As filed with the Securities and Exchange Commission on January 19, 2001
Registration No. 333-47576
===============================================================================
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 $5,310,339,482 of securities
registered and remaining unissued under registration statement no. 333-34392
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 January 19, 2001)
$25,310,339,482
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
, 2001
<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 relevant prospectus supplement, our Annual Report on Form
10-K for the fiscal year ended November 30, 1999, 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 (excluding the material
included under the headings "Item 2" and "Item 3") from the Proxy Statement for
our 2000 Annual Meeting of Stockholders, our Quarterly Reports on Form 10-Q for
the quarters ended February 29, 2000, May 31, 2000 and August 31, 2000 and our
Current Reports on Form 8-K dated December 20, 1999 (3 reports), March 23,
2000, June 6, 2000, June 22, 2000, September 21, 2000, October 11, 2000 and
December 19, 2000 (excluding any information incorporated by reference in these
materials) constitute the Listing Particulars for the purposes of the UK
Listing Authority. 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.
333-47576.
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
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satisfied by delivering or purchasing the
underlying securities, currencies or
commodities, or their cash value.
Purchase Contracts............ We may sell purchase contracts requiring the
holders to purchase or sell (1) securities of
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
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offered and the managing underwriters for any
securities sold to or through underwriters. Any
underwriters, including managing underwriters,
dealers or agents in the United States will
include Morgan Stanley & Co. Incorporated
and/or Dean Witter Reynolds Inc. and any
outside the United States will include Morgan
Stanley & Co. International Limited or other
affiliates of ours.
Structural Subordination;
Our Receipt Cash from Our
Subsidiaries 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 Discover
Bank (formerly 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,
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<PAGE>
Morgan Stanley & Co. International Limited,
Dean Witter Reynolds Inc. and other affiliates
of ours may act as a principal or agent in
these transactions. This prospectus and the
applicable prospectus supplement will also be
used in connection with those transactions.
Sales in any of those transactions will be made
at varying prices related to prevailing market
prices and other circumstances at the time of
sale.
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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-0330 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 Reports on Forms 10-Q for the quarters ended February 29,
2000, May 31, 2000 and August 31, 2000; and
(c) Current Reports on Form 8-K dated December 20, 1999 (3 reports), March
23, 2000, June 6, 2000, June 22, 2000, September 21, 2000, October 11, 2000 and
December 19, 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
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<PAGE>
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)
Nine Months Ended
----------------------- Fiscal Year
August 31, August 31, --------------------------------------
2000 1999 1999 1998 1997 1996 1995
---------- ---------- ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges........... 1.5 1.5 1.6 1.4 1.4 1.3 1.3
Ratio of earnings to
fixed charges and
preferred stock
dividends............... 1.5 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 global financial services firm that
maintains leading market positions in each of its three business
segments--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 online 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, with 12,674 professional financial
advisors and 475 securities branch offices. MSDW also had one of the largest
global asset management operations of any full-service securities firm, with
total assets under management 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 business includes securities underwriting, distribution
and trading; merger, acquisition, restructuring, real estate, project finance
and other corporate finance advisory activities; full-service and online
brokerage services; research services; the trading of foreign exchange and
commodities, as well as derivatives on a broad range of asset categories, rates
and indices; securities lending and private equity activities. MSDW's asset
management business includes providing global asset management advice and
services to investors through a variety of product lines and brand names,
including Morgan Stanley Dean Witter Advisors, Van Kampen Investments, Morgan
Stanley Dean Witter Investment Management and Miller Anderson & Sherrerd.
MSDW's credit services business includes the issuance of the Discover(R) Card
and the Morgan Stanley Dean Witter(sm) Card and the operation of Discover
Business Services (formerly 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 common stock and the repayment
of indebtedness. MSDW anticipates that it will raise additional funds from time
to time through equity or debt financing, including borrowings under revolving
credit agreements, to finance its businesses worldwide.
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DESCRIPTION OF DEBT SECURITIES
Debt May Be Senior or Subordinated
We may issue senior or subordinated debt securities. The senior debt
securities and, in the case of debt securities in bearer form, any coupons to
these securities, will constitute part of our senior debt, will be issued under
our Senior Debt Indenture, as defined below, and will rank on a parity with all
of our other unsecured and unsubordinated debt. The subordinated debt
securities and any coupons will constitute part of our subordinated debt, will
be issued under our Subordinated Debt Indenture, as defined below, and will be
subordinate and junior in right of payment, as set forth in the Subordinated
Debt Indenture, to all of our "senior indebtedness," which is defined in our
Subordinated Debt Indenture. If this prospectus is being delivered in
connection with a series of subordinated debt securities, the accompanying
prospectus supplement or the information we incorporate in this prospectus by
reference will indicate the approximate amount of senior indebtedness
outstanding as of the end of the most recent fiscal quarter. We refer to our
Senior Debt Indenture and our Subordinated Debt Indenture individually as an
"indenture" and collectively as the "indentures."
We have summarized below the material provisions of the indentures and the
debt securities, or indicated which material provisions will be described in
the related prospectus supplement. These descriptions are only summaries, and
each investor should refer to the applicable indenture, which describes
completely the terms and definitions summarized below and contains additional
information regarding the debt securities. Where appropriate, we use
parentheses to refer you to the particular sections of the applicable
indenture. Any reference to particular sections or defined terms of the
applicable indenture in any statement under this heading qualifies the entire
statement and incorporates by reference the applicable section or definition
into that statement. The indentures are substantially identical, except for the
provisions relating to MSDW's negative pledge, which is included in the Senior
Debt Indenture only, and to subordination.
Payments
We may issue debt securities from time to time in one or more series. The
provisions of each indenture allow us to "reopen" a previous issue of a series
of debt securities and issue additional debt securities of that issue. 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, or at a rate which varies during the lifetime of the debt
security. Debt securities bearing no interest or interest at a rate that at the
time of issuance is below the prevailing market rate may be sold at a discount
below their stated principal amount.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following
terms of and other information relating to any offered debt securities:
o classification as senior or subordinated debt securities and the
specific designation;
o aggregate principal amount, purchase price and denomination;
o currency in which the debt securities are denominated and/or in which
principal, and premium, if any, and/or interest, if any, is payable;
o date of maturity;
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o the interest rate or rates or the method by which the calculation
agent will determine the interest rate or rates, if any;
o the interest payment dates, if any;
o the place or places for payment of the principal of and any premium
and/or interest on the debt securities;
o any repayment, redemption, prepayment or sinking fund provisions,
including any redemption notice provisions;
o whether we will issue the debt securities in registered form or
bearer form or both and, if we are offering debt securities in bearer
form, any restrictions applicable to the exchange of one form for
another and to the offer, sale and delivery of those debt securities
in bearer form;
o whether we will issue the debt securities in definitive form and
under what terms and conditions;
o the terms on which holders of the debt securities may convert or
exchange these securities into or for stock or other securities of an
entity unaffiliated with us, any specific terms relating to the
adjustment of the conversion or exchange feature and the period
during which the holders may make the conversion or exchange;
o information as to the methods for determining the amount of principal
or interest payable on any date and/or the currencies, securities or
baskets of securities, commodities or indices to which the amount
payable on that date is linked;
o any agents for the debt securities, including trustees, depositories,
authenticating or paying agents, transfer agents or registrars;
o any applicable United States federal income tax consequences,
including, but not limited to:
o whether and under what circumstances we will pay additional
amounts on debt securities held by a person who is not a U.S.
person for any tax, assessment or governmental charge withheld
or deducted and, if so, whether we will have the option to
redeem those debt securities rather than pay the additional
amounts;
o tax considerations applicable to any discounted debt securities
or to debt securities issued at par that are treated as having
been issued at a discount for United States federal income tax
purposes; and
o tax considerations applicable to any debt securities denominated
and payable in foreign currencies; and
o any other specific terms of the debt securities, including any
additional events of default or covenants, and any terms required by
or advisable under applicable laws or regulations.
Registration and Transfer of Debt Securities
Holders may present debt securities for exchange, and holders of
registered debt securities may present these securities for transfer, in the
manner, at the places and subject to the restrictions stated in the debt
securities and described in the applicable prospectus supplement. We will
provide these services without charge except for any tax or other governmental
charge payable in connection with these services and subject to any limitations
provided in the applicable indenture.
Holders may transfer debt securities in bearer form and the related
coupons, if any, by delivery to the transferee. If any of the securities are
held in global form, the procedures for transfer of interests in those
securities will depend upon the procedures of the depositary for those global
securities. See "Forms of Securities."
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Indentures
Debt securities that will be senior debt will be issued under an Amended
and Restated Senior Indenture dated as of May 1, 1999 between MSDW and The
Chase Manhattan Bank, as trustee. We call that indenture, as it may be
supplemented from time to time, the Senior Debt Indenture. Debt securities that
will be subordinated debt will be issued under an Amended and Restated
Subordinated Indenture dated as of May 1, 1999 between MSDW and 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, 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.,
Discover Bank (formerly Greenwood Trust Company) or any subsidiary
succeeding to any substantial part of the business now conducted by any of
those corporations, which we refer to collectively as the "principal
subsidiaries," or
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(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the debt securities issued under
the Senior Debt Indenture will be secured equally and ratably with indebtedness
so secured.
For these purposes, "subsidiary" means any corporation, partnership or
other entity of which at the time of determination we own or control directly
or indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "voting securities" means stock of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened. (Senior Debt Indenture, Section
3.06)
The Subordinated Debt Indenture does not include negative pledge
provisions.
Merger, Consolidation, Sale, Lease or Conveyance. Each indenture provides
that we will not merge or consolidate with any other person and will not sell,
lease or convey all or substantially all of our assets to any 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 permits the issuance of debt securities in
one or more series, and, in many cases, whether an event of default has
occurred is determined on a series by series basis.
