EXHIBIT 1-a
UNDERWRITING AGREEMENT
(Debt Securities)
_____________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being
herein called the "Underwriters"), and we understand that Morgan Stanley Dean
Witter & Co., a Delaware corporation (the "Company"), proposes to issue and
sell $ aggregate principal amount of % Notes Due (the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the aggregate principal amount of the
Offered Securities set forth below opposite their names at a purchase price of
% of the principal amount thereof, plus accrued interest, if any, from , 200_
to the date of payment and delivery (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Morgan Stanley DW Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
--------------
Total...... ==============
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New
York at 10:00 a.m. (New York time) on , 200_, or at such other time, not later
than 5:00
1
p.m. (New York time) on , 200_, as shall be designated by us. The time
and date of such payment and delivery are hereinafter referred to as the Closing
Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated , 200_, and the Prospectus Supplement dated , 200_, including the
following: Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Other Terms:
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Morgan Stanley Dean Witter & Co. Underwriting Agreement Standard
Provisions (Debt Securities, Warrants, Purchase Contracts and Units) dated o,
2002 (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
2
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY DW INC.]
[MORGAN STANLEY & CO.
INCORPORATED]
[Name of other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By MORGAN STANLEY & CO.
INCORPORATED
By:
---------------------------------
Name:
Title:
Accepted as of the date hereof:
MORGAN STANLEY DEAN WITTER & CO.
By:
-----------------------------
Name:
Title:
3
UNDERWRITING AGREEMENT
(Warrants)
__________, 200_
MORGAN STANLEY DEAN WITTER & CO.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being
herein called the "Underwriters"), and we understand that Morgan Stanley Dean
Witter & Co., a Delaware corporation (the "Company"), proposes to issue and
sell [number and title of warrants] Warrants (the "Offered Securities"). The
Offered Securities are to be issued pursuant to the provisions of a Warrant
Agreement (the "Warrant Agreement") dated as of [ ] between the Company and
[name of Warrant Agent], as Warrant Agent.
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the aggregate number of Offered Securities
set forth below opposite their names at a purchase price of per Offered
Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Morgan Stanley DW Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
--------------
Total...... ==============
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New
York at 10:00 a.m. (New York time) on , 200_, or at such other time, not later
than 5:00 p.m. (New York time) on , 200_, as shall be designated by us. The
time and date of such payment and delivery are hereinafter referred to as the
Closing Date.
1
The Offered Securities shall have the terms set forth in the Prospectus
dated , 200_, and the Prospectus Supplement dated , 200_, including the
following:
Terms of Offered Securities
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Price to Public:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Form:
Currency in which exercise payments shall be made:
Minimum number of Warrants exercisable by any holder on any day:
Maximum number of Warrants exercisable on any day:
[In the aggregate] [By any beneficial owner]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other Terms:
[Specify procedures for purchase and delivery of bearer Universal
Warrants.]
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
2
Except as set forth below, all provisions contained in the document
entitled Morgan Stanley Dean Witter & Co., Underwriting Agreement Standard
Provisions (Debt Securities, Warrants, Purchase Contracts and Units) dated o,
2002 (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
3
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY DW INC.]
[MORGAN STANLEY & CO.
INCORPORATED]
[Name of other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By MORGAN STANLEY & CO.
INCORPORATED
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
MORGAN STANLEY DEAN WITTER & CO.
By:
-----------------------------
Name:
Title:
4
UNDERWRITING AGREEMENT
(Prepaid Purchase Contracts)
__________, 200_
MORGAN STANLEY DEAN WITTER & CO.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being
herein called the "Underwriters"), and we understand that Morgan Stanley Dean
Witter & Co., a Delaware corporation (the "Company"), proposes to issue and
sell [number and title of purchase contracts] Purchase Contracts (the "Offered
Securities"). The Offered Securities are to be issued pursuant to the
provisions of the [Senior Debt Indenture] [Subordinated Debt Indenture].
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the aggregate number of Offered Securities
set forth below opposite their names at a purchase price of per Offered
Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Morgan Stanley DW Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
--------------
Total...... ==============
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New
York at 10:00 a.m. (New York time) on , 200_, or at such other time, not later
than 5:00 p.m. (New York time) on , 200_, as shall be designated by us. The
time and date of such payment and delivery are hereinafter referred to as the
Closing Date.
