 8-K
dated February 14, 1997 and June 15, 1999.
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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,
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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 Clearstream Banking, societe anonyme 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
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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
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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, or other affiliates of ours, 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.
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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, at November 30, 1999 and 1998 and for each of the
three fiscal years in the period ended November 30, 1999, included in and
incorporated by reference in MSDW's Annual Report on Form 10-K for the fiscal
year ended November 30, 1999 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their reports thereon and incorporated
herein by reference (these reports express an unqualified opinion; the report
on the consolidated financial statements includes an explanatory paragraph for
a change in the method of accounting for certain offering costs of closed-end
funds). These consolidated financial statements have been incorporated by
reference in reliance upon the respective reports given upon the authority of
Deloitte & Touche LLP, as experts in accounting and auditing.
With respect to unaudited interim financial information for the periods
included in any of the Quarterly Reports on Form 10-Q which may be incorporated
herein by reference, Deloitte & Touche LLP have applied limited procedures in
accordance with professional standards for a review of such information.
However, as stated in their report included in any such Quarterly Report on
Form 10-Q and incorporated by reference herein, they did not audit and they do
not express an opinion on such interim financial information. Accordingly, the
degree of reliance on their report on such information should be restricted in
light of the limited nature of the review procedures applied. Deloitte & Touche
LLP are not subject to the liability provisions of Section 11 of the Securities
Act of 1933 for their reports on the unaudited
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interim financial information because those reports are not "reports" or a
"part" of the registration statement prepared or certified by an accountant
within the meaning of Section 7 and 11 of the Securities Act of 1933.
ERISA MATTERS FOR PENSION PLANS AND INSURANCE COMPANIES
MSDW and some of our affiliates, including MS & Co. and DWR, may each be
considered a "party in interest" within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, which is commonly referred to as
ERISA, or a "disqualified person" within the meaning of the Code with respect
to many employee benefit plans. Prohibited transactions within the meaning of
ERISA or the Code may arise, for example, if the debt securities, warrants or
purchase contracts, or any units including debt securities, warrants or
purchase contracts, are acquired by or with the assets of a pension or other
employee benefit plan with respect to which MS & Co., DWR or any of their
affiliates is a service provider, unless those debt securities, warrants or
purchase contracts, or any units including debt securities, warrants or
purchase contracts, are acquired pursuant to an exemption for transactions
effected on behalf of one of these plans by a "qualified professional asset
manager" or pursuant to any other available exemption. The assets of a pension
or other employee benefit plan may include assets held in the general account
of an insurance company that are deemed to be "plan assets" under ERISA. In
addition, employee benefit plans subject to ERISA, or insurance companies
deemed to be investing ERISA plan assets, that purchase universal warrants or
purchase contracts should consider the possible implications of owning the
securities underlying those instruments in the event of settlement by physical
delivery. Any insurance company or pension or employee benefit plan, or any
person investing the assets of a pension or employee benefit plan, proposing to
invest in the debt securities, warrants or purchase contracts, or any units
including debt securities, warrants or purchase contracts, should consult with
its legal counsel.
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MORGAN STANLEY DEAN WITTER & CO.
<PAGE>
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................................................... $3,168,000
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.................................................... $5,516,000
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.
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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 (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3, Registration
No. 333-75289, and incorporated herein by reference).
1-d Form of Euro Distribution Agreement (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3, Registration
No. 333-75289, and incorporated herein by reference).
4-a Amended and Restated Certificate of Incorporation of MSDW
(previously filed as an exhibit to MSDW's Quarterly Report on Form
10-Q for the quarter ended February 29, 2000 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 May 1, 1999
between Morgan Stanley Dean Witter & Co. and The Chase Manhattan
Bank, Trustee (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No. 333-75289, and
incorporated herein by reference).
4-f Amended and Restated Subordinated Indenture dated as of May 1,
1999 between Morgan Stanley Dean Witter & Co. and The First
National Bank of Chicago, Trustee (previously filed as an exhibit
to MSDW's Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-g Form of Floating Rate Senior Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3, Registration
No. 333-75289, and incorporated herein by reference).
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Exhibit
Number Description
- ------- -----------
4-h Form of Fixed Rate Senior Note (previously filed as an exhibit
to MSDW's Registration Statement on Form S-3, Registration No.
333-75289, and incorporated herein by reference).
4-i Form of Senior Variable Rate Renewable Note (previously filed
as an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by reference).
4-j Form of Floating Rate Subordinated Note (previously filed as
an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by reference).
4-k Form of Fixed Rate Subordinated Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3, Registration
No. 333-75289, and incorporated herein by reference).
4-l Form of Subordinated Variable Rate Renewable Note (previously
filed as an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by reference).
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 (previously filed as
an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by reference).
4-t Form of Senior Dollarized Bull Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3, Registration
No. 333-75289, and incorporated herein by reference).
4-u Form of S&P Indexed (Bull) Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3, Registration
No. 333-75289, and incorporated herein by reference).
4-v Form of S&P Indexed (Bear) Note (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3, Registration
No. 333-75289, and incorporated herein by reference).
4-w Form of Euro Fixed Rate Subordinated Registered Note.
4-x Form of Fixed Rate Amortizing Senior Note (previously filed as
an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by reference).
4-y Form of Senior Dollarized Yield Curve Note (Bond Basis)
(previously filed as an exhibit to MSDW's Registration Statement on
Form S-3, Registration No. 333-75289, and incorporated herein by
reference).
II-3
<PAGE>
Exhibit
Number Description
- ------- -----------
4-z Form of Senior Dollarized Yield Curve Note (Money Market
Basis) (previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-75289, and incorporated
herein by reference).
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. 333-75289, 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. 333-75289, 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. 333-75289, 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.
333-75289, and incorporated herein by reference).
4-gg Form of Put Warrant (included in Exhibit 4-ee) (previously
filed as an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by reference).
4-hh Form of Call Warrant (included in Exhibit 4-ee) (previously
filed as an exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-75289, and incorporated herein by reference).
4-ii Form of Purchase Contract (Issuer Sale) (included in Exhibit
4-ff) (previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-75289, and incorporated
herein by reference).
4-jj Form of Purchase Contract (Issuer Purchase) (included in
Exhibit 4-ff) (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No. 333-75289, and
incorporated herein by reference).
4-kk Form of Unit Certificate (included in Exhibit 4-ff)
(previously filed as an exhibit to MSDW's Registration Statement on
Form S-3, Registration No. 333-75289, 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. 333-75289, and incorporated herein by reference).
4-mm Form of Unit Agreement Without Holders' Obligations
(previously filed as an exhibit to MSDW's Registration Statement on
Form S-3, Registration No. 333-75289, and incorporated herein by
reference).
5 Opinion of Brown & Wood LLP.
12-a Computation of Consolidated Ratio of Earnings to Fixed Charges.
II-4
<PAGE>
Exhibit
Number Description
- ------- -----------
12-b Computation of Consolidated Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends.
15 Letter of awareness from Deloitte & Touche LLP.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Brown & Wood LLP (included in Exhibit 5).
24* Powers of Attorney.
25-a* Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Senior Indenture.
25-b* Statement of Eligibility of Bank One Trust Company, N.A., as successor
to The First National Bank of Chicago, Trustee under the Amended
and Restated Subordinated Indenture.
- ---------
* Previously filed.
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
II-5
<PAGE>
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.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the 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 8th day of May, 2000.
MORGAN STANLEY DEAN WITTER & CO.
By: /s/ Martin M. Cohen
-----------------------------------
Name: Martin M. Cohen
Title: Assistant Secretary
Pursuant to the requirement of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed below by the
following persons on behalf of the Registrant and in the capacities indicated
as of this 8th day of May, 2000.
Signature Title
--------- -----
*
- ------------------------------- Chairman of the Board and
Philip J. Purcell Chief Executive Officer
*
- ------------------------------- President, Chief Operating Officer and
John J. Mack Director
*
- ------------------------------- Executive Vice President and Chief
Robert G. Scott Financial Officer (Principal Financial
Officer)
*
- ------------------------------- Controller
Joanne Pace (Principal Accounting Officer)
*
- -------------------------------
Robert P. Bauman Director
*
- -------------------------------
Edward A. Brennan Director
*
- -------------------------------
C. Robert Kidder Director
II-7
<PAGE>
Signature Title
--------- -----
*
- -------------------------------
Charles F. Knight Director
*
- -------------------------------
Miles L. Marsh Director
*
- -------------------------------
Michael A. Miles Director
*
- -------------------------------
Clarence B. Rogers, Jr. Director
*
- -------------------------------
Laura D'Andrea Tyson Director
*By: /s/ Martin M. Cohen
---------------------------
Name: Martin M. Cohen
Attorney-in-Fact
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
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-w Form of Euro Fixed Rate Subordinated Registered Note.
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.
15 Letter of awareness from Deloitte & Touche LLP.
23-a Consent of Deloitte & Touche LLP.
23-b Consent of Brown & Wood LLP (included in Exhibit 5).
24* Powers of Attorney.
25-a* Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Senior Indenture.
25-b* Statement of Eligibility of Bank One Trust Company, N.A., as successor
to The First National Bank of Chicago, Trustee under the Amended and
Restated Subordinated Indenture.
- ---------
* Previously filed.
II-9
EXHIBIT 4-m
[FORM OF FACE OF SECURITY]
TEMPORARY GLOBAL FLOATING RATE SENIOR BEARER NOTE
BEARER BEARER
No. TGFL _____
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE UNDER
SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR AN INTEREST
IN A PERMANENT GLOBAL BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN
- --------
1Applies only if this Note is denominated in pounds sterling and matures not
more than one year from and including the Original Issue Date.
2Applies only if this Note is denominated in pounds sterling and matures more
than one year from and including the Original Issue Date.
<PAGE>
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER RELEVANT
LAWS AND REGULATIONS OF JAPAN.
-2-
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Floating Rate)
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EUROCLEAR NO: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
CLEARSTREAM NO: ANNUAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE REDUCTION: PAGE:
COMMON CODE: OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
ISIN: REDEMPTION NOTICE PERIOD:3 MINIMUM DENOMINATIONS:
REPORTING SERVICE: EXCHANGE FOR REGISTERED
NOTES: [NO]4
OTHER PROVISIONS:
</TABLE>
Morgan Stanley Dean Witter & Co., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in Schedule A hereto, on the Maturity Date specified above (except to
the extent previously redeemed or repaid) and to pay interest thereon, from and
including the Interest Accrual Date specified above at a rate per annum equal
to the Initial Interest Rate specified above until but excluding the Initial
Interest Reset Date specified above, and on and after at a rate per annum
determined in accordance with the provisions specified in the Permanent Global
Bearer Note (as defined below) until but excluding the date such principal
amount is paid or duly made available for payment (except as provided below).
The Issuer will pay interest in arrears monthly, quarterly, semiannually or
annually as specified above as the Interest Payment Period on each Interest
Payment Date (as specified above), commencing with the first Interest Payment
Date next succeeding the Interest Accrual Date specified above, and at maturity
(or on any redemption or
- --------
3Applicable if other than 30-60 days. Consult with Euroclear or Clearstream if
a shorter redemption is requested. A minimum of 10 days may be possible.
4Unless explicitly stated otherwise in term sheet, MSDW practice has been to
exclude this option.
-3-
<PAGE>
repayment date); provided, however, that if the Interest Accrual Date occurs
fifteen days or less prior to the first Interest Payment Date occurring after
the Interest Accrual Date, interest payments will commence on the second
Interest Payment Date succeeding the Interest Accrual Date; and provided,
further, that if an Interest Payment Date (other than the Maturity Date (as
specified above) or redemption or repayment date) would fall on a day that is
not a Business Day, as defined below, such Interest Payment Date shall be the
following day that is a Business Day, except that if the Base Rate specified
above is LIBOR or EURIBOR and such next Business Day falls in the next calendar
month, such Interest Payment Date shall be the immediately preceding day that
is a Business Day; and provided, further, that if the Maturity Date or
redemption or repayment date would fall on a day that is not a Business Day,
the payment of principal, premium, if any, and interest will be made on the
next succeeding Business Day and no interest shall accrue for the period from
and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal amount hereof
has been paid or duly made available for payment. Upon any payment of interest
on this Note, the Principal Paying Agent (as defined below) shall cause
Schedule A of this Note to be endorsed to reflect such payment. No payment on
this Note will be made at any office or agency of the Issuer in the United
States or by check mailed to an address in the United States (as defined below)
or by wire transfer to an account maintained by the holder of this Note with a
bank in the United States except as may be permitted under United States
federal tax laws and regulations then in effect without adverse tax
consequences to the Issuer. Notwithstanding the foregoing, in the event that
payment in U.S. dollars of the full amount payable on this Note at the offices
of all Paying Agents (as defined below) would be illegal or effectively
precluded as a result of exchange controls or similar restrictions, payment on
this Note will be made by a paying agency in the United States, if such paying
agency, under applicable law and regulations, would be able to make such
payment. Notwithstanding any other provision of this Note, no payment of
principal or interest shall be made on any portion of this Note unless there
shall have been delivered to the Principal Paying Agent a certificate
substantially in the form of Exhibit A hereto with respect to the portion of
this Note with respect to which such principal or interest is to be paid. Such
certificate shall have been delivered to the Principal Paying Agent by Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe
anonyme ("Clearstream, Luxembourg"), and/or any other relevant clearing system
(including Societe Interprofessionelle pour la Compensation des Valeurs
Mobilieres and the Intermediaires financiers habilites authorized to maintain
accounts therein (SICOVAM")), as the case may be, and shall be based on a
certificate substantially in the form of Exhibit B hereto provided to the
Euroclear Operator, Cedelbank and/or any other relevant clearing system, as the
case may be, by those of its account holders who are to receive such payment of
principal or interest.
This Note is issued in temporary global bearer form and represents all
or a portion of a duly authorized issue of Senior Global Medium-Term Notes,
Series [D/E] (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee", which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time
-4-
<PAGE>
to time, the "Senior Indenture") to which Senior Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities of the Issuer, the Trustee
and holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed The Chase Manhattan Bank,
London Branch, as its principal paying agent for the Notes (the "Principal
Paying Agent," which term includes any additional or successor Principal Paying
Agent appointed by the Issuer).
Except as otherwise provided herein, this Note is governed by the
terms and conditions of the Permanent Global Floating Rate Senior Bearer Note
(the "Permanent Global Bearer Note") to be issued in exchange for this Note,
which terms and conditions are hereby incorporated by reference herein mutatis
mutandis and shall be binding on the Issuer and the holder hereof as if fully
set forth herein. The form of the Permanent Global Bearer Note is attached
hereto.
This Note is exchangeable in whole or from time to time in part on or
after the Exchange Date (as defined below) for an interest (equal to the
principal amount of the portion of this Note being exchanged) in a single
Permanent Global Bearer Note upon the request of the Euroclear Operator,
Clearstream, Luxembourg and/or any other relevant clearing system, acting on
behalf of the owner of a beneficial interest in this Note, to the Principal
Paying Agent upon delivery to the Principal Paying Agent of a certificate
substantially in the form of Exhibit A hereto with respect to the portion of
this Note to be exchanged. Such certificate shall have been delivered to the
Principal Paying Agent by the Euroclear Operator, Clearstream, Luxembourg
and/or any other relevant clearing system, as the case may be, and shall be
based on a certificate substantially in the form of Exhibit B hereto provided
to the Euroclear Operator, Cedelbank and/or any other relevant clearing system,
as the case may be, by those of its account holders having an interest in the
portion hereof to be exchanged. Notwithstanding the foregoing, if this Note is
subject to a tax redemption as described on the reverse of the Permanent Global
Bearer Note attached hereto, interests in this Note may be exchanged for
interests in a permanent Global Bearer Note on and after such redemption date
as if such redemption date had been the Exchange Date, subject to receipt of
the certificates described in the preceding sentence. Upon exchange of any
portion of this Note for an interest in a Permanent Global Bearer Note, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount being so exchanged. Except as otherwise provided
herein, until exchanged for a Permanent Global Bearer Note, this Note shall in
all respects be entitled to the same benefits under the Senior Indenture as a
duly authenticated and delivered Permanent Global Bearer Note.
As used herein:
(a) As used herein, "Business Day" means any day, other than a
Saturday or Sunday, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close (x) in The City of New York or in The City of London or (y) if this
Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated in
Australian dollars, in Sydney and (b) if this Note is denominated in euro,
that is also a day on which the Trans-European
-5-
<PAGE>
Automated Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day").
(b) the term "Exchange Date" means the date that is 40 days after the
date on which the Issuer receives the proceeds of the sale of this Note
(the "Closing Date"), provided that if an interest represented by this
Note is held by Morgan Stanley & Co. International Limited, or any other
manager participating in the distribution of the tranche of Notes of which
this Note forms a part, as part of an unsold allotment or subscription
more than 40 days after the Closing Date for this Note, the Exchange Date
with respect to such interest shall be the day after the date such
interest is sold by Morgan Stanley & Co. International Limited or such
other manager, all as determined and notified to the Trustee by Morgan
Stanley & Co. International Limited, or if Morgan Stanley & Co.
International Limited did not participate in the distribution of such
tranche, by the Issuer.
(c) the term "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
All other terms used in this Note which are defined in the Senior Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Senior Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Senior Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
-6-
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Senior
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
---------------------------------
Authorized Officer
-7-
<PAGE>
SCHEDULE A
SCHEDULE OF EXCHANGES
The Initial Principal Amount of this Note is ______________. The
following payments of interest and exchanges of a part of this Note for an
interest in a single Permanent Global Bearer Note have been made:
<TABLE>
Principal Amount Remaining Principal
Exchanged for Amount Outstanding Notation Made
Date of Exchange Permanent Following by or on Behalf of
or Interest Payment Payment of Interest Global Bearer Note Such Exchange Principal Paying Agent
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CLEARSTREAM, LUXEMBOURG
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
-----------------------
Morgan Stanley Dean Witter & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No ____.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof,
__________ principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined in
the applicable U.S. Treasury Regulations) ("financial institutions") purchasing
for their own account or for resale, or (b) United States persons who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and such United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
<PAGE>
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, seeking to collect principal or interest with
respect to) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith (or, if relevant, with respect to which principal or
interest is being requested) are no longer true and cannot be relied upon as
the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
-2-
<PAGE>
Dated: _______________, 20__
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE, as Operator of
the Euroclear System]
[CLEARSTREAM BANKING, SOCIETE ANONYME]
[OTHER]
By:
----------------------------------------
Name:
Title:
-3-
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CLEARSTREAM, LUXEMBOURG
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
-----------------------
Morgan Stanley Dean Witter & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (as
defined in the applicable U.S. Treasury Regulations) ("financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the Issuer or the Issuer's agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S.
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in the applicable
U.S. Treasury Regulations), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) such financial
institution has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
<PAGE>
This certification excepts and does not relate to $___________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
-2-
<PAGE>
Dated: _______________, 20__
[To be dated no earlier than the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[NAME OF ACCOUNT HOLDER]
By:
------------------------------------
(Authorized Signatory)
Name:
Title:
-3-
EXHIBIT 4-n
[FORM OF FACE OF SECURITY]
TEMPORARY GLOBAL FIXED RATE SENIOR BEARER NOTE
BEARER BEARER
No. TGFX [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR AN INTEREST
IN A PERMANENT GLOBAL BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN
- --------
1 Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
<PAGE>
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER RELEVANT
LAWS AND REGULATIONS OF JAPAN.
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE(S): MENT DATE(S):
SPECIFIED CURRENCY: ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA-
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CLEARSTREAM NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON
ACCELERATION OR
REDEMPTION
EXCHANGE FOR COMMON CODE: If yes, state issue Price:
REGISTERED NOTES:
[NO]4
OTHER PROVISIONS: ORIGINAL YIELD TO ISIN: ORIGINAL YIELD TO
MATURITY: MATURITY:
</TABLE>
Morgan Stanley Dean Witter & Co., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in Schedule A hereto, on the Maturity Date specified above (except to
the extent previously redeemed or repaid) and to pay interest thereon at the
Interest Rate per annum specified above from and including the Interest Accrual
Date specified above until but excluding the date the principal amount is paid
or duly made available for payment (except as provided below), weekly, monthly,
quarterly, semi-annually or annually in arrears on the Interest Payment Dates
specified above in each year commencing on the Interest Payment Date next
succeeding the Interest Accrual Date specified above, and at maturity (or on
any redemption or repayment date); provided, however, that if the Interest
Accrual Date occurs fifteen days or less prior to the first Interest Payment
Date occurring after the Interest Accrual Date, interest payments will commence
on the second Interest Payment Date succeeding the Interest Accrual Date.
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10 days may be
possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has
been to exclude this option.
2
<PAGE>
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal amount hereof
has been paid or duly made available for payment. Upon any payment of interest
on this Note, the Principal Paying Agent (as defined below) shall cause
Schedule A of this Note to be endorsed to reflect such payment. No payment on
this Note will be made at any office or agency of the Issuer in the United
States or by check mailed to an address in the United States (as defined below)
or by wire transfer to an account maintained by the holder of this Note with a
bank in the United States except as may be permitted under United States
federal tax laws and regulations then in effect without adverse tax
consequences to the Issuer. Notwithstanding the foregoing, in the event that
payment in U.S. dollars of the full amount payable on this Note at the offices
of all Paying Agents (as defined below) would be illegal or effectively
precluded as a result of exchange controls or similar restrictions, payment on
this Note will be made by a paying agency in the United States, if such paying
agency, under applicable law and regulations, would be able to make such
payment. Notwithstanding any other provision of this Note, no payment of
principal or interest shall be made on any portion of this Note unless there
shall have been delivered to the Principal Paying Agent a certificate
substantially in the form of Exhibit A hereto with respect to the portion of
this Note with respect to which such principal or interest is to be paid. Such
certificate shall have been delivered to the Principal Paying Agent by Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Clearstream Banking, societe
anonyme ("Clearstream, Luxembourg"), and/or any other relevant clearing system
(including Societe Interprofessionelle pour la Compensation des Valeurs
Mobilieres and the Intermediaires financiers habilites authorized to maintain
accounts therein ("SICOVAM")) as the case may be, and shall be based on a
certificate substantially in the form of Exhibit B hereto provided to the
Euroclear Operator, Cedelbank and/or any other relevant clearing system, as the
case may be, by those of its account holders who are to receive such payment of
principal or interest.
This Note is issued in temporary global bearer form and represents all
or a portion of a duly authorized issue of Senior Global Medium-Term Notes,
Series [D/E] (the "Notes"), issued under an Amended and Restated Senior
Indenture, dated as of May 1, 1999, between the Issuer and The Chase Manhattan
Bank, as Trustee (the "Trustee," which term includes any successor trustee
under the Senior Indenture) (as may be amended or supplemented from time to
time, the "Senior Indenture"), to which Senior Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities of the Issuer, the Trustee
and holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed The Chase Manhattan Bank,
London Branch, as its principal paying agent for the Notes (the "Principal
Paying Agent," which term includes any additional or successor Principal Paying
Agent appointed by the Issuer).
Except as otherwise provided herein, this Note is governed by the
terms and conditions of the Permanent Global Fixed Rate Senior Bearer Note (the
"Permanent Global Bearer Note") to be issued in exchange for this Note, which
terms and conditions are hereby incorporated by reference herein mutatis
mutandis and shall be binding on the Issuer and the holder hereof as if fully
set forth herein. The form of the Permanent Global Bearer Note is attached
hereto.
3
<PAGE>
This Note is exchangeable in whole or from time to time in part on or
after the Exchange Date (as defined below) for an interest (equal to the
principal amount of the portion of this Note being exchanged) in a single
Permanent Global Bearer Note upon the request of the Euroclear Operator,
Clearstream, Luxembourg and/or any other relevant clearing system, acting on
behalf of the owner of a beneficial interest in this Note, to the Principal
Paying Agent upon delivery to the Principal Paying Agent of a certificate
substantially in the form of Exhibit A hereto with respect to the portion of
this Note to be exchanged. Such certificate shall have been delivered to the
Principal Paying Agent by the Euroclear Operator, Clearstream, Luxembourg
and/or any other relevant clearing system, as the case may be, and shall be
based on a certificate substantially in the form of Exhibit B hereto provided
to the Euroclear Operator, Cedelbank and/or any other relevant clearing system,
as the case may be, by those of its account holders having an interest in the
portion hereof to be exchanged. Notwithstanding the foregoing, if this Note is
subject to a tax redemption as described on the reverse of the Permanent Global
Bearer Note attached hereto, interests in this Note may be exchanged for
interests in a permanent Global Bearer Note on and after such redemption date
as if such redemption date had been the Exchange Date, subject to receipt of
the certificates described in the preceding sentence. Upon exchange of any
portion of this Note for an interest in a Permanent Global Bearer Note, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount being so exchanged. Except as otherwise provided
herein, until exchanged for a Permanent Global Bearer Note, this Note shall in
all respects be entitled to the same benefits under the Senior Indenture as a
duly authenticated and delivered Permanent Global Bearer Note.
As used herein:
(a) the term "Exchange Date" means the date that is 40 days after the
date on which the Issuer receives the proceeds of the sale of this Note
(the "Closing Date"), provided that if an interest represented by this
Note is held by Morgan Stanley & Co. International Limited, or any other
manager participating in the distribution of the tranche of Notes of which
this Note forms a part, as part of an unsold allotment or subscription
more than 40 days after the Closing Date for this Note, the Exchange Date
with respect to such interest shall be the day after the date such
interest is sold by Morgan Stanley & Co. International Limited or such
other manager, all as determined and notified to the Trustee by Morgan
Stanley & Co. International Limited or if Morgan Stanley & Co.
International Limited did not participate in the distribution of such
tranche, by the Issuer.
(b) the term "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Senior Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
-----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Authorized Officer
5
<PAGE>
SCHEDULE A
SCHEDULE OF EXCHANGES
The Initial Principal Amount of this Note is ______________. The
following payments of interest and exchanges of a part of this Note for an
interest in a single Permanent Global Bearer Note have been made:
<TABLE>
Principal Amount Remaining Principal
Exchanged for Amount Outstanding Notation Made
Date of Exchange Permanent Following by or on Behalf of
or Interest Payment Payment of Interest Global Bearer Note Such Exchange Principal Paying Agent
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CLEARSTREAM, LUXEMBOURG
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
-----------------------
Morgan Stanley Dean Witter & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof,
__________ principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined in
the applicable U.S. Treasury Regulations) ("financial institutions") purchasing
for their own account or for resale, or (b) United States persons who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and such United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
<PAGE>
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, seeking to collect principal or interest with
respect to) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith (or, if relevant, with respect to which principal or
interest is being requested) are no longer true and cannot be relied upon as
the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
2
<PAGE>
Dated: _______________, 20__
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CLEARSTREAM BANKING, SOCIETE ANONYME]
[OTHER]
By:
--------------------------------------
Name:
Title:
3
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CLEARSTREAM, LUXEMBOURG
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
-----------------------
Morgan Stanley Dean Witter & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (as
defined in the applicable U.S. Treasury Regulations) ("financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the Issuer or the Issuer's agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S.