An event of default is defined under each indenture, with respect to any
series of debt securities issued under that indenture, as being:
o default in payment of any principal of the debt securities of that
series, either at maturity or upon any redemption, by declaration or
otherwise;
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o default for 30 days in payment of any interest on any debt securities
of that series;
o default for 60 days after written notice in the observance or
performance of any other covenant or agreement in the debt securities
of that series or the related indenture, other than a covenant
included in that indenture solely for the benefit of a different
series of debt securities;
o events of bankruptcy, insolvency or reorganization;
o failure to make any payment at maturity, including any applicable
grace period, on other indebtedness in an amount in excess of
$10,000,000 and continuance of that failure for a period of 30 days
after written notice of the failure to us by the applicable trustee,
or to us and the applicable trustee by the holders of not less than
25% in principal amount of the outstanding debt securities, treated
as one class, issued under the indenture;
o default with respect to any other indebtedness, which default results
in the acceleration of indebtedness in an amount in excess of
$10,000,000 without the indebtedness having been discharged or the
acceleration having been cured, waived, rescinded or annulled for a
period of 30 days after written notice of the acceleration to us by
the applicable trustee, or to us and the applicable trustee by the
holders of not less than 25% in principal amount of the outstanding
debt securities, treated as one class, issued under the indenture; or
o any other event of default provided in the supplemental indenture
under which that series of debt securities is issued.
For purposes of the fifth and sixth clauses above, indebtedness means
obligations of, or guaranteed or assumed by, MSDW for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments, but does
not include non-recourse obligations. In addition, if a failure, default or
acceleration referred to in the fifth and sixth clauses above ceases or is
cured, waived, rescinded or annulled, then the event of default under the
applicable indenture caused by that failure, default or acceleration will also
be considered cured. (Indentures, Section 5.01)
Acceleration of Debt Securities Upon an Event of Default. Each indenture
provides that:
o if an event of default due to the default in payment of principal of,
or any premium or interest on, any series of debt securities issued
under that indenture, or due to the default in the performance or
breach of any other covenant or warranty of MSDW applicable to the
debt securities of that series but not applicable to all outstanding
debt securities issued under that indenture occurs and is continuing,
either the trustee or the holders of not less than 25% in aggregate
principal amount of the outstanding debt securities of each affected
series, voting as one class, by notice in writing to MSDW, may
declare the principal of all debt securities of each affected series
and interest accrued thereon to be due and payable immediately; and
o if an event of default due to a default in the performance of any
other of the covenants or agreements in that indenture applicable to
all outstanding debt securities issued under that indenture or due to
specified events of bankruptcy, insolvency or reorganization of MSDW,
occurs and is continuing, either the trustee or the holders of not
less than 25% in aggregate principal amount of all outstanding debt
securities issued under that indenture, voting as one class, by
notice in writing to MSDW may declare the principal of all those debt
securities and interest accrued thereon to be due and payable
immediately. (Indentures, Section 5.01)
Annulment of Acceleration and Waiver of Defaults. In some circumstances,
if any and all events of default under the indenture, other than the
non-payment of the principal of the securities 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
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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 benefit of
holders of a series of debt securities that are due and payable, or
are scheduled for redemption, within one year will discharge
obligations under the relevant indenture relating only to that series
of debt securities.
Defeasance of a Series of Securities at Any Time. We may also discharge
all of our obligations, other than as to transfers and exchanges, under any
series of debt securities at any time, which we refer to as defeasance.
We may be released with respect to any outstanding series of debt
securities from the obligations imposed by Sections 3.06 (in the case of the
Senior Debt Indenture) and 9.01, which sections contain the covenants described
above
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limiting liens and consolidations, mergers, asset sales and leases, and elect
not to comply with those sections without creating an event of default.
Discharge under those procedures is called "covenant defeasance."
Defeasance or covenant defeasance may be effected only if, among other
things:
o we irrevocably deposit with the relevant trustee cash or, in the case
of debt securities payable only in U.S. dollars, U.S. government
obligations, as trust funds in an amount certified to be sufficient
to pay on each date that they become due and payable, the principal
of and interest on, and any mandatory sinking fund payments for, all
outstanding debt securities of the series being defeased;
o we deliver to the relevant trustee an opinion of counsel to the
effect that:
o the holders of the series of debt securities being defeased will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the defeasance or covenant
defeasance; and
o the defeasance or covenant defeasance will not otherwise alter
those holders' United States federal income tax treatment of
principal and interest payments on the series of debt securities
being defeased; in the case of a defeasance, this opinion must
be based on a ruling of the Internal Revenue Service or a change
in United States federal income tax law occurring after the date
of this prospectus, since that result would not occur under
current tax law; and
o in the case of the Subordinated Debt Indenture:
o no event or condition will exist that, under the provisions
described under "--Subordination Provisions" above, would
prevent us from making payments of principal or interest on the
subordinated debt securities at the date of the irrevocable
deposit referred to above or at any time during the period
ending on the 91st day after that deposit date; and
o we deliver to the trustee for the Subordinated Debt Indenture an
opinion of counsel to the effect that (i) the trust funds will
not be subject to any rights of holders of senior indebtedness
and (ii) after the 91st day following the deposit, the trust
funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally, except that if a court were to rule under any
of those laws in any case or proceeding that the trust funds
remained our property, then the relevant trustee and the holders
of the subordinated debt securities would be entitled to some
enumerated rights as secured creditors in the trust funds.
(Subordinated Debt Indenture, Section 10.01)
Modification of the Indentures
Modification Without Consent of Holders. We and the 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;
o add covenants for the protection of the holders of debt securities;
o cure any ambiguity or correct any inconsistency;
o establish the forms or terms of debt securities of any series; or
o evidence the acceptance of appointment by a successor trustee.
(Indentures, Section 8.01)
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Modification With Consent of Holders. We and the trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of
each affected series of outstanding debt securities, voting as one class, may
add any provisions to, or change in any manner or eliminate any of the
provisions of, the indenture or modify in any manner the rights of the holders
of those debt securities. However, we and the trustee may not make any of the
following changes to any outstanding debt security without the consent of each
holder that would be affected by such change:
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.
DESCRIPTION OF UNITS
Units will consist of one or more debt securities, universal warrants and
purchase contracts or any combination of them. The applicable prospectus
supplement will also describe:
o the designation and the terms of the units and of any combination of
debt securities, universal warrants and purchase contracts
constituting the units, including whether and under what
circumstances the debt securities, universal warrants or purchase
contracts may be traded separately;
o any additional terms of the governing Unit Agreement;
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o any additional provisions for the issuance, payment, settlement,
transfer or exchange of the units or of the debt securities,
universal warrants or purchase contracts constituting the units; and
o any applicable United States federal income tax consequences.
The terms and conditions described under "Description of Debt Securities,"
"Description of Warrants" and "Description of Purchase Contracts" and those
described below under "--Significant Provisions of the Unit Agreement" and
"--Significant Provisions of the Unit Agreement Without Holders' Obligations"
will apply to each unit and to any debt security, universal warrant or purchase
contract included in each unit, respectively, unless otherwise specified in the
applicable prospectus supplement.
We will issue the units under one or more Unit Agreements, each referred
to as a Unit Agreement, to be entered into between us and a bank or trust
company, as unit agent. We may issue units in one or more series, which will be
described in the applicable prospectus supplement. Units that include purchase
contracts that are all pre-paid purchase contracts, as defined below under
"Description of Purchase Contracts," will be governed by one or more Unit
Agreements designed for units where the holders do not have any further
obligations under the purchase contracts, which we refer to as Unit Agreements
Without Holders' Obligations. We have filed the form of Unit Agreement and Unit
Agreement Without Holders' Obligations as exhibits to the registration
statement. Although we have described below the material provisions of the Unit
Agreement, the Unit Agreement Without Holders' Obligations and the units, these
descriptions are not complete, and you should review the detailed provisions of
the Unit Agreement and Unit Agreement Without Holders' Obligations for a full
description, including the definition of some of the terms used in this
prospectus and for other information regarding the units.
Significant Provisions of the Unit Agreement
Obligations of Unit Holder. Under the terms of the Unit Agreement, each
owner of a unit:
o consents to and agrees to be bound by the terms of the Unit
Agreement,
o appoints the unit agent as its authorized agent to execute, deliver
and perform any purchase contract included in the unit in which that
owner has an interest, except in the case of pre-paid purchase
contracts which require no further performance by the owner, and
o irrevocably agrees to be a party to and be bound by the terms of any
purchase contract, other than a pre-paid purchase contract, included
in the unit in which that owner has an interest.
Assumption of Obligations by Transferee. Upon the registration of transfer
of a unit, the transferee will assume the obligations, if any, of the
transferor under any purchase contract included in the unit and under any other
security constituting that unit, and the transferor will be released from those
obligations. Under the Unit Agreement, we consent to the transfer of these
obligations to the transferee, to the assumption of these obligations by the
transferee and to the release of the transferor, if the transfer is made in
accordance with the provisions of the Unit Agreement.
Remedies. Upon the acceleration of the debt securities constituting any
units, our obligations and those of the owners under any purchase contracts
constituting a part of the units may also be accelerated upon the request of
the owners of not less than 25% of the affected purchase contracts, on behalf
of all the owners.
Limitation on Actions by You as an Individual Holder. No owner of any unit
will have any right under the Unit Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise regarding the Unit
Agreement, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official, unless the owner will have given written notice to
the unit agent and to us of the occurrence and continuance of a default
thereunder and:
o in the case of an event of default under the debt securities or the
relevant indenture, unless the procedures, including notice to us and
the trustee, described in the indenture have been complied with; and
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o in the case of a failure by MSDW to observe or perform any of its
obligations under the Unit Agreement relating to any purchase
contracts, other than pre-paid purchase contracts, included in the
unit, unless:
o owners of not less than 25% of the affected purchase contracts
have (a) requested the unit agent to institute that action or
proceeding in its own name as unit agent under the Unit
Agreement and (b) offered the unit agent reasonable indemnity;
o the unit agent has failed to institute that action or proceeding
within 60 days of that request by the owners referred to above;
and
o the owners of a majority of the outstanding affected units have
not given directions to the unit agent inconsistent with those
of the owners referred to above.