1
The Offered Securities shall have the terms set forth in the Prospectus
dated , 200_, and the Prospectus Supplement dated , 200_, including the
following: Terms of Offered Securities
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property:
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Morgan Stanley Dean Witter & Co. Underwriting Agreement Standard
Provisions (Debt Securities, Warrants, Purchase Contracts and Units) dated o,
2002 (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
2
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY DW INC.]
[MORGAN STANLEY & CO.
INCORPORATED]
[Name of other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By MORGAN STANLEY & CO.
INCORPORATED
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
MORGAN STANLEY DEAN WITTER & CO.
By:
------------------------------
Name:
Title:
3
UNDERWRITING AGREEMENT
(Units)
__________, 200_
MORGAN STANLEY DEAN WITTER & CO.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or underwriters
(including ourselves) named below (such underwriter or underwriters being
herein called the "Underwriters"), and we understand that Morgan Stanley Dean
Witter & Co., a Delaware corporation (the "Company"), proposes to issue and
sell [number and title of units] Units (the "Offered Securities") consisting of
[$ aggregate principal amount of % Notes Due ] [number and title of Warrants]
[number and title of Purchase Contracts]. The Offered Securities are to be
issued pursuant to the provisions of a Unit Agreement (the "Unit Agreement")
dated as of [ ] among the Company, JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as Agent, and the holders from time to time of the
Units. [The Notes [and the Prepaid Purchase Contracts] included in the Offered
Securities will be issued pursuant to the [specify the indenture].] [The
Warrants included in the Offered Securities will be issued pursuant the
[specify the warrant agreement.]] [The Purchase Contracts[(other than the
Prepaid Purchase Contracts)] included in the Offered Securities will be issued
pursuant to the Unit Agreement.]
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriters agree to
purchase, severally and not jointly, the aggregate number of Offered Securities
set forth below opposite their names at a purchase price of per Offered
Security, plus accrued interest, if any, from to the date of payment and
delivery (the "Purchase Price").
1
Number of
Offered Securities
Underwriter To Be Purchased
[Morgan Stanley DW Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
--------------
Total...... ==============
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New
York at 10:00 a.m. (New York time) on 200_, or at such other time, not later
than 5:00 p.m. (New York time) on 200_, as shall be designated by us. The time
and date of such payment and delivery are hereinafter referred to as the
Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated , 200_, and the Prospectus Supplement dated , 200_, including the
following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Other Terms:
Terms of Warrants
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
2
Aggregate Number of Warrants:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Form:
Currency in which exercise payments shall be made:
Minimum number of Warrants exercisable by any holder on any day:
[Maximum number of Warrants exercisable on any day: [In the aggregate]
[By any beneficial owner]]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Other Terms:
Terms of Purchase Contracts
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property:
Form:
Other Terms:
3
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Morgan Stanley Dean Witter & Co. Underwriting Agreement Standard
Provisions (Debt Securities, Warrants, Purchase Contracts and Units) dated o,
2002 (the "Standard Provisions"), a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
4
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY DW INC.]
[MORGAN STANLEY & CO.
INCORPORATED]
[Name of other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By: MORGAN STANLEY & CO.
INCORPORATED
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
MORGAN STANLEY DEAN WITTER & CO.