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in the applicable
U.S. Treasury Regulations), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) such financial
institution has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
<PAGE>
This certification excepts and does not relate to $___________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
2
<PAGE>
Dated: _______________, 20__
[To be dated no earlier than the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[NAME OF ACCOUNT HOLDER]
By:
---------------------------------------
(Authorized Signatory)
Name:
Title:
3
EXHIBIT 4-o
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL FLOATING RATE SENIOR BEARER NOTE
BEARER BEARER
No. PGFL _________
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES
OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Floating Rate)
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EUROCLEAR NO: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
CLEARSTREAM NO: ANNUAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE REDUCTION: PAGE:
COMMON CODE: OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
ISIN: REDEMPTION NOTICE PERIOD:3 MINIMUM DENOMINATIONS:
REPORTING SERVICE: EXCHANGE FOR REGISTERED
NOTES: [NO]4
OTHER PROVISIONS:
</TABLE>
Morgan Stanley Dean Witter & Co., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in [Schedule A hereto]5 [Schedule A-1 hereto]6, on the Maturity Date
specified above (except to the extent previously redeemed or repaid) and to pay
interest thereon, from and including the Interest Accrual Date specified above
at a rate per annum equal to the Initial Interest Rate specified above until
the Initial Interest Reset Date specified above, and on and after at a rate per
annum determined in accordance with the provisions specified on the reverse
hereof until but excluding the date such principal amount is paid or duly made
available for payment. The Issuer will pay interest in arrears monthly,
quarterly, semiannually or annually as specified above as the Interest Payment
Period on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Interest Accrual Date specified
above, and on the
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10 days may be
possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has been
to exclude this option.
5 Applies if this Note is not issued as part of, or in relation to, a
Unit.
6 Applies if this Note is issued as part of, or in relation to, a Unit.
2
<PAGE>
Maturity Date specified above (or any redemption or repayment date); provided,
however, that if the Interest Accrual Date occurs fifteen days or less prior to
the first Interest Payment Date occurring after the Interest Accrual Date,
interest payments will commence on the second Interest Payment Date succeeding
the Interest Accrual Date; and provided, further, that if an Interest Payment
Date (other than the Maturity Date or redemption or repayment date) would fall
on a day that is not a Business Day, as defined on the reverse hereof, such
Interest Payment Date shall be the following day that is a Business Day, except
that if the Base Rate specified above is LIBOR or EURIBOR and such next
Business Day falls in the next calendar month, such Interest Payment Date shall
be the immediately preceding day that is a Business Day; and provided, further,
that if the Maturity Date or redemption or repayment date would fall on a day
that is not a Business Day, the payment of principal, premium, if any, and
interest shall be made on the next succeeding Business Day and no interest
shall accrue for the period from and after such Maturity Date or redemption or
repayment date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the
reverse of this Note) or at the office or agency of such other paying agents
outside the United States as the Issuer may determine for that purpose (each, a
"Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest
due at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as provided
on the reverse hereof. If this Note is denominated in U.S. dollars, any payment
of the principal of, premium, if any, and interest on this Note will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Such payments on this
Note will be made either by a check mailed to an address outside the United
States furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with a bank located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent not less than 15 calendar
days prior to the applicable payment date. Notwithstanding the foregoing, in
the event that payment in U.S. dollars of the full amount payable on this Note
at the offices of all Paying Agents would be illegal or effectively precluded
as a result of exchange controls or similar restrictions, payment on this Note
will be made by a paying agency in the United States, if such paying agency,
under applicable law and regulations, would be able to make such payment. If
this Note is denominated in a Specified Currency other than U.S. dollars, then,
except as provided on the reverse hereof, payment of the principal of and
premium, if any, and
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interest on this Note will be made in such Specified Currency either by a check
drawn on a bank outside the United States or, at the option of the payee and
subject to applicable laws and regulations and the procedures of the Paying
Agent, by wire transfer of immediately available funds to an account maintained
by the payee with a bank located outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
----------------------------------
Authorized Officer
5
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[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, the "Senior Indenture"), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered. The
Issuer has appointed The Chase Manhattan Bank, London Branch, as its principal
paying agent for the Notes (the "Principal Paying Agent," which term includes
any additional or successor Principal Paying Agent appointed by the Issuer).
The terms of individual Notes may vary with respect to interest rates, interest
rate formulas, issue dates, maturity dates, or otherwise, all as provided in
the Senior Indenture. To the extent not inconsistent herewith, the terms of the
Senior Indenture are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents
that it is not an authorized institution (for purposes of the United Kingdom
Banking Act 1987) nor a European authorized institution as defined by
Regulation 3 of the Banking Co-ordination (Second Council Directive)
Regulations 1992 and repayment of the principal of, and payment of any interest
or premium on, this Note has not been guaranteed, that it has complied with its
obligations under the listing rules of the London Stock Exchange Limited (the
"Rules") and that, since the last publication in compliance with the Rules of
information about it, it, having made all reasonable inquiries, has not become
aware of any change in circumstances which could reasonably be regarded as
significantly and adversely affecting its ability to meet its obligations in
respect of the Notes as they fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, will not be redeemable or subject to repayment at the option
of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as indicated below). If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage indicated on the face
hereof will be reduced on each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction specified on the face hereof until
the redemption price of this Note is 100% of the principal amount hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as provided below). Notice of redemption shall be mailed to the holders
of the Notes designated for redemption who have filed their names and addresses
with the Principal Paying Agent, not less than 30 nor more than 60 days prior
to the date fixed for redemption or within the Redemption Notice Period
specified on the face hereof, subject to all the conditions and provisions of
the Senior
6
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Indenture. Notice of redemption to all other holders of Notes shall be given in
the manner set forth in "Notices" as defined below, and, if by publication,
shall be given once in each of the three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days prior to the date set
for redemption or within the Redemption Notice Period specified on the face
hereof. In the event of redemption of this Note in part only, the Principal
Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of this Note so redeemed, whereupon the principal amount hereof shall be
reduced for all purposes by the amount so redeemed and noted.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments
of $1,000 or, if this Note is denominated in a Specified Currency other than
U.S. dollars, in increments of 1,000 units of such Specified Currency (provided
that any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Principal
Paying Agent must receive at its office in London, at least 15 but not more
than 30 days prior to the date of repayment, this Note with the form entitled
"Option to Elect Repayment" below duly completed, or a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States, Western Europe or Japan
setting forth the principal amount of the Note, the principal amount of the
Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the Option to Elect Repayment is being
exercised and a guarantee that this Note to be repaid, together with the duly
completed form entitled Option to Elect Repayment, will be received by the
principal paying agent not later than the fifth Business Day after the date of
that telegram, telex, facsimile transmission or letter. However, the telegram,
telex, facsimile transmission or letter shall only be effective if this Note
and an Option to Elect Repayment form duly completed are received by the Paying
Agent by the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter. Exercise of such repayment option by the
holder hereof shall be irrevocable. In the event of repayment of this Note in
part only, the Principal Paying Agent shall cause Schedule A of this Note to be
endorsed to reflect the reduction of its principal amount by an amount equal to
the aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
This Note will bear interest at the rate determined in accordance with
the applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus
or minus the Spread, if any, or (ii) multiplied by the Spread Multiplier, if
any, specified on the face hereof. Commencing with the Initial Interest Reset
Date specified on the face hereof, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified on the face
hereof (as used herein, the term "Interest Reset Date" shall include the
Initial Interest Reset Date). The determination of the rate of interest at
which this Note will be reset on any Interest Reset Date shall be made on the
Interest Determination Date (as defined below) pertaining to such Interest
Reset Date. The Interest Reset
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<PAGE>
Dates will be the Interest Reset Dates specified on the face hereof; provided,
however, that the interest rate in effect for the period from the Interest
Accrual Date to the Initial Interest Reset Date will be the Initial Interest
Rate. If any Interest Reset Date would otherwise be a day that is not a
Business Day (as defined below), such Interest Reset Date shall be postponed to
the next succeeding day that is a Business Day, except that if the Base Rate
specified on the face hereof is LIBOR or EURIBOR and such Business Day is in
the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the second
Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to EURIBOR (or to LIBOR when the Index
Currency is euros) shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to LIBOR (other
than for LIBOR Notes for which the Index Currency is euros) shall be the second
London Banking Day preceding such Interest Reset Date except that the Interest
Determination Date pertaining to an Interest Reset Date for a LIBOR Note for
which the Index Currency is pounds sterling will be such Interest Reset Date.
As used herein, "London Banking Day" means any day on which dealings in
deposits in the Index Currency (as defined herein) are transacted in the London
interbank market. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the Treasury
Rate shall be the day of the week in which such Interest Reset Date falls on
which Treasury bills normally would be auctioned; provided, however, that if as
a result of a legal holiday an auction is held on the Friday of the week
preceding such Interest Reset Date, the related Interest Determination Date
shall be such preceding Friday; and provided, further, that if an auction shall
fall on any Interest Reset Date, then the Interest Reset Date shall instead be
the first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to an Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity Date (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face
hereof is the "CD Rate," for any Interest Determination Date, the CD Rate with
respect to this Note shall be the rate on that date for negotiable certificates
of deposit having the Index Maturity specified on the face hereof as published
by the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates," or any successor publication of the Board
of Governors of the Federal Reserve System ("H.15(519)") under the heading "CDs
(Secondary Market)."
The following procedures shall be followed if the CD Rate cannot be
determined as described above:
8
<PAGE>
(i) If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate shall be the rate on
that Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519) or
the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation
Date, the Calculation Agent shall determine the CD Rate to be the arithmetic
mean of the secondary market offered rates as of 10:00 a.m., New York City
time, on that Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent (after consultation with the Issuer) for negotiable
certificates of deposit of major United States money center banks of the
highest credit standing in the market for negotiable certificates of deposit
with a remaining maturity closest to the Index Maturity specified on the face
hereof in an amount that is representative for a single transaction in that
market at that time.
(iii) If the dealers selected by the Calculation Agent are not quoting
as described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable shall be the Initial Interest Rate.
Determination of Commercial Paper Rate. If the Base Rate specified on
the face hereof is the "Commercial Paper Rate," for any Interest Determination
Date, the Commercial Paper Rate with respect to this Note shall be the Money
Market Yield (as defined herein), calculated as described below, of the rate on
that date for commercial paper having the Index Maturity specified on the face
hereof, as that rate is published in H.15(519), under the heading "Commercial
Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial Paper
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on that Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as
published in the H.15 Daily Update under the heading "Commercial Paper --
Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation Date
the rate is not yet published in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Commercial Paper Rate to be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00
a.m., New York City time, on that Interest Determination Date of three leading
dealers of commercial paper in The City of New York selected by the Calculation
Agent (after consultation with the Issuer) for commercial paper of the Index
Maturity specified on the face hereof, placed for an industrial issuer whose
bond rating is "AA," or the equivalent, from a nationally recognized
statistical rating agency.
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<PAGE>
(iii) If the dealers selected by the Calculation Agent are not quoting
as mentioned above, the Commercial Paper Rate for that Interest Determination
Date shall remain the Commercial Paper Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a yield calculated in accordance
with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per year rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of EURIBOR Notes. If the Base Rate specified on the face
hereof is "EURIBOR," for any Interest Determination Date, EURIBOR with respect
to this Note shall be the rate for deposits in euros as sponsored, calculated
and published jointly by the European Banking Federation and ACI - The
Financial Market Association, or any company established by the joint sponsors
for purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Bridge
Telerate, Inc., or any successor service, on page 248 or any other page as may
replace page 248 on that service ("Telerate Page 248") as of 11:00 a.m.
(Brussels time).
The following procedures shall be followed if the rate cannot be
determined as described above:
(i) If the above rate does not appear, the Calculation Agent shall
request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the
applicable Interest Reset Date, and in a principal amount not less than the
equivalent of U.S.$1 million in euro that is representative of a single
transaction in euro, in that market at that time. If at least two quotations
are provided, EURIBOR shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
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<PAGE>
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate specified
on the face hereof is the "Federal Funds Rate," for any Interest Determination
Date, the Federal Funds Rate with respect to this Note shall be the rate on
that date for federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or any
successor service, on page 120 or any other page as may replace page 120 on
that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate shall be the rate on that
Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date,
the Calculation Agent shall determine the Federal Funds Rate to be the
arithmetic mean of the rates for the last transaction in overnight federal
funds by each of three leading brokers of federal funds transactions in The
City of New York selected by the Calculation Agent (after consultation with the
Issuer) prior to 9:00 a.m., New York City time, on that Interest Determination
Date.
(iii) If the brokers selected by the Calculation Agent are not quoting
as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
Determination of LIBOR. If the Base Rate specified on the face hereof
is "LIBOR," LIBOR with respect to this Note shall be based on London interbank
offered rate. The Calculation Agent shall determine "LIBOR" for each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either:
(a) if "LIBOR Reuters" is specified as the Reporting Service on the face
hereof, the arithmetic mean of the offered rates for deposits in the Index
Currency having the Index Maturity designated on the face hereof, commencing on
the second London Banking Day immediately following that Interest Determination
Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00
a.m., London time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page;
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except that if the specified Designated LIBOR Page, by its terms provides only
for a single rate, that single rate shall be used; or (b) if "LIBOR Telerate"
is specified as the Reporting Service on the face hereof, the rate for deposits
in the Index Currency having the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following that Interest
Determination Date or, if pounds sterling is the Index Currency, commencing on
that Interest Determination Date, that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is
specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall request the principal London offices of each of four major
reference banks in the London interbank market, as selected by the Calculation
Agent (after consultation with the Issuer) to provide the Calculation Agent
with its offered quotation for deposits in the Index Currency for the period of
the Index Maturity specified on the face hereof commencing on the second London
Banking Day immediately following the Interest Determination Date or, if pounds
sterling is the Index Currency, commencing on that Interest Determination Date,
to prime banks in the London interbank market at approximately 11:00 a.m.,
London time, on that Interest Determination Date and in a principal amount that
is representative of a single transaction in that Index Currency in that market
at that time.
(iii) If at least two quotations are provided, LIBOR determined on
that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be
determined for the applicable Interest Reset Date as the arithmetic mean of the
rates quoted at approximately 11:00 a.m., London time, or some other time
specified on the face hereof, in the applicable principal financial center for
the country of the Index Currency on that Interest Reset Date, by three major
banks in that principal financial center selected by the Calculation Agent
(after consultation with the Issuer) for loans in the Index Currency to leading
European banks, having the Index Maturity specified on the face hereof and in a
principal amount that is representative of a single transaction in that Index
Currency in that market at that time.
(iv) If the banks so selected by the Calculation Agent are not
quoting as described in (iii) above, LIBOR in effect for the applicable period
shall be the same as LIBOR for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable shall
be the Initial Interest Rate.
The "Index Currency" means the currency specified on the face hereof
as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified on the face hereof, the Index Currency shall be U.S.
dollars.
"Designated LIBOR Page" means either: (a) if LIBOR Reuters is
designated as the Reporting Service on the face hereof, the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency or its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service
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on the face hereof, the display on Bridge Telerate Inc., or any successor
service, on the page specified on the face hereof, or any other page as may
replace that page on that service, for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR
Telerate were specified, and, if the U.S. dollar is the Index Currency, as if
Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is "Prime Rate," for any Interest Determination Date, the Prime Rate
with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be
determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate shall be the rate on that
Interest Determination Date as published in H.15 Daily Update under the heading
"Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York City
time, on the Calculation Date in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Prime Rate to be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate
or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen USPRIME 1
Page for that Interest Determination Date, the Calculation Agent shall
determine the Prime Rate to be the arithmetic mean of the Prime Rates quoted on
the basis of the actual number of days in the year divided by 360 as of the
close of business on that Interest Determination Date by at least three major
banks in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as page
"USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major United
States banks.
Determination of Treasury Rate. If the Base Rate specified on the face
hereof is "Treasury Rate," the Treasury Rate with respect to this Note shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity
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specified on the face hereof as that rate appears under the caption "INVESTMENT
RATE" on the display on Bridge Telerate, Inc., or any successor service, on
page 56 or any other page as may replace page 56 on that service ( "Telerate
Page 56") or page 57 or any other page as may replace page 57 on that service (
"Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00
p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of
the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S. Government
Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by 3:00
p.m., New York City time, on the related Calculation Date, the Bond Equivalent
Yield of the Auction rate of the applicable Treasury Bills, announced by the
United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, selected by
the Calculation Agent, for the issue of Treasury Bills with a remaining
maturity closest to the Index Maturity specified on the face hereof; or
(vii) if the dealers selected by the Calculation Agent are not quoting
as described in (vi), the Treasury Rate for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of interest
payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in accordance
with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -------------
360 - (D x M)
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where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the "CMT Rate," for any Interest Determination Date, the CMT Rate
with respect to this Note shall be the rate displayed on the Designated CMT
Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately 3:45
p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the Designated
CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately preceding
the week in which the related Interest Determination Date occurs, if the
Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate cannot be
determined as described above:
(i) If that rate is no longer displayed on the relevant page, or if
not displayed by 3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) is no longer published, or if not
published by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519).
(iii) If the information described in (ii) is not provided by 3:00
p.m., New York City time, on the related Calculation Date, then the Calculation
Agent shall determine the CMT Rate to be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 p.m., New York City time, on the Interest Determination
Date, reported, according to their written records, by three leading primary
United States government securities dealers ("Reference Dealers") in The City
of New York, which may include an agent or other affiliates of the Issuer,
selected by the Calculation Agent as described in the following sentence. The
Calculation Agent shall select five reference dealers (after consultation with
the Issuer) and shall eliminate the highest quotation or, in the event of
equality, one of the highest, and the lowest quotation or, in the event of
equality, one of the lowest, for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining
term to maturity of not less than that Designated CMT Maturity Index minus one
year. If two Treasury Notes with an original
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maturity as described above have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 p.m., New York City
time, on the Interest Determination Date of three reference dealers in The City
of New York, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest
to but not less than the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an amount of at
least $100,000,000.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate shall be
the CMT Rate for the immediately preceding Interest Reset Period, or, if there
was no Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc., or any successor service, on the page designated on the face hereof or
any other page as may replace that page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10, 20 or 30
years, specified in an applicable pricing supplement for which the CMT Rate
shall be calculated. If no maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event
be higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
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Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Accrued interest hereon
shall be an amount calculated by multiplying the principal amount hereof shown
on Schedule A hereto by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the period for which interest is being paid. Unless otherwise specified on
the face hereof, the interest factor for each such date shall be computed by
dividing the interest rate applicable to such day (i) by 360 if the Base Rate
is CD Rate, Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or
LIBOR (except if the Index Currency is pounds sterling); (ii) by 365 if the
Base Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by the
actual number of days in the year if the Base Rate is the Treasury Rate or the
CMT Rate. All percentages resulting from any calculation of the rate of
interest on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded upward). The interest rate in effect on any
Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured
and unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without interest
coupons attached (a "Global Bearer Note"). The beneficial owner of all or a
portion of this Note may exchange its interest in this Note upon not less than
30 days' written notice to the Principal Paying Agent through the relevant
clearing system, in whole, for Notes in bearer form with interest coupons, if
any, attached (the "Definitive Bearer Notes," and, together with the Global
Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this Note,
at the beneficial owner's option, in whole or from time to time in part, for
Notes in fully registered form without coupons (the "Registered Notes"), in
each case, in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of 1,000 units of the
Specified Currency set forth on the face hereof. Interests in this Note shall
also be exchanged by the Issuer in whole, but not in part, for Definitive
Bearer Notes, which shall be serially numbered, with coupons, if any, attached
(or, if indicated on the face of this Note, at the beneficial owner's option,
for Registered Notes) of any authorized denominations if (i) this Note is
accelerated following an Event of Default or (ii) either Euroclear or
Clearstream, Luxembourg or any other relevant clearing system is closed for
business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so. The Issuer shall give notice to the Principal Paying Agent
promptly following any such acceleration or upon learning of any such closure.
Any exchanges referred to above shall be made at the office of the Principal
Paying Agent, or, in the case of Registered Notes, at the office of the
transfer agent for the Registered Notes in London, which transfer agent will
initially be The Chase Manhattan Bank, London Branch, upon compliance with any
procedures set forth in, or established pursuant to, the Senior Indenture;
provided, however, that the Issuer shall not be required (i) to exchange this
Note for a period of
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<PAGE>
fifteen calendar days preceding the first publication or other transmission, if
applicable, of a notice of redemption of all or any portion hereof or (ii) to
exchange any portion of this Note selected for redemption or surrendered for
optional repayment, except that such portion of this Note may be exchanged for
a Registered Note of like tenor; provided that such Registered Note shall be
simultaneously surrendered for redemption or repayment, as the case may be; and
provided, further, that if a Registered Note is issued in exchange for any
portion of this Note after the close of business at the office of the Principal
Paying Agent on any record date (whether or not a Business Day) for the payment
of interest on such Registered Note and before the opening of business at such
office on the relevant Interest Payment Date, any interest will not be payable
on such Interest Payment Date in respect of such Registered Note, but will be
payable on such Interest Payment Date only to the holder of this Note. Upon
exchange of this Note in whole for a Definitive Bearer Note or Definitive
Bearer Notes, or in whole or in part for a Registered Note or Registered Notes,
the Principal Paying Agent shall cause Schedule A of this Note to be endorsed
to reflect the reduction of the principal amount hereof by an amount equal to
the aggregate principal amount of such Definitive Bearer Note or Definitive
Bearer Notes, or such Registered Note or Registered Notes, whereupon the
principal amount hereof shall be reduced for all purposes by the amount so
exchanged and noted. All such exchanges of Notes will be free of service
charge, but the Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith. The date of any
Note delivered upon any exchange of this Note shall be such that no gain or
loss of interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged
for Definitive Bearer Notes in accordance with the procedures set forth in the
following two sentences as soon as practicable after (i) the first beneficial
owner of an interest in this Note exchanges its interest for a Definitive
Bearer Note, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or Cedelbank or any other
relevant clearing system is closed for business for a continuous period of
fourteen days (other than by reason of public holidays) or announces an
intention to cease business permanently or in fact does so. In the event of any
exchange of interests in this Note for a Definitive Bearer Note, a common
depositary located outside the United States (the "common depositary") holding
this Note for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System (the "Euroclear Operator"), Clearstream
Banking, societe anonyme ("Clearstream, Luxembourg"), and/or any other relevant
clearing system (including Societe Interprofessionelle pour la Compensation des
Valeurs Mobilieres ("SICOVAM")) shall instruct the Principal Paying Agent
regarding the aggregate principal amount of Definitive Bearer Notes and the
denominations of such Definitive Bearer Notes that must be authenticated and
delivered to each relevant clearing system in exchange for this Note.
Thereafter, the Principal Paying Agent, acting solely in reliance on such
instructions, shall, upon surrender to it of this Note and subject to the
conditions in the preceding paragraph, authenticate and deliver Definitive
Bearer Notes in exchange for this Note in accordance with such instructions and
shall cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount of
this Note. Nothing in this paragraph shall prevent the further exchange of
Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that this
Note may be transferred only to a common depositary outside the United States
for the Euroclear Operator,
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<PAGE>
Clearstream, Luxembourg and/or any other relevant clearing system or to a
nominee of such a depositary.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, the Issuer in its discretion may execute a new Note
of like tenor in exchange for this Note, but, in the case of any destroyed,
lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee
and the Issuer that this Note was destroyed, lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
This Note may be redeemed, as a whole, at the option of the Issuer at
any time prior to maturity, upon the giving of a notice of redemption as
described below, at a redemption price equal to 100% of the principal amount
hereof, together with accrued interest to the date fixed for redemption, if the
Issuer determines that, as a result of any change in or amendment to the laws
(or any regulations or rulings promulgated thereunder) of the United States or
of any political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
becomes effective on or after the Original Issue Date hereof, the Issuer has or
will become obligated to pay Additional Amounts (as defined below) with respect
to this Note as described below. Prior to the giving of any Notice of
redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee
(i) a certificate stating that the Issuer is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions precedent to
the right of the Issuer to so redeem have occurred, and (ii) an opinion of
independent counsel satisfactory to the Trustee to such effect based on such
statement of facts; provided that no such notice of redemption shall be given
earlier than 60 days prior to the earliest date on which the Issuer would be
obligated to pay such Additional Amounts if a payment in respect of this Note
were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, which date and the applicable redemption
price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United
States by the Issuer or any Paying Agent of principal, premium or interest due
in respect of this Note would, under any present or future laws or regulations
of the United States, be subject to any certification, identification or other
information reporting requirement of any kind, the effect of which is the
disclosure to the Issuer, any Paying Agent or any governmental authority of the
nationality, residence or identity of a beneficial owner of this Note who is a
United States Alien (as defined below) (other than such a requirement (a) that
would not be applicable to a payment made by the Issuer or any Paying Agent (i)
directly to the beneficial owner or (ii) to a custodian, nominee or other agent
of the beneficial owner, or (b) that can be satisfied by such custodian,
nominee or other agent certifying to the effect that such beneficial owner is a
United States Alien; provided that in each case referred to
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<PAGE>
in clauses (a)(ii) and (b) payment by such custodian, nominee or agent to such
beneficial owner is not otherwise subject to any such requirement), the Issuer
shall redeem this Note, as a whole, at a redemption price equal to 100% of the
principal amount thereof, together with accrued interest to the date fixed for
redemption, or, at the election of the Issuer if the conditions of the next
succeeding paragraph are satisfied, pay the additional amounts specified in
such paragraph. The Issuer shall make such determination and election as soon
as practicable, shall promptly notify the Trustee thereof and shall publish (or
transmit, as applicable) prompt notice thereof (the "Determination Notice")
stating the effective date of such certification, identification or other
information reporting requirements, whether the Issuer will redeem this Note or
has elected to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of this
Note must take place, as provided in the next succeeding sentence. If the
Issuer redeems this Note, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Issuer shall elect by notice to the Trustee at least 60 days prior to the date
fixed for redemption or at least 30 days prior to the last day of the
Redemption Notice Period specified on the face hereof. Notice of such
redemption of this Note will be given to the holder of this Note not more than
60 nor less than 30 days prior to the date fixed for redemption or within the
Redemption Notice Period specified on the face hereof. Such redemption notice
shall include a statement as to the last date by which this Note to be redeemed
may be exchanged for Registered Notes. Notwithstanding the foregoing, the
Issuer shall not so redeem this Note if the Issuer shall subsequently
determine, not less than 30 days prior to the date fixed for redemption or
prior to the last day of the Redemption Notice Period specified on the face
hereof, that subsequent payments would not be subject to any such
certification, identification or other information reporting requirement, in
which case the Issuer shall publish (or transmit, as applicable) prompt notice
of such determination and any earlier redemption notice shall be revoked and of
no further effect. The right of the holder of this Note to exchange this Note
for Registered Notes pursuant to the provisions of this paragraph will
terminate at the close of business of the Principal Paying Agent on the
fifteenth day prior to the date fixed for redemption, and no further exchanges
of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph would
be fully satisfied by payment of a backup withholding tax or similar charge,
the Issuer may elect by notice to the Trustee to pay as additional amounts such
amounts as may be necessary so that every net payment made outside the United
States following the effective date of such requirements by the Issuer or any
Paying Agent of principal, premium or interest due in respect of this Note of
which the beneficial owner is a United States Alien (but without any
requirement that the nationality, residence or identity of such beneficial
owner be disclosed to the Issuer, any Paying Agent or any governmental
authority, with respect to the payment of such additional amounts), after
deduction or withholding for or on account of such backup withholding tax or
similar charge (other than a backup withholding tax or similar charge that (i)
would not be applicable in the circumstances referred to in the second
parenthetical clause of the first sentence of the preceding paragraph, or (ii)
is imposed as a result of presentation of this Note for payment more than 15
days after the date on which such payment becomes due and payable or on which
payment thereof is duly provided for, whichever occurs later), will not be less
than the amount provided for in this Note to be then due and payable. In the
event the Issuer elects to pay any additional amounts pursuant to this
paragraph, the Issuer shall have the right to redeem this Note as
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<PAGE>
a whole at any time pursuant to the applicable provisions of the immediately
preceding paragraph and the redemption price of this Note will not be reduced
for applicable withholding taxes. If the Issuer elects to pay additional
amounts pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Issuer will
redeem this Note as a whole, pursuant to the applicable provisions of the
immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set
forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
that every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount provided
for in this Note to be then due and payable. The Issuer will not, however, be
required to make any payment of Additional Amounts to any such holder for or on
account of:
(a) any such tax, assessment or other governmental charge that would
not have been so imposed but for (i) the existence of any present or
former connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of such holder, if such holder is an
estate, a trust, a partnership or a corporation) and the United States and
its possessions, including, without limitation, such holder (or such
fiduciary, settlor, beneficiary, member or shareholder) being or having
been a citizen or resident thereof or being or having been engaged in a
trade or business or present therein or having, or having had, a permanent
establishment therein or (ii) the presentation by the holder of this Note
for payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is payable
otherwise than by withholding from payments on or in respect of this Note;
(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of principal of, or interest
on, this Note, if such payment can be made without such withholding by any
other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would not
have been imposed but for the failure to comply with certification,
information or other reporting
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requirements concerning the nationality, residence or identity of the
holder or beneficial owner of this Note, if such compliance is required by
statute or by regulation of the United States or of any political
subdivision or taxing authority thereof or therein as a precondition to
relief or exemption from such tax, assessment or other governmental
charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of
all classes of stock entitled to vote of the Issuer or as a direct or
indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts had
such beneficiary, settlor, member or beneficial owner been the holder of this
Note.