If these conditions have been satisfied, any owner of an affected unit may
then, but only then, institute an action or proceeding. Notwithstanding the
above, the owner of any unit or purchase contract will have the unconditional
right to purchase or sell, as the case may be, purchase contract property under
the purchase contract and to institute suit for the enforcement of that right.
Purchase contract property is defined under "Description of Purchase Contracts"
below.
Negative Pledge. Because we are a holding company, our assets consist
primarily of the securities of our subsidiaries. The negative pledge provisions
of the Unit Agreement limit our ability to pledge some of these securities. The
Unit Agreement provides that we will not, and will not permit any subsidiary
to, create, assume, incur or guarantee any indebtedness for borrowed money that
is secured by a pledge, lien or other encumbrance except for liens specifically
permitted by the Unit Agreement on:
(1) the voting securities of Morgan Stanley & Co. Incorporated,
Morgan Stanley & Co. International Limited, Dean Witter Reynolds Inc.,
Discover Bank (formerly Greenwood Trust Company), or any subsidiary
succeeding to any substantial part of the business now conducted by any of
those corporations, which we refer to collectively as the "principal
subsidiaries," or
(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the units and the securities
constituting the units under the Unit Agreement will be secured equally and
ratably with indebtedness so secured.
For these purposes, "subsidiary" means any corporation, partnership or other
entity of which at the time of determination we own or control directly or
indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "voting securities" means stock of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened.
Absence of Protections Against All Potential Actions of MSDW. There are no
covenants or other provisions in the Unit Agreement providing for a put right
or increased interest or otherwise that would afford holders of units
additional protection in the event of a recapitalization transaction, a change
of control of MSDW or a highly leveraged transaction.
Modification Without Consent of Holders. We and the unit agent may amend
the Unit Agreement and the terms of the purchase contracts and the purchase
contract certificates without the consent of the holders to:
o cure any ambiguity;
o correct or supplement any defective or inconsistent provision; or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
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Modification With Consent of Holders. We and the unit agent, with the
consent of the holders of not less than a majority of all series of outstanding
units affected, voting as one class, may modify the rights of the holders of
the units of each series so affected or the terms of any purchase contracts
included in any of those series of units and the terms of the Unit Agreement
relating to the purchase contracts of each series so affected. However, we and
the unit agent may not make any of the following modifications without the
consent of the holder of each outstanding unit affected by the modification:
o impair the right to institute suit for the enforcement of any
purchase contract;
o materially adversely affect the holders' rights under any purchase
contract;
o reduce the percentage of purchase contracts constituting part of
outstanding units the consent of whose owners is required for the
modification of the provisions of the Unit Agreement relating to
those purchase contracts or for the waiver of any defaults under the
Unit Agreement relating to those purchase contracts;
o materially adversely affect the holders' units or the terms of the
Unit Agreement (other than terms related to the first three clauses
above); or
o reduce the percentage of outstanding units the consent of whose
owners is required for the modification of the provisions of the Unit
Agreement (other than terms related to the first three clauses
above).
Modifications of any debt securities or pre-paid purchase contracts
included in units may only be made in accordance with the applicable indenture,
as described under "Description of Debt Securities--Modification of the
Indentures." Modifications of any universal warrants included in units may only
be made in accordance with the terms of the universal warrant agreement as
described under "Description of Warrants--Significant Provisions of the Warrant
Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
provides that we will not merge or consolidate with any other person and will
not sell, lease or convey all or substantially all of our assets to any person
unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or
substantially all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of
Columbia; and
o will expressly assume all of our obligations under the Unit
Agreement; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement applicable to us.
Replacement of Unit Certificates or Purchase Contract Certificates. We
will replace any mutilated certificate evidencing a definitive unit or purchase
contract at the expense of the holder upon surrender of that certificate to the
unit agent. We will replace certificates that have been destroyed, lost or
stolen at the expense of the holder upon delivery to us and the unit agent of
evidence satisfactory to us and the unit agent of the destruction, loss or
theft of the certificates. In the case of a destroyed, lost or stolen
certificate, an indemnity satisfactory to the unit agent and to us may be
required at the expense of the holder of the units or purchase contracts
evidenced by that certificate before a replacement will be issued.
The Unit Agreement provides that, notwithstanding the foregoing, no
replacement certificate need be delivered:
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o during the period beginning 15 days before the day of mailing of a
notice of redemption or of any other exercise of any right held by
MSDW with respect to the unit or any security constituting the unit
evidenced by the mutilated, destroyed, lost or stolen certificate and
ending on the day of the giving of that notice;
o if the mutilated, destroyed, lost or stolen certificate evidences any
security selected or called for redemption or other exercise of a
right held by MSDW; or
o at any time on or after the date of settlement or redemption for any
purchase contract included in the unit, or at any time on or after
the last exercise date for any universal warrant included in the
unit, evidenced by the mutilated, destroyed, lost or stolen
certificate, except with respect to any units that remain or will
remain outstanding following the date of settlement or redemption or
the last exercise date.
Unit Agreement Not Qualified Under Trust Indenture Act. The Unit Agreement
will not be qualified as an indenture under, and the unit agent will not be
required to qualify as a trustee under, the Trust Indenture Act. Accordingly,
the holders of units and purchase contracts, other than pre-paid purchase
contracts, will not have the benefits of the protections of the Trust Indenture
Act. However, any debt securities or pre-paid purchase contracts issued as part
of a unit will be issued under an indenture qualified under the Trust Indenture
Act, and the trustee under that indenture will be qualified as a trustee under
the Trust Indenture Act.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner,
notwithstanding any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement, the units and the purchase
contracts constituting part of the units will be governed by, and construed in
accordance with, the laws of the State of New York.
Significant Provisions of the Unit Agreement Without Holders' Obligations
Remedies. The unit agent will act solely as our agent in connection with
the units governed by the Unit Agreement Without Holders' Obligations and will
not assume any obligation or relationship of agency or trust for or with any
holders of units or interests in those units. Any holder of units or interests
in those units may, without the consent of the unit agent or any other holder
or beneficial owner of units, enforce by appropriate legal action, on its own
behalf, its rights under the Unit Agreement Without Holders' Obligations.
However, the holders of units or interests in those units may only enforce
their rights under the purchase contracts and any debt securities or under any
universal warrants issued as parts of those units in accordance with the terms
of the applicable indenture and the warrant agreement.
Modification. We and the unit agent may amend the Unit Agreement Without
Holders' Obligations without the consent of the holders to:
o cure any ambiguity;
o cure, correct or supplement any defective or inconsistent provision
in the agreement; or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interest of the
affected holders of units in any material respect.
We and the unit agent, with the consent of the holders of not less than a
majority of units at the time outstanding, may modify or amend the rights of
the affected holders of the affected units and the terms of the Unit Agreement
Without Holders' Obligations. However, we and the unit agent may not, without
the consent of each affected holder of units, make any modifications or
amendments that would:
o materially and adversely affect the exercise rights of the affected
holders, or
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.
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Pre-paid purchase contracts and any debt securities issued as part of
units governed by the Unit Agreement Without Holders' Obligations may be
modified only in accordance with the applicable indenture, as described above
under "Description of Debt Securities--Modification of the Indentures." Any
universal warrants issued as part of units may be modified only in accordance
with the terms of the warrant agreement as described in "Description of
Warrants--Significant Provisions of the Warrant Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
Without Holders' Obligations provides that we will not merge or consolidate
with any other person and will not sell, lease or convey all or substantially
all of our assets to any person unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or
substantially all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of
Columbia; and
o will expressly assume all of our obligations under the Unit
Agreement Without Holders' Obligations; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement Without Holders' Obligations applicable to us.
Replacement of Unit Certificates. We will replace any mutilated
certificate evidencing a definitive unit at the expense of the holder upon
surrender of that certificate to the unit agent. We will replace certificates
that have been destroyed, lost or stolen at the expense of the holder upon
delivery to us and the unit agent of evidence satisfactory to us and the unit
agent of the destruction, loss or theft of the certificates. In the case of a
destroyed, lost or stolen certificate, an indemnity satisfactory to the unit
agent and to us may be required at the expense of the holder of the units or
prepaid purchase contracts evidenced by that certificate before a replacement
will be issued.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner,
notwithstanding any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement Without Holders' Obligations,
the units and the pre-paid purchase contracts constituting part of the units
will be governed by, and construed in accordance with, the laws of the State of
New York.
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DESCRIPTION OF WARRANTS
Offered Warrants
We may issue warrants that are debt warrants or universal warrants. We may
offer warrants separately or together with one or more additional warrants,
purchase contracts or debt securities or any combination of those securities in
the form of units, as described in the applicable prospectus supplement. If we
issue warrants as part of a unit, the accompanying prospectus supplement will
specify whether those warrants may be separated from the other securities in
the unit prior to the warrants' expiration date. Universal warrants issued in
the United States may not be so separated prior to the 91st day after the
issuance of the unit, unless otherwise specified in the applicable prospectus
supplement.
Debt Warrants. We may issue, together with debt securities or separately,
warrants for the purchase of debt securities on terms to be determined at the
time of sale. We refer to this type of warrant as a debt warrant.
Universal Warrants. We may also issue warrants to purchase or sell, on
terms to be determined at the time of sale:
o securities of an entity not affiliated with us, a basket of those
securities, an index or indices of those securities or any
combination of the above;
o currencies; or
o commodities.
We refer to the property in the above clauses as "warrant property." We
refer to this type of warrant as a "universal warrant." We may satisfy our
obligations, if any, with respect to any universal warrants by delivering the
warrant property or, in the case of warrants to purchase or sell securities or
commodities, the cash value of the securities or commodities, as described in
the applicable prospectus supplement.