By:
-----------------------------
Name:
Title:
5
MORGAN STANLEY DEAN WITTER & CO.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
o, 2002
From time to time, Morgan Stanley Dean Witter & Co., a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company proposes to issue from time to time (a) its debt securities
("Debt Securities"), (b) warrants to purchase Debt Securities ("Debt Warrants")
or to purchase or sell (i) securities of an entity unaffiliated with the
Company, a basket of such securities, an index or indices of such securities or
any combination of the above, (ii) currencies or (iii) commodities ("Universal
Warrants," and together with Debt Warrants, the "Warrants") and (c) purchase
contracts ("Purchase Contracts") requiring the holders thereof to purchase or
sell (i) securities of an entity unaffiliated with the Company, a basket of
such securities, an index or indices of such securities or any combination of
the above, (ii) currencies or (iii) commodities. Debt Securities, Purchase
Contracts and Warrants or any combination thereof may be offered in the form of
Units ("Units"). As used herein, the term "Debt Securities" includes prepaid
Purchase Contracts.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Debt Securities, Warrants, Purchase Contracts and Units (collectively, the
"Securities") and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") pursuant to Rule 424 under
the Securities Act of 1933, as amended (the "Securities Act"), specifically
relating to the Securities offered pursuant to this Agreement (the "Offered
Securities"). The term "Registration Statement" means the registration
1
statement as amended to the date of this Agreement. The term "Basic Prospectus"
means the prospectus relating to the Securities included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus,"
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
The term "Contract Securities" means the Offered Securities, if any, to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters' Securities" means the
Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants to
each of the Underwriters as of the date of the Underwriting Agreement that:
(a) The Registration Statement has become effective, no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply, in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information concerning any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein
2
or (B) to those parts of the Registration Statement that constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the trustees referred to in the
Registration Statement.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the Company and its consolidated subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
(f) Each of the Amended and Restated Senior Indenture dated as of May 1,
1999 (as may be supplemented or amended from time to time, the "Senior Debt
Indenture"), and the Amended and Restated Subordinated Indenture dated as of
May 1, 1999 (as may be supplemented or amended from time to time, the
"Subordinated Debt Indenture"), has been duly qualified under the Trust
Indenture Act, has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(g) The warrant agreement for Debt Warrants (the "Debt Warrant
Agreement"), if any, has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights
3
generally and (ii) is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(h) The warrant agreement for Universal Warrants (the "Universal Warrant
Agreement"), if any, has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(i) The unit agreement for Units (the "Unit Agreement"), if any, has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(j) The Offered Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
relevant Indenture, the Debt Warrant Agreement, the Universal Warrant Agreement
or the Unit Agreement, as the case may be, and delivered to and paid for (A) by
the Underwriters in accordance with the terms of the Underwriting Agreement, in
the case of the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the case of
Contract Securities, and (B) upon exercise of the Debt Warrants pursuant to the
Debt Warrant Agreement, in the case of Debt Warrant Securities, will be
entitled to the benefits of the relevant Indenture, the Debt Warrant Agreement,
the Universal Warrant Agreement or the Unit Agreement, as the case may be, and
will be valid and binding obligations of the Company, in each case enforceable
in accordance with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(k) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company, enforceable in accordance with their respective terms except as
the enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
4
(l) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Senior Debt
Indenture, the Subordinated Debt Indenture, the Offered Securities, any Delayed
Delivery Contracts, the Debt Warrant Agreement, the Universal Warrant Agreement
and the Unit Agreement, if any, will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its consolidated subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of its consolidated
subsidiaries, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Senior
Debt Indenture, the Subordinated Debt Indenture, the Offered Securities, any
Delayed Delivery Contract, the Debt Warrant Agreement, the Universal Warrant
Agreement and the Unit Agreement, if any, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities; provided, however, that no representation
is made as to whether the purchase of the Offered Securities constitutes a
"prohibited transaction" under Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended.
(m) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto effected subsequent to the
date of the Underwriting Agreement).
(n) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its consolidated subsidiaries is a party or to
which any of the properties of the Company or any of its consolidated
subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(o) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied as to form when so
filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
5
(p) The Company is not, and after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds thereof as
described in the Prospectus will not be required to register as, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(q) Each of the Company and its consolidated subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(r) Morgan Stanley DW Inc. is registered as a broker-dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the National Association of Securities Dealers, Inc.