The Senior Indenture provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of,
premium, if any, or interest on, any series of debt securities issued under the
Senior Indenture, including the series of Senior Global Medium-Term Notes of
which this Note forms a part, or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt securities
issued under the Senior Indenture, shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the debt securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and interest
accrued thereon to be due and payable immediately and (b) if an Event of
Default due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events of
bankruptcy or insolvency of the Issuer, shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
all debt securities issued under the Senior Indenture then outstanding (treated
as one class) may declare the principal of all such debt securities and
interest accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be waived
(except a continuing default in payment of principal (or premium, if any) or
interest on such debt securities) by the holders of a majority in principal
amount of the debt securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee
may not, without the consent of the holder
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of each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption or repayment thereof, or change the currency
of payment thereof, or modify or amend the provisions for conversion of any
currency into any other currency, or modify or amend the provisions for
conversion or exchange of the debt security for securities of the Issuer or
other entities (other than as provided in the antidilution provisions or other
similar adjustment provisions of the debt securities or otherwise in accordance
with the terms thereof), or impair or affect the rights of any holder to
institute suit for the payment thereof without the consent of the holder of
each debt security so affected; or (b) reduce the aforesaid percentage in
principal amount of debt securities the consent of the holders of which is
required for any such supplemental indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue of,
the treaty establishing the EC, as amended by the Treaty. Any payment made
under such circumstances in U.S. dollars or euro where the required payment is
in an unavailable Specified Currency will not constitute an Event of Default.
If such Market Exchange Rate is not then available to the Issuer or is not
published for a particular Specified Currency, the Market Exchange Rate will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent (as defined below) at approximately 11:00 a.m., The City of
New York time, on the second Business Day preceding the date of such payment
from three recognized foreign exchange dealers (the "Exchange Dealers") for the
purchase by the quoting Exchange Dealer of the Specified Currency for U.S.
dollars for settlement on the payment date, in the aggregate amount of the
Specified Currency payable to those holders or beneficial owners of Notes and
at which the applicable Exchange Dealer commits to execute a contract. One of
the Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations
are not available, the Exchange Rate Agent shall determine the market exchange
rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
23
<PAGE>
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided. If this Note is listed on
the London Stock Exchange Limited and such Exchange so requires, the Issuer
shall maintain a Paying Agent in London. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places outside the United States (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations of
such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease, without, however,
limiting in any way any obligation that the Issuer may have to pay the
principal of or interest or premium, if any, on this Note as the same shall
become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder of this Note as the owner hereof for all purposes, whether or
not this Note be overdue, and none of the Issuer, the Trustee or any such agent
shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
24
<PAGE>
As used herein:
(a) As used herein, "Business Day" means any day, other than a
Saturday or Sunday, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close (x) in The City of New York or in The City of London or (y) if this
Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated in
Australian dollars, in Sydney and (b) if this Note is denominated in euro,
that is also a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar buying
rate in The City of New York for cable transfers of the Specified Currency
indicated on the face hereof published by the Federal Reserve Bank of New
York;
(c) the term "Notices" refers to notices to the holders of the Notes
to be given by publication in an authorized newspaper in the English
language and of general circulation in the Borough of Manhattan, The City
of New York, and London or, if publication in London is not practical, in
an English language newspaper with general circulation in Western Europe;
provided that notice may be made at the option of the Issuer through the
customary notice provisions of the clearing system or systems through
which beneficial interests in this Note are owned. Such Notices will be
deemed to have been given on the date of such publication (or other
transmission, as applicable) or, if published in such newspapers on
different dates, on the date of the first such publication;
(d) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for United
States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of
which is a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
25
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid: ;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the holder for
the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
_________________.
Dated:
---------------------------------- ----------------------------------
26
<PAGE>
[SCHEDULE A7]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is . The following (A)
exchanges of (i) portions of this Note for Definitive Bearer Notes or
Registered Notes and (ii) portions of a Temporary Global Bearer Note for an
interest in this Note or (B) (x) redemptions at the option of the Issuer or (y)
repayments at the option of the holder have been made:
Principal Amount Principal Amount Principal Amount
Date of Exchange, Exchanged Exchanged For Exchanged for
Redemption or From Temporary Definitive Definitive
Payment Global Notes Bearer Notes Registered Notes
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<PAGE>
Remaining Principal
Amount Outstanding
Principal Amount Principal Amount Following Such
Redeemed at the Repaid at the Exchange, Notation Made by
Option of the Option of the Redemption or or on Behalf of
Issuer Holder Repayment Paying Agent
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7Applies if this Note is not issued as part of, or in relation to, a Unit.
<PAGE>
[SCHEDULE A-1]8
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")]9, (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")]10 for an interest in this Note and (C) reductions of the principal
amount of this Note as a result of (i) cancellation upon the application of
such amount to the settlement of Purchase Contracts or the exercise of
Universal Warrants (ii) redemption at the option of the Issuer or (iii)
repayments at the option of the Holder have been made:
Principal [Principal
Amount Amount [Principal Principal
Date of Exchange, Exchanged Exchanged Amount Amount
Cancellation From from an Exchanged Exchanged
Redemption, or Temporary Attached for Separated or Definitive
Repayment Global Notes Unit Note]10 Note]9 Bearer Notes
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<PAGE>
Remaining
Principal
Amount
Principal Outstanding
Amount Principal Principal Following such Notation
Exchanged Amount Amount Exchange, Made by or
For Definitive Redeemed at Repaid at the Principal Cancellation on behalf
Registered the option of option of the Amount Redemption or of Paying
Notes the Issuer Holder Cancelled Repayment Agent
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8 This Schedule A-1 needed only if this Note is issued as part of, or
in relation to, a Unit.
9 Applies only if this Note is attached to a Unit.
10 Applies only if this Note has been separated from a Unit.
EXHIBIT 4-p
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL FIXED RATE SENIOR BEARER NOTE
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES
OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE(S): MENT DATE(S):
ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA-
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CLEARSTREAM NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERA-
TION OR
REDEMPTION
EXCHANGE FOR COMMON CODE: If yes, state issue Price:
REGISTERED NOTES:
[NO]4
OTHER PROVISIONS: ISIN: ORIGINAL YIELD TO
MATURITY:
</TABLE>
Morgan Stanley Dean Witter & Co., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal amount
specified in [Schedule A hereto]5 [Schedule A-1 hereto]6, on the Maturity Date
specified above (except to the extent previously redeemed or repaid) and to pay
interest thereon at the Interest Rate per annum specified above from and
including the Interest Accrual Date specified above until but excluding the
date the principal amount is paid or duly made available for payment (except as
provided below) weekly, monthly, quarterly, semi-annually or annually in
arrears on the Interest Payment Dates specified above in each year commencing
on the Interest Payment Date next succeeding the Interest Accrual Date
specified above, and at maturity (or on any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs fifteen days or
less prior to the first Interest Payment Date occurring after the Interest
Accrual Date, interest payments will commence on the second Interest Payment
Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10 days may be
possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has
been to exclude this option.
5 Applies if this Note is not issued as part of, or in relation to, a
Unit.
6 Applies if this Note is issued as part of, or in relation to, a
Unit.
2
<PAGE>
for, from and including the Interest Accrual Date, until but excluding the date
the principal hereof has been paid or duly made available for payment (except
as provided below). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the holder of this Note at the office or agency of
the Principal Paying Agent (this and certain other capitalized terms used
herein are defined on the reverse of this Note) or at the office or agency of
such other paying agents outside the United States as the Issuer may determine
for that purpose (each, a "Paying Agent," which term shall include the
Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest
due at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as provided
on the reverse hereof. If this Note is denominated in U.S. dollars, any payment
of the principal of, premium, if any, and interest on this Note will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Such payments on this
Note will be made either by a check mailed to an address outside the United
States furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with a bank located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent not less than 15 calendar
days prior to the applicable payment date. Notwithstanding the foregoing, in
the event that payment in U.S. dollars of the full amount payable on this Note
at the offices of all Paying Agents would be illegal or effectively precluded
as a result of exchange controls or similar restrictions, payment on this Note
will be made by a paying agency in the United States, if such paying agency,
under applicable law and regulations, would be able to make such payment. If
this Note is denominated in a Specified Currency other than U.S. dollars, then,
except as provided on the reverse hereof, payment of the principal of and
premium, if any, and interest on this Note will be made in such Specified
Currency either by a check drawn on a bank outside the United States or, at the
option of the payee and subject to applicable laws and regulations and the
procedures of the Paying Agent, by wire transfer of immediately available funds
to an account maintained by the payee with a bank located outside the United
States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
---------------------------------
Authorized Officer
4
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, the "Senior Indenture"), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered. The
Issuer has appointed The Chase Manhattan Bank, London Branch, as its principal
paying agent for the Notes (the "Principal Paying Agent," which term includes
any additional or successor Principal Paying Agent appointed by the Issuer).
The terms of individual Notes may vary with respect to interest rates, interest
rate formulas, issue dates, maturity dates, or otherwise, all as provided in
the Senior Indenture. To the extent not inconsistent herewith, the terms of the
Senior Indenture are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents
that it is not an authorized institution (for purposes of the United Kingdom
Banking Act 1987) nor a European authorized institution as defined by
Regulation 3 of the Banking Co-ordination (Second Council Directive)
Regulations 1992 and repayment of the principal of, and payment of any interest
or premium on, this Note has not been guaranteed, that it has complied with its
obligations under the listing rules of the London Stock Exchange Limited (the
"Rules") and that, since the last publication in compliance with the Rules of
information about it, it, having made all reasonable inquiries, has not become
aware of any change in circumstances which could reasonably be regarded as
significantly and adversely affecting its ability to meet its obligations in
respect of the Notes as they fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, will not be redeemable or subject to repayment at the option
of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as indicated below). If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage indicated on the face
hereof will be reduced on each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction specified on the face hereof until
the redemption price of this Note is 100% of the principal amount hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as provided below). Notice of redemption shall be mailed to the holders
of the Notes designated for redemption who have filed their names and addresses
with the Principal Paying Agent, not less than 30 nor more than 60 days prior
to the date fixed for redemption or within the Redemption Notice Period
specified on the face hereof, subject to all the conditions and provisions of
the Senior
5
<PAGE>
Indenture. Notice of redemption to all others holders of Notes shall be given
in the manner set forth in "Notices" as defined below, and, if by publication,
shall be given once in each of the three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days prior to the date set
for redemption or within the Redemption Notice Period specified on the face
hereof. In the event of redemption of this Note in part only, the Principal
Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of this Note so redeemed, whereupon the principal amount hereof shall be
reduced for all purposes by the amount so redeemed and noted.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments
of $1,000 or, if this Note is denominated in a Specified Currency other than
U.S. dollars, in increments of 1,000 units of such Specified Currency (provided
that any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Principal
Paying Agent must receive at its office in London, at least 15 but not more
than 30 days prior to the date of repayment, this Note with the form entitled
"Option to Elect Repayment" below duly completed, or a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States, Western Europe or Japan
setting forth the principal amount of the Note, the principal amount of the
Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the Option to Elect Repayment is being
exercised and a guarantee that this Note to be repaid, together with the duly
completed form entitled Option to Elect Repayment, will be received by the
principal paying agent not later than the fifth Business Day (as defined below)
after the date of that telegram, telex, facsimile transmission or letter.
However, the telegram, telex, facsimile transmission or letter shall only be
effective if this Note and an Option to Elect Repayment form duly completed are
received by the Paying Agent by the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter. Exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment of
this Note in part only, the Principal Paying Agent shall cause Schedule A of
this Note to be endorsed to reflect the reduction of its principal amount by an
amount equal to the aggregate principal amount of this Note so repaid,
whereupon the principal amount hereof shall be reduced for all purposes by the
amount so repaid and noted.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or
6
<PAGE>
on the Maturity Date (or any redemption or repayment date), and no interest on
such payment shall accrue for the period from and after the Interest Payment
Date or the Maturity Date (or any redemption or repayment date) to such next
succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured
and unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without interest
coupons attached (a "Global Bearer Note"). The beneficial owner of all or a
portion of this Note may exchange its interest in this Note upon not less than
30 days' written notice to the Principal Paying Agent through the relevant
clearing system, in whole, for Notes in bearer form with interest coupons, if
any, attached (the "Definitive Bearer Notes," and, together with the Global
Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this Note,
at the beneficial owner's option, in whole or from time to time in part, for
Notes in fully registered form without coupons (the "Registered Notes"), in
each case, in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of 1,000 units of the
Specified Currency set forth on the face hereof. Interests in this Note shall
also be exchanged by the Issuer in whole, but not in part, for Definitive
Bearer Notes, which shall be serially numbered, with coupons, if any, attached
(or, if indicated on the face of this Note, at the beneficial owner's option,
for Registered Notes), of any authorized denominations if (i) this Note is
accelerated following an Event of Default or (ii) either Euroclear or Cedelbank
or any other relevant clearing system is closed for business for a continuous
period of fourteen days (other than by reason of public holidays) or announces
an intention to cease business permanently or in fact does so. The Issuer shall
give notice to the Principal Paying Agent promptly following any such
acceleration or upon learning of any such closure. Any exchanges referred to
above shall be made at the office of the Principal Paying Agent, or, in the
case of Registered Notes, at the office of the transfer agent for the
Registered Notes in London, which transfer agent will initially be The Chase
Manhattan Bank, London Branch, upon compliance with any procedures set forth
in, or established pursuant to, the Senior Indenture; provided, however, that
the Issuer shall not be required (i) to exchange this Note for a period of
fifteen calendar days preceding the first publication or other transmission, if
applicable, of a notice of redemption of all or any portion hereof or (ii) to
exchange any portion of this Note selected for redemption or surrendered for
optional repayment, except that such portion of this Note may be exchanged for
a Registered Note of like tenor; provided that such Registered Note shall be
simultaneously surrendered for redemption or repayment, as the case may be; and
provided, further, that if a Registered Note is issued in exchange for any
portion of this Note after the close of business at the office of the Principal
Paying Agent on any record date (whether or not a Business Day) for the payment
of interest on such Registered Note and before the opening of business at such
office on the relevant Interest Payment Date, any interest will not be payable
on such Interest Payment Date in respect of such Registered Note, but will be
payable on such Interest Payment Date only to the holder of this Note. Upon
exchange of this Note in whole for a Definitive Bearer Note or Definitive
Bearer Notes, or in whole or in part for a Registered Note or Registered Notes,
the Principal Paying Agent shall cause Schedule A of this Note to be endorsed
to reflect the reduction of the principal amount hereof by an amount equal to
the aggregate principal amount of such Definitive Bearer Note or
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Definitive Bearer Notes, or such Registered Note or Registered Notes, whereupon
the principal amount hereof shall be reduced for all purposes by the amount so
exchanged and noted. All such exchanges of Notes will be free of service
charge, but the Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith. The date of any
Note delivered upon any exchange of this Note shall be such that no gain or
loss of interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged
for Definitive Bearer Notes in accordance with the procedures set forth in the
following two sentences as soon as practicable after (i) the first beneficial
owner of an interest in this Note exchanges its interest for a Definitive
Bearer Note, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or Cedelbank or any other
relevant clearing system is closed for business for a continuous period of
fourteen days (other than by reason of public holidays) or announces an
intention to cease business permanently or in fact does so. In the event of any
exchange of interests in this Note for a Definitive Bearer Note, a common
depositary located outside the United States (the "common depositary") holding
this Note for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System (the "Euroclear Operator"), Clearstream
Banking, societe anonyme ("Clearstream, Luxembourg"), and/or any other relevant
clearing system (including Societe Interprofessionelle pour la Compensation des
Valeurs Mobilieres ("SICOVAM")) shall instruct the Principal Paying Agent
regarding the aggregate principal amount of Definitive Bearer Notes and the
denominations of such Definitive Bearer Notes that must be authenticated and
delivered to each relevant clearing system in exchange for this Note.
Thereafter, the Principal Paying Agent, acting solely in reliance on such
instructions, shall, upon surrender to it of this Note and subject to the
conditions in the preceding paragraph, authenticate and deliver Definitive
Bearer Notes in exchange for this Note in accordance with such instructions and
shall cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount of
this Note. Nothing in this paragraph shall prevent the further exchange of
Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that this
Note may be transferred only to a common depositary outside the United States
for the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant
clearing system or to a nominee of such a depositary.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, the Issuer in its discretion may execute a new Note
of like tenor in exchange for this Note, but, in the case of any destroyed or
lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee
and the Issuer that this Note was destroyed or lost or stolen and, if required,
upon receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
8
<PAGE>
If the face hereof indicates that this Note is subject to "Modified
Payment upon Acceleration or Redemption," then (i) if the principal hereof is
declared to be due and payable as described in the preceding paragraph, the
amount of principal due and payable with respect to this Note shall be limited
to the aggregate principal amount hereof multiplied by the sum of the Issue
Price specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of declaration, which amortization shall be calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
prior to the acceleration of payment of this Note, the principal amount hereof
shall equal the amount that would be due and payable hereon, calculated as set
forth in clause (i) above, if this Note were declared to be due and payable on
the date of any such vote and (iii) for the purpose of any vote of
securityholders taken pursuant to the Senior Indenture following the
acceleration of payment of this Note, the principal amount hereof shall equal
the amount of principal due and payable with respect to this Note, calculated
as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the Issuer at
any time prior to maturity, upon the giving of a notice of redemption as
described below, at a redemption price equal to 100% of the principal amount
hereof, together with accrued interest to the date fixed for redemption (except
that if this Note is subject to "Modified Payment upon Acceleration or
Redemption," such redemption price would be limited to the aggregate principal
amount hereof multiplied by the sum of the Issue Price specified on the face
hereof (expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the date of
redemption, which amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of redemption) (the "Amortized Amount")), if the Issuer determines
that, as a result of any change in or amendment to the laws (or any regulations
or rulings promulgated thereunder) of the United States or of any political
subdivision or taxing authority thereof or therein affecting taxation, or any
change in official position regarding the application or interpretation of such
laws, regulations or rulings, which change or amendment becomes effective on or
after the Original Issue Date hereof, the Issuer has or will become obligated
to pay Additional Amounts (as defined below) with respect to this Note as
described below. Prior to the giving of any Notice of redemption pursuant to
this paragraph, the Issuer shall deliver to the Trustee (i) a certificate
stating that the Issuer is entitled to effect such redemption and setting forth
a statement of facts showing that the conditions precedent to the right of the
Issuer to so redeem have occurred, and (ii) an opinion of independent counsel
satisfactory to the Trustee to such effect based on such statement of facts;
provided that no such notice of redemption shall be given earlier than 60 days
prior to the earliest date on which the Issuer would be obligated to pay such
Additional Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on face hereof, which date and the applicable redemption price
will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United
States by the Issuer or any Paying Agent of principal, premium or interest due
in respect of this Note would, under any
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<PAGE>
present or future laws or regulations of the United States, be subject to any
certification, identification or other information reporting requirement of any
kind, the effect of which is the disclosure to the Issuer, any Paying Agent or
any governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined below)
(other than such a requirement (a) that would not be applicable to a payment
made by the Issuer or any Paying Agent (i) directly to the beneficial owner or
(ii) to a custodian, nominee or other agent of the beneficial owner, or (b)
that can be satisfied by such custodian, nominee or other agent certifying to
the effect that such beneficial owner is a United States Alien; provided that
in each case referred to in clauses (a)(ii) and (b) payment by such custodian,
nominee or agent to such beneficial owner is not otherwise subject to any such
requirement), the Issuer shall redeem this Note, as a whole, at a redemption
price equal to 100% of the principal amount thereof (except that if this Note
is subject to "Modified Payment upon Acceleration or Redemption," such
redemption price would be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
Amortized Amount), together with accrued interest to the date fixed for
redemption, or, at the election of the Issuer if the conditions of the next
succeeding paragraph are satisfied, pay the additional amounts specified in
such paragraph. The Issuer shall make such determination and election as soon
as practicable, shall promptly notify the Trustee thereof and shall publish (or
transmit, as applicable) prompt notice thereof (the "Determination Notice")
stating the effective date of such certification, identification or other
information reporting requirements, whether the Issuer will redeem this Note or
has elected to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of this
Note must take place, as provided in the next succeeding sentence. If the
Issuer redeems this Note, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Issuer shall elect by notice to the Trustee at least 60 days prior to the date
fixed for redemption or at least 30 days prior to the last day of the
Redemption Notice Period specified on the face hereof. Notice of such
redemption of this Note will be given to the holder of this Note not more than
60 nor less than 30 days prior to the date fixed for redemption or within the
Redemption Notice Period specified on the face hereof. Such redemption notice
shall include a statement as to the last date by which this Note to be redeemed
may be exchanged for Registered Notes. Notwithstanding the foregoing, the
Issuer shall not so redeem this Note if the Issuer shall subsequently
determine, not less than 30 days prior to the date fixed for redemption or
prior to the last day of the Redemption Notice Period specified on the face
hereof, that subsequent payments would not be subject to any such
certification, identification or other information reporting requirement, in
which case the Issuer shall publish (or transmit, as applicable) prompt notice
of such determination and any earlier redemption notice shall be revoked and of
no further effect. The right of the holder of this Note to exchange this Note
for Registered Notes pursuant to the provisions of this paragraph will
terminate at the close of business of the Principal Paying Agent on the
fifteenth day prior to the date fixed for redemption, and no further exchanges
of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph would
be fully satisfied by payment of a backup withholding tax or similar charge,
the Issuer may elect by notice to the Trustee to pay as additional amounts such
amounts as may be necessary so that every net payment made outside the United
States following the effective date of such requirements by the Issuer or any
Paying Agent of principal, premium or
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interest due in respect of this Note of which the beneficial owner is a United
States Alien (but without any requirement that the nationality, residence or
identity of such beneficial owner be disclosed to the Issuer, any Paying Agent
or any governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this Note
as a whole at any time pursuant to the applicable provisions of the immediately
preceding paragraph and the redemption price of this Note will not be reduced
for applicable withholding taxes. If the Issuer elects to pay additional
amounts pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Issuer will
redeem this Note as a whole, pursuant to the applicable provisions of the
immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set
forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
that every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount provided
for in this Note to be then due and payable. The Issuer will not, however, be
required to make any payment of Additional Amounts to any such holder for or on
account of:
(a) any such tax, assessment or other governmental charge that would
not have been so imposed but for (i) the existence of any present or
former connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of such holder, if such holder is an
estate, a trust, a partnership or a corporation) and the United States and
its possessions, including, without limitation, such holder (or such
fiduciary, settlor, beneficiary, member or shareholder) being or having
been a citizen or resident thereof or being or having been engaged in a
trade or business or present therein or having, or having had, a permanent
establishment therein or (ii) the presentation by the holder of this Note
for payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
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(d) any tax, assessment or other governmental charge that is payable
otherwise than by withholding from payments on or in respect of this Note;
(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of principal of, or interest
on, this Note, if such payment can be made without such withholding by any
other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would not
have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identity of the holder or beneficial owner of this Note, if
such compliance is required by statute or by regulation of the United
States or of any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax, assessment
or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of
all classes of stock entitled to vote of the Issuer or as a direct or
indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts had
such beneficiary, settlor, member or beneficial owner been the holder of this
Note.