Further Information in Prospectus Supplement
General Terms of Warrants. The applicable prospectus supplement will
contain, where applicable, the following terms of and other information
relating to the warrants:
o the specific designation and aggregate number of, and the price at
which we will issue, the warrants;
o the currency with which the warrants may be purchased;
o the date on which the right to exercise the warrants will begin and
the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the warrants;
o whether the warrants will be issued in fully registered form or
bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a warrant included in
a unit will correspond to the form of the unit and of any debt
security or purchase contract included in that unit;
o any applicable United States federal income tax consequences;
o the identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents,
registrars, determination, or other agents;
o the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities exchange;
o whether the warrants are to be sold separately or with other
securities as part of units; and
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o any other terms of the warrants.
Additional Terms of Debt Warrants. The prospectus supplement will contain,
where applicable, the following terms of and other information relating to any
debt warrants:
o the designation, aggregate principal amount, currency and terms of
the debt securities that may be purchased upon exercise of the debt
warrants;
o if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of the debt
warrants issued with each of the debt securities;
o if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable; and
o the principal amount of debt securities purchasable upon exercise of
each debt warrant, the price at which and the currency in which the
debt securities may be purchased and the method of exercise.
Additional Terms of Universal Warrants. The applicable prospectus
supplement will contain, where applicable, the following terms of and other
information relating to any universal warrants:
o whether the universal warrants are put warrants or call warrants and
whether you or we will be entitled to exercise the warrants;
o the specific warrant property, and the amount or the method for
determining the amount of the warrant property, purchasable or
saleable upon exercise of each universal warrant;
o the price at which and the currency with which the underlying
securities, currencies or commodities may be purchased or sold upon
the exercise of each universal warrant, or the method of determining
that price;
o whether the exercise price may be paid in cash, by the exchange of
any other security offered with the universal warrants or both and
the method of exercising the universal warrants; and
o whether the exercise of the universal warrants is to be settled in
cash or by delivery of the underlying securities, commodities, or
both.
Significant Provisions of the Warrant Agreements
We will issue the warrants under one or more warrant agreements to be
entered into between us and a bank or trust company, as warrant agent, in one
or more series, which will be described in the prospectus supplement for the
warrants. The forms of warrant agreements are filed as exhibits to the
registration statement. The following summaries of significant provisions of
the warrant agreements and the warrants are not intended to be comprehensive
and holders of warrants should review the detailed provisions of the relevant
warrant agreement for a full description and for other information regarding
the warrants.
Modifications Without Consent of Warrantholders. We and the warrant agent
may amend the terms of the warrants and the warrant certificates without the
consent of the holders to:
o cure any ambiguity,
o cure, correct or supplement any defective or inconsistent provision,
or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
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Modifications With Consent of Warrantholders. We and the warrant agent,
with the consent of the holders of not less than a majority in number of the
then outstanding unexercised warrants affected, may modify or amend the warrant
agreement. However, we and the warrant agent may not make any of the following
modifications or amendments without the consent of each affected warrantholder:
o change the exercise price of the warrants;
o reduce the amount receivable upon exercise, cancellation or
expiration of the warrants other than in accordance with the
antidilution provisions or other similar adjustment provisions
included in the terms of the warrants;
o shorten the period of time during which the warrants may be
exercised;
o materially and adversely affect the rights of the owners of the
warrants; or
o reduce the percentage of outstanding warrants the consent of whose
owners is required for the modification of the applicable warrant
agreement.
Merger, Consolidation, Sale or Other Disposition. If at any time there
will be a merger or consolidation of MSDW or a transfer of substantially all of
our assets, the successor corporation will succeed to and assume all of our
obligations under each warrant agreement and the warrant certificates. We will
then be relieved of any further obligation under each of those warrant
agreements and the warrants issued under those warrant agreements. See
"Description of Debt Securities--Covenants Restricting Pledges, Mergers and
other Significant Corporate Actions."
Enforceability of Rights of Warrantholders. The warrant agents will act
solely as our agents in connection with the warrant certificates and will not
assume any obligation or relationship of agency or trust for or with any
holders of warrant certificates or beneficial owners of warrants. Any holder of
warrant certificates and any beneficial owner of warrants may, without the
consent of any other person, enforce by appropriate legal action, on its own
behalf, its right to exercise the warrants evidenced by the warrant
certificates in the manner provided for in that series of warrants or pursuant
to the applicable warrant agreement. No holder of any warrant certificate or
beneficial owner of any warrants will be entitled to any of the rights of a
holder of the debt securities or any other warrant property purchasable upon
exercise of the warrants, including, without limitation, the right to receive
the payments on those debt securities or other warrant property or to enforce
any of the covenants or rights in the relevant indenture or any other similar
agreement.
Registration and Transfer of Warrants. Subject to the terms of the
applicable warrant agreement, warrants in registered, definitive form may be
presented for exchange and for registration of transfer, at the corporate trust
office of the warrant agent for that series of warrants, or at any other office
indicated in the prospectus supplement relating to that series of warrants,
without service charge. However, the holder will be required to pay any taxes
and other governmental charges as described in the warrant agreement. The
transfer or exchange will be effected only if the warrant agent for the series
of warrants is satisfied with the documents of title and identity of the person
making the request.
New York Law to Govern. The warrants and each warrant agreement will be
governed by, and construed in accordance with, the laws of the State of New
York.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including purchase contracts issued as
part of a unit with one or more debt securities or universal warrants, for the
purchase or sale of:
o securities of an entity not affiliated with MSDW, a basket of those
securities, an index or indices of those securities or any
combination of the above;
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o currencies; or
o commodities.
We refer to this property in the above clauses as "purchase contract property."
Each purchase contract will obligate the holder to purchase or sell, and
obligate MSDW to sell or purchase, on specified dates, the purchase contract
property at a specified price or prices, all as described in the applicable
prospectus supplement. The applicable prospectus supplement will also specify
the methods by which the holders may purchase or sell the purchase contract
property and any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract.
Pre-paid Purchase Contracts
Purchase contracts may require holders to satisfy their obligations under
the purchase contracts at the time they are issued. We refer to these purchase
contracts as "pre-paid purchase contracts." MSDW's obligation to settle
pre-paid purchase contracts on the relevant settlement date will constitute
senior indebtedness or subordinated indebtedness of MSDW. Accordingly, pre-paid
purchase contracts will be issued under the Senior Debt Indenture or the
Subordinated Debt Indenture, as specified in the applicable prospectus
supplement.
Purchase Contracts Issued as Part of Units
Purchase contracts issued as part of a unit will be governed by the terms
and provisions of a Unit Agreement or, in the case of pre-paid purchase
contracts issued as part of a unit that contains no other purchase contracts, a
Unit Agreement Without Holders' Obligations. See "Description of
Units--Significant Provisions of the Unit Agreement" and "--Significant
Provisions of the Unit Agreement Without Holders' Obligations." The applicable
prospectus supplement will specify the following:
o whether the purchase contract obligates the holder to purchase or
sell the purchase contract property;
o whether a purchase contract issued as part of a unit may be separated
from the other securities constituting part of that unit prior to the
purchase contract's settlement date, except that purchase contracts
issued in the United States may not be so separated prior to the 91st
day after the issuance of a unit;
o the methods by which the holders may purchase or sell the purchase
contract property;
o any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract; and
o whether the purchase contracts will be issued in fully registered or
bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a purchase contract
included in a unit will correspond to the form of the unit and of any
debt security or universal warrant included in that unit.
Settlement of Purchase Contracts. Where purchase contracts issued together
with debt securities as part of a unit require the holders to buy purchase
contract property, the unit agent may apply principal payments from the debt
securities in satisfaction of the holders' obligations under the related
purchase contract as specified in the prospectus supplement. The unit agent
will not so apply the principal payments if the holder has delivered cash to
meet its obligations under the purchase contract. To settle the purchase
contract and receive the purchase contract property, the holder must present
and surrender the unit certificates at the office of the unit agent. If a
holder settles its obligations under a purchase contract that is part of a unit
in cash rather than by delivering the debt security that is part of the unit,
that debt security will remain outstanding if the maturity extends beyond the
relevant settlement date and, as more fully described in the applicable
prospectus supplement, the holder will receive that debt security or an
interest in the relevant global debt security.
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Pledge by Purchase Contract Holders to Secure Performance. To secure the
obligations of the purchase contract holders contained in the Unit Agreement
and in the purchase contracts, the holders, acting through the unit agent, as
their attorney-in-fact, will grant, sell, convey, assign, transfer and pledge
the items in the following sentence, which we refer to as the "pledge," to The
Chase Manhattan Bank, in its capacity as collateral agent, for our benefit. The
pledge is a security interest in and to, and a lien upon and right of set-off
against, all of the holders' right, title and interest in and to:
o any debt securities that are part of units that include the purchase
contracts, or other property as may be specified in the applicable
prospectus supplement, which we refer to as the "pledged items";
o all additions to and substitutions for the pledged items as may be
permissible, if so specified in the applicable prospectus supplement;
o all income, proceeds and collections received or to be received, or
derived or to be derived, at any time from or in connection with the
pledged items described in the two clauses above; and
o all powers and rights owned or thereafter acquired under or with
respect to the pledged items.
The pledge constitutes collateral security for the performance when due by
each holder of its obligations under the Unit Agreement and the applicable
purchase contract. The collateral agent will forward all payments from the
pledged items to us, unless the payments have been released from the pledge in
accordance with the Unit Agreement. We will use the payments received from the
pledged items to satisfy the obligations of the holder of the Unit under the
related purchase contract.
Property Held in Trust by Unit Agent. If a holder fails to settle in cash
its obligations under a purchase contract that is part of a unit and fails to
present and surrender its unit certificate to the unit agent when required,
that holder will not receive the purchase contract property. Instead, the unit
agent will hold that holder's purchase contract property, together with any
distributions, as the registered owner in trust for the benefit of the holder
until the holder presents and surrenders the certificate or provides
satisfactory evidence that the certificate has been destroyed, lost or stolen.