(s) Morgan Stanley & Co. Incorporated is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities
on the terms and subject to the conditions set forth in the Prospectus pursuant
to Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into
only with institutional investors approved by the Company of the types set
forth in the Prospectus. On the Closing Date, the Company will pay to the
Manager as compensation for the accounts of the Underwriters the commission set
forth in the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; and such reduction shall be applied to the commitment
of each Underwriter pro rata in the proportion that the amount of Offered
Securities set forth opposite such Underwriter's name in the Underwriting
Agreement bears to the aggregate number of Offered Securities, except to the
extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the
6
total amount of Offered Securities to be purchased by all Underwriters shall be
the aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided in this Section 4,
payment for the Underwriters' Securities shall be made to the Company in
immediately available funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
one full business day prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Underwriters' Securities to the
Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities (i) that are
Debt Securities in bearer form or are Units that contain Debt Securities in
bearer form shall be effected by delivery of a single temporary global Security
without coupons (the "Temporary Global Security") evidencing the Offered
Securities that are or include Debt Securities in bearer form and (ii) that are
Debt Warrants in bearer form or are Units that (a) contain Debt Warrants in
bearer form and (b) contain no other Debt Securities in bearer form shall be
effected only by delivery of a single permanent global Debt Warrant (the
"Global Debt Warrant") evidencing the Offered Securities that are or include
Debt Warrants in bearer form, in each case to a common depositary for Euroclear
Bank, S.A./N.V., as operator of the Euroclear System (the "Euroclear
Operator"), and for Clearstream Banking, societe anonyme ("Clearstream"), for
credit to the respective accounts at the Euroclear Operator or Clearstream of
each Underwriter or to such other accounts as such Underwriter may direct. Any
Temporary Global Security or Global Debt Warrant shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the
Company in the net amount due to the Company for such Temporary Global Security
or Global Debt Warrant, as the case may be, by the method and in the form set
forth herein. The Company shall cause global and, if applicable, definitive
Debt Securities in bearer form to be prepared and delivered in exchange for
such Temporary Global Security in such manner and at such time as may be
provided in or pursuant to the Senior Debt Indenture or the Subordinated Debt
Indenture, as the case may be; provided, however, that the Temporary Global
Security shall be exchangeable for other Debt Securities in bearer form only on
or after the date specified for such purpose in the Prospectus. Debt Warrants
in bearer form shall be evidenced only by a Global Debt Warrant until their
expiration.
7
5. Conditions to the Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting Agreement
and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
consolidated subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto effected
subsequent to the execution and delivery of the Underwriting Agreement),
that, in the judgment of the Manager, is material and adverse and that
makes it, in the judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Manager shall have received on the Closing Date a certificate,
dated the Closing Date and signed by an executive officer of the Company, to
the effect set forth in clause (i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an opinion of
Sidley Austin Brown & Wood LLP, outside counsel to the Company, or of other
counsel satisfactory to the Manager and who may be an officer of the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its
8
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(ii) each of Morgan Stanley DW Inc., Discover Bank, Morgan Stanley &
Co. Incorporated and Morgan Stanley International Incorporated (the
"Material Subsidiaries") has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole;
(iii) each of the Company and its Material Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a whole;
(iv) each of the Senior Debt Indenture and the Subordinated Debt
Indenture has been duly qualified under the Trust Indenture Act, has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms
except as the enforceability thereof (a) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (b) is subject to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(v) the Debt Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms except as the
enforceability thereof (a) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(vi) the Universal Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of
9
the Company, enforceable in accordance with its terms except as the
enforceability thereof (a) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(vii) the Unit Agreement, if any, has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the
enforceability thereof (a) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(viii) the Offered Securities have been duly authorized by the
Company and, when executed and authenticated in accordance with the
provisions of the relevant Indenture, the Debt Warrant Agreement, the
Universal Warrant Agreement and the Unit Agreement, as the case may be,
and delivered to and paid for (A) by the Underwriters in accordance with
the terms of the Underwriting Agreement, in the case of the Underwriters'
Securities, or by institutional investors in accordance with the terms of
the Delayed Delivery Contracts, in the case of the Contract Securities and
(B) upon exercise of the Debt Warrants pursuant to the Debt Warrant
Agreement, in the case of Debt Warrant Securities, will be entitled to the
benefits of the relevant Indenture, the Debt Warrant Agreement, the
Universal Warrant Agreement and the Unit Agreement, as the case may be,
and will be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms except as the