The Senior Indenture provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of,
premium, if any, or interest on, any series of debt securities issued under the
Senior Indenture, including the series of Senior Global Medium-Term Notes of
which this Note forms a part, or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt securities
issued under the Senior Indenture, shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the debt securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and interest
accrued thereon to be due and payable immediately and (b) if an Event of
Default due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events of
bankruptcy or insolvency of the Issuer, shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
all debt securities issued under the Senior Indenture then outstanding (treated
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as one class) may declare the principal of all such debt securities and
interest accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be waived
(except a continuing default in payment of principal (or premium, if any) or
interest on such debt securities) by the holders of a majority in principal
amount of the debt securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee
may not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or modify or
amend the provisions for conversion of any currency into any other currency, or
modify or amend the provisions for conversion or exchange of the debt security
for securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms thereof), or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected; or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date provided, however, that if the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue of,
the treaty establishing the European Community (the "EC"), as amended by the
treaty on European Union (as so amended, the "Treaty"). Any payment made under
such circumstances in U.S. dollars or euro where the required payment is in an
unavailable Specified Currency will not constitute an Event of Default. If such
Market Exchange Rate is not then available to the Issuer or is not published
for a particular Specified Currency, the Market Exchange Rate will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent (as defined below) at approximately 11:00 a.m., New York City time, on
the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase
by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
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settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless the
Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are
not available, the Exchange Rate Agent shall determine the market exchange rate
at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided. If this Note is listed on
the London Stock Exchange Limited and such Exchange so requires, the Issuer
shall maintain a Paying Agent in London. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places outside the United States (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations of
such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease, without, however,
limiting in any way any obligation that the Issuer may have to pay the
principal of or interest or premium, if any, on this Note as the same shall
become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder of this Note as the owner hereof for all purposes, whether or
not this Note be overdue, and none of the Issuer, the Trustee or any such agent
shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder,
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officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a Saturday or
Sunday, (a) that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close (x)
in The City of New York or in The City of London or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (z) if this Note is denominated in Australian
dollars, in Sydney and (b) if this Note is denominated in euro, that is
also a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar buying
rate in The City of New York for cable transfers of the Specified Currency
indicated on the face hereof published by the Federal Reserve Bank of New
York;
(c) the term "Notices" refers to notices to the holders of the Notes
to be given by publication in an authorized newspaper in the English
language and of general circulation in the Borough of Manhattan, The City
of New York, and London or, if publication in London is not practical, in
an English language newspaper with general circulation in Western Europe;
provided that notice may be made, at the option of the Issuer, through the
customary notice provisions of the clearing system or systems through
which beneficial interests in this Note are owned. Such Notices will be
deemed to have been given on the date of such publication (or other
transmission, as applicable) or, if published in such newspapers on
different dates, on the date of the first such publication;
(d) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for United
States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of
which is a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
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All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid: ;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the holder for
the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
_________________.
Dated:
----------------------------------- -----------------------------------
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[SCHEDULE A7]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is . The following (A)
exchanges of (i) portions of this Note for Definitive Bearer Notes or
Registered Notes and (ii) portions of a Temporary Global Bearer Note for an
interest in this Note or (B) (x) redemptions at the option of the Issuer or (y)
repayments at the option of the holder have been made:
Principal Amount Principal Amount Principal Amount
Date of Exchange, Exchanged Exchanged For Exchanged for
Redemption or From Temporary Definitive Definitive
Payment Global Notes Bearer Notes Registered Notes
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<PAGE>
Remaining Principal
Amount Outstanding
Principal Amount Principal Amount Following Such
Redeemed at the Repaid at the Exchange, Notation Made by
Option of the Option of the Redemption or or on Behalf of
Issuer Holder Repayment Paying Agent
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7Applies if this Note is not issued as part of, or in relation to, a Unit.
<PAGE>
[SCHEDULE A-1]8
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")]9, (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")]10 for an interest in this Note and (C) reductions of the principal
amount of this Note as a result of (i) cancellation upon the application of
such amount to the settlement of Purchase Contracts or the exercise of
Universal Warrants (ii) redemption at the option of the Issuer or (iii)
repayments at the option of the Holder have been made:
Principal Principal
Date of Amount [Principal [Principal Amount
Exchange, Exchanged Amount Amount Exchanged
Cancellation From Exchanged Exchanged For
Redemption, Temporary from an for Definitive
or Global Attached Separated Bearer
Repayment Notes Unit Note]10 Note]9 Notes
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<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Remaining
Principal
Principal Amount
Amount Principal Principal Outstanding Notation
Exchanged Amount Amount Following such Made by
For Redeemed Repaid Exchange, or on
Definitive at the at the Principal Cancellation behalf of
Registered option of option of Amount Redemption or Paying
Notes the Issuer the Holder Cancelled Repayment Agent
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</TABLE>
- --------
8 This Schedule A-1 needed only if this Note is issued as part of, or
in relation to, a Unit.
9 Applies only if this Note is attached to a Unit.
10 Applies only if this Note has been separated from a Unit.
EXHIBIT 4-q
[FORM OF FACE OF SECURITY]
Euro Fixed Rate Senior Bearer Note
BEARER BEARER
No. EFXRB [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
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.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR MEDIUM-TERM NOTE, SERIES [D/E] (Fixed Rate)
<TABLE>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE(S): MENT DATE(S):
ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA-
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CLEARSTREAM NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERATION
OR REDEMPTION
EXCHANGE FOR COMMON CODE: If yes, state issue Price:
REGISTERED NOTES:
[NO]4
OTHER PROVISIONS: ORIGINAL YIELD TO ISIN: ORIGINAL YIELD TO
MATURITY: MATURITY:
</TABLE>
Morgan Stanley Dean Witter & Co., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the principal sum of , on the
Maturity Date specified above (except to the extent previously redeemed or
repaid) and to pay interest thereon to the bearer of the coupons, if any,
appertaining hereto (the "Coupons") as they severally mature, at the Interest
Rate per annum specified above from and including the Interest Accrual Date
specified above until but excluding the date the principal amount is paid or
duly made available for payment (except as provided below) weekly, monthly,
quarterly, semi-annually or annually in arrears on the Interest Payment Dates
specified above in each year commencing on the Interest Payment Date next
succeeding the Interest Accrual Date specified above, and at maturity (or on
any redemption or repayment date); provided, however, that if the Interest
Accrual Date occurs fifteen days or less prior to the first Interest Payment
Date occurring after the Interest Accrual Date, interest payments will commence
on the second Interest Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10 days may be
possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has
been to exclude this option.
2
<PAGE>
certain exceptions described herein, be paid to the holder of the appropriate
Coupon upon presentment and surrender at the office of a Paying Agent referred
to in the next succeeding paragraph.
Payment of the principal of this Note, any premium and the interest
due at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note and any Coupons (and, in the case of
redemption or repayment, any Coupon yet unmatured) at the office or agency of
the Principal Paying Agent, as defined on the reverse hereof, or at the office
or agency of such paying agents listed on the reverse of each Coupon or at the
office or agency of such other paying agents outside the United States (this
and certain other capitalized terms used herein are defined on the reverse of
this Note) as the Issuer may determine for that purpose (each, a "Paying
Agent," which term shall include the Principal Paying Agent).
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as provided
on the reverse hereof. If this Note is denominated in U.S. dollars, any payment
of the principal of, premium, if any, and interest on this Note will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Such payments on this
Note will be made either by a check mailed to an address outside the United
States furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with a bank located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent not less than 15 calendar
days prior to the applicable payment date. Notwithstanding the foregoing, in
the event that payment in U.S. dollars of the full amount payable on this Note
at the offices of all Paying Agents would be illegal or effectively precluded
as a result of exchange controls or similar restrictions, payment on this Note
will be made by a paying agency in the Borough of Manhattan, The City of New
York, if such paying agency, under applicable law and regulations, would be
able to make such payment. If this Note is denominated in a Specified Currency
other than U.S. dollars, then, except as provided on the reverse hereof,
payment of the principal of and premium, if any, and interest on this Note will
be made in such Specified Currency either by a check drawn on a bank outside
the United States or, at the option of the payee and subject to applicable laws
and regulations and the procedures of the Paying Agent, by wire transfer of
immediately available funds to an account maintained by the payee with a bank
located outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
---------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Authorized Officer
4
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, the "Senior Indenture"), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes or Coupons and
the terms upon which the Notes are, and are to be, authenticated and delivered.
The Issuer has appointed The Chase Manhattan Bank, London Branch, as its
principal paying agent for the Notes and the Coupons (the "Principal Paying
Agent," which term includes any additional or successor Principal Paying Agent
appointed by the Issuer). The terms of individual Notes may vary with respect
to interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Senior Indenture. To the extent not
inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents
that it is not an authorized institution (for purposes of the United Kingdom
Banking Act 1987) nor a European authorized institution as defined by
Regulation 3 of the Banking Co-ordination (Second Council Directive)
Regulations 1992 and repayment of the principal of, and payment of any interest
or premium on, this Note has not been guaranteed, that it has complied with its
obligations under the listing rules of the London Stock Exchange Limited (the
"Rules") and that, since the last publication in compliance with the Rules of
information about it, it, having made all reasonable inquiries, has not become
aware of any change in circumstances which could reasonably be regarded as
significantly and adversely affecting its ability to meet its obligations in
respect of the Notes as they fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, will not be redeemable or subject to repayment at the option
of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as indicated below). If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage indicated on the face
hereof will be reduced on each anniversary of the Initial Redemption Date by
the Annual Redemption Percentage Reduction specified on the face hereof until
the redemption price of this Note is 100% of the principal amount hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as provided below). Notice of redemption shall be mailed to the holders
of the Notes designated for redemption who have filed their names and addresses
with the Principal Paying Agent, not less than 30 nor more than 60 days prior
to the date fixed for redemption or within the Redemption Notice
5
<PAGE>
Period specified on the face hereof, subject to all the conditions and
provisions of the Senior Indenture. Notice of redemption to holders of Notes
shall be published in the manner set forth in "Notices" as defined below, and,
if by publication shall be given once in each of the three successive calendar
weeks, the first publication to be not less than 30 nor more than 60 days prior
to the date set for redemption or within the Redemption Notice Period specified
on the face hereof. In the event of redemption of this Note in part only, a new
Note or Notes for the amount of the unredeemed portion hereof shall be issued
upon the cancellation hereof. If redeemed prior to maturity, this Note must be
presented for payment together with all unmatured Coupons, if any, appertaining
hereto, failing which the amount of any missing unmatured Coupon will be
deducted from the sum due for payment; provided, however, that such deduction
may be waived by the Issuer and the Principal Paying Agent if there is
furnished to each of them such security or indemnity as they may require.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments
of $1,000 or, if this Note is denominated in a Specified Currency other than
U.S. dollars, in increments of 1,000 units of such Specified Currency (provided
that any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Principal
Paying Agent must receive at its office in London, at least 15 but not more
than 30 days prior to the date of repayment, this Note with the form entitled
"Option to Elect Repayment" below duly completed, or a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States, Western Europe or Japan
setting forth the principal amount of the Note, the principal amount of the
Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the Option to Elect Repayment is being
exercised and a guarantee that this Note to be repaid, together with the duly
completed form entitled Option to Elect Repayment, will be received by the
principal paying agent not later than the fifth Business Day (as defined below)
after the date of that telegram, telex, facsimile transmission or letter.
However, the telegram, telex, facsimile transmission or letter shall only be
effective if this Note and an Option to Elect Repayment form duly completed are
received by the Paying Agent by the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter. Exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment of
this Note in part only, a new Note or Notes for the amount of the unpaid
portion hereof shall be issued upon the cancellation hereof.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next
6
<PAGE>
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or on the Maturity Date (or any redemption or repayment
date), and no interest on such payment shall accrue for the period from and
after the Interest Payment Date or the Maturity Date (or any redemption or
repayment date) to such next succeeding Business Day.
This Note and the Coupons and all the obligations of the Issuer
hereunder are direct, unsecured obligations of the Issuer and rank without
preference or priority among themselves and pari passu with all other existing
and future unsecured and unsubordinated indebtedness of the Issuer, subject to
certain statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in definitive bearer form with Coupons attached (a
"Definitive Bearer Note") and is issuable only in the minimum denominations set
forth on the face hereof or any amount in excess thereof which is an integral
multiple of 1,000 units of the Specified Currency set forth on the face hereof.
This Note and the Coupons may be transferred by delivery. At the
option of the holder of this Note, and subject to the terms of the Senior
Indenture, this Note (with all unmatured Coupons, and all matured Coupons, if
any, in default) will be exchanged for a Registered Note of any authorized
denomination of like tenor and in an equal aggregate principal amount, in
accordance with the provisions of the Senior Indenture, at the office of the
Trustee in The City of New York (which initially has been appointed registrar
and transfer agent for the Notes) or at the office of the Principal Paying
Agent in London (which initially has been appointed transfer agent for the
Notes), or at the office of any transfer agent designated by the Issuer for
such purpose. If this Note is surrendered in exchange for a Registered Note
after the close of business at any such office on any record date (whether or
not a Business Day) for the payment of interest on such Registered Note and
before the opening of business at such office on the relevant Interest Payment
Date, this Note shall be surrendered without the Coupon relating to such
Interest Payment Date. All such exchanges of Notes and Coupons will be free of
service charge, but the Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
None of the Issuer, the Trustee or any agent of the Issuer or the
Trustee shall be required to exchange this Note for a Registered Note if such
exchange would result in adverse United States Federal income tax consequences
to the Issuer under then applicable United States federal income tax laws.
The Issuer will not be required (i) to exchange any Bearer Note to be
redeemed for a period of fifteen calendar days preceding the first publication
or other transmission, if applicable, of the relevant notice of redemption or
(ii) to exchange any Bearer Note selected for redemption or surrendered for
optional repayment, except that such Bearer Note may be exchanged for a
Registered Note of like tenor; provided that such Registered Note shall be
simultaneously surrendered for redemption or repayment, as the case may be.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or Coupon or evidence of the loss,
theft or destruction thereof (together with the indemnity hereinafter referred
to and such other documents or proof as may be required in the
7
<PAGE>
premises) shall be delivered to the Trustee, the Issuer in its discretion may
execute a new Note of like tenor, with Coupons corresponding to the Coupons
appertaining to the Note so mutilated, defaced, destroyed, lost or stolen or to
the Note to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, in exchange for this Note, but, in the case of any destroyed, lost
or stolen Note or Coupon, only upon receipt of evidence satisfactory to the
Trustee and the Issuer that this Note or Coupon was destroyed, lost or stolen
and, if required, upon receipt also of indemnity satisfactory to each of them.
All expenses and reasonable charges associated with procuring such indemnity
and with the preparation, authentication and delivery of a new Note and
Coupons, if any, shall be borne by the owner of the Note or Coupon mutilated,
defaced, destroyed, lost or stolen.
If the face hereof indicates that this Note is subject to "Modified
Payment upon Acceleration or Redemption," then (i) if the principal hereof is
declared to be due and payable as described in the preceding paragraph, the
amount of principal due and payable with respect to this Note shall be limited
to the aggregate principal amount hereof multiplied by the sum of the Issue
Price specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of declaration, which amortization shall be calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
prior to the acceleration of payment of this Note, the principal amount hereof
shall equal the amount that would be due and payable hereon, calculated as set
forth in clause (i) above, if this Note were declared to be due and payable on
the date of any such vote and (iii) for the purpose of any vote of
securityholders taken pursuant to the Senior Indenture following the
acceleration of payment of this Note, the principal amount hereof shall equal
the amount of principal due and payable with respect to this Note, calculated
as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the Issuer at
any time prior to maturity, upon the giving of a notice of redemption as
described below, at a redemption price equal to 100% of the principal amount
hereof, together with accrued interest to the date fixed for redemption (except
that if this Note is subject to "Modified Payment upon Acceleration or
Redemption," such redemption price would be limited to the aggregate principal
amount hereof multiplied by the sum of the Issue Price specified on the face
hereof (expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the date of
redemption, which amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of redemption) (the "Amortized Amount")), if the Issuer determines
that, as a result of any change in or amendment to the laws (or any regulations
or rulings promulgated thereunder) of the United States or of any political
subdivision or taxing authority thereof or therein affecting taxation, or any
change in official position regarding the application or interpretation of such
laws, regulations or rulings, which change or amendment becomes effective on or
after the Original Issue Date hereof, the Issuer has or will become obligated
to pay Additional Amounts (as defined below) with respect to this Note as
described below. Prior to the giving of any Notice of redemption pursuant to
this paragraph, the Issuer shall deliver to the Trustee (i) a certificate
stating that the Issuer is entitled to effect such redemption and setting forth
a statement of facts showing that the conditions precedent to the right of the
Issuer to so redeem have occurred, and (ii) an opinion of independent counsel
satisfactory to
8
<PAGE>
the Trustee to such effect based on such statement of facts; provided that no
such notice of redemption shall be given earlier than 60 days prior to the
earliest date on which the Issuer would be obligated to pay such Additional
Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, which date and the applicable redemption
price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United
States by the Issuer or any Paying Agent of principal, premium or interest due
in respect of this Note or any Coupon would, under any present or future laws
or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note or any Coupon who is a United States Alien (as
defined below) (other than such a requirement (a) that would not be applicable
to a payment made by the Issuer or any Paying Agent (i) directly to the
beneficial owner or (ii) to a custodian, nominee or other agent of the
beneficial owner, or (b) that can be satisfied by such custodian, nominee or
other agent certifying to the effect that such beneficial owner is a United
States Alien; provided that in each case referred to in clauses (a)(ii) and (b)
payment by such custodian, nominee or agent to such beneficial owner is not
otherwise subject to any such requirement), the Issuer shall redeem this Note,
as a whole, at a redemption price equal to 100% of the principal amount thereof
(except that if this Note is subject to "Modified Payment upon Acceleration or
Redemption," such redemption price would be limited to the aggregate principal
amount hereof multiplied by the sum of the Issue Price specified on the face
hereof (expressed as a percentage of the aggregate principal amount) plus the
Amortized Amount), together with accrued interest to the date fixed for
redemption, or, at the election of the Issuer if the conditions of the next
succeeding paragraph are satisfied, pay the additional amounts specified in
such paragraph. The Issuer shall make such determination and election as soon
as practicable, shall promptly notify the Trustee thereof and shall publish (or
transmit, as applicable) prompt notice thereof (the "Determination Notice")
stating the effective date of such certification, identification or other
information reporting requirements, whether the Issuer will redeem this Note or
has elected to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of this
Note must take place, as provided in the next succeeding sentence. If the
Issuer redeems this Note, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Issuer shall elect by notice to the Trustee at least 60 days prior to the date
fixed for redemption or at least 30 days prior to the last day of the
Redemption Notice Period specified on the face hereof. Notice of such
redemption of this Note will be given to the holder of this Note not more than
60 nor less than 30 days prior to the date fixed for redemption or within the
Redemption Notice Period specified on the face hereof. Such redemption notice
shall include a statement as to the last date by which this Note to be redeemed
may be exchanged for Registered Notice Period. Notwithstanding the foregoing,
the Issuer shall not so redeem this Note if the Issuer shall subsequently
determine, not less than 30 days prior to the date fixed for redemption or
prior to the last day of the Redemption Note Period specified on the face
hereof, that subsequent payments would not be subject to any such
certification, identification or other information reporting requirement, in
which case the Issuer shall publish (or transmit, as
9
<PAGE>
applicable) prompt notice of such determination and any earlier redemption
notice shall be revoked and of no further effect. The right of the holder of
this Note to exchange this Note for Registered Notes pursuant to the provisions
of this paragraph will terminate at the close of business of the Principal
Paying Agent on the fifteenth day prior to the date fixed for redemption, and
no further exchanges of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph would
be fully satisfied by payment of a backup withholding tax or similar charge,
the Issuer may elect by notice to the Trustee to pay as additional amounts such
amounts as may be necessary so that every net payment made outside the United
States following the effective date of such requirements by the Issuer or any
Paying Agent of principal, premium or interest due in respect of this Note or
any Coupon of which the beneficial owner is a United States Alien (but without
any requirement that the nationality, residence or identity of such beneficial
owner be disclosed to the Issuer, any Paying Agent or any governmental
authority, with respect to the payment of such additional amounts), after
deduction or withholding for or on account of such backup withholding tax or
similar charge (other than a backup withholding tax or similar charge that (i)
would not be applicable in the circumstances referred to in the second
parenthetical clause of the first sentence of the preceding paragraph, or (ii)
is imposed as a result of presentation of this Note or Coupon for payment more
than 15 days after the date on which such payment becomes due and payable or on
which payment thereof is duly provided for, whichever occurs later), will not
be less than the amount provided for in this Note or any Coupon to be then due
and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this Note
as a whole at any time pursuant to the applicable provisions of the immediately
preceding paragraph and the redemption price of this Note will not be reduced
for applicable withholding taxes. If the Issuer elects to pay additional
amounts pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Issuer will
redeem this Note as a whole, pursuant to the applicable provisions of the
immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set
forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note or any Coupon who is a United States Alien as may be
necessary in order that every net payment of the principal of and interest on
this Note and any other amounts payable on this Note, after withholding for or
on account of any present or future tax, assessment or governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be less
than the amount provided for in this Note or any Coupon to be then due and
payable. The Issuer will not, however, be required to make any payment of
Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge that would
not have been so imposed but for (i) the existence of any present or
former connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of such holder, if such holder is an
estate, a trust, a partnership or a corporation) and the United States and
its possessions, including, without limitation, such holder (or such
fiduciary, settlor, beneficiary, member or shareholder) being or having
been a citizen or resident thereof or
10
<PAGE>
being or having been engaged in a trade or business or present therein or
having, or having had, a permanent establishment therein or (ii) the
presentation by the holder of this Note or Coupon, if any, for payment on
a date more than 15 days after the date on which such payment became due
and payable or the date on which payment thereof is duly provided for,
whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is payable
otherwise than by withholding from payments on or in respect of this Note
or any Coupon;
(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of principal of, or interest
on, this Note, if such payment can be made without such withholding by any
other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would not
have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identity of the holder or beneficial owner of this Note or
any Coupon, if such compliance is required by statute or by regulation of
the United States or of any political subdivision or taxing authority
thereof or therein as a precondition to relief or exemption from such tax,
assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of
all classes of stock entitled to vote of the Issuer or as a direct or
indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note
or any Coupon to a United States Alien who is a fiduciary or partnership or
other than the sole beneficial owner of such payment to the extent such payment
would be required by the laws of the United States (or any political
subdivision thereof) to be included in the income, for tax purposes, of a
beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to the
Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder of this Note or any Coupon.
11
<PAGE>
The Senior Indenture provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of,
premium, if any, or interest on, any series of debt securities issued under the
Senior Indenture, including the series of Senior Global Medium-Term Notes of
which this Note forms a part, or due to the default in the performance or
breach of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt securities
issued under the Senior Indenture, shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the debt securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and interest
accrued thereon to be due and payable immediately and (b) if an Event of
Default due to a default in the performance of any other of the covenants or
agreements in the Senior Indenture applicable to all outstanding debt
securities issued thereunder, including this Note, or due to certain events of
bankruptcy or insolvency of the Issuer, shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
all debt securities issued under the Senior Indenture then outstanding (treated
as one class) may declare the principal of all such debt securities and
interest accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be waived
(except a continuing default in payment of principal (or premium, if any) or
interest on such debt securities) by the holders of a majority in principal
amount of the debt securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee
may not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or modify or
amend the provisions for conversion of any currency into any other currency, or
modify or amend the provisions for conversion or exchange of the debt security
for securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms thereof), or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected; or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note or any Coupon by making such payments in U.S. dollars on the basis of
the Market Exchange Rate (as defined below) on the date of such payment or, if
the Market Exchange
12
<PAGE>
Rate is not available on such date, as of the most recent practicable date;
provided, however, that if the euro has been substituted for such Specified
Currency, the Issuer may at its option (or shall, if so required by applicable
law) without the consent of the holder of this Note effect the payment of
principal of, premium, if any, or interest on, any Note denominated in such
Specified Currency in euro in lieu of such Specified Currency in conformity
with legally applicable measures taken pursuant to, or by virtue of, the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty"). Any payment made under such
circumstances in U.S. dollars or euro where the required payment is in an
unavailable Specified Currency will not constitute an Event of Default. If such
Market Exchange Rate is not then available to the Issuer or is not published
for a particular Specified Currency, the Market Exchange Rate will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent (as defined below) at approximately 11:00 a.m., New York City time, on
the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase
by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent (as
defined below) unless the Exchange Rate Agent is an affiliate of the Issuer. If
those bid quotations are not available, the Exchange Rate Agent shall determine
the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note or any Coupons shall be outstanding, the Issuer
will cause to be maintained an office or agency for the payment of the
principal of and premium, if any, and interest on this Note as herein provided.
The Paying Agents initially designated by the Issuer are listed on the reverse
of each Coupon. If this Note is listed on the London Stock Exchange Limited and
such Exchange so requires, the Issuer shall maintain a Paying Agent in London.
The Issuer may designate other agencies for the payment of said principal,
premium and interest at such place or places outside the United States (subject
to applicable laws and regulations) as the Issuer may decide. So long as there
shall be such an agency, the Issuer shall keep the Trustee advised of the names
and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes or any Coupons that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or
13
<PAGE>
such Paying Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation that the Issuer may have to pay the
principal of or interest or premium, if any, on this Note as the same shall
become due.
No provision of this Note, any Coupon or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the holder of this
Note or any Coupon.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder of this Note or any Coupon as the owner hereof or thereof for
all purposes, whether or not this Note or any Coupon be overdue, and none of
the Issuer, the Trustee or any such agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note for any claim based hereon or on any
Coupon, or otherwise in respect hereof or thereof, or based on or in respect of
the Senior Indenture or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
This Note and the Coupons shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a Saturday or
Sunday, (a) that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close (x)
in The City of New York or in The City of London or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (z) if this Note is denominated in Australian
dollars, in Sydney and (b) if this Note is denominated in euro, that is
also a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar buying
rate in The City of New York for cable transfers of the Specified Currency
indicated on the face hereof published by the Federal Reserve Bank of New
York;
(c) the term "Notices" refers to notices to the holders of the Notes
and any Coupons to be given by publication in an authorized newspaper in
the English language and of general circulation in the Borough of
Manhattan, The City of New York, and London or, if
14
<PAGE>
publication in London is not practical, in an English language newspaper
with general circulation in Western Europe; provided that notice may be
made, at the option of the Issuer, through the customary notice provisions
of the clearing system or systems through which beneficial interests in
this Note are owned. Such Notices will be deemed to have been given on the
date of such publication, or if published in such newspapers on different
dates, on the date of the first such publication;
(d) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for United
States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of
which is a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
All other terms used in this Note and the Coupons which are defined in
the Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
15
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid: ;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the holder for
the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
________________________.
Dated:
---------------------------------- ----------------------------------
16
<PAGE>
[FORM OF COUPON]
SENIOR MEDIUM-TERM NOTE,
SERIES [D/E], NO. _______
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 UNITED STATES INTERNAL REVENUE
CODE.