The unit agent or MSDW may require an indemnity from the holder for liabilities
related to any destroyed, lost or stolen certificate. If the holder does not
present the unit certificate, or provide the necessary evidence of destruction
or loss and indemnity, on or before the second anniversary of the settlement
date of the related purchase contract, the unit agent will pay to us the
amounts it received in trust for that holder. Thereafter, the holder may
recover those amounts only from us and not the unit agent. The unit agent will
have no obligation to invest or to pay interest on any amounts it holds in
trust pending distribution.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, MSDW's authorized capital stock
consists of 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.
The rights of holders of preferred stock offered by this prospectus will
be subject to, and may be adversely affected by, issuances of preferred stock
in the future. Under some circumstances, alone or in combination with other
provisions of our certificate of incorporation, described under "--Additional
Provisions of MSDW's Certificate of Incorporation and By-laws" below, our
issuances of preferred stock may discourage or make more difficult an
acquisition of MSDW that the Board of Directors deems undesirable.
The Board of Directors of MSDW has the power, without further action by
the stockholders, unless action is required by applicable laws or regulations
or by the terms of outstanding preferred stock, to issue preferred stock in one
or more series and to fix the voting rights, designations, preferences and
other terms applicable to the preferred stock to be issued. The Board of
Directors may issue preferred stock to obtain additional financing, in
connection with acquisitions, to officers, directors or employees of MSDW and
its subsidiaries in accordance with benefit plans or otherwise and for other
proper corporate purposes.
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Outstanding Capital Stock
Outstanding Common Stock. As of August 31, 2000, there were approximately
1,121,597,725 shares of our common stock outstanding.
Outstanding Preferred Stock. On August 31, 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 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 Capital Units Cumulative
Preferred Stock.
Series A Junior Participating Preferred Stock Issuable under Rights Plan.
In addition, we have authorized for issuance up to 450,000 shares of Series A
Junior Participating Preferred Stock, par value $0.01 per share, which may be
issued upon the exercise of rights issued to the holders of our common stock
under our Rights Plan. See "--The Rights Plan."
The preceding summary and the following summary of the terms of the
offered preferred stock do not purport to be complete and are qualified by our
certificate of incorporation and by the Certificates of Designation of
Preferences and Rights for each series of Existing Cumulative Preferred Stock,
the 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;
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o dividend periods, or the method of calculating the dividend periods;
o redemption provisions, including whether or not, on what terms and at
what prices the shares will be subject to redemption at our option;
o voting rights;
o preferences and rights upon liquidation or winding-up;
o whether or not and on what terms the shares will be convertible into
or exchangeable for shares of any other class, series or security of
MSDW or any other corporation or any other property;
o whether depositary shares representing the offered preferred stock
will be offered and, if so, the fraction or multiple of a share that
each depositary share will represent; and
o the other rights and privileges and any qualifications, limitations
or restrictions of those rights or privileges.
We have summarized below the material provisions of a certificate of
designation authorizing the issuance of any series of offered preferred stock.
These summaries are not complete and each investor should refer to the form of
certificate of designation which has been filed as an exhibit to the
registration statement and to our certificate of incorporation for a complete
description of the terms and definitions. The Board of Directors or a duly
authorized committee of the Board of Directors will adopt the resolutions to be
included in the certificate of designation prior to the issuance of a series of
offered preferred stock, and the certificate of designation will be filed with
the Secretary of State of the State of Delaware as soon thereafter as
reasonably practicable.
Rank. Each series of offered preferred stock will rank, with respect to
voting powers, preferences or relative, participating, optional and other
special rights, including with respect to the payment of dividends and the
distribution of assets, whether upon liquidation or otherwise:
o junior to any series of capital stock of MSDW expressly stated to be
senior to that series of offered preferred stock;
o senior to the common stock of MSDW and any class of capital stock of
MSDW expressly stated to be junior to that series of offered
preferred stock; and
o on a parity with each other series of offered preferred stock and all
other classes of capital stock of MSDW.
The offered preferred stock will rank, as to payment of dividends and amounts
payable on liquidation, on a parity with 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.
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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 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
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o any other shares of preferred stock ranking junior to the offered
preferred stock as to rights upon liquidation, dissolution or winding
up, or
o our common stock.
However, holders of the shares of offered preferred stock will not be entitled
to receive the liquidation price of their shares until we have paid or set
aside an amount sufficient to pay in full the liquidation preference of any
other shares of MSDW's capital stock ranking senior as to rights upon
liquidation, dissolution or winding up. Neither a consolidation or merger of
MSDW with or into another corporation nor a merger of another corporation with
or into MSDW nor a sale or transfer of all or part of MSDW's assets for cash or
securities will be considered a liquidation, dissolution or winding up of MSDW.
If upon any liquidation, dissolution or winding up of MSDW, we have not
paid the amounts payable with respect to the offered preferred stock and any
other preferred stock ranking on parity with the offered preferred stock as to
rights upon liquidation, dissolution or winding up, the holders of the offered
preferred stock and of that other preferred stock will share ratably in any
distribution in proportion to the full respective preferential amounts to which
they are entitled. After we have paid the full amount of the liquidating
distribution to which they are entitled, the holders of the offered preferred
stock will not be entitled to any further participation in any distribution of
assets by MSDW.
Voting Rights. Unless otherwise determined by our Board of Directors and
indicated in the prospectus supplement, holders of the offered preferred stock
will not have any voting rights except as described below or as otherwise from
time to time required by law. Whenever dividends on any shares of offered
preferred stock or any other class or series of stock ranking on a parity with
the offered preferred stock with respect to the payment of dividends are in
arrears for dividend periods, whether or not consecutive, containing in the
aggregate a number of days equivalent to six calendar quarters, the holders of
shares of offered preferred stock, voting separately as a class with all other
series of preferred stock, including the Existing Cumulative Preferred Stock,
having similar voting rights that are exercisable, will be entitled to vote for
the election of two of the authorized number of directors of MSDW at the next
annual meeting of stockholders and at each subsequent meeting until we have
paid or set apart for payment all dividends accumulated on the offered
preferred stock. The term of office of all directors elected by the holders of
preferred stock will terminate immediately upon the termination of the right of
the holders of preferred stock to vote for directors. Each holder of shares of
the offered preferred stock will have one vote for each share of offered
preferred stock held.
So long as any shares of the offered preferred stock remain outstanding,
we will not, without the consent of the holders of at least two-thirds of the
shares of offered preferred stock outstanding at the time
o issue or increase the authorized amount of any class or series of
stock ranking prior to the outstanding offered preferred stock as to
dividends or upon liquidation, or
o amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the certificate of
designation, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any power, preference or special
right of the outstanding offered preferred stock or their holders.
Holders of the offered preferred stock will vote separately as a class with all
other series of preferred stock, including the Existing Cumulative Preferred
Stock and any issued Capital Units Cumulative Preferred Stock, having similar
voting rights have been conferred that are exercisable. For purposes of the
preceding sentence, any increase in the amount of the authorized common stock
or authorized preferred stock or the creation and issuance of other series of
common stock or preferred stock ranking on a parity with or junior to the
offered preferred stock as to dividends and upon liquidation will not be
considered to materially and adversely affect those powers, preferences or
special rights.
Agents and Registrar for Offered Preferred Stock. The transfer agent,
dividend disbursing agent and registrar for each series of offered preferred
stock will be The Bank of New York.
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Depositary Shares
We may, at our option, elect to offer fractional shares or some multiple
of shares of offered preferred stock, rather than individual shares of offered
preferred stock. If we choose to do so, we will issue depositary receipts for
depositary shares, each of which will represent a fraction or a multiple of a
share of a particular series of offered preferred stock as described below.
The following statements concerning depositary shares, depositary
receipts, and the deposit agreement are not intended to be comprehensive and
are qualified in their entirety by reference to the forms of these documents,
which we have filed as exhibits to the registration statement. Each investor
should refer to the detailed provisions of those documents, as we have
explained under the heading "Where You Can Find More Information" in the
Summary.
The shares of any series of offered preferred stock represented by
depositary shares will be deposited under a deposit agreement among MSDW, The
Bank of New York, as depositary, which we refer to as the Preferred Stock
Depositary, and the holders from time to time of depositary receipts issued
under the agreement. Subject to the terms of the deposit agreement, each holder
of a depositary share will be entitled, in proportion to the fraction or
multiple of a share of offered preferred stock represented by that depositary
share, to all the rights and preferences of the offered preferred stock
represented by that depositary share, including dividend, voting and
liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
under the deposit agreement. Depositary receipts will be distributed to those
persons purchasing the fractional or multiple shares of the related series of
offered preferred stock. Immediately following the issuance of shares of a
series of offered preferred stock, we will deposit those shares with the
Preferred Stock Depositary, which will then issue and deliver the depositary
receipts to the purchasers. Depositary receipts will only be issued evidencing
whole depositary shares. A depositary receipt may evidence any number of whole
depositary shares.
Dividends and Other Distributions. The Preferred Stock Depositary will
distribute all cash dividends or other cash distributions received on the
related series of offered preferred stock to the record holders of depositary
shares relating to those series in proportion to the number of the depositary
shares those holders own.
If we make a distribution other than in cash, the Preferred Stock
Depositary will distribute the property it receives to the record holders of
depositary shares in proportion to the number of depositary shares those
holders own, unless the Preferred Stock Depositary determines that the
distribution cannot be made proportionately among those holders or that it is
not feasible to make the distribution. In that event, the Preferred Stock
Depositary may, with our approval, sell the property and distribute the net
proceeds to the holders in proportion to the number of depositary shares they
own.
The amount distributed to holders of depositary shares will be reduced by
any amounts required to be withheld by MSDW or the Preferred Stock Depositary
on account of taxes or other governmental charges.