enforceability thereof (a) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (b) is subject to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(ix) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(x) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company enforceable in accordance with their
respective terms except as the enforceability thereof (a) may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (b) is
subject to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
10
(xi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Senior Debt Indenture, the Subordinated Debt Indenture, the
Offered Securities, any Delayed Delivery Contracts, the Debt Warrant
Agreement, the Universal Warrant Agreement and the Unit Agreement, if any,
will not contravene any provisions of applicable law or the certificate of
incorporation or by-laws of the Company or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval or authorization or
order of or qualification with any governmental body or agency is required
for the performance by the Company of its obligations under the
Underwriting Agreement, the Senior Debt Indenture, the Subordinated Debt
Indenture, the Offered Securities, any Delayed Delivery Contract, the Debt
Warrant Agreement, the Universal Warrant Agreement and the Unit Agreement,
if any, except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Offered
Securities; provided, however, that such counsel need not express an
opinion as to whether the purchase of the Offered Securities constitutes a
"prohibited transaction" under Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, or Section 4975 of the Internal
Revenue Code of 1986, as amended;
(xii) the statements (1) in the Prospectus under the captions
"Description of Debt Securities," "Description of Warrants," "Description
of Purchase Contracts," "Description of Units" and "Plan of Distribution,"
(2) in the Registration Statement under Item 15, (3) in "Item 3. Legal
Proceedings" of the most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (4) in "Item 1. Legal Proceedings" of Part
II of the quarterly reports on Form 10-Q, if any, filed since such annual
report and incorporated by reference in the Prospectus, in each case
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(xiii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
11
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated by reference as required;
(xiv) the Company is not, and after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be required to register as, an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended;
(xv) such counsel is of the opinion ascribed to it in the Prospectus
Supplement under the caption "United States Federal Taxation"; and
(xvi) such counsel (1) believes that each document, if any, filed
pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except as to financial
statements and schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief) complied
when so filed as to form in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (2)
has no reason to believe that any part of the Registration Statement
(except as to financial statements and schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief, and except for that part of the Registration Statement
that constitutes Forms T-1) on the date such part became effective
contained, and the Registration Statement (except as to financial
statements and schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief, and except
for the part of the Registration Statement that constitutes Forms T-1) as
of the date such opinion is delivered contains, any untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(3) believes that the Registration Statement and Prospectus (except as to
financial statements and schedules and other financial and statistical
data included therein, as to which such counsel need not express any
belief) comply as to form in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(4) has no reason to believe that the Prospectus (except as to financial
statements and schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief) as of the
date such opinion is delivered contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(d) The Manager shall have received on the Closing Date an opinion of
Davis Polk & Wardwell, special counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (iv), (v), (vi), (vii),
(viii), (ix), (x), (xii) (but only as to statements in the Prospectus under
"Description of Debt Securities," "Description of
12
Warrants," "Description of Purchase Contracts," "Description of Units" and
"Plan of Distribution"), and clauses (2), (3) and (4) of subparagraph (xvi) of
paragraph (c) above.
With respect to subparagraph (xvi) of paragraph (c) above, if such opinion
is given by counsel who is also an officer of the Company, such counsel may
state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified. With respect to subparagraph (xvi) of paragraph (c) above, Davis
Polk & Wardwell and, if Sidley Austin Brown & Wood LLP is giving such opinion,
Sidley Austin Brown & Wood LLP may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and Prospectus (but not including documents incorporated therein by reference)
and review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check or
verification, except as specified.
The opinion of Sidley Austin Brown & Wood LLP, or any other outside
counsel to the Company, described in paragraph (c) above shall be rendered to
the Manager at the request of the Company and shall so state therein.
(e) The Manager shall have received on the Closing Date a letter, dated
the Closing Date, in form and substance satisfactory to the Manager, from the
Company's independent auditors, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Prospectus; provided that each letter
so furnished shall use a "cut-off date" no more than three business days prior
to the date of such letter.
6. Covenants of the Company. In further consideration of the agreements of
the Underwriters contained herein, the Company covenants as follows:
(a) To furnish the Manager, without charge, a conformed copy of the
Registration Statement (including exhibits and all amendments thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto or
to the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Manager a
copy of
13
each such proposed amendment or supplement and not to file any such proposed
amendment or supplement to which the Manager reasonably objects.