MORGAN STANLEY DEAN WITTER & CO.
SENIOR MEDIUM-TERM NOTE, SERIES [D/E]
Coupon Number ______5
[Interest Amount due in Specified Currency]
Due _____________________
Unless the Note to which this coupon appertains shall have been
previously redeemed or repaid, MORGAN STANLEY DEAN WITTER & CO. (the "Issuer")
will, on the date set forth herein, pay to bearer, upon surrender hereof at
such agencies in such places outside the United States as the Issuer may
determine from time to time (the "Paying Agents"), interest on the principal
amount of such Note as specified above (together with any additional amounts in
respect thereof which the Issuer may be required to pay according to the terms
of such Note), in such coin or currency as specified above as at the time of
payment shall be legal tender for the payment of public and private debts,
except as specified in such Note. Payment on this coupon shall be made, at the
option of the bearer hereof and subject to any applicable laws and regulations
or procedures of the Paying Agent, by a check mailed to an address outside the
United States furnished by such bearer or by wire transfer to an account
maintained by the payee with a bank located outside the United States, except
as otherwise provided in such Note.
MORGAN STANLEY DEAN WITTER & CO.
By:
-----------------------------------
Title:
- --------
5 The Coupon number, the interest amount due in the specified currency and
due date should appear in the right-hand section of the face of the Coupon.
17
<PAGE>
[REVERSE OF COUPON]
PRINCIPAL PAYING AGENT AND TRANSFER AGENT
The Chase Manhattan Bank
The Chase Manhattan Bank House
180 Strand
London WC2R 1EX
England
18
EXHIBIT 4-r
[FORM OF FACE OF SECURITY]
Euro Fixed Rate Senior Registered Note
REGISTERED REGISTERED
No. EFXRR [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE(S): MENT DATE(S):
SPECIFIED CURRENCY: ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA-
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CLEARSTREAM NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERA-
TION OR
REDEMPTION
COMMON CODE: If yes, state
issue Price:
OTHER PROVISIONS: ISIN: ORIGINAL YIELD TO
MATURITY:
Morgan Stanley Dean Witter & Co., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to __________________, or registered assignees, the principal sum of , on
the Maturity Date specified above (except to the extent previously redeemed or
repaid) and to pay interest thereon at the Interest Rate per annum specified
above from and including the Interest Accrual Date specified above until but
excluding the date the principal amount is paid or duly made available for
payment (except as provided below) weekly, monthly, quarterly, semi-annually or
annually in arrears on the Interest Payment Dates specified above in each year
commencing on the Interest Payment Date next succeeding the Interest Accrual
Date specified above, and at maturity (or on any redemption or repayment date);
provided, however, that if the Interest Accrual Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date to the registered holder of this Note on the Record Date
with respect to such second Interest Payment Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10 days may be
possible.
2
<PAGE>
certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or not
a Business Day (as defined below)) (each such date a "Record Date"); provided,
however, that interest payable at maturity (or on any redemption or repayment
date) will be payable to the person to whom the principal hereof shall be
payable.
Payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Principal Paying Agent, as defined on the reverse hereof, or at such other
paying agency as the Issuer may determine (each, a "Paying Agent," which term
shall include the Principal Paying Agent). Payment of the principal of and
premium, if any, and interest on this Note will be made in the Specified
Currency indicated above; provided, however, that U.S. dollar payments of
interest, other than interest due at maturity or on any date of redemption or
repayment, will be made by U.S. dollar check mailed to the address of the person
entitled thereto as such address shall appear in the Note register. A holder of
U.S. $10,000,000 or more in aggregate principal amount of Notes having the same
Interest Payment Date will be entitled to receive payments of interest, other
than interest due at maturity or on any date of redemption or repayment, by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Principal Paying Agent in writing not
less than 15 calendar days prior to the applicable Interest Payment Date. If
this Note is denominated in a Specified Currency other than U.S. dollars,
payments of interest hereon will be made by wire transfer of immediately
available funds to an account maintained by the holder hereof with a bank
located outside the United States if appropriate wire transfer instructions have
been received by the Principal Paying Agent in writing not less than 15 calendar
days prior to the applicable Interest Payment Date. If such wire transfer
instructions are not so received, such interest payments will be made by check
payable in such Specified Currency mailed to the address of the person entitled
thereto as such address shall appear in the Note register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Senior Indenture, as defined on the
reverse hereof, or be valid or obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
- ------------------------------------
Authorized Officer
4
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global Medium-Term
Notes, Series [D/E], having maturities more than nine months from the date of
issue (the "Notes") of the Issuer. The Notes are issuable under an Amended and
Restated Senior Indenture, dated as of May 1, 1999, between the Issuer and The
Chase Manhattan Bank, as Trustee (the "Trustee," which term includes any
successor trustee under the Senior Indenture) (as may be amended or supplemented
from time to time, the "Senior Indenture"), to which Senior Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities of the Issuer,
the Trustee and holders of the Notes and the terms upon which the Notes are, and
are to be, authenticated and delivered. The Issuer has appointed The Chase
Manhattan Bank acting through its principal corporate trust office in the
Borough of Manhattan, The City of New York, as a paying agent for the Notes in
the United States and The Chase Manhattan Bank, London Branch, at its corporate
trust office in London, as its principal paying agent for the Notes outside the
United States (the "Principal Paying Agent," which term includes any additional
or successor Principal Paying Agent appointed by the Issuer). The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of the
Senior Indenture are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents that
it is not an authorized institution (for purposes of the United Kingdom Banking
Act 1987) nor a European authorized institution as defined by Regulation 3 of
the Banking Co-ordination (Second Council Directive) Regulations 1992 and
repayment of the principal of, and payment of any interest or premium on, this
Note has not been guaranteed, that it has complied with its obligations under
the listing rules of the London Stock Exchange Limited (the "Rules") and that,
since the last publication in compliance with the Rules of information about it,
it, having made all reasonable inquiries, has not become aware of any change in
circumstances which could reasonably be regarded as significantly and adversely
affecting its ability to meet its obligations in respect of the Notes as they
fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole or
in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
indicated below). If this Note is subject to "Annual Redemption Percentage
Reduction," the Initial Redemption Percentage indicated on the face hereof will
be reduced on each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction specified on the face hereof until the
redemption price of this Note is 100% of the principal amount hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
provided below). Notice of redemption shall be mailed to the registered holders
of the Notes
5
<PAGE>
designated for redemption at their addresses as the same shall appear on the
Note register not less than 30 nor more than 60 days prior to the date fixed for
redemption or within the Redemption Notice Period specified on the face hereof,
subject to all the conditions and provisions of the Senior Indenture. In the
event of redemption of this Note in part only, a new Note or Notes for the
amount of the unredeemed portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 or, if this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Principal
Paying Agent must receive at its office in London, at least 15 but not more than
30 days prior to the date of repayment, (i) this Note with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States, Western Europe or Japan setting
forth the name of the holder of this Note, the principal amount hereof, the
certificate number of this Note or a description of this Note's tenor and terms,
the principal amount hereof to be repaid, a statement that the option to elect
repayment is being exercised thereby and a guarantee that this Note, together
with the form entitled "Option to Elect Repayment" duly completed, will be
received by the Principal Paying Agent not later than the fifth Business Day
after the date of such telegram, telex, facsimile transmission or letter;
provided, that such telegram, telex, facsimile transmission or letter shall only
be effective if this Note and form duly completed are received by the Principal
Paying Agent by such fifth Business Day. Unless otherwise indicated on the face
of this Note, exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new Note or
Notes for the amount of the unpaid portion hereof shall be issued in the name of
the holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless indicated otherwise on
the face hereof, interest payments for this Note will be computed and paid on
the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or any
redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or on the
Maturity Date (or any redemption or repayment date), and no interest on such
payment shall accrue for the period from and after the Interest Payment Date or
the Maturity Date (or any redemption or repayment date) to such next succeeding
Business Day.
6
<PAGE>
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange hereof,
is issuable only in fully registered form, without coupons, and is issuable only
in the minimum denominations set forth on the face hereof or any amount in
excess thereof which is an integral multiple of 1,000 units of the Specified
Currency set forth on the face hereof.
The Trustee has been appointed registrar for the Notes, and the Trustee
will maintain at its office in The City of New York, a register for the
registration and transfer of Notes. This Note may be transferred at either the
aforesaid New York office or at the London office of the Trustee by surrendering
this Note for cancellation, accompanied by a written instrument of transfer in
form satisfactory to the Trustee and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing, and
thereupon the Trustee shall issue in the name of the transferee or transferees,
in exchange herefor, a new Note or Notes having identical terms and provisions
and having a like aggregate principal amount in authorized denominations,
subject to the terms and conditions set forth herein; provided, however, that
the Trustee will not be required (i) to register the transfer of or exchange any
Note that has been called for redemption in whole or in part, except the
unredeemed portion of Notes being redeemed in part, (ii) to register the
transfer of or exchange any Note if the holder thereof has exercised his right,
if any, to require the Issuer to repurchase such Note in whole or in part,
except the portion of such Note not required to be repurchased, or (iii) to
register the transfer of or exchange Notes to be redeemed for a period of
fifteen calendar days preceding the mailing of the relevant notice of
redemption. Notes are exchangeable at said offices for other Notes of other
authorized denominations of equal aggregate principal amount having identical
terms and provisions. All such registrations, exchanges and transfers of Notes
will be free of service charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results from
such exchange or transfer.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, the Issuer in its discretion may execute a new Note of
like tenor in exchange for this Note, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that this Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
7
<PAGE>
If the face hereof indicates that this Note is subject to "Modified Payment
upon Acceleration or Redemption," then (i) if the principal hereof is declared
to be due and payable as described in the preceding paragraph, the amount of
principal due and payable with respect to this Note shall be limited to the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of declaration, which amortization shall be calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
prior to the acceleration of payment of this Note, the principal amount hereof
shall equal the amount that would be due and payable hereon, calculated as set
forth in clause (i) above, if this Note were declared to be due and payable on
the date of any such vote and (iii) for the purpose of any vote of
securityholders taken pursuant to the Senior Indenture following the
acceleration of payment of this Note, the principal amount hereof shall equal
the amount of principal due and payable with respect to this Note, calculated as
set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the Issuer at any
time prior to maturity, upon the giving of a notice of redemption as described
below, at a redemption price equal to 100% of the principal amount hereof,
together with accrued interest to the date fixed for redemption (except that if
this Note is subject to "Modified Payment upon Acceleration or Redemption," such
redemption price would be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof (expressed
as a percentage of the aggregate principal amount) plus the original issue
discount amortized from the Interest Accrual Date to the date of redemption,
which amortization shall be calculated using the "interest method" (computed in
accordance with generally accepted accounting principles in effect on the date
of redemption (the "Amortized Amount")), if the Issuer determines that, as a
result of any change in or amendment to the laws (or any regulations or rulings
promulgated thereunder) of the United States or of any political subdivision or
taxing authority thereof or therein affecting taxation, or any change in
official position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or after
the Original Issue Date hereof, the Issuer has or will become obligated to pay
Additional Amounts (as defined below) with respect to this Note as described
below. Prior to the giving of any Notice of redemption pursuant to this
paragraph, the Issuer shall deliver to the Trustee (i) a certificate stating
that the Issuer is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Issuer to so redeem have occurred, and (ii) an opinion of independent counsel
satisfactory to the Trustee to such effect based on such statement of facts;
provided that no such notice of redemption shall be given earlier than 60 days
prior to the earliest date on which the Issuer would be obligated to pay such
Additional Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60 days
prior to the date fixed for redemption or within the Redemption Notice Period
specified on the face hereof, which date and the applicable redemption price
will be specified in such notice.
The Issuer will, subject to certain exceptions and limitations set forth
below, pay such additional amounts (the "Additional Amounts") to the holder of
this Note who is a United States
8
<PAGE>
Alien (as defined below) as may be necessary in order that every net payment of
the principal of and interest on this Note and any other amounts payable on this
Note, after withholding for or on account of any present or future tax,
assessment or governmental charge imposed upon or as a result of such payment by
the United States (or any political subdivision or taxing authority thereof or
therein), will not be less than the amount provided for in this Note to be then
due and payable. The Issuer will not, however, be required to make any payment
of Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such holder,
if such holder is an estate, a trust, a partnership or a corporation)
and the United States and its possessions, including, without
limitation, such holder (or such fiduciary, settlor, beneficiary,
member or shareholder) being or having been a citizen or resident
thereof or being or having been engaged in a trade or business or
present therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note for
payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment thereof is
duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment of principal of, or
interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would
not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total
9
<PAGE>
combined voting power of all classes of stock entitled to vote of the
Issuer or as a direct or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note to
a United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of such payment to the extent such payment would be required by
the laws of the United States (or any political subdivision thereof) to be
included in the income, for tax purposes, of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
who would not have been entitled to the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the holder of this Note.
The Senior Indenture provides that (a) if an Event of Default (as defined
in the Senior Indenture) due to the default in payment of principal of, premium,
if any, or interest on, any series of debt securities issued under the Senior
Indenture, including the series of Senior Global Medium-Term Notes of which this
Note forms a part, or due to the default in the performance or breach of any
other covenant or warranty of the Issuer applicable to the debt securities of
such series but not applicable to all outstanding debt securities issued under
the Senior Indenture, shall have occurred and be continuing, either the Trustee
or the holders of not less than 25% in principal amount of the debt securities
of each affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued thereon
to be due and payable immediately and (b) if an Event of Default due to a
default in the performance of any other of the covenants or agreements in the
Senior Indenture applicable to all outstanding debt securities issued
thereunder, including this Note, or due to certain events of bankruptcy or
insolvency of the Issuer, shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of all debt
securities issued under the Senior Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain conditions
such declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal (or premium, if any) or interest on
such debt securities) by the holders of a majority in principal amount of the
debt securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of the
debt securities of all series issued under the Senior Indenture then outstanding
and affected (voting as one class), to execute supplemental indentures adding
any provisions to or changing in any manner the rights of the holders of each
series so affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption or repayment thereof, or
change the currency of payment thereof, or modify or amend the provisions for
conversion of any currency into any other currency, or modify or amend the
provisions for conversion or exchange of the debt security for securities of the
Issuer or other entities (other than as provided in the antidilution provisions
or other similar adjustment provisions of the debt securities or otherwise in
accordance
10
<PAGE>
with the terms thereof), or impair or affect the rights of any holder to
institute suit for the payment thereof without the consent of the holder of each
debt security so affected or (b) reduce the aforesaid percentage in principal
amount of debt securities the consent of the holders of which is required for
any such supplemental indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue of,
the treaty establishing the European Community (the "EC"), as amended by the
treaty on European Union (as so amended, the "Treaty"). Any payment made under
such circumstances in U.S. dollars or euro where the required payment is in an
unavailable Specified Currency will not constitute an Event of Default. If such
Market Exchange Rate is not then available to the Issuer or is not published for
a particular Specified Currency, the Market Exchange Rate will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent (as defined below) at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which the
applicable Exchange Dealer commits to execute a contract. One of the Exchange
Dealers providing quotations may be the Exchange Rate Agent (as defined below)
unless the Exchange Rate Agent is an affiliate of the Issuer. If those bid
quotations are not available, the Exchange Rate Agent shall determine the market
exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the Issuer
or by, or on behalf of, the Exchange Rate Agent shall be at such entity's sole
discretion and shall, in the absence of manifest error, be conclusive for all
purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the Notes.
If this
11
<PAGE>
Note is listed on the London Stock Exchange Limited and such Exchange so
requires, the Issuer shall maintain a Paying Agent in London. The Issuer may
designate other agencies for the payment of said principal, premium and interest
at such place or places outside the United States (subject to applicable laws
and regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations of
such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for payment of the principal of or interest or premium, if any, on
any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such moneys shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
with respect to such moneys shall thereupon cease, without, however, limiting in
any way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or impair
the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place, and
rate, and in the coin or currency, herein prescribed unless otherwise agreed
between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York;
As used herein:
(a) the term "Business Day" means any day, other than a Saturday or
Sunday, (a) that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close (x)
in The City of New York or in The City of London
12
<PAGE>
or (y) if this Note is denominated in a Specified Currency other than U.S.
dollars, Australian dollars or euro, in the principal financial center of
the country of the Specified Currency, or (z) if this Note is denominated
in Australian dollars, in Sydney and (b) if this Note is denominated in
euro, that is also a day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar buying
rate in The City of New York for cable transfers of the Specified Currency
indicated on the face hereof published by the Federal Reserve Bank of New
York;
(c) the term "Notices" refers to notices to the holders of the Notes
at each holder's address as that address appears in the register for the
Notes by first class mail, postage prepaid, and to be given by publication
in an authorized newspaper in the English language and of general
circulation in the Borough of Manhattan, The City of New York, and London
or, if publication in London is not practical, in an English language
newspaper with general circulation in Western Europe; provided that notice
may be made, at the option of the Issuer, through the customary notice
provisions of the clearing system or systems through which beneficial
interests in this Note are owned. Such Notices will be deemed to have been
given on the date of such publication (or other transmission, as
applicable), or if published in such newspapers on different dates, on the
date of the first such publication;
(d) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for United
States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of
which is a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the Senior Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Senior Indenture.
13
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -______________________ Custodian ___________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act _____________________________________
(State)
Additional abbreviations may also be used though not in the above list.
____________________
14
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:__________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
15
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its terms
at a price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
________________________; and specify the denomination or denominations (which
shall not be less than the minimum authorized denomination) of the Notes to be
issued to the holder for the portion of the within Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid): .
Dated: _______________________________ _____________________________________
NOTICE: The signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of the within instrument in
every particular without alteration
or enlargement.
16
EXHIBIT 4-w
[FORM OF FACE OF SECURITY]
Euro Fixed Rate Subordinated Registered Note
REGISTERED REGISTERED
No. EFXRR [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAY
DATE: PERCENTAGE: DATE(S): MENT DATE(S):
SPECIFIED CURRENCY: ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA-
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CLEARSTREAM NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERA-
TION OR
REDEMPTION
COMMON CODE: If yes, state
issue Price:
OTHER PROVISIONS: ISIN: ORIGINAL YIELD TO
MATURITY:
Morgan Stanley Dean Witter & Co., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to ______________________, or registered assignees, the principal sum of
____________________4, on the Maturity Date specified above (except to the
extent previously redeemed or repaid) and to pay interest thereon at the
Interest Rate per annum specified above from and including the Interest Accrual
Date specified above until but excluding the date the principal hereof is paid
or duly made available for payment (except as provided below) weekly, monthly,
quarterly, semi-annually or annually in arrears on the Interest Payment Dates
specified above in each commencing on the Interest Payment Date next succeeding
the Interest Accrual Date specified above, and at maturity (or on any redemption
or repayment date); provided, however, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date succeeding the Interest Accrual Date to the registered holder of this Note
on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to
- --------
3 Applicable if other than 30-60 days, if shorter period is cleared with
Euroclear & Clearstream.
4 Applies if this Note is issued as part of, or in relation to, a Unit.
2
<PAGE>
certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or not
a Business Day (as defined below)) (each such date a "Record Date"); provided,
however, that interest payable at maturity, redemption or repayment will be
payable to the person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the interest due
at maturity (or on any redemption or repayment date) will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Principal Paying Agent, as defined on the reverse hereof, or at such other
paying agency as the Issuer may determine (each, a "Paying Agent," which term
shall include the Principal Paying Agent). Payment of the principal of and
premium, if any, and interest on this Note will be made in the Specified
Currency indicated above; provided, however, that U.S. dollar payments of
interest, other than interest due at maturity or on any date of redemption or
repayment, will be made by U.S. dollar check mailed to the address of the person
entitled thereto as such address shall appear in the Note register. A holder of
U.S. $10,000,000 or more in aggregate principal amount of Notes having the same
Interest Payment Date will be entitled to receive payments of interest, other
than interest due at maturity or on any date of redemption or repayment, by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Principal Paying Agent in writing not
less than 15 calendar days prior to the applicable Interest Payment Date. If
this Note is denominated in a Specified Currency other than U.S. dollars,
payments of interest hereon will be made by wire transfer of immediately
available funds to an account maintained by the holder hereof with a bank
located outside the United States if appropriate wire transfer instructions have
been received by the Principal Paying Agent in writing not less than 15 calendar
days prior to the applicable Interest Payment Date. If such wire transfer
instructions are not so received, such interest payments will be made by check
payable in such Specified Currency mailed to the address of the person entitled
thereto as such address shall appear in the Note register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, as defined on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Subordinated Indenture,
as defined on the reverse hereof, or be valid or obligatory for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
--------------------------------------------
Name:
Title:
AUTHENTICATING AGENT'S
CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authenticating Agent
By:________________________________
Authorized Officer
4
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Subordinated Indenture, dated as of May 1, 1999, between
the Issuer and Bank One Trust Company, N.A. (as successor to The First National
Bank of Chicago), as Trustee (the "Trustee," which term includes any successor
trustee under the Subordinated Indenture) (as may be amended or supplemented
from time to time, the "Subordinated Indenture"), to which Subordinated
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
of the Issuer, the Trustee and holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Trustee has appointed
The Chase Manhattan Bank as Authenticating Agent (the "Authenticating Agent,"
which term includes any successor authenticating agent appointed by the Trustee)
with respect to the Notes, and the Issuer has appointed The Chase Manhattan
Bank, acting through its principal corporate trust office in the Borough of
Manhattan, The City of New York, as a paying agent for the Notes in the United
States and The Chase Manhattan Bank, London Branch, at its corporate trust
office in London, as its principal paying agent for the Notes outside the United
States (the "Principal Paying Agent," which term includes any additional or
successor principal paying agent appointed by the Issuer). The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Subordinated Indenture. To the extent not inconsistent herewith, the terms of
the Subordinated Indenture are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents
that it is not an authorized institution (for purposes of the United Kingdom
Banking Act 1987) nor a European authorized institution as defined by Regulation
3 of the Banking Co-ordination (Second Council Directive) Regulations 1992 and
repayment of the principal of, and payment of any interest or premium on, this
Note has not been guaranteed, that it has complied with its obligations under
the listing rules of the London Stock Exchange Limited (the "Rules") and that,
since the last publication in compliance with the Rules of information about it,
it, having made all reasonable inquiries, has not become aware of any change in
circumstances which could reasonably be regarded as significantly and adversely
affecting its ability to meet its obligations in respect of the Notes as they
fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
indicated below). If this Note is subject to "Annual Redemption Percentage
Reduction," the Initial Redemption Percentage indicated on the face hereof will
be reduced on each
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anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction specified on the face hereof until the redemption price of this Note
is 100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). Notice of
redemption shall be mailed to the registered holders of the Notes designated for
redemption their addresses as the same shall appear on the Note register not
less than 30 nor more than 60 days prior to the date fixed for redemption or
within the Redemption Notice Period specified on the face hereof, subject to all
the conditions and provisions of the Subordinated Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the cancellation hereof.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 or, if this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Principal
Paying Agent must receive at its office in London, at least 15 but not more than
30 days prior to the date of repayment, (i) this Note with the form entitled
"Option to Elect Repayment" below duly completed or (ii) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States, Western Europe or Japan
setting forth the principal amount of the Note, the principal amount of the Note
to be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the Option to Elect Repayment is being exercised and
a guarantee that this Note to be repaid, together with the duly completed form
entitled Option to Elect Repayment, will be received by the principal paying
agent not later than the fifth Business Day after the date of that telegram,
telex, facsimile transmission or letter. However, the telegram, telex, facsimile
transmission or letter shall only be effective if this Note and an Option to
Elect Repayment form duly completed are received by the Paying Agent by the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified on
the face hereof, interest payments for this Note will be computed and paid on
the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or on the
Maturity Date (or any redemption or repayment date), and no interest on such
payment shall
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<PAGE>
accrue for the period from and after the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) to such next succeeding Business Day.
This Note and all other obligations of the Issuer hereunder will
constitute part of the subordinated debt of the Issuer, will be issued under the
Subordinated Indenture and will be subordinate and junior in right of payment,
to the extent and in the manner set forth in the Subordinated Indenture, to all
"Senior Indebtedness" of the Issuer. The Subordinated Indenture defines "Senior
Indebtedness" as obligations (other than non-recourse obligations, the debt
securities, including this Note, issued under the Subordinated Indenture or any
other obligations specifically designated as being subordinate in right of
payment to Senior Indebtedness) of, or guaranteed or assumed by, the Issuer for
borrowed money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and refundings
of any such indebtedness or obligation.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and is
issuable only in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of 1,000 units of the
Specified Currency set forth on the face hereof.
The Chase Manhattan Bank has been appointed registrar for the Notes
(the "Registrar," which term includes any successor registrar appointed by the
Issuer), and the Registrar will maintain at its office in The City of New York,
a register for the registration and transfer of Notes. This Note may be
transferred at either the aforesaid New York office or at the London office of
the Registrar by surrendering this Note for cancellation, accompanied by a
written instrument of transfer in form satisfactory to the Registrar and duly
executed by the registered holder hereof in person or by the holder's attorney
duly authorized in writing, and thereupon the Registrar shall issue in the name
of the transferee or transferees, in exchange herefor, a new Note or Notes
having identical terms and provisions and having a like aggregate principal
amount in authorized denominations, subject to the terms and conditions set
forth herein; provided, however, that the Registrar will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes being
redeemed in part, (ii) to register the transfer of or exchange any Note if the
holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Note in whole or in part, except the portion of such Note not
required to be repurchased, or (iii) to register the transfer of or exchange
Notes to be redeemed for a period of fifteen calendar days preceding the mailing
of the relevant notice of redemption. Notes are exchangeable at said offices for
other Notes of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such registrations, exchanges
and transfers of Notes will be free of service charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Registrar and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
7
<PAGE>
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Registrar, the Issuer in its discretion will execute a new Note
of like tenor in exchange for this Note, but, if this Note has been destroyed,
lost or stolen, only upon receipt of evidence satisfactory to the Registrar and
the Issuer that this Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Subordinated Indenture provides that (a) if an Event of Default (as
defined in the Subordinated Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Subordinated Indenture, including the series of Subordinated
Global Medium-Term Notes of which this Note forms a part, or due to the default
in the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Subordinated Indenture, shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of all
such series and interest accrued thereon to be due and payable immediately and
(b) if an Event of Default due to a default in the performance of any other of
the covenants or agreements in the Subordinated Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy, insolvency and reorganization of the Issuer, shall
have occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the
Subordinated Indenture then outstanding (treated as one class) may declare the
principal of all such debt securities and interest accrued thereon to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except a continuing default in payment
of principal (or premium, if any) or interest on such debt securities) by the
holders of a majority in principal amount of the debt securities of all affected
series then outstanding.