Withdrawal of Stock. Upon surrender of the depositary receipts at the
corporate trust office of the Preferred Stock Depositary and upon payment of
the taxes, charges and fees provided for in the deposit agreement and
compliance with any other requirement of the deposit agreement, the holder of
the depositary shares evidenced by those depositary receipts is entitled to
delivery of the number of whole shares of the related series of offered
preferred stock and any money or other property, if any, represented by those
shares. Holders of depositary shares will be entitled to receive whole shares
of the related series of offered preferred stock, but holders of whole shares
of offered preferred stock will not thereafter be entitled to deposit their
shares of offered preferred stock with the Preferred Stock Depositary or to
receive depositary shares therefor. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the number
representing whole shares of the related series of offered preferred stock to
be withdrawn, the Preferred Stock Depositary will deliver to the holder, or
upon his or her order, at the same time a new depositary receipt evidencing the
excess number of depositary shares.
Voting the Offered Preferred Stock. Upon receiving notice of any meeting
at which the holders of any series of the offered preferred stock are entitled
to vote, the Preferred Stock Depositary will mail the information contained in
the notice to the record holders of the depositary shares relating to that
series of offered preferred stock. Each record
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holder of the depositary shares on the record date, which will be the same date
as the record date for the related series of offered preferred stock, may
instruct the Preferred Stock Depositary how to exercise his or her voting
rights. The Preferred Stock Depositary will endeavor, insofar as practicable,
to vote or cause to be voted the number of shares of the offered preferred
stock represented by those depositary shares in accordance with those
instructions, if the Preferred Stock Depositary receives the instructions
sufficiently in advance of the meeting, and we will agree to take all
reasonable action that may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting any shares of the offered
preferred stock if it does not receive specific instructions from the holder of
the depositary shares representing them.
Redemption of Depositary Shares. Depositary shares will be redeemed from
any proceeds received by the Preferred Stock Depositary resulting from the
redemption, in whole or in part, of the series of the offered preferred stock
represented by those depositary shares. The redemption price per depositary
share will equal the applicable fraction or multiple of the redemption price
per share payable with respect to the series of the offered preferred stock. If
we redeem shares of a series of offered preferred stock held by the Preferred
Stock Depositary, the Preferred Stock Depositary will redeem as of the same
redemption date the number of depositary shares representing the shares of
offered preferred stock that we redeem. If less than all the depositary shares
will be redeemed, the depositary shares to be redeemed will be selected by lot
or substantially equivalent method determined by the Preferred Stock
Depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed to be outstanding, and all rights of the
holders of the depositary shares will cease, except the right to receive the
monies payable upon the redemption and any other property to which the holders
were entitled upon the redemption upon surrender to the Preferred Stock
Depositary of the depositary receipts evidencing the depositary shares. Any
funds deposited by us with the Preferred Stock Depositary for any depositary
shares that the holders fail to redeem will be returned to us after a period of
two years from the date the funds are deposited.
Amendment and Termination of the Deposit Agreement. We may amend the form
of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement at any time and from time to time by agreement with the
Preferred Stock Depositary. However, any amendment that materially and
adversely alters the rights of the holders of depositary shares will not be
effective unless it has been approved by the holders of at least a majority of
the depositary shares then outstanding, and no amendment may impair the right
of any holder of any depositary shares, described above under "--Withdrawal of
Stock," to receive shares of the related series of offered preferred stock and
any money or other property represented by those depositary shares, except in
order to comply with mandatory provisions of applicable law. We may terminate
the deposit agreement at any time with at least 60 days' prior written notice
to the Preferred Stock Depositary. Within 30 days of that date, the Preferred
Stock Depositary will deliver or make available for delivery to holders of
depositary shares, upon surrender of the depositary receipts evidencing the
depositary shares, the number of whole or fractional shares of the related
series of offered preferred stock as are represented by the depositary shares.
The deposit agreement will automatically terminate after there has been a final
distribution on the related series of offered preferred stock in connection
with any liquidation, dissolution or winding up of MSDW and that distribution
has been made to the holders of depositary shares.
Charges of Preferred Stock Depositary. We will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. We will pay charges of the Preferred Stock Depositary,
including charges in connection with the initial deposit of the related series
of offered preferred stock, the initial issuance of the depositary shares and
all withdrawals of shares of the related series of offered preferred stock.
However, holders of depositary shares will pay other transfer and other taxes
and governmental charges and the other charges expressly provided in the
deposit agreement to be for their accounts.
Limitation on Liability of Company and Preferred Stock Depositary. Neither
the Preferred Stock Depositary nor MSDW will be liable if it is prevented or
delayed by law or any circumstance beyond its control from performing its
obligations under the deposit agreement. The obligations of MSDW and the
Preferred Stock Depositary under the deposit agreement will be limited to
performance with best judgment and in good faith of their duties thereunder,
except that they will be liable for willful misconduct in the performance of
their duties thereunder, and they will not be obligated to appear in, prosecute
or defend any legal proceeding related to any depositary receipts, depositary
shares or series of offered preferred stock unless satisfactory indemnity is
furnished.
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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 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.
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
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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), and
o 8.03% per year (if the Capital Units Cumulative Preferred Stock is
issued).
Holders of the shares of Series A Fixed/Adjustable Rate Preferred Stock
are entitled to receive, when and as declared by the Board of Directors out of
legally available funds, cumulative cash dividends payable quarterly at a rate
of 5.91% per annum through November 30, 2001 and thereafter at a rate of .37%
plus the highest of the Treasury Bill Rate, the Ten-Year Constant Maturity Rate
and the Thirty-Year Constant Maturity Rate, each as defined in the applicable
certificate of designation. However, the dividends payable on the Series A
Fixed/Adjustable Rate Preferred Stock will not be less than 6.41% nor greater
than 12.41% per year.
The amount of dividends payable on the 7-3/4% Preferred Stock and the
Series A Fixed/Adjustable Rate Preferred Stock will be adjusted in the event of
specified amendments to the Internal Revenue Code of 1986 relating to the
"dividends received deduction."
The Existing Cumulative Preferred Stock will be junior as to dividends to
any preferred stock that may be issued in the future that is expressly senior
as to dividends to the Existing Cumulative Preferred Stock. If at any time we
have failed to pay accrued dividends on any of those senior shares at the time
they are payable, we may not pay any dividend on the Existing Cumulative
Preferred Stock or redeem or otherwise repurchase any shares of Existing
Cumulative Preferred Stock until we have paid in full, or set aside dividends
for payment, the accumulated but unpaid dividends on those senior shares.
We will not declare or pay or set aside for payment dividends on any
preferred stock ranking on a parity as to payment of dividends with the
Existing Cumulative Preferred Stock unless we also declare or pay or set aside
for payment dividends on the outstanding shares of Existing Cumulative
Preferred Stock for all dividend payment periods ending on or before the
dividend payment date of any parity stock. We must declare, pay or set aside
for payment any amounts on the Existing Cumulative Preferred Stock ratably in
proportion to the respective amounts of dividends (1) accumulated and unpaid or
payable on that parity stock, on the one hand, and (2) accumulated and unpaid
or payable through the dividend payment period or periods of each series of the
Existing Cumulative Preferred Stock next preceding the dividend payment date,
on the other hand.
Except as described above, unless we have paid the full cumulative
dividends on the outstanding shares of Existing Cumulative Preferred Stock, we
may not with respect to our common stock or any other preferred stock of MSDW
ranking junior to or on a parity with the Existing Cumulative Preferred Stock
as to dividend payments:
o declare, pay or set aside for payment any dividends, other than
dividends payable in our common stock,
o make other distributions,
o redeem, purchase or otherwise acquire our common stock or junior
preferred stock for any consideration, or
o make any payment to or available for a sinking fund for redemption of
our common stock or junior preferred stock.
The provisions of the immediately preceding paragraph do not apply to any
monies we deposit in any sinking fund with respect to any preferred stock in
compliance with the provisions of that sinking fund. We may apply monies so
deposited to the purchase or redemption of the preferred stock in accordance
with the terms of the sinking fund,
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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; and
o if issued, the Capital Units Cumulative 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 Capital Units Cumulative 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
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at the next annual meeting of stockholders and at each subsequent meeting until
we have paid or set apart for payment all dividends accumulated on the Existing
Cumulative Preferred Stock.
The term of office of all directors elected by the holders of preferred
stock will terminate immediately upon the termination of the right of the
holders of preferred stock to vote for directors. Each holder of shares of
Existing Cumulative Preferred Stock will have one vote for each share of
Existing Cumulative Preferred Stock held.
So long as any shares of Existing Cumulative Preferred Stock remain
outstanding, we will not, without the consent of the holders of at least
two-thirds of the shares of Existing Cumulative Preferred Stock outstanding at
the time, voting separately as a class with all other series of preferred stock
upon which like voting rights have been conferred and are exercisable
o issue or increase the authorized amount of any class or series of
stock ranking prior to the Existing Cumulative Preferred Stock as to
dividends or upon liquidation, or
o amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the certificate of
designation relating to that series of Existing Cumulative Preferred
Stock, whether by merger, consolidation or otherwise, so as to
materially and adversely affect any power, preference or special
right of that series of Existing Cumulative Preferred Stock or of its
holders.
For purposes of the preceding sentence any increase in the authorized amount of
common stock or preferred stock or the creation and issuance of other series of
common stock or preferred stock ranking on a parity with or junior to the
Existing Cumulative Preferred Stock as to dividends and upon liquidation will
not be deemed to materially and adversely affect those powers, preferences or
special rights.
Transfer Agent for Existing Cumulative Preferred Stock. The transfer agent
and registrar for each series of Existing Cumulative Preferred Stock is The
Bank of New York.