(c) If, during such period after the first date of the public offering of
the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, or if in the opinion of
counsel for the Underwriters it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses the
Manager will furnish to the Company) to which Offered Securities may have been
sold by the Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus, satisfactory in
all respects to the Manager, so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law and to cause
such amendments or supplements to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to maintain such qualifications for as long as the
Manager shall reasonably request.
(e) To make generally available to the Company's security holders and to
the Manager as soon as practicable an earning statement covering a twelve month
period beginning on the first day of the first full fiscal quarter after the
date of the Underwriting Agreement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder. If such fiscal quarter is the first fiscal
quarter of the Company's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days after the
close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting Agreement
and continuing to and including the Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company, warrants,
purchase contracts or units substantially similar to the Offered Securities
(other than (i) the Offered Securities and (ii) commercial paper issued in the
ordinary course of business), without the prior written consent of the Manager.
(g) Whether or not any sale of Offered Securities is consummated, to pay
all expenses incident to the performance of its obligations under this
Agreement, including:
14
(i) the preparation and filing of the Registration Statement and the Prospectus
and all amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Offered Securities, (iii) the fees and disbursements of the
Company's counsel and accountants and of the trustees and their counsel, (iv)
the qualification of the Offered Securities under securities or Blue Sky laws
in accordance with the provisions of Section 6(d), including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Memoranda, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and
all amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of any
Blue Sky or Legal Investment Memoranda, (vii) any fees charged by rating
agencies for the rating of the Offered Securities, (viii) any expenses incurred
by the Company in connection with a "road show" presentation to potential
investors, (ix) all document production charges of counsel to the Underwriters
(but not including their fees for professional services in connection with the
preparation of this Agreement) and (x) any filing fees in connection with any
review of the offering of the Offered Securities by the National Association of
Securities Dealers, Inc.
7. Covenants of the Underwriters. (a) Each of the several Underwriters
represents and agrees with the Company that:
(i) except to the extent permitted under U.S. Treas. Reg. Section
1.163- 5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold, and
during the restricted period will not offer or sell, Debt Securities in
bearer form (including any Debt Security in global form that is
exchangeable for Debt Securities in bearer form) to a person who is within
the United States or its possessions or to a United States person and (ii)
it has not delivered and will not deliver within the United States or its
possessions definitive Debt Securities in bearer form that are sold during
the restricted period;
(ii) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer form
are aware that such Debt Securities may not be offered or sold during the
restricted period to a person who is within the United States or its
possessions or to a United States person, except as permitted by the D
Rules;
(iii) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will only do so in accordance with the requirements of
U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
15
(iv) if it transfers to any affiliate Debt Securities in bearer form
for the purpose of offering or selling such Debt Securities during the
restricted period, it will either (a) obtain from such affiliate for the
benefit of the Company the representations and agreements contained in
clauses (i), (ii) and (iii) above or (b) repeat and confirm the
representations and agreements contained in clauses (i), (ii) and (iii)
above on such affiliate's behalf and obtain from such affiliate the
authority to so obligate it;
(v) it will obtain for the benefit of the Company the representations
and agreements contained in clauses (i), (ii), (iii) and (iv) above from
any person other than its affiliate with whom it enters into a written
contract, as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4)
for the offer or sale during the restricted period of Debt Securities in
bearer form; and
(vi) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
The restricted period is defined at U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7). The term "Debt Securities in bearer form," as used in
the preceding paragraph, includes Units containing Debt Securities in bearer
form. All other terms used in the preceding paragraph have the meaning given to
them by the U.S. Internal Revenue Code and regulations thereunder, including
the D Rules.