If the face hereof indicates that this Note is subject to "Modified
Payment upon Acceleration or Redemption," then (i) if the principal hereof is
declared to be due and payable as described in the preceding paragraph, the
amount of principal due and payable with respect to this Note shall be limited
to the aggregate principal amount hereof multiplied by the sum of the Issue
Price specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the original issue discount amortized from the Interest
Accrual Date to the date of declaration, which amortization shall be calculated
using the "interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Subordinated
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to be
due and payable on the date of any such vote and (iii) for the purpose of any
vote of securityholders taken pursuant to the Subordinated Indenture following
the acceleration of payment of this Note, the principal
8
<PAGE>
amount hereof shall equal the amount of principal due and payable with respect
to this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the Issuer at
any time prior to maturity, upon the giving of a notice of redemption as
described below, at a redemption price equal to 100% of the principal amount
hereof, together with accrued interest to the date fixed for redemption (except
that if this Note is subject to "Modified Payment upon Acceleration or
Redemption," such redemption price would be limited to the aggregate principal
amount hereof multiplied by the sum of the Issue Price specified on the face
hereof (expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the date of
redemption, which amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of redemption)(the "Amortized Amount")), if the Issuer determines
that, as a result of any change in or amendment to the laws (or any regulations
or rulings promulgated thereunder) of the United States or of any political
subdivision or taxing authority thereof or therein affecting taxation, or any
change in official position regarding the application or interpretation of such
laws, regulations or rulings, which change or amendment becomes effective on or
after the Original Issue Date hereof, the Issuer has or will become obligated to
pay Additional Amounts (as defined below) with respect to this Note as described
below. Prior to the giving of any Notice of redemption pursuant to this
paragraph, the Issuer shall deliver to the Trustee (i) a certificate stating
that the Issuer is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Issuer to so redeem have occurred, and (ii) an opinion of independent counsel
satisfactory to the Trustee to such effect based on such statement of facts;
provided that no such notice of redemption shall be given earlier than 60 days
prior to the earliest date on which the Issuer would be obligated to pay such
Additional Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, which date and the applicable redemption
price will be specified in such Notice.
The Issuer will, subject to certain exceptions and limitations set
forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien (as defined below) as may be
necessary in order that every net payment of the principal of and interest on
this Note and any other amounts payable on this Note, after withholding for or
on account of any present or future tax, assessment or governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be less
than the amount provided for in this Note to be then due and payable. The Issuer
will not, however, be required to make any payment of Additional Amounts to any
such holder for or on account of:
(a) any such tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such holder,
if such holder is an estate, a trust, a partnership or a corporation)
and the United States and its possessions, including, without
limitation, such holder (or such fiduciary, settlor,
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<PAGE>
beneficiary, member or shareholder) being or having been a citizen or
resident thereof or being or having been engaged in a trade or
business or present therein or having, or having had, a permanent
establishment therein or (ii) the presentation by the holder of this
Note for payment on a date more than 15 days after the date on which
such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment of principal of, or
interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would
not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note to
a United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of such payment to the extent such payment would be required by
the laws of the United States (or any political subdivision thereof) to be
included in the income, for tax purposes, of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
who would not have been entitled to the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the holder of this Note.
10
<PAGE>
The Subordinated Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of the debt securities of all series issued under the Subordinated Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee may
not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms thereof), or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental indenture;
provided, however, that neither this Note nor the Subordinated Indenture may be
amended to alter the subordination provisions hereof or thereof without the
written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date; provided, however, that if the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue of,
the treaty establishing the European Community (the "EC"), as amended by the
treaty on European Union (as so amended, the "Treaty"). Any payment made under
such circumstances in U.S. dollars or euro where the required payment is in an
unavailable Specified Currency will not constitute an Event of Default. If such
Market Exchange Rate is not then available to the Issuer or is not published for
a particular Specified Currency, the Market Exchange Rate will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent (as defined below) at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which the
applicable Exchange Dealer commits to execute a contract. One of the Exchange
Dealers providing quotations may be the Exchange Rate
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<PAGE>
Agent (as defined below) unless the Exchange Rate Agent is an affiliate of the
Issuer. If those bid quotations are not available, the Exchange Rate Agent shall
determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's
sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the Notes.
If this Note is listed on the London Stock Exchange Limited and such Exchange so
requires, the Issuer shall maintain a Paying Agent in London. The Issuer may
designate other agencies for the payment of said principal, premium and interest
at such place or places outside the United States (subject to applicable laws
and regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations of
such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if any,
on any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such moneys shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
with respect to such moneys shall thereupon cease, without, however, limiting in
any way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Subordinated Indenture shall alter
or impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless otherwise
agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of
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<PAGE>
the Subordinated Indenture or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a Saturday or
Sunday, (a) that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close
(x) in The City of New York or in The City of London or (y) if this
Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated
in Australian dollars, in Sydney and (b) if this Note is denominated in
euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar buying
rate in The City of New York for cable transfers of the Specified
Currency indicated on the face hereof published by the Federal Reserve
Bank of New York;
(c) the term "Notices" refers to notices to the holders of the Notes
at each holder's address as that address appears in the register for
the Notes by first class mail, postage prepaid, and to be given by
publication in an authorized newspaper in the English language and of
general circulation in the Borough of Manhattan, The City of New York,
and London or, if publication in London is not practical, in an English
language newspaper with general circulation in Western Europe; provided
that notice may be made, at the option of the Issuer, through the
customary notice provisions of the clearing system or systems through
which beneficial interests in this Note are owned. Such Notices will be
deemed to have been given on the date of such publication (or other
transmission, as applicable) or, if published in such newspapers on
different dates, on the date of the first such publication;
(d) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for United
States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership one or more
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of the members of which is a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or
trust.
All other terms used in this Note which are defined in the Subordinated
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Subordinated Indenture.
14
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT - ___________________ Custodian _____________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act______________________________________
(State)
Additional abbreviations may also be used though not in the above list.
_______________________
15
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_________________________________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated: ________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
16
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its terms
at a price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
________________; and specify the denomination or denominations (which shall not
be less than the minimum authorized denomination) of the Notes to be issued to
the holder for the portion of the within Note not being repaid (in the absence
of any such specification, one such Note will be issued for the portion not
being repaid): ______________.
Dated:_______________________ _____________________________________
NOTICE: The signature on this Option
to Elect Repayment must correspond
with the name as written upon the
face of the within instrument in
every particular without alteration
or enlargement.
17
EXHIBIT 4-aa
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL SENIOR BULL NOTE
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES
OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN
- --------
1 Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
<PAGE>
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER RELEVANT
LAWS AND REGULATIONS OF JAPAN.
2
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Bull Note)
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
MATURITY DATE: INTEREST RATE: INTEREST PAYMENT PERIOD:
EUROCLEAR NO.: INITIAL REDEMPTION DATE: CALCULATION AGENT:
INITIAL REDEMPTION
CLEARSTREAM NO.: PERCENTAGE: SPECIFIED CURRENCY:
ANNUAL REDEMPTION
COMMON CODE: PERCENTAGE REDUCTION: INDEX CURRENCY:
OPTIONAL REPAYMENT
ISIN: DATE(S): EXCHANGE RATE AGENT:
REPORTING SERVICE: REDEMPTION PRICE: INDEX MATURITY:
FINAL REDEMPTION PRICE: EXCHANGE FOR REGISTERED
PRINCIPAL AMOUNT: NOTES [NO]3:
MINIMUM DENOMINATIONS: APPLICABILITY OF MODIFIED
PAYMENT UPON ACCELERATION
OR REDEMPTION
OTHER PROVISIONS: REDEMPTION NOTICE IF YES, STATE ISSUE PRICE:
PERIOD:4
Morgan Stanley Dean Witter & Co., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to bearer, upon surrender hereof, the Final Redemption Price based on the
principal amount as specified in [Schedule A hereto]5 [Schedule A-1 hereto]6, on
the Maturity Date specified above (except to the extent previously redeemed or
repaid) and to pay interest thereon at the Interest Rate per annum specified
above from and including the Interest Accrual Date specified above until but
excluding the date the Final Redemption Price is paid or duly made available for
payment (except as provided below) weekly, monthly, quarterly, semi-annually or
annually in arrears on the Interest Payment Dates specified above, and at
maturity (or on any redemption or repayment date); provided, however, that if
the Interest Accrual Date occurs fifteen days or less prior to the first
Interest Payment Date occurring
- --------
3 Unless explicitly stated otherwise in term sheet, MSDW practice has
been to exclude this option.
4 Applicable if other than 30-60 days. Consult with Euroclear or
Clearstream if a shorter redemption notice is requested, to a minimum of ten
days.
5 Applies if this Note is not issued as part of, or in relation to, a
Unit.
6 Applies if this Note is issued as part of, or in relation to, a
Unit.
3
<PAGE>
after the Interest Accrual Date, interest payments will commence on the second
Interest Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the Final Redemption Price
is paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the reverse
of this Note) or at the office or agency of such other paying agents outside the
United States as the Issuer may determine for that purpose (each, a "Paying
Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest due
at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note at the office or agency of the Principal
Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as provided
on the reverse hereof. If this Note is denominated in U.S. dollars, any payment
of the principal of, premium, if any, and interest on this Note will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Such payments on this
Note will be made either by a check mailed to an address outside the United
States furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with a bank located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent not less than 15 calendar
days prior to the applicable payment date. Notwithstanding the foregoing, in the
event that payment in U.S. dollars of the full amount payable on this Note at
the offices of all Paying Agents would be illegal or effectively precluded as a
result of exchange controls or similar restrictions, payment on this Note will
be made by a paying agency in the United States, if such paying agency, under
applicable law and regulations, would be able to make such payment. If this Note
is denominated in a Specified Currency other than U.S. dollars, then, except as
provided on the reverse hereof, payment of the principal of and premium, if any,
and interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the payee
and subject to applicable laws and regulations and the procedures of the Paying
Agent, by wire transfer of immediately available funds to an account maintained
by the payee with a bank located outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
--------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------
Authorized Officer
6
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended or
supplemented from time to time, the "Senior Indenture"), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
of the Issuer, the Trustee and holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Issuer has appointed
The Chase Manhattan Bank, London Branch, as its principal paying agent for the
Notes (the "Principal Paying Agent," which term includes any additional or
successor Principal Paying Agent appointed by the Issuer). The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Senior Indenture. To the extent not inconsistent herewith, the terms of the
Senior Indenture are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents
that it is not an authorized institution (for purposes of the United Kingdom
Banking Act 1987) nor a European authorized institution as defined by Regulation
3 of the Banking Co-ordination (Second Council Directive) Regulations 1992 and
repayment of the principal of, and payment of any interest or premium on, this
Note has not been guaranteed, that it has complied with its obligations under
the listing rules of the London Stock Exchange Limited (the "Rules") and that,
since the last publication in compliance with the Rules of information about it,
it, having made all reasonable inquiries, has not become aware of any change in
circumstances which could reasonably be regarded as significantly and adversely
affecting its ability to meet its obligations in respect of the Notes as they
fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
indicated below). If this Note is subject to "Annual Redemption Percentage
Reduction," the Initial Redemption Percentage indicated on the face hereof will
be reduced on each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction specified on the face hereof until the
redemption price of this Note is 100% of the principal amount hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
provided below). Notice of redemption shall be mailed to the holders of the
Notes designated for redemption who have filed their names and addresses with
the Principal Paying Agent, not less than 30 nor more than 60 days prior to the
date fixed for redemption or within the Redemption Notice Period specified on
the face hereof, subject to all the conditions and provisions of the Senior
7
<PAGE>
Indenture. Notice of redemption to all other holders of Notes shall be given in
the manner set forth in "Notices" as defined below, and, if by publication,
shall be given once in each of the three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days prior to the date set
for redemption or within the Redemption Notice Period specified on the face
hereof. In the event of redemption of this Note in part only, the Principal
Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of this Note so redeemed, whereupon the principal amount hereof shall be
reduced for all purposes by the amount so redeemed and noted.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 or, if this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Principal
Paying Agent must receive at its office in London, at least 15 but not more than
30 days prior to the date of repayment, this Note with the form entitled "Option
to Elect Repayment" below duly completed or a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange, or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States, Western Europe or Japan setting forth the
principal amount of the Note, the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of this Note, a
statement that the Option to Elect Repayment is being exercised and a guarantee
that this Note to be repaid, together with the duly completed form entitled
Option to Elect Repayment, will be received by the principal paying agent not
later than the fifth Business Day (as defined below) after the date of that
telegram, telex, facsimile transmission or letter. However, the telegram, telex,
facsimile transmission or letter shall only be effective if this Note and an
Option to Elect Repayment form duly completed are received by the Paying Agent
by the fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter. Exercise of such repayment option by the holder hereof
shall be irrevocable. In the event of repayment of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified on
the face hereof, interest payments for this Note will be computed and paid on
the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or
8
<PAGE>
on the Maturity Date (or any redemption or repayment date), and no interest on
such payment shall accrue for the period from and after the Interest Payment
Date or the Maturity Date (or any redemption or repayment date) to such next
succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without interest
coupons attached (a "Global Bearer Note"). The beneficial owner of all or a
portion of this Note may exchange its interest in this Note upon not less than
30 days' written notice to the Principal Paying Agent through the relevant
clearing system, in whole, for Notes in bearer form with interest coupons, if
any, attached (the "Definitive Bearer Notes," and, together with the Global
Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this Note,
at the beneficial owner's option, in whole or from time to time in part, for
Notes in fully registered form without coupons (the "Registered Notes"), in each
case, in the minimum denominations set forth on the face hereof or any amount in
excess thereof which is an integral multiple of 1,000 units of the Specified
Currency set forth on the face hereof. Interests in this Note shall also be
exchanged by the Issuer in whole, but not in part, for Definitive Bearer Notes,
which shall be serially numbered, with coupons, if any, attached (or, if
indicated on the face of this Note, at the beneficial owner's option, for
Registered Notes), of any authorized denominations if (i) this Note is
accelerated following an Event of Default or (ii) either Euroclear or Cedelbank
or any other relevant clearing system is closed for business for a continuous
period of fourteen days (other than by reason of public holidays) or announces
an intention to cease business permanently or in fact does so. The Issuer shall
give notice to the Principal Paying Agent promptly following any such
acceleration or upon learning of any such closure. Any exchanges referred to
above shall be made at the office of the Principal Paying Agent, or, in the case
of Registered Notes, at the office of the transfer agent for the Registered
Notes in London, which transfer agent will initially be The Chase Manhattan
Bank, London Branch, upon compliance with any procedures set forth in, or
established pursuant to, the Senior Indenture; provided, however, that the
Issuer shall not be required (i) to exchange this Note for a period of fifteen
calendar days preceding the first publication or other transmission, if
applicable, of a notice of redemption of all or any portion hereof or (ii) to
exchange any portion of this Note selected for redemption or surrendered for
optional repayment, except that such portion of this Note may be exchanged for a
Registered Note of like tenor; provided that such Registered Note shall be
simultaneously surrendered for redemption or repayment, as the case may be; and
provided, further, that if a Registered Note is issued in exchange for any
portion of this Note after the close of business at the office of the Principal
Paying Agent on any record date (whether or not a Business Day) for the payment
of interest on such Registered Note and before the opening of business at such
office on the relevant Interest Payment Date, any interest will not be payable
on such Interest Payment Date in respect of such Registered Note, but will be
payable on such Interest Payment Date only to the holder of this Note. Upon
exchange of this Note in whole for a Definitive Bearer Note or Definitive Bearer
Notes, or in whole or in part for a Registered Note or Registered Notes, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of the principal amount hereof by an amount equal to the
aggregate principal amount of such Definitive Bearer Note or
9
<PAGE>
Definitive Bearer Notes, or such Registered Note or Registered Notes, whereupon
the principal amount hereof shall be reduced for all purposes by the amount so
exchanged and noted. All such exchanges of Notes will be free of service charge,
but the Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The date of any Note
delivered upon any exchange of this Note shall be such that no gain or loss of
interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged
for Definitive Bearer Notes in accordance with the procedures set forth in the
following two sentences as soon as practicable after (i) the first beneficial
owner of an interest in this Note exchanges its interest for a Definitive Bearer
Note, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or Cedelbank or any other
relevant clearing system is closed for business for a continuous period of
fourteen days (other than by reason of public holidays) or announces an
intention to cease business permanently or in fact does so. In the event of any
exchange of interests in this Note for a Definitive Bearer Note, a common
depositary located outside the United States (the "common depositary") holding
this Note for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System (the "Euroclear Operator"), Clearstream
Banking, societe anonyme ("Clearstream, Luxembourg"), and/or any other relevant
clearing system (including "Societe Interprofessionelle pour la Compensation des
Valeurs Mobilieres ("SICOVAM")) shall instruct the Principal Paying Agent
regarding the aggregate principal amount of Definitive Bearer Notes and the
denominations of such Definitive Bearer Notes that must be authenticated and
delivered to each relevant clearing system in exchange for this Note.
Thereafter, the Principal Paying Agent, acting solely in reliance on such
instructions, shall, upon surrender to it of this Note and subject to the
conditions in the preceding paragraph, authenticate and deliver Definitive
Bearer Notes in exchange for this Note in accordance with such instructions and
shall cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount of
this Note. Nothing in this paragraph shall prevent the further exchange of
Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that this
Note may be transferred only to a common depositary outside the United States
for the Euroclear Operator, Clearstream, Luxembourg and/or any other relevant
clearing system or to a nominee of such a depositary.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, the Issuer in its discretion may execute a new Note of
like tenor in exchange for this Note, but, in the case of any destroyed or lost
or stolen Note, only upon receipt of evidence satisfactory to the Trustee and
the Issuer that this Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
10
<PAGE>
This Note may be redeemed, as a whole, at the option of the Issuer at
any time prior to maturity, upon the giving of a notice of redemption as
described below, at the Redemption Price, as specified on the face hereof,
together with accrued interest to the date fixed for redemption (except that if
this Note is subject to "Modified Payment upon Acceleration or Redemption," such
redemption price would be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof (expressed
as a percentage of the aggregate principal amount) plus the original issue
discount amortized from the Interest Accrual Date to the date of redemption,
which amortization shall be calculated using the "interest method" (computed in
accordance with generally accepted accounting principles in effect on the date
of redemption) (the "Amortized Amount")), if the Issuer determines that, as a
result of any change in or amendment to the laws (or any regulations or rulings
promulgated thereunder) of the United States or of any political subdivision or
taxing authority thereof or therein affecting taxation, or any change in
official position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or after
the Original Issue Date hereof, the Issuer has or will become obligated to pay
Additional Amounts (as defined below) with respect to this Note as described
below. Prior to the giving of any Notice of redemption pursuant to this
paragraph, the Issuer shall deliver to the Trustee (i) a certificate stating
that the Issuer is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Issuer to so redeem have occurred, and (ii) an opinion of independent counsel
satisfactory to the Trustee to such effect based on such statement of facts;
provided that no such notice of redemption shall be given earlier than 60 days
prior to the earliest date on which the Issuer would be obligated to pay such
Additional Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, which date and the applicable redemption
price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United
States by the Issuer or any Paying Agent of principal, premium or interest due
in respect of this Note would, under any present or future laws or regulations
of the United States, be subject to any certification, identification or other
information reporting requirement of any kind, the effect of which is the
disclosure to the Issuer, any Paying Agent or any governmental authority of the
nationality, residence or identity of a beneficial owner of this Note who is a
United States Alien (as defined below) (other than such a requirement (a) that
would not be applicable to a payment made by the Issuer or any Paying Agent (i)
directly to the beneficial owner or (ii) to a custodian, nominee or other agent
of the beneficial owner, or (b) that can be satisfied by such custodian, nominee
or other agent certifying to the effect that such beneficial owner is a United
States Alien; provided that in each case referred to in clauses (a)(ii) and (b)
payment by such custodian, nominee or agent to such beneficial owner is not
otherwise subject to any such requirement), the Issuer shall redeem this Note,
as a whole, at the Redemption Price, as specified on the face hereof (except
that if this Note is subject to "Modified Payment upon Acceleration or
Redemption," such redemption price would be calculated on the basis of the
aggregate principal amount hereof multiplied by the sum of the Issue Price
specified on the face hereof (expressed as a percentage of the aggregate
principal amount) plus the Amortized Amount), together with accrued interest to
the date fixed for redemption, or, at the election of the Issuer if the
conditions of the next succeeding paragraph are satisfied, pay the additional
amounts
11
<PAGE>
specified in such paragraph. The Issuer shall make such determination and
election as soon as practicable, shall promptly notify the Trustee thereof and
shall publish (or transmit, as applicable) prompt notice thereof (the
"Determination Notice") stating the effective date of such certification,
identification or other information reporting requirements, whether the Issuer
will redeem this Note or has elected to pay the additional amounts specified in
the next succeeding paragraph, and (if applicable) the last date by which the
redemption of this Note must take place, as provided in the next succeeding
sentence. If the Issuer redeems this Note, such redemption shall take place on
such date, not later than one year after the publication of the Determination
Notice, as the Issuer shall elect by notice to the Trustee at least 60 days
prior to the date fixed for redemption or at least 30 days prior to the last day
of the Redemption Notice Period specified on the face hereof. Notice of such
redemption of this Note will be given to the holder of this Note not more than
60 nor less than 30 days prior to the date fixed for redemption or within the
Redemption Notice Period as specified on the face hereof. Such redemption notice
shall include a statement as to the last date by which this Note to be redeemed
may be exchanged for Registered Notes. Notwithstanding the foregoing, the Issuer
shall not so redeem this Note if the Issuer shall subsequently determine, not
less than 30 days prior to the date fixed for redemption or prior to the last
day of the Redemption Notice Period specified on the face hereof, that
subsequent payments would not be subject to any such certification,
identification or other information reporting requirement, in which case the
Issuer shall publish (or transmit, as applicable) prompt notice of such
determination and any earlier redemption notice shall be revoked and of no
further effect. The right of the holder of this Note to exchange this Note for
Registered Notes pursuant to the provisions of this paragraph will terminate at
the close of business of the Principal Paying Agent on the fifteenth day prior
to the date fixed for redemption, and no further exchanges of this Note for
Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph would
be fully satisfied by payment of a backup withholding tax or similar charge, the
Issuer may elect by notice to the Trustee to pay as additional amounts such
amounts as may be necessary so that every net payment made outside the United
States following the effective date of such requirements by the Issuer or any
Paying Agent of principal, premium or interest due in respect of this Note of
which the beneficial owner is a United States Alien (but without any requirement
that the nationality, residence or identity of such beneficial owner be
disclosed to the Issuer, any Paying Agent or any governmental authority, with
respect to the payment of such additional amounts), after deduction or
withholding for or on account of such backup withholding tax or similar charge
(other than a backup withholding tax or similar charge that (i) would not be
applicable in the circumstances referred to in the second parenthetical clause
of the first sentence of the preceding paragraph, or (ii) is imposed as a result
of presentation of this Note for payment more than 15 days after the date on
which such payment becomes due and payable or on which payment thereof is duly
provided for, whichever occurs later), will not be less than the amount provided
for in this Note to be then due and payable. In the event the Issuer elects to
pay any additional amounts pursuant to this paragraph, the Issuer shall have the
right to redeem this Note as a whole at any time pursuant to the applicable
provisions of the immediately preceding paragraph and the redemption price of
this Note will not be reduced for applicable withholding taxes. If the Issuer
elects to pay additional amounts pursuant to this paragraph and the condition
specified in the first sentence of this paragraph should no longer be satisfied,
then the Issuer will redeem this Note as a whole, pursuant to the applicable
provisions of the immediately preceding paragraph.
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<PAGE>
The Issuer will, subject to certain exceptions and limitations set
forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
that every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount provided
for in this Note to be then due and payable. The Issuer will not, however, be
required to make any payment of Additional Amounts to any such holder for or on
account of:
(a) any such tax, assessment or other governmental charge that would
not have been so imposed but for (i) the existence of any present or former
connection between such holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of such holder, if such holder is an
estate, a trust, a partnership or a corporation) and the United States and
its possessions, including, without limitation, such holder (or such
fiduciary, settlor, beneficiary, member or shareholder) being or having
been a citizen or resident thereof or being or having been engaged in a
trade or business or present therein or having, or having had, a permanent
establishment therein or (ii) the presentation by the holder of this Note
for payment on a date more than 15 days after the date on which such
payment became due and payable or the date on which payment thereof is duly
provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason
of such holder's past or present status as a personal holding company or
foreign personal holding company or controlled foreign corporation or
passive foreign investment company with respect to the United States or as
a corporation which accumulates earnings to avoid United States federal
income tax or as a private foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is payable
otherwise than by withholding from payments on or in respect of this Note;
(e) any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of principal of, or interest
on, this Note, if such payment can be made without such withholding by any
other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would not
have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identity of the holder or beneficial owner of this Note, if
such compliance is required by statute or by regulation of the United
States or of any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax, assessment
or other governmental charge;
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(g) any tax, assessment or other governmental charge imposed by reason
of such holder's past or present status as the actual or constructive owner
of 10% or more of the total combined voting power of all classes of stock
entitled to vote of the Issuer or as a direct or indirect subsidiary of the
Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note to
a United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of such payment to the extent such payment would be required by
the laws of the United States (or any political subdivision thereof) to be
included in the income, for tax purposes, of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
who would not have been entitled to the Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the holder of this Note.
The Final Redemption Price or the Redemption Price shall be determined
by the Calculation Agent not later than the close of business on the date that
is two (2) London Banking Days prior to the Maturity Date or date of redemption
as the case may be (the "Interest Determination Date").
For the purpose of determining the Final Redemption Price or the Redemption
Price LIBOR shall be determined as follows:
(i) As of the Interest Determination Date, LIBOR shall be either: (a)
if "LIBOR Reuters" is specified as the Reporting Service on the face
hereof, the arithmetic mean of the offered rates for deposits in the Index
Currency having the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following that
Interest Determination Date, that appear on the Designated LIBOR Page, as
defined below, as of 11:00 a.m., London time, on that Interest
Determination Date, if at least two offered rates appear on the Designated
LIBOR Page; except that if the specified Designated LIBOR Page, by its
terms provides only for a single rate, that single rate shall be used; or
(b) if "LIBOR Telerate" is specified as the Reporting Service on the face
hereof, the rate for deposits in the Index Currency having the Index
Maturity designated on the face hereof, commencing on the second London
Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest
Determination Date, that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is
specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the
Calculation Agent shall request the principal London offices of each of
four major reference banks in the London interbank market, as selected by
the Calculation Agent (after consultation with the Issuer) to provide the
Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity specified on the face hereof
commencing on the second London Banking Day immediately following the
Interest Determination Date or, if pounds sterling is the Index Currency,
commencing on
14
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that Interest Determination Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on that Interest
Determination Date and in a principal amount that is representative of a
single transaction in that Index Currency in that market at that time.