Additional Provisions of MSDW's Certificate of Incorporation and By-laws
Size of the Board of Directors, Removal of Directors and Filling Vacancies
on the Board of Directors. Our Board of Directors currently consists of 11
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 is required to change the number of directors from an even number
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
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the approval of 80% of the voting power of the voting stock, voting together as
a single class, is required in order to amend, repeal or adopt any provision
inconsistent with the provisions in the certificate of incorporation relating
to amendment of the by-laws, actions of stockholders and the Board of Directors
and to change the provisions establishing this 80% vote requirement.
Our certificate of incorporation provides that our by-laws may be altered,
amended or repealed or new provisions may be adopted by a majority of the Board
of Directors or with the approval of at least 80% of the voting power of the
voting stock of MSDW, voting together as a single class. Furthermore, the
by-laws provide that they may be altered, amended or repealed or new provisions
may be adopted by a majority of the Board of Directors or with the approval of
at least 80% of the voting power of the voting stock of MSDW. However, a
three-quarters vote of the Board of Directors is required for the Board of
Directors to amend, alter, repeal or adopt new by-laws in conflict with the
provisions of the by-laws relating to the removal of or any modification of the
roles, duties or authority of the Chairman or President of MSDW as of May 31,
1997.
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.
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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.
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,
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each person owning a beneficial interest in a registered global security must
rely on the procedures of the depositary for that registered global security
and, if that person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights of a holder
under the applicable indenture, warrant agreement, purchase contract or unit
agreement. We understand that under existing industry practices, if we request
any action of holders or if an owner of a beneficial interest in a registered
global security desires to give or take any action that a holder is entitled to
give or take under the applicable indenture, warrant agreement, purchase
contract or unit agreement, the depositary for the registered global security
would authorize the participants holding the relevant beneficial interests to
give or take that action, and the participants would authorize beneficial
owners owning through them to give or take that action or would otherwise act
upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities, and
any payments to holders with respect to warrants, purchase contracts or units,
represented by a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as the
case may be, as the registered owner of the registered global security. None of
MSDW, the trustees, the warrant agents, the unit agents or any other agent of
MSDW, agent of the trustees or agent of the warrant agents or unit agents will
have any responsibility or liability for any aspect of the records relating to
payments made on account of beneficial ownership interests in the registered
global security or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a
registered global security, upon receipt of any payment of principal, premium,
interest or other distribution of underlying securities or other property to
holders on that registered global security, will immediately credit
participants' accounts in amounts proportionate to their respective beneficial
interests in that registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners of
beneficial interests in a registered global security held through participants
will be governed by standing customer instructions and customary practices, as
is now the case with the securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
those participants.
If the depositary for any of these securities represented by a registered
global security is at any time unwilling or unable to continue as depositary or
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, and a successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 is not appointed by us within 90 days, we will
issue securities in definitive form in exchange for the registered global
security that had been held by the depositary. In addition, we may at any time
and in our sole discretion decide not to have any of the securities represented
by one or more registered global securities. If we make that decision, we will
issue securities in definitive form in exchange for all of the registered
global security or securities representing those securities. Any securities
issued in definitive form in exchange for a registered global security will be
registered in the name or names that the depositary gives to the relevant
trustee, warrant agent, unit agent or other relevant agent of ours or theirs.
It is expected that the depositary's instructions will be based upon directions
received by the depositary from participants with respect to ownership of
beneficial interests in the registered global security that had been held by
the depositary.
Bearer Global Securities. The securities may also be issued in the form of
one or more bearer global securities that will be deposited with a common
depositary for the Euroclear System and 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 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:
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o they will not, in connection with the original issuance of any bearer
securities or during the restricted period with respect to such
bearer notes (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)), which we refer to as the "restricted
period," offer, sell or deliver, directly or indirectly, any bearer
securities in the United States or its possessions or to United
States persons, other than as permitted by the applicable Treasury
Regulations described above, and
o they will not, at any time, offer, sell 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 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 or talons 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
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a trust if a court within the United States is able to exercise primary
supervision of the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
In addition, some trusts treated as United States persons before August 20,
1996 may elect to continue to be so treated to the extent provided in the
Treasury Regulations.
Form of Securities Included in Units
The form of the universal warrant or purchase contract included in a unit
will correspond to the form of the unit and of any other security included in
that unit.
PLAN OF DISTRIBUTION
We may sell the securities being offered by this prospectus in three ways:
(1) through agents, (2) through underwriters and (3) through dealers. Any of
these agents, underwriters or dealers in the United States will include Morgan
Stanley & Co. Incorporated, which we refer to as MS & Co., and/or Dean Witter
Reynolds Inc., which we refer to as DWR, 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 sell more securities than they are obligated to purchase in connection with
the offering, creating a short position for their own accounts. A short sale is
covered if the short position is no greater than the number or amount of
securities available for purchase by the underwriters under any overallotment
option. The underwriters can close out a covered short sale by exercising the
overallotment option or purchasing these securities in the open market. In
determining the source of securities to close out a covered short sale, the
underwriters will consider, among other things, the open market price of these
securities compared to the price available under the overallotment option. The
underwriters may also sell these securities or any other securities in excess
of the overallotment option, creating a naked short position. The underwriters
must close out any naked short position by purchasing securities in the open
market. A naked short position is more likely to be created if the underwriters
are concerned that there may be downward pressure on the price of these
securities in the open market after pricing that could adversely affect
investors who purchase in the offering. As an additional means of facilitating
the offering, the underwriters may bid for, and purchase, these securities or
any other securities in the open market to stabilize the price of these
securities or of any other securities. Finally, in any offering of the
securities through a syndicate of underwriters, the underwriting syndicate may
also reclaim selling concessions allowed to an underwriter or a dealer for
distributing these securities in the offering, if the syndicate repurchases
previously distributed securities to cover
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syndicate short positions or to stabilize the price of these securities. Any of
these activities may raise or maintain the market price of these securities
above independent market levels or prevent or retard a decline in the market
price of these securities. The underwriters are not required to engage in these
activities, and may end any of these activities at any time.
If so indicated in the applicable prospectus supplement, one or more
firms, including MS & Co., MSIL and DWR, which we refer to as "remarketing
firms," acting as principals for their own accounts or as agents for us, may
offer and sell these securities as part of a remarketing upon their purchase,
in accordance with their terms. We will identify any remarketing firm, the
terms of its agreement, if any, with us and its compensation in the applicable
prospectus supplement.
Remarketing firms, agents, underwriters and dealers may be entitled under
agreements with us to indemnification by us against some civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for us in the ordinary course of
business.
If so indicated in the prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers by some purchasers to purchase debt
securities or warrants, purchase contracts or units, as the case may be, from
us at the public offering price stated in the prospectus supplement under
delayed delivery contracts providing for payment and delivery on a specified
date in the future. These contracts will be subject to only those conditions
described in the prospectus supplement, and the prospectus supplement will
state the commission payable for solicitation of these offers.
Any underwriter, agent or dealer utilized in the initial offering of
securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
MS & Co., MSIL and DWR are wholly-owned subsidiaries of MSDW. Each initial
offering of securities will be conducted in compliance with the requirements of
Rule 2720 of the National Association of Securities Dealers, Inc., which is
commonly referred to as the NASD, regarding a NASD member firm's distributing
the securities of an affiliate. Following the initial distribution of any of
these securities, MS & Co., MSIL, DWR and other affiliates of MSDW may offer
and sell these securities in the course of their business as broker-dealers,
subject, in the case of preferred stock and depositary shares, to obtaining any
necessary approval of the New York Stock Exchange, Inc. for any of these offers
and sales MS & Co. and DWR may make. MS & Co., MSIL, DWR and other affiliates
may act as principals or agents in these transactions and may make any sales at
varying prices related to prevailing market prices at the time of sale or
otherwise. MS & Co., MSIL, DWR and other affiliates may use this prospectus in
connection with these transactions. None of MS & Co., MSIL, DWR or any other
affiliate is obligated to make a market in any of these securities and may
discontinue any market-making activities at any time without notice.
LEGAL MATTERS
The validity of these securities will be passed upon for MSDW by Brown &
Wood LLP, or other counsel who is satisfactory to MS & Co., MSIL or DWR, as the
case may be, and who may be an officer of MSDW. Davis Polk & Wardwell will pass
upon some legal matters relating to these securities for the underwriters.
Davis Polk & Wardwell has in the past represented MSDW and continues to
represent MSDW on a regular basis and in a variety of matters, including in
connection with its private equity and leveraged capital activities.
EXPERTS
The consolidated financial statements and financial statement schedules of
MSDW and its subsidiaries, 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
regarding a change which occurred in fiscal year 1998 in the method of
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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 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
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which we refer to as a "plan", should consider the fiduciary
standards of ERISA in the context of the plan's particular circumstances before
authorizing an investment in these securities. Accordingly, among other
factors, the fiduciary should consider whether the investment would satisfy the
prudence and diversification requirements of ERISA and would be consistent with
the documents and instruments governing the plan.
In addition, we and certain of our subsidiaries and affiliates, including
MS & Co. and DWR, are each to be considered a "party in interest" within the
meaning of ERISA or a "disqualified person" within the meaning of the Code with
respect to many plans. Prohibited transactions within the meaning of ERISA or
the Code would likely arise, for example, if these securities are acquired by
or with the assets of a plan with respect to which MS & Co., DWR or any of
their affiliates is a service provider, unless the securities are acquired
pursuant to an exemption from the "prohibited transaction" rules. A violation
of these "prohibited transaction" rules may result in an excise tax or other
liabilities under ERISA and/or Section 4975 of the Code for those persons,
unless exemptive relief is available under an applicable statutory or
administrative exemption.
The U.S. Department of Labor has issued five prohibited transaction class
exemptions ("PTCEs") that may provide exemptive relief for direct or indirect
prohibited transactions resulting from the purchase or holding of these
securities. Those class exemptions are PTCE 96-23 (for certain transactions
determined by in-house asset managers), PTCE 95-60 (for certain transactions
involving insurance company general accounts), PTCE 91-38 (for certain
transactions involving bank collective investment funds), PTCE 90-1 (for
certain transactions involving insurance company separate accounts) and PTCE
84-14 (for certain transactions determined by independent qualified asset
managers).