(iii) If at least two quotations are provided, LIBOR determined on
that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be the
arithmetic mean of the rates quoted at approximately 11:00 a.m., London
time, or some other time specified on the face hereof, in the applicable
principal financial center for the country of the Index Currency on that
Interest Reset Date, by three major banks in that principal financial
center selected by the Calculation Agent (after consultation with the
Issuer) for loans in the Index Currency to leading European banks, having
the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in
that market at that time.
The "Index Currency" means the currency specified on the face hereof as
the currency for which LIBOR shall be calculated, or, if the euro is substituted
for that currency, the Index Currency shall be the euro. If that currency is not
specified on the face hereof, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either: (a) if LIBOR Reuters is
designated as the Reporting Service on the face hereof, the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency or its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that service, for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR
Telerate were specified, and, if the U.S.
dollar is the Index Currency, as if Page 3750, had been specified.
The Senior Indenture provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of,
premium, if any, or interest on, any series of debt securities issued under the
Senior Indenture, including the series of Senior Global Medium-Term Notes of
which this Note forms a part, or due to the default in the performance or breach
of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt securities
issued under the Senior Indenture, shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then declare
the principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default due to
a default in the performance of any other of the covenants or agreements in the
Senior Indenture applicable to all outstanding debt securities issued
thereunder, including this Note, or due to certain events of bankruptcy or
insolvency of the Issuer, shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in
15
<PAGE>
principal amount of all debt securities issued under the Senior Indenture then
outstanding (treated as one class) may declare the principal of all such debt
securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal (or premium, if
any) or interest on such debt securities) by the holders of a majority in
principal amount of the debt securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of the debt securities of all series issued under the Senior Indenture then
outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee may
not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms thereof), or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected; or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) on the date of such payment or, if the Market
Exchange Rate is not available on such date, as of the most recent practicable
date provided, however, that if the euro has been substituted for such Specified
Currency, the Issuer may at its option (or shall, if so required by applicable
law) without the consent of the holder of this Note effect the payment of
principal of, premium, if any, or interest on, any Note denominated in such
Specified Currency in euro in lieu of such Specified Currency in conformity with
legally applicable measures taken pursuant to, or by virtue of, the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty"). Any payment made under such
circumstances in U.S. dollars or euro where the required payment is in an
unavailable Specified Currency will not constitute an Event of Default. If such
Market Exchange Rate is not then available to the Issuer or is not published for
a particular Specified Currency, the Market Exchange Rate will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent (as defined below) at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for
16
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the purchase by the quoting Exchange Dealer of the Specified Currency for U.S.
dollars for settlement on the payment date, in the aggregate amount of the
Specified Currency payable to those holders or beneficial owners of Notes and at
which the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless the
Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are
not available, the Exchange Rate Agent shall determine the market exchange rate
at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's
sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided. If this Note is listed on
the London Stock Exchange Limited and such Exchange so requires, the Issuer
shall maintain a Paying Agent in London. The Issuer may designate other agencies
for the payment of said principal, premium and interest at such place or places
outside the United States (subject to applicable laws and regulations) as the
Issuer may decide. So long as there shall be such an agency, the Issuer shall
keep the Trustee advised of the names and locations of such agencies, if any are
so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if any,
on any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such moneys shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
with respect to such moneys shall thereupon cease, without, however, limiting in
any way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to pay
the principal of, premium, if any, and interest on this Note at the time, place,
and rate, and in the coin or currency, herein prescribed unless otherwise agreed
between the Issuer and the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder of this Note as the owner hereof for all purposes, whether or
not this Note be overdue, and none of the Issuer, the Trustee or any such agent
shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of
17
<PAGE>
the Senior Indenture or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) The term "Business Day" means any day, other than a Saturday
or Sunday, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close (x) in The City of New York or in The City of London or (y)
if this Note is denominated in a Specified Currency other than U.S.
dollars, Australian dollars or euro, in the principal financial center
of the country of the Specified Currency, or (z) if this Note is
denominated in Australian dollars, in Sydney and (b) if this Note is
denominated in euro, that is also a day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer System
("TARGET") is operating (a "TARGET Settlement Day");
(b) the term "London Banking Day" means any day on which dealings
in deposits in the Index Currency (as defined herein) are transacted
in the London interbank market;
(c) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof as published for
customs purposes by the Federal Reserve Bank of New York;
(d) the term "Notices" refers to notices to the holders of the
Notes to be given by publication in an authorized newspaper in the
English language and of general circulation in the Borough of
Manhattan, The City of New York, and London or, if publication in
London is not practical, in an English language newspaper with general
circulation in Western Europe; provided that notice may be made, at
the option of the Issuer, through the customary notice provisions of
the clearing system or systems through which beneficial interests in
this Note are owned. Such Notices will be deemed to have been given on
the date of such publication (or other transmission, as applicable)
or, if published in such newspapers on different dates, on the date of
the first such publication;
(e) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(f) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a
18
<PAGE>
non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is a foreign
corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
19
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its terms
at a price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
________________; and specify the denomination or denominations (which shall not
be less than the minimum authorized denomination) of the Notes to be issued to
the holder for the portion of the within Note not being repaid (in the absence
of any such specification, one such Note will be issued for the portion not
being repaid):______________________.
Dated:______________________________ _______________________________
20
<PAGE>
[SCHEDULE A7]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is . The following (A)
exchanges of (i) portions of this Note for Definitive Bearer Notes or Registered
Notes and (ii) portions of a Temporary Global Bearer Note for an interest in
this Note or (B) (x) redemptions at the option of the Issuer or (y) repayments
at the option of the holder have been made:
Principal Amount Principal Amount Principal Amount
Date of Exchange, Exchanged Exchanged For Exchanged for
Redemption or From Temporary Definitive Definitive
Payment Global Notes Bearer Notes Registered Notes
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<PAGE>
Remaining Principal
Amount Outstanding
Principal Amount Principal Amount Following Such
Redeemed at the Repaid at the Exchange, Notation Made by or
Option of the Option of the Redemption or on Behalf of
Issuer Holder Repayment Paying Agent
- --------------------------------------- ------------------- --------------------
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7 Applies if this Note is not issued as part of, or in relation to, a
Unit.
<PAGE>
[SCHEDULE A-1]8
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The following
(A) exchanges of the principal amount of Notes indicated below for the same
principal amount of Notes to be represented by (i) Definitive Bearer Notes or
(ii) Definitive Registered Notes or [(iii) a Global Bearer Note that has been
separated from a Unit (a "Separated Note")]9, (B) exchanges of the principal
amount of Notes that had been represented by (i) a Temporary Global Bearer Note
[or (ii) a Global Bearer Note that is part of a Unit (an "Attached Unit
Note")]10 for an interest in this Note and (C) reductions of the principal
amount of this Note as a result of (i) cancellation upon the application of such
amount to the settlement of Purchase Contracts or the exercise of Universal
Warrants (ii) redemption at the option of the Issuer or (iii) repayments at the
option of the Holder have been made:
Principal [Principal
Amount Amount [Principal Principal
Date of Exchange, Exchanged Exchanged Amount Amount
Cancellation From from an Exchanged Exchanged
Redemption, or Temporary Attached for Separated For Definitive
Repayment Global Notes Unit Note]3 Note]2 Bearer Notes
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<PAGE>
Remaining
Principal
Principal Amount
Principal Amount Outstanding
Amount Principal Repaid at Following such
Exchanged Amount the Exchange, Notation
For Definitive Redeemed at option of Principal Cancellation Made by or
Registered the option of the Amount Redemption or on behalf of
Notes the Issuer Holder Cancelled Repayment Paying Agent
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8 This Schedule A-1 needed only if this Note is issued as part of, or
in relation to, a Unit.
9 Applies only if this Note is attached to a Unit.
10 Applies only if this Note has been separated from a Unit.
EXHIBIT 4-bb
[FORM OF FACE OF SECURITY]
Definitive Floating Rate Senior Bearer Note
BEARER BEARER No. PGFL ____
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
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.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
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1 Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR DEFINITIVE MEDIUM-TERM NOTE, SERIES [D/E] (Floating Rate)
Floating Rate Senior Note
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EUROCLEAR NO: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
CLEARSTREAM NO: ANNUAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE REDUCTION: PAGE:
COMMON CODE: OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
ISIN: REDEMPTION NOTICE PERIOD:3 MINIMUM DENOMINATIONS:
REPORTING SERVICE: EXCHANGE FOR REGISTERED
NOTES: [NO]4
OTHER PROVISIONS:
Morgan Stanley Dean Witter & Co., a Delaware corporation (together with its
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to bearer, upon surrender hereof, the principal amount specified in
[Schedule A hereto]5 [Schedule A-1 hereto]6, on the Maturity Date specified
above (except to the extent previously redeemed or repaid) and to pay interest
thereon to the bearer of the coupons, if any, appertaining hereto, from and
including the Interest Accrual Date specified above at a rate per annum equal to
the Initial Interest Rate specified above until but excluding the Initial
Interest Reset Date specified above, and on and after at a rate per annum
determined in accordance with the provisions specified on the reverse hereof
until but excluding the
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3 Applicable if other than 30-60 days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10 days may be
possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has been
to exclude this option. 5 Applies if this Note is not issued as part of, or in
relation to, a Unit. 6 Applies if this Note is issued as part of, or in relation
to, a Unit.
2
<PAGE>
date such principal amount is paid or duly made available for payment. The
Issuer will pay interest in arrears monthly, quarterly, semiannually or annually
as specified above as the Interest Payment Period on each Interest Payment Date
(as specified above), commencing with the first Interest Payment Date next
succeeding the Interest Accrual Date specified above, and on the Maturity Date
specified above (or any redemption or repayment date); provided, however, that
if the Interest Accrual Date occurs fifteen days or less prior to the first
Interest Payment Date occurring after the Interest Accrual Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date; and provided, further, that if an Interest Payment Date
(other than the Maturity Date or redemption or repayment date) would fall on a
day that is not a Business Day, as defined on the reverse hereof, such Interest
Payment Date shall be the following day that is a Business Day, except that if
the Base Rate specified above is LIBOR or EURIBOR and such next Business Day
falls in the next calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day; and provided, further, that if
the Maturity Date or redemption or repayment date would fall on a day that is
not a Business Day, the payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day and no interest shall accrue
for the period from and after such Maturity Date or redemption or repayment
date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will be payable only upon presentation and surrender at the office
or agency of the Principal Paying Agent (this and certain other capitalized
terms used herein are defined on the reverse of this Note) or at the office or
agency of such other paying agents outside the United States as the Issuer may
determine for that purpose (each, a "Paying Agent," which term shall include the
Principal Paying Agent) of the interest coupons hereto attached as they
severally mature.
Payment of the principal of and premium, if any, on this Note, at
maturity (or on any redemption or repayment date) will be made upon presentation
and surrender of this Note at the office or agency of the Principal Paying Agent
or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as provided
on the reverse hereof. If this Note is denominated in U.S. dollars, any payment
of the principal of, premium, if any, and interest on this Note will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Such payments on this
Note will be made either by a check mailed to an address outside the United
States furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with a bank located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent not less than 15 calendar
days prior to the applicable payment date. Notwithstanding the foregoing, in the
event that payment in U.S. dollars of the full amount payable on this Note at
the offices of all Paying Agents would be illegal or effectively precluded as a
result of exchange controls or similar restrictions, payment on this Note will
be made by a paying agency
3
<PAGE>
in the United States, if such paying agency, under applicable law and
regulations, would be able to make such payment. If this Note is denominated in
a Specified Currency other than U.S. dollars, then, except as provided on the
reverse hereof, payment of the principal of and premium, if any, and interest on
this Note will be made in such Specified Currency either by a check drawn on a
bank outside the United States or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with a bank located outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, neither this
Note nor any coupons appertaining hereto shall be entitled to any benefit under
the Senior Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed
and coupons bearing the facsimile signature of its ___________ to be annexed
hereto.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
- -------------------------------------
Authorized Officer
5
<PAGE>
[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Medium-Term
Notes, Series [D/E], having maturities more than nine months from the date of
issue (the "Notes") of the Issuer. The Notes are issuable under an Amended and
Restated Senior Indenture, dated as of May 1, 1999, between the Issuer and The
Chase Manhattan Bank, as Trustee (the "Trustee," which term includes any
successor trustee under the Senior Indenture) (as may be amended or supplemented
from time to time, the "Senior Indenture"), to which Senior Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities of the Issuer,
the Trustee and holders of the Notes and any coupons appertaining thereto and
the terms upon which the Notes are, and are to be, authenticated and delivered.
The Issuer has appointed The Chase Manhattan Bank, London Branch, as its
principal paying agent for the Notes and the coupons appertaining hereto (the
"Principal Paying Agent," which term includes any additional or successor
Principal Paying Agent appointed by the Issuer). The terms of individual Notes
may vary with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Senior Indenture. To the
extent not inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents
that it is not an authorized institution (for purposes of the United Kingdom
Banking Act 1987) nor a European authorized institution as defined by Regulation
3 of the Banking Co-ordination (Second Council Directive) Regulations 1992 and
repayment of the principal of, and payment of any interest or premium on, this
Note has not been guaranteed, that it has complied with its obligations under
the listing rules of the London Stock Exchange Limited (the "Rules") and that,
since the last publication in compliance with the Rules of information about it,
it, having made all reasonable inquiries, has not become aware of any change in
circumstances which could reasonably be regarded as significantly and adversely
affecting its ability to meet its obligations in respect of the Notes as they
fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
indicated below). If this Note is subject to "Annual Redemption Percentage
Reduction," the Initial Redemption Percentage indicated on the face hereof will
be reduced on each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction specified on the face hereof until the
redemption price of this Note is 100% of the principal amount hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
provided below). Notice of redemption to holders of Notes shall be published in
the manner set forth in "Notices" as defined below, once in each of the three
successive calendar weeks, the first publication to be not less than 30 nor more
than 60 days prior to the date set for redemption or within
6
<PAGE>
the Redemption Notice Period specified on the face hereof. In the event of
redemption of this Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued upon the cancellation hereof. If
redeemed prior to maturity, this Note must be presented for payment together
with all unmatured coupons, if any, appertaining hereto, failing which the
amount of any missing unmatured coupon will be deducted from the sum due for
payment; provided, however, that such deduction may be waived by the Issuer and
the Principal Paying Agent if there is furnished to each of them such security
or indemnity as they may require.
The Company will not be required (i) to exchange any Bearer Note to be
redeemed for a period of fifteen calendar days preceding the first publication
of the relevant notice of redemption or (ii) to exchange any Bearer Note
selected for redemption or surrendered for optional repayment, except that such
Bearer Note may be exchanged for a Registered Note of like tenor unless
indicated otherwise on the face of this Note, provided that such Registered Note
shall be simultaneously surrendered for redemption or repayment, as the case may
be.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 or, if this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Principal
Paying Agent must receive at its office in London, at least 15 but not more than
30 days prior to the date of repayment, this Note, together with all unmatured
coupons appertaining thereto, with the form entitled "Option to Elect Repayment"
below duly completed, or a telegram, telex, facsimile transmission or a letter
from a member of a national securities exchange, or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States, Western Europe or Japan setting forth the principal amount of the Note,
the principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the Option to
Elect Repayment is being exercised and a guarantee that this Note to be repaid,
together with the duly completed form entitled Option to Elect Repayment, will
be received by the principal paying agent not later than the fifth Business Day
after the date of that telegram, telex, facsimile transmission or letter.
However, the telegram, telex, facsimile transmission or letter shall only be
effective if this Note and an Option to Elect Repayment form duly completed are
received by the Paying Agent by the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter. Exercise of such repayment
option by the holder hereof shall be irrevocable.
This Note will bear interest at the rate determined in accordance with
the applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or
minus the Spread, if any, or (ii) multiplied by the Spread Multiplier, if any,
specified on the face hereof. Commencing with the Initial Interest Reset Date
specified on the face hereof, the rate at which interest on this Note is payable
shall be reset as of each Interest Reset Date specified on the face hereof (as
used herein, the term "Interest Reset
7
<PAGE>
Date" shall include the Initial Interest Reset Date). The determination of the
rate of interest at which this Note will be reset on any Interest Reset Date
shall be made on the Interest Determination Date (as defined below) pertaining
to such Interest Reset Date. The Interest Reset Dates will be the Interest Reset
Dates specified on the face hereof; provided, however, that the interest rate in
effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate. If any Interest Reset Date would
otherwise be a day that is not a Business Day (as defined below), such Interest
Reset Date shall be postponed to the next succeeding day that is a Business Day,
except that if the Base Rate specified on the face hereof is LIBOR or EURIBOR
and such Business Day is in the next succeeding calendar month, such Interest
Reset Date shall be the immediately preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the second
Business Day next preceding such Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to EURIBOR (or to LIBOR when the Index Currency is euros) shall be
the second TARGET Settlement Day preceding such Interest Reset Date. The
Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to LIBOR (other than for LIBOR Notes
for which the Index Currency is euros) shall be the second London Banking Day
preceding such Interest Reset Date except that the Interest Determination Date
pertaining to an Interest Reset Date for a LIBOR Note for which the Index
Currency is pounds sterling will be such Interest Reset Date. As used herein,
"London Banking Day" means any day on which dealings in deposits in the Index
Currency (as defined herein) are transacted in the London interbank market. The
Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to the Treasury Rate shall be the day
of the week in which such Interest Reset Date falls on which Treasury bills
normally would be auctioned; provided, however, that if as a result of a legal
holiday an auction is held on the Friday of the week preceding such Interest
Reset Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any Interest
Reset Date, then the Interest Reset Date shall instead be the first Business Day
following the date of such auction.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to an Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity Date (or, with
respect to any principal amount to be redeemed or repaid, any redemption or
repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face hereof
is the "CD Rate," for any Interest Determination Date, the CD Rate with respect
to this Note shall be the rate on that date for negotiable certificates of
deposit having the Index Maturity specified on the face hereof as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates," or any successor publication of the Board
of Governors of the Federal Reserve System ("H.15(519)") under the heading "CDs
(Secondary Market)."
8
<PAGE>
The following procedures shall be followed if the CD Rate cannot be
determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m., New
York City time, on the Calculation Date, the CD Rate shall be the rate on that
Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the CD Rate to be the arithmetic mean of the
secondary market offered rates as of 10:00 a.m., New York City time, on that
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent (after consultation with the Issuer) for negotiable
certificates of deposit of major United States money center banks of the highest
credit standing in the market for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity specified on the face hereof in
an amount that is representative for a single transaction in that market at that
time.
(iii) If the dealers selected by the Calculation Agent are not quoting
as described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable shall be the Initial Interest Rate.
Determination of Commercial Paper Rate. If the Base Rate specified on
the face hereof is the "Commercial Paper Rate," for any Interest Determination
Date, the Commercial Paper Rate with respect to this Note shall be the Money
Market Yield (as defined herein), calculated as described below, of the rate on
that date for commercial paper having the Index Maturity specified on the face
hereof, as that rate is published in H.15(519), under the heading "Commercial
Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial Paper Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate shall be the Money
Market Yield of the rate on that Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in the
H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation Date the
rate is not yet published in either H.15(519) or the H.15 Daily Update, then the
Calculation Agent shall determine the Commercial Paper Rate to be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on that Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent
(after consultation
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<PAGE>
with the Issuer) for commercial paper of the Index Maturity specified on the
face hereof, placed for an industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized statistical rating agency.
(iii) If the dealers selected by the Calculation Agent are not quoting
as mentioned above, the Commercial Paper Rate for that Interest Determination
Date shall remain the Commercial Paper Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a yield calculated in accordance with
the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per year rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of EURIBOR Notes. If the Base Rate specified on the face
hereof is "EURIBOR," for any Interest Determination Date, EURIBOR with respect
to this Note shall be the rate for deposits in euros as sponsored, calculated
and published jointly by the European Banking Federation and ACI - The Financial
Market Association, or any company established by the joint sponsors for
purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Bridge
Telerate, Inc., or any successor service, on page 248 or any other page as may
replace page 248 on that service ("Telerate Page 248") as of 11:00 a.m.
(Brussels time).
The following procedures shall be followed if the rate cannot be
determined as described above:
(i) If the above rate does not appear, the Calculation Agent shall
request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the applicable
Interest Reset Date, and in a principal amount not less than the equivalent of
U.S.$1 million in euro that is representative of a single transaction in euro,
in that market at that time. If at least two quotations are provided, EURIBOR
shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest
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<PAGE>
Reset Date for loans in euro to leading European banks for a period of time
equivalent to the Index Maturity specified on the face hereof commencing on that
Interest Reset Date in a principal amount not less than the equivalent of U.S.$1
million in euro.
(iii) If the banks so selected by the Calculation Agent are not quoting
as described in (ii) above, the EURIBOR rate in effect for the applicable period
shall be the same as EURIBOR for the immediately preceding Interest Reset
Period, or, if there was no Interest Reset Period, the rate of interest payable
shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the European
Union that adopt the single currency in accordance with the treaty establishing
the European Community (the "EC"), as amended by the treaty on European Union
(as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate specified on
the face hereof is the "Federal Funds Rate," for any Interest Determination
Date, the Federal Funds Rate with respect to this Note shall be the rate on that
date for federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" as displayed on Bridge Telerate, Inc., or any successor
service, on page 120 or any other page as may replace page 120 on that service
("Telerate Page 120").
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate shall be the rate on that
Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the H.15
Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight federal funds by each of
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) prior to
9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not quoting
as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
Determination of LIBOR. If the Base Rate specified on the face hereof
is "LIBOR," LIBOR with respect to this Note shall be based on London interbank
offered rate. The Calculation Agent shall determine "LIBOR" for each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either: (a)
if "LIBOR Reuters" is specified as the Reporting Service on the face hereof, the
arithmetic mean of the offered rates for deposits in the Index Currency having
the Index Maturity designated on the face hereof, commencing
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<PAGE>
on the second London Banking Day immediately following that Interest
Determination Date, that appear on the Designated LIBOR Page, as defined below,
as of 11:00 a.m., London time, on that Interest Determination Date, if at least
two offered rates appear on the Designated LIBOR Page; except that if the
specified Designated LIBOR Page, by its terms provides only for a single rate,
that single rate shall be used; or (b) if "LIBOR Telerate" is specified as the
Reporting Service on the face hereof, the rate for deposits in the Index
Currency having the Index Maturity designated on the face hereof, commencing on
the second London Banking Day immediately following that Interest Determination
Date or, if pounds sterling is the Index Currency, commencing on that Interest
Determination Date, that appears on the Designated LIBOR Page at approximately
11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is
specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall request the principal London offices of each of four major reference
banks in the London interbank market, as selected by the Calculation Agent
(after consultation with the Issuer) to provide the Calculation Agent with its
offered quotation for deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof commencing on the second London Banking
Day immediately following the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined on that
Interest Determination Date shall be the arithmetic mean of those quotations. If
fewer than two quotations are provided, LIBOR shall be determined for the
applicable Interest Reset Date as the arithmetic mean of the rates quoted at
approximately 11:00 a.m., London time, or some other time specified on the face
hereof, in the applicable principal financial center for the country of the
Index Currency on that Interest Reset Date, by three major banks in that
principal financial center selected by the Calculation Agent (after consultation
with the Issuer) for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not quoting
as described in (iii) above, LIBOR in effect for the applicable period shall be
the same as LIBOR for the immediately preceding Interest Reset Period, or, if
there was no Interest Reset Period, the rate of interest payable shall be the
Initial Interest Rate.
The "Index Currency" means the currency specified on the face hereof as
the currency for which LIBOR shall be calculated, or, if the euro is substituted
for that currency, the Index Currency shall be the euro. If that currency is not
specified on the face hereof, the Index Currency shall be U.S. dollars.
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<PAGE>
"Designated LIBOR Page" means either: (a) if LIBOR Reuters is
designated as the Reporting Service on the face hereof, the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency or its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that service, for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR
Telerate were specified, and, if the U.S. dollar is the Index Currency, as if
Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is "Prime Rate," for any Interest Determination Date, the Prime Rate with
respect to this Note shall be the rate on that date as published in H.15(519)
under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be
determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate shall be the rate on that
Interest Determination Date as published in H.15 Daily Update under the heading
"Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York City
time, on the Calculation Date in either H.15(519) or the H.15 Daily Update, then
the Calculation Agent shall determine the Prime Rate to be the arithmetic mean
of the rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate or
base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen USPRIME 1
Page for that Interest Determination Date, the Calculation Agent shall determine
the Prime Rate to be the arithmetic mean of the Prime Rates quoted on the basis
of the actual number of days in the year divided by 360 as of the close of
business on that Interest Determination Date by at least three major banks in
The City of New York selected by the Calculation Agent (after consultation with
the Issuer).
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as page
"USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service for
the purpose of displaying prime rates or base lending rates of major United
States banks.
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Determination of Treasury Rate. If the Base Rate specified on the face
hereof is "Treasury Rate," the Treasury Rate with respect to this Note shall be:
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00 p.m.,
New York City time, on the Calculation Date, the Bond Equivalent Yield of the
rate for the applicable Treasury Bills as published in the H.15 Daily Update, or
other recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by 3:00
p.m., New York City time, on the related Calculation Date, the Bond Equivalent
Yield of the Auction rate of the applicable Treasury Bills, announced by the
United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, selected by
the Calculation Agent, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; or
(vii) if the dealers selected by the Calculation Agent are not quoting
as described in (vi), the Treasury Rate for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of interest
payable shall be the Initial Interest Rate.
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The "Bond Equivalent Yield" means a yield calculated in accordance with
the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = --------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the "CMT Rate," for any Interest Determination Date, the CMT Rate with
respect to this Note shall be the rate displayed on the Designated CMT Telerate
Page (as defined below) under the caption "... Treasury Constant Maturities ...
Federal Reserve Board Release H.15... Mondays Approximately 3:45 p.m.," under
the column for the Designated CMT Maturity Index, as defined below, for:
(1) the rate on that Interest Determination Date, if the Designated CMT
Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately preceding
the week in which the related Interest Determination Date occurs, if the
Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate cannot be
determined as described above:
(i) If that rate is no longer displayed on the relevant page, or if
not displayed by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) is no longer published, or if not
published by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519).
(iii) If the information described in (ii) is not provided by 3:00
p.m., New York City time, on the related Calculation Date, then the Calculation
Agent shall determine the CMT Rate to be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 p.m., New York City time, on the Interest Determination Date,
reported, according to their written records, by three leading primary United
States government securities dealers ("Reference Dealers") in The City of New
York, which may include an agent or other
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affiliates of the Issuer, selected by the Calculation Agent as described in the
following sentence. The Calculation Agent shall select five reference dealers
(after consultation with the Issuer) and shall eliminate the highest quotation
or, in the event of equality, one of the highest, and the lowest quotation or,
in the event of equality, one of the lowest, for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes") with
an original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than that Designated CMT Maturity Index
minus one year. If two Treasury Notes with an original maturity as described
above have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the quotes for the Treasury Note with the shorter remaining term
to maturity shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 p.m., New York City
time, on the Interest Determination Date of three reference dealers in The City
of New York, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an amount of at
least $100,000,000.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the Calculation
Agent are quoting as described in (iv) above, the CMT Rate shall be the CMT Rate
for the immediately preceding Interest Reset Period, or, if there was no
Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc., or any successor service, on the page designated on the face hereof or any
other page as may replace that page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10, 20 or 30
years, specified in an applicable pricing supplement for which the CMT Rate
shall be calculated. If no maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Calculation Date. The interest rate on this Note will in no event be
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higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will provide
to the holder hereof the interest rate hereon then in effect and, if determined,
the interest rate that will become effective as of the next Interest Reset Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Accrued interest hereon shall
be an amount calculated by multiplying the principal amount hereof shown on
Schedule A hereto by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day in the
period for which interest is being paid. Unless otherwise specified on the face
hereof, the interest factor for each such date shall be computed by dividing the
interest rate applicable to such day by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR, except
if the Base Rate is LIBOR and this Note is denominated in pounds sterling, as
specified on the face hereof; (i) by 360 if the Base Rate is CD Rate, Commercial
Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR (except if the
Index Currency is pounds sterling); (ii) by 365 if the Base Rate is LIBOR and
the Index Currency is pounds sterling; or (iii) by the actual number of days in
the year if the Base Rate is the Treasury Rate or the CMT Rate. All percentages
resulting from any calculation of the rate of interest on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point (.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on this Note
will be rounded to the nearest cent (with one-half cent rounded upward). The
interest rate in effect on any Interest Reset Date will be the applicable rate
as reset on such date. The interest rate applicable to any other day is the
interest rate from the immediately preceding Interest Reset Date (or, if none,
the Initial Interest Rate).
This Note and the coupons appertaining hereto and all the obligations
of the Issuer hereunder are direct, unsecured obligations of the Issuer and rank
without preference or priority among themselves and pari passu with all other
existing and future unsecured and unsubordinated indebtedness of the Issuer,
subject to certain statutory exceptions in the event of liquidation upon
insolvency.
This Note is issued in definitive bearer form with coupons attached (a
"Definitive Bearer Note") and, unless otherwise indicated on the face hereof, is
issuable only in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of 1,000 units of the
Specified Currency set forth on the face hereof.
This Note and the coupons appertaining hereto may be transferred by
delivery. At the option of the holder of this Note, and subject to the terms of
the Senior Indenture, this Note (with all unmatured coupons, and all matured
coupons, if any, in default appertaining hereto) will be exchanged for two or
more Definitive Bearer Notes (if this Note is issuable in more than one
authorized denomination) or for a Registered Note, in each case, of any
authorized denomination of like tenor and in an equal aggregate principal
amount, in accordance with the provisions of the
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Senior Indenture, at the office of the Trustee in The City of New York (which
initially has been appointed registrar and transfer agent for the Notes) or at
the office of the Principal Paying Agent in London (which initially has been
appointed transfer agent for the Notes), or at the office of any transfer agent
designated by the Issuer for such purpose. If this Note is surrendered in
exchange for a Registered Note after the close of business at any such office on
any record date (whether or not a Business Day) for the payment of interest on
such Registered Note and before the opening of business at such office on the
relevant Interest Payment Date, this Note shall be surrendered without the
coupon relating to such Interest Payment Date. All such exchanges of Notes and
coupons will be free of service charge, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. None of the Issuer, the Trustee or any agent of the Issuer
or the Trustee shall be required to exchange this Note for a Registered Note if
such exchange would result in adverse United States Federal income tax
consequences to the Issuer under then applicable United States federal income
tax laws.
The date of any Registered Note delivered upon any exchange of this
Note shall be such that no gain or loss of interest results from such exchange.
In case this Note or any coupons appertaining thereto shall at any time
become mutilated, defaced or be destroyed, lost or stolen and this Note or
coupon or evidence of the loss, theft or destruction thereof (together with the
indemnity hereinafter referred to and such other documents or proof as may be
required in the premises) shall be delivered to the Trustee, the Issuer in its
discretion may execute a new Note of like tenor in exchange for the Note, or in
lieu of the Note so destroyed or lost or stolen, with coupons corresponding to
the coupons appertaining to the Note so mutilated, defaced, destroyed, lost or
stolen, or in exchange for the Note to which such mutilated, defaced, destroyed,
lost or stolen coupon appertained, with coupons appertaining thereto
corresponding to the coupons so mutilated, defaced, destroyed, lost or stolen,
but, if this Note or coupon is destroyed, lost or stolen, only upon receipt of
evidence satisfactory to the Trustee and the Issuer that this Note or coupon was
destroyed or lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges associated
with procuring such indemnity and with the preparation, authentication and
delivery of a new Note and coupons shall be borne by the owner of the Note or
the coupons mutilated, defaced, destroyed, lost or stolen.
This Note may be redeemed, as a whole, at the option of the Issuer at
any time prior to maturity, upon the giving of a notice of redemption as
described below, at a redemption price equal to 100% of the principal amount
hereof, together with accrued interest to the date fixed for redemption, if the
Issuer determines that, as a result of any change in or amendment to the laws
(or any regulations or rulings promulgated thereunder) of the United States or
of any political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
becomes effective on or after the Original Issue Date hereof, the Issuer has or
will become obligated to pay Additional Amounts (as defined below) with respect
to this Note as described below. Prior to the giving of any Notice of redemption
pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a
certificate stating that the Issuer is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions precedent to the
right
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of the Issuer to so redeem have occurred, and (ii) an opinion of independent
counsel satisfactory to the Trustee to such effect based on such statement of
facts; provided that no such notice of redemption shall be given earlier than 60
days prior to the earliest date on which the Issuer would be obligated to pay
such Additional Amounts if a payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, which date and the applicable redemption
price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United
States by the Issuer or any Paying Agent of principal, premium or interest due
in respect of this Note or any coupons appertaining thereto would, under any
present or future laws or regulations of the United States, be subject to any
certification, identification or other information reporting requirement of any
kind, the effect of which is the disclosure to the Issuer, any Paying Agent or
any governmental authority of the nationality, residence or identity of a
beneficial owner of this Note or any coupons appertaining thereto who is a
United States Alien (as defined below) (other than such a requirement (a) that
would not be applicable to a payment made by the Issuer or any Paying Agent (i)
directly to the beneficial owner or (ii) to a custodian, nominee or other agent
of the beneficial owner, or (b) that can be satisfied by such custodian, nominee
or other agent certifying to the effect that such beneficial owner is a United
States Alien; provided that in each case referred to in clauses (a)(ii) and (b)
payment by such custodian, nominee or agent to such beneficial owner is not
otherwise subject to any such requirement), the Issuer shall redeem this Note,
as a whole, at a redemption price equal to 100% of the principal amount thereof,
together with accrued interest to the date fixed for redemption, or, at the
election of the Issuer if the conditions of the next succeeding paragraph are
satisfied, pay the additional amounts specified in such paragraph. The Issuer
shall make such determination and election as soon as practicable, shall
promptly notify the Trustee thereof and shall publish (or transmit, as
applicable) prompt notice thereof (the "Determination Notice") stating the
effective date of such certification, identification or other information
reporting requirements, whether the Issuer will redeem this Note or has elected
to pay the additional amounts specified in the next succeeding paragraph, and
(if applicable) the last date by which the redemption of this Note must take
place, as provided in the next succeeding sentence. If the Issuer redeems this
Note, such redemption shall take place on such date, not later than one year
after the publication of the Determination Notice, as the Issuer shall elect by
notice to the Trustee at least 60 days prior to the date fixed for redemption or
at least 30 days prior to the last day of the Redemption Notice Period specified
on the face hereof. Notice of such redemption of this Note will be given to the
holder of this Note not more than 60 nor less than 30 days prior to the date
fixed for redemption or within the Redemption Notice Period specified on the
face hereof. Such redemption notice shall include a statement as to the last
date by which this Note to be redeemed may be exchanged for Registered Notes.
Notwithstanding the foregoing, the Issuer shall not so redeem this Note if the
Issuer shall subsequently determine, not less than 30 days prior to the date
fixed for redemption or prior to the last day of the Redemption Notice Period
specified on the face hereof, that subsequent payments would not be subject to
any such certification, identification or other information reporting
requirement, in which case the Issuer shall publish (or transmit, as applicable)
prompt notice of such determination and any earlier redemption notice shall be
revoked and of no further effect. The right of the holder of this Note to
exchange this Note for Registered Notes pursuant to the provisions of
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this paragraph will terminate at the close of business of the Principal Paying
Agent on the fifteenth day prior to the date fixed for redemption, and no
further exchanges of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph would
be fully satisfied by payment of a backup withholding tax or similar charge, the
Issuer may elect by notice to the Trustee to pay as additional amounts such
amounts as may be necessary so that every net payment made outside the United
States following the effective date of such requirements by the Issuer or any
Paying Agent of principal, premium or interest due in respect of this Note or
any coupons appertaining thereto of which the beneficial owner is a United
States Alien (but without any requirement that the nationality, residence or
identity of such beneficial owner be disclosed to the Issuer, any Paying Agent
or any governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred to
in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note or any
coupons appertaining hereto for payment more than 15 days after the date on
which such payment becomes due and payable or on which payment thereof is duly
provided for, whichever occurs later), will not be less than the amount provided
for in this Note or any coupons appertaining hereto to be then due and payable.
In the event the Issuer elects to pay any additional amounts pursuant to this
paragraph, the Issuer shall have the right to redeem this Note as a whole at any
time pursuant to the applicable provisions of the immediately preceding
paragraph and the redemption price of this Note will not be reduced for
applicable withholding taxes. If the Issuer elects to pay additional amounts
pursuant to this paragraph and the condition specified in the first sentence of
this paragraph should no longer be satisfied, then the Issuer will redeem this
Note as a whole, pursuant to the applicable provisions of the immediately
preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set
forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note or any coupons appertaining hereto who is a United States
Alien as may be necessary in order that every net payment of the principal of
and interest on this Note and any other amounts payable on this Note, after
withholding for or on account of any present or future tax, assessment or
governmental charge imposed upon or as a result of such payment by the United
States (or any political subdivision or taxing authority thereof or therein),
will not be less than the amount provided for in this Note or in any such coupon
appertaining hereto to be then due and payable. The Issuer will not, however, be
required to make any payment of Additional Amounts to any such holder for or on
account of:
(a) any such tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such holder,
if such holder is an estate, a trust, a partnership or a corporation)
and the United States and its possessions, including, without
limitation, such holder (or such fiduciary, settlor, beneficiary,
member or shareholder) being or having been a citizen or resident
thereof or being or having been engaged in a trade or business or
present therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note or
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any coupons appertaining hereto for payment on a date more than 15
days after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for, whichever
occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note or any coupons appertaining hereto;
(e) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment of principal of, or
interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would
not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note or any coupons appertaining hereto, if such
compliance is required by statute or by regulation of the United
States or of any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax,
assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note or
any coupons appertaining thereto to a United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the United States (or any
political subdivision thereof) to be included in the income, for tax purposes,
of a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to the
Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder of this Note.
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The Senior Indenture provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of,
premium, if any, or interest on, any series of debt securities issued under the
Senior Indenture, including the series of Senior Global Medium-Term Notes of
which this Note forms a part, or due to the default in the performance or breach
of any other covenant or warranty of the Issuer applicable to the debt
securities of such series but not applicable to all outstanding debt securities
issued under the Senior Indenture, shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then declare
the principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default due to
a default in the performance of any other of the covenants or agreements in the
Senior Indenture applicable to all outstanding debt securities issued
thereunder, including this Note, or due to certain events of bankruptcy or
insolvency of the Issuer, shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of all debt
securities issued under the Senior Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain conditions
such declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal (or premium, if any) or interest on
such debt securities) by the holders of a majority in principal amount of the
debt securities of all affected series then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of the debt securities of all series issued under the Senior Indenture then
outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee may
not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms thereof), or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected; or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate (as defined below) on the date of such payment or, if the Market
Exchange Rate is not available
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on such date, as of the most recent practicable date; provided, however, that if
the euro has been substituted for such Specified Currency, the Issuer may at its
option (or shall, if so required by applicable law) without the consent of the
holder of this Note effect the payment of principal of, premium, if any, or
interest on, any Note denominated in such Specified Currency in euro in lieu of
such Specified Currency in conformity with legally applicable measures taken
pursuant to, or by virtue of, the treaty establishing the EC, as amended by the
Treaty. Any payment made under such circumstances in U.S. dollars or euro where
the required payment is in an unavailable Specified Currency will not constitute
an Event of Default. If such Market Exchange Rate is not then available to the
Issuer or is not published for a particular Specified Currency, the Market
Exchange Rate will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent (as defined below) at approximately 11:00
a.m., New York City time, on the second Business Day preceding the date of such
payment from three recognized foreign exchange dealers (the "Exchange Dealers")
for the purchase by the quoting Exchange Dealer of the Specified Currency for
U.S. dollars for settlement on the payment date, in the aggregate amount of the
Specified Currency payable to those holders or beneficial owners of Notes and at
which the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless the
Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are
not available, the Exchange Rate Agent shall determine the market exchange rate
at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such entity's
sole discretion and shall, in the absence of manifest error, be conclusive for
all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided. If this Note is listed on
the London Stock Exchange Limited and such Exchange so requires, the Issuer
shall maintain a Paying Agent in London. The Issuer may designate other agencies
for the payment of said principal, premium and interest at such place or places
outside the United States (subject to applicable laws and regulations) as the
Issuer may decide. So long as there shall be such an agency, the Issuer shall
keep the Trustee advised of the names and locations of such agencies, if any are
so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if any,
on any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such moneys shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
with respect to such moneys shall thereupon cease, without, however, limiting in
any
23
<PAGE>
way any obligation that the Issuer may have to pay the principal of or interest
or premium, if any, on this Note as the same shall become due.
No provision of this Note or any coupons appertaining hereto or of the
Senior Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the time, place, and rate, and in the coin or currency,
herein prescribed unless otherwise agreed between the Issuer and the holder of
this Note or any coupons appertaining hereto.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder of this Note or any coupons appertaining hereto as the absolute
owner thereof for all purposes, whether or not this Note or such coupon be
overdue, and none of the Issuer, the Trustee or any such agent shall be affected
by notice to the contrary.
No recourse shall be had for the payment of the principal of, premium,
if any, or the interest on this Note for any claim based hereon or on any coupon
appertaining hereto, or otherwise in respect hereof, or based on or in respect
of the Senior Indenture or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
This Note and the coupons appertaining hereto shall for all purposes be
governed by, and construed in accordance with, the laws of the State of New
York.
As used herein:
(a) As used herein, "Business Day" means any day, other than a
Saturday or Sunday, (a) that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or in The City of
London or (y) if this Note is denominated in a Specified Currency
other than U.S. dollars, Australian dollars or euro, in the principal
financial center of the country of the Specified Currency, or (z) if
this Note is denominated in Australian dollars, in Sydney and (b) if
this Note is denominated in euro, that is also a day on which the
Trans-European Automated Real-time Gross Settlement Express Transfer
System ("TARGET") is operating (a "TARGET Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof published by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to the holders of the
Notes and any coupons appertaining thereto to be given by publication
in an authorized newspaper in the English language and of general
circulation in the Borough of Manhattan, The City of New York, and
24
<PAGE>
London or, if publication in London is not practical, in an English
language newspaper with general circulation in Western Europe. Such
Notices will be deemed to have been given on the date of such
publication or, if published in such newspapers on different dates, on
the date of the first such publication;
(d) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(e) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership one or more of the
members of which is a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or
trust.
All other terms used in this Note or the coupons appertaining hereto
which are defined in the Senior Indenture and not otherwise defined herein shall
have the meanings assigned to them in the Senior Indenture.
25
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its terms
at a price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
________________; and specify the denomination or denominations (which shall not
be less than the minimum authorized denomination) of the Notes to be issued to
the holder for the portion of the within Note not being repaid (in the absence
of any such specification, one such Note will be issued for the portion not
being repaid): _______________.
Dated:_________________________ ______________________________________
26
EXHIBIT 5
Brown & Wood LLP
One World Trade Center
New York, New York 10048
May 8, 2000
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
We have acted as counsel to Morgan Stanley Dean Witter & Co., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-3 (as it may be amended or supplemented from
time to time, the "Registration Statement") under the Securities Act of 1933,
as amended (the "Securities Act"), with respect to $12,000,000,000 aggregate
initial offering price of the following securities (collectively, the
"Securities"): (i) debt securities ("Debt Securities"), (ii) warrants to
purchase Debt Securities ("Debt Warrants") or to purchase or sell (a)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or (c) commodities ("Universal Warrants," and together
with Debt Warrants, the "Warrants"), (iii) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies or
(c) commodities, (iv) Debt Securities, Purchase Contracts and Warrants or any
combination thereof that may be offered in the form of Units ("Units"), (v)
shares of the Company's preferred stock, par value $0.01 per share ("Preferred
Stock"), to be issued from time to time in one or more series and (vi) an
indeterminate number of depositary shares representing fractional interests in
shares of the Preferred Stock (the "Depositary Shares").
The Debt Securities and certain Purchase Contracts that require the holders
thereof to satisfy their obligations thereunder when such Purchase Contracts are
issued ("Pre-paid Purchase Contracts"), if any, are to be issued from time to
time as either (a) senior indebtedness of the Company under an amended and
restated senior indenture dated as of May 1, 1999, between the Company and The
Chase Manhattan Bank (the "Senior Debt Trustee"), as trustee (the "Senior
Indenture"), or (b) subordinated indebtedness of the Company under an amended
and restated subordinated indenture dated as of May 1, 1999, between the Company
and Bank One Trust Company, N.A. (the "Subordinated Debt Trustee"), as successor
to The First National Bank of Chicago, as trustee (the "Subordinated Indenture"
and, together with the Senior Indenture, the "Indentures"). The Debt Warrants,
if any, will be issued under a debt warrant agreement to be entered into between
the Company and a debt warrant agent (the "Debt Warrant
<PAGE>
Agreement"). The Universal Warrants, if any, will be issued under a Universal
Warrant Agreement to be entered into between the Company and The Chase
Manhattan Bank, as warrant agent (the "Universal Warrant Agreement"). The
Purchase Contracts (other than Pre-paid Purchase Contracts) and Units, if any,
will be issued under one or more unit agreements to be entered into among the
Company, a bank or trust company, as unit agent, and the holders from time to
time of the Units (each such unit agreement, a "Unit Agreement"). Units that
include Purchase Contracts that are all Pre-paid Purchase Contracts will be
issued under one or more Unit Agreements designed for Units where the holders
do not have any further obligations under the Purchase Contracts (such Unit
Agreements are referred to as "Unit Agreements Without Holder Obligations").
Depositary Shares representing fractional interests in shares of Preferred
Stock will be issued under a preferred stock deposit agreement to be entered
into among the Company, The Bank of New York, as depositary, and the holders
from time to time of depositary receipts issued thereunder (the "Deposit
Agreement"). The forms of the Indentures, the Debt Warrant Agreement, the
Universal Warrant Agreement, the Unit Agreement, the Unit Agreement Without
Holders' Obligations, the Deposit Agreement and the Securities are filed or
incorporated by reference as exhibits to the Registration Statement.
In rendering this opinion, we have examined the originals or copies,
certified to our satisfaction, of such corporate records and other documents
and certificates as we deemed necessary. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of all such
latter documents. In addition, in rendering this opinion, we have assumed the
due authorization, execution and delivery of the Indentures, the Debt Warrant
Agreement, the Universal Warrant Agreement, the Unit Agreement, the Unit
Agreement Without Holders' Obligations, and the Deposit Agreement by all
parties other than the Company. As to any facts material to this opinion, we
have, when relevant facts were not independently established by us, relied upon
the aforesaid records, certificates and documents.
Based upon the foregoing, and having regard for such legal considerations
as we have deemed relevant, we are of the opinion that:
(i) the Indentures, the Debt Warrant Agreement, the Universal Warrant
Agreement, the Unit Agreement, the Unit Agreement Without Holders' Obligations,
the Deposit Agreement and the Securities have been duly authorized by the
Company;
(ii) when the Debt Warrant Agreement, the Universal Warrant Agreement and
the Unit Agreement and/or the Unit Agreement Without Holders' Obligations, as
applicable, have been duly executed and delivered by the Company and the Debt
Securities, the Debt Warrants, the Universal Warrants, the Purchase Contracts
and the Units have been duly executed and issued in accordance with the
provisions of the applicable Indenture, the Debt Warrant Agreement, the
Universal Warrant Agreement, the Unit Agreement, and/or the Unit Agreement
Without Holders' Obligations, as applicable, respectively, and duly paid for by
the purchasers thereof in the manner and on the terms described in the
Registration Statement (after it is
2
<PAGE>
declared effective), all required corporate action will have been taken with
respect to the issuance and sale of the Debt Securities, the Debt Warrants, the
Universal Warrants, the Purchase Contracts and the Units and such Securities
will have been validly issued and will constitute valid and binding obligations
of the Company, enforceable in accordance with their terms;
(iii) when the shares of Preferred Stock have been duly issued and paid
for by the purchasers thereof in the manner and on the terms described in the
Registration Statement (after it is declared effective), such shares of
Preferred Stock will be duly and validly issued, fully paid and nonassessable;
and
(iv) when the Deposit Agreement has been duly executed and delivered by
the Company and, if applicable, when the Depositary Shares have been duly
issued and paid for by the purchasers thereof in the manner and on the terms
described in the Registration Statement (after it is declared effective), such
Depositary Shares will represent legal and valid interests in the corresponding
shares of Preferred Stock.
The opinions set forth herein are limited to matters of the laws of the
State of New York and the General Corporation Law of the State of Delaware. Any
opinion expressed herein as to enforceability is qualified in that such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors' rights
generally, (ii) general principles of equity, regardless of whether such
enforcement is considered at a proceeding in equity or at law, (iii)
requirements that a claim with respect to Debt Securities that are denominated
in a foreign currency (or a foreign currency judgment in respect of such claim)
be converted into United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (iv) governmental authority to
limit, delay or prohibit making payments in foreign currency or currency units
or payments outside the United States. We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to our
firm appearing under the caption "Legal Matters" in the related Prospectus. In
giving such consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Brown & Wood LLP
EXHIBIT 12-a
MORGAN STANLEY DEAN WITTER & CO.
Ratio of Earnings to Fixed Charges
(Dollars in millions)
Three Months Ended Fiscal Year
Feb. 29, Feb.28,
2000 1999 1999 1998 1997
-------- ------- ------ ------ ------
Ratio of Earnings to Fixed Charges
Earnings:
Income before income taxes(1) $2,432 $1,672 $ 7,728 $ 5,385 $ 4,274
Add: Fixed charges, net 4,013 3,189 12,725 13,614 10,898
------ ------ ------- ------- -------
Income before income taxes
and fixed charges, net $6,445 $4,861 $20,453 $18,999 $15,172
====== ====== ======= ======= =======
Fixed charges:
Total interest expense $3,980 $3,160 $12,616 $13,514 $10,806
Interest factor in rents 33 29 109 100 92
------ ------ ------- ------- -------
Total fixed charges $4,013 $3,189 $12,725 $13,614 $10,898
====== ====== ======= ======= =======
Ratio of earnings to fixed charges 1.6 1.5 1.6 1.4 1.4
(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.
EXHIBIT 12-b
MORGAN STANLEY DEAN WITTER & CO.
Ratio of Earnings to Fixed Charges
(Dollars in millions)
Three Months Ended Fiscal Year
Feb. 29, Feb.28,
2000 1999 1999 1998 1997
-------- ------- ------ ------ ------
Ratio of Earnings to Fixed Charges
and Preferred Stock Dividends
Earnings:
Income before income taxes(1) $2,432 $1,672 $ 7,728 $ 5,385 $ 4,274
Add: Fixed charges, net 4,013 3,189 12,725 13,614 10,898
------ ------ ------- ------- -------
Income before income taxes
and fixed charges, net $6,445 $4,861 $20,453 $18,999 $15,172
====== ====== ======= ======= =======
Fixed charges:
Total interest expense $3,980 $3,160 $12,616 $13,514 $10,806
Interest factor in rents 33 29 109 100 92
Preferred stock dividends 14 18 72 87 110
------ ------ ------- ------- -------
Total fixed charges and
preferred stock dividends $4,027 $3,207 $12,797 $13,701 $11,008
====== ====== ======= ======= =======
Ratio of earnings to fixed charges
and preferred stock dividends 1.6 1.5 1.6 1.4 1.4
(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.
EXHIBIT 15
To the Directors and Shareholders of Morgan Stanley Dean Witter & Co.:
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim condensed
consolidated financial information of Morgan Stanley Dean Witter & Co. and
subsidiaries as of February 29, 2000 and for the three month periods ended
February 29, 2000 and February 28, 1999, as indicated in our report dated April
10, 2000; because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report, which is included in your Quarterly Report on Form
10-Q for the quarter ended February 29, 2000, is incorporated by reference in
this Amendment No. 1 to Registration Statement No. 333-34392.
We are also aware that the aforementioned report, pursuant to Rule 436(c) under
the Securities Act of 1933, is not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ DELOITTE & TOUCHE LLP
New York, New York
May 4, 2000
EXHIBIT 23-a
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-34392 of Morgan Stanley Dean Witter & Co. (the
"Registrant") on Form S-3 of our reports dated January 21, 2000, appearing in
and incorporated by reference in the Annual Report on Form 10-K of the
Registrant for the fiscal year ended November 30, 1999 (these reports express an
unqualified opinion; the report on the consolidated financial statements
includes an explanatory paragraph for a change in the method of accounting for
certain offering costs of closed-end funds), and to the reference to us under
the heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ DELOITTE & TOUCHE LLP
New York, New York
May 4, 2000