Because we are considered a party in interest with respect to many plans,
these securities may not be purchased or held by any plan, any entity whose
underlying assets include "plan assets" by reason of any plan's investment in
the entity (a "Plan Asset Entity") or any person investing "plan assets" of any
plan, unless such purchaser or holder is eligible for exemptive relief,
including relief available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or
such purchase and holding is otherwise not prohibited. Any purchaser, including
any fiduciary purchasing on behalf of a plan, or holder of these securities
will be deemed to have represented, in its corporate and fiduciary capacity, by
its purchase and holding thereof that it either (a) is not a plan or a Plan
Asset Entity and is not purchasing such securities on behalf of or with "plan
assets" of any plan or (b) is eligible for exemptive relief or such purchase or
holding is not prohibited by ERISA or Section 4975 of the Code.
Under ERISA, assets of a plan may include assets held in the general
account of an insurance company which has issued an insurance policy to such
plan or assets of an entity in which the plan has invested. Accordingly,
insurance company general accounts that include assets of a plan must ensure
that one of the foregoing exemptions is available. Due to the complexity of
these rules and the penalties that may be imposed upon persons involved in
non-exempt
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prohibited transactions, it is particularly important that fiduciaries or other
persons considering purchasing these securities on behalf of or with "plan
assets" of any plan consult with their counsel regarding the availability of
exemptive relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
Purchasers of these securities have exclusive responsibility for ensuring
that their purchase and holding of the Notes do not violate the prohibited
transaction rules of ERISA or the Code.
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MORGAN STANLEY DEAN WITTER & CO.
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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..................................................$ 5,280,000
NASD filing fee................................................... 30,500
Blue Sky fees and expenses........................................ 25,000
Rating agency fees................................................ 625,000
Printing and engraving expenses................................... 1,050,000
Legal fees and expenses........................................... 750,000
Accounting fees and expenses...................................... 187,500
Unit Agents', Warrant Agents', Trustees' and Preferred Stock
Depositary's fees and expenses (including counsel fees)...... 337,500
-------------
Total...................................................$ 8,285,500
Item 15. Indemnification of Officers and Directors
Article VIII of the Amended and Restated Certificate of Incorporation of
MSDW ("Certificate of Incorporation") and Section 6.07 of the Amended and
Restated By-laws of MSDW ("By-laws"), each as amended to date, provide for the
indemnification of MSDW's directors and officers. The Certificate of
Incorporation provides that any person who is a director or officer of MSDW
shall be indemnified by MSDW to the fullest extent permitted from time to time
by applicable law. In addition, the By-laws provide that each person who was or
is made a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of MSDW or a director or elected officer of a corporation a majority
of the capital stock (other than directors' qualifying shares) of which is
owned directly or indirectly by MSDW (a "Subsidiary") shall be indemnified by
MSDW to the fullest extent permitted by applicable law. The right to
indemnification under the By-laws includes the right to be paid the expenses
incurred in defending a proceeding in advance of its final disposition upon
receipt (unless MSDW upon authorization of the Board of Directors waives said
requirement to the extent permitted by applicable law) of an undertaking by or
on behalf of such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by MSDW.
MSDW's By-laws also provide that MSDW may, to the extent authorized from
time to time by the Board of Directors, provide rights to indemnification, and
rights to be paid by MSDW the expenses incurred in defending any proceeding in
advance of its final disposition, to any person who is or was an employee or
agent (other than a director or officer) of MSDW or a Subsidiary and to any
person who is or was serving at the request of MSDW or a Subsidiary as a
director, officer, partner, member, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise at the request of MSDW or a Subsidiary, to the same extent as the
By-laws provide with respect to indemnification of, and advancement of expenses
for, directors and officers of MSDW.
Under the By-laws, MSDW has the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, partner, member,
employee or agent of MSDW or of its subsidiary, or of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, against any expense, liability or loss whether or not MSDW or its
subsidiary would have the power to indemnify that person against that expense,
liability or loss under the provisions of applicable law.
MSDW has in effect insurance policies in the amount of $125 million for
general officers' and directors' liability insurance and $25 million for
fiduciary liability insurance covering all of our directors and officers in
some of the instances where by law they may not be indemnified by MSDW.
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The forms of Underwriting Agreements and Distribution Agreements filed as
Exhibits 1-a, 1-b, 1-c and 1-d hereto, and incorporated herein by reference,
contain some provisions relating to the indemnification of MSDW's directors,
officers and controlling persons.
Item 16. Exhibits
Exhibit
Number Description
------- -----------
1-a Form of Underwriting Agreements for Debt Securities, Warrants,
Purchase Contracts and Units (previously filed as an exhibit
to MSDW's Registration Statement on Form S-3, Registration No.
333- 27919, and incorporated herein by reference).
1-b Form of Underwriting Agreement for Preferred Stock and
Depositary Shares (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No.
333-27919, and incorporated herein by reference).
1-c Form of U.S. Distribution Agreement.
1-d Form of Euro Distribution Agreement.
4-a Amended and Restated Certificate of Incorporation of MSDW
(previously filed as an exhibit to MSDW's Annual Report on
Form 10-K dated November 30, 1999 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 First Supplemental Senior Indenture dated as of September 15, 2000
between Morgan Stanley Dean Witter & Co. and The Chase Manhattan
Bank, Trustee.
4-g 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-h Form of Floating Rate Senior Note.
4-i Form of Fixed Rate Senior Note.
4-j Form of Senior Variable Rate Renewable Note.
4-k Form of Floating Rate Subordinated Note.
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Exhibit
Number Description
------- -----------
4-l Form of Fixed Rate Subordinated Note.
4-m Form of Subordinated Variable Rate Renewable Note.
4-n Form of Fixed Rate Amortizing Senior Note.
4-o Form of Floating/Fixed Rate Senior Note.
4-p Form of Temporary Global Floating Rate Senior Bearer Note.
4-q Form of Permanent Global Floating Rate Senior Bearer Note.
4-r Form of Definitive Floating Rate Senior Bearer Note.
4-s Form of Temporary Global Fixed Rate Senior Bearer Note.
4-t Form of Permanent Global Fixed Rate Senior Bearer Note.
4-u Form of Definitive Fixed Rate Senior Bearer Note.
4-v Form of Euro Fixed Rate Senior Registered Note.
4-w Form of Euro Fixed Rate Subordinated Registered Note.
4-x Form of Euro Senior Registered Floating Rate Renewable Note.
4-y 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-z 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-aa 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-bb 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-cc Form of Put Warrant (included in Exhibit 4-aa) (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 Call Warrant (included in Exhibit 4-aa) (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 Purchase Contract (Issuer Sale) (included in Exhibit
4-bb) (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>
4-ff Form of Purchase Contract (Issuer Purchase) (included in Exhibit
4-bb) (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 Unit Certificate (included in Exhibit 4-bb) (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 Pre-Paid Purchase Contract (previously filed as an
exhibit to MSDW's Registration Statement on Form S-3,
Registration No. 333-34392, and incorporated herein by
reference).
4-ii 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.
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
II-4
<PAGE>
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(3) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (3)(a)(i) and (3)(a)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
II-5
<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 19th day of January, 2001.
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 19th day of January, 2001.
Signature Title
--------- -----
* Chairman of the Board and Chief Executive
-------------------------------- Officer
Philip J. Purcell
* President, Chief Operating Officer
------------------------------- and Director
John J. Mack
* Executive Vice President and Chief
------------------------------- Financial Officer (Principal Financial
Robert G. Scott Officer)
* Controller
------------------------------- (Principal Accounting Officer)
Joanne Pace
* Director
-------------------------------
Robert P. Bauman
* Director
-------------------------------
Edward A. Brennan
* Director
-------------------------------
C. Robert Kidder
* Director
-------------------------------
Charles F. Knight
* Director
-------------------------------
John W. Madigan
II-6
<PAGE>
Signature Title
--------- -----
* Director
-------------------------------
Miles L. Marsh
* Director
-------------------------------
Michael A. Miles
* Director
-------------------------------
Clarence B. Rogers, Jr.
* Director
-------------------------------
Laura D'Andrea Tyson
* By: /s/ Martin M. Cohen
-------------------------------
Name: Martin M. Cohen
Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
1-c Form of U.S. Distribution Agreement.
1-d Form of Euro Distribution Agreement.
4-f First Supplemental Senior Indenture dated as of September 15, 2000
between Morgan Stanley Dean Witter & Co. and The Chase Manhattan
Bank, Trustee.
4-h Form of Floating Rate Senior Note.
4-i Form of Fixed Rate Senior Note.
4-j Form of Senior Variable Rate Renewable Note.
4-k Form of Floating Rate Subordinated Note.
4-l Form of Fixed Rate Subordinated Note.
4-m Form of Subordinated Variable Rate Renewable Note.
4-n Form of Fixed Rate Amortizing Senior Note.
4-o Form of Floating/Fixed Rate Senior Note.
4-p Form of Temporary Global Floating Rate Senior Bearer Note.
4-q Form of Permanent Global Floating Rate Senior Bearer Note.
4-r Form of Definitive Floating Rate Senior Bearer Note.
4-s Form of Temporary Global Fixed Rate Senior Bearer Note.
4-t Form of Permanent Global Fixed Rate Senior Bearer Note.
4-u Form of Definitive Fixed Rate Senior Bearer Note.
4-v Form of Euro Fixed Rate Senior Registered Note.
4-w Form of Euro Fixed Rate Subordinated Registered Note.
4-x Form of Euro Senior Registered Floating Rate Renewable 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.
25-a Consent of Deloitte & Touche LLP.
25-b Consent of Brown & Wood LLP (included in Exhibit 5).
II-8
<PAGE>
Exhibit
Number Description
------- -----------
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