(b) Each of the several Underwriters represents and agrees with the
Company that:
(i) except to the extent permitted under the D Rules, (i) it has not
offered or sold Debt Warrants in bearer form to a person who is within the
United States or its possessions or to a United States person and (ii) it
will not offer or sell Debt Warrants in bearer form at any time to a
person who is within the United States or its possessions or to a United
States person;
(ii) it has in effect procedures reasonably designed to ensure that
its employees or agents who are directly engaged in selling Debt Warrants
in bearer form are aware that such Debt Warrants may not be offered or
sold at any time to a person who is within the United States or its
possessions or to a United States person, except as permitted by the D
Rules;
(iii) if it is a United States person, it is acquiring the Debt
Warrants in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Warrants in bearer form for its
own account, it will only do so in
16
accordance with the requirements of U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(6);
(iv) if it transfers to any affiliate Debt Warrants in bearer form
for the purpose of offering or selling such Debt Warrants, it will either
(a) obtain from such affiliate for the benefit of the Company the
representations and agreements contained in clauses (i), (ii) and (iii)
above or (b) repeat and confirm the representations and agreements
contained in clauses (i), (ii) and (iii) above on such affiliate's behalf
and obtain from such affiliate the authority to so obligate it;
(v) it will obtain for the benefit of the Company the representations
and agreements contained in clauses (i), (ii), (iii) and (iv) above from
any person other than its affiliate with whom it enters into a written
contract, as defined in U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4)
for the offer or sale of Debt Warrants in bearer form; and
(vi) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may be
offered, sold, resold or delivered.
As used in the preceding paragraph, the term "Debt Warrants in bearer
form" includes Units containing Debt Warrants in bearer form. All other terms
used in the preceding paragraph have the meaning given to them by the U.S.
Internal Revenue Code and regulations thereunder, including the D Rules.
8. Indemnification and Contribution. The Company agrees to indemnify and
hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
allegedly untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or allegedly untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
17
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, any person controlling such Underwriter or any affiliate of
such Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Offered Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter in writing through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to the second preceding paragraph, and
by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there were to be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
18
party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
To the extent the indemnification provided for in the first or second
paragraph in this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters in respect thereof, in each case as set forth in
the table on the cover of the Prospectus Supplement, bear to the aggregate
public offering price of the Offered Securities. The relative fault of the
Company on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or allegedly
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the
19
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or allegedly untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective amounts of Offered Securities purchased by each of such Underwriters
and not joint. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
9. Termination. This Agreement shall be subject to termination by notice
given by the Manager to the Company if, after the execution and delivery of the
Underwriting Agreement and prior to the Closing Date, (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States or, in the event of a global offering,
in any relevant foreign jurisdiction shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by Federal or New
York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets (or, if the
relevant Offered Securities are denominated in a currency other than U.S.
dollars, any change in currency exchange rates or controls) or any calamity or
crisis that, in the judgment of the Manager, is material and adverse and which,
singly or together with any other event specified in this clause (v), makes it,
in the judgment of the Manager, impracticable or inadvisable to proceed with
the offer, sale or delivery of the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
10. Defaulting Underwriters. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities that it has or
they have agreed to purchase on such date, and the aggregate amount of Offered
Securities which
20
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate amount of the Offered
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the amount of Underwriters'
Securities set forth opposite their respective names above bears to the
aggregate amount of Underwriters' Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the amount of Offered Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such amount of Offered Securities without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Offered Securities and the aggregate amount of Offered
Securities with respect to which such default occurs is more than one-tenth of
the aggregate amount of Offered Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Offered Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager or the Company
shall have the right to postpone the Closing Date but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement. If this Agreement shall be terminated by
the Underwriters, or any of them, because of any failure or refusal on the part
of the Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters
or such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
11. Representations and Indemnities to Survive. The respective indemnity
and contribution agreements and the representations, warranties and other
statements of the Company, its officers and the Underwriters set forth in this
Agreement will remain in full force and effect, regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Offered Securities.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and
21
controlling persons referred to in Section 8, and no other person will have any
right or obligation hereunder.
13. Counterparts. The Underwriting Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
22
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 200_
Dear Sirs:
The undersigned hereby agrees to purchase from Morgan Stanley Dean Witter
& Co., a Delaware corporation (the "Company"), and the Company agrees to sell
to the undersigned the Company's securities described in Schedule A annexed
hereto (the "Securities"), offered by the Company's Prospectus dated , 200_
and Prospectus Supplement dated , 200_, receipt of copies of which are
hereby acknowledged, at a purchase price stated in Schedule A and on the further
terms and conditions set forth in this agreement. The undersigned does not
contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amount and numbers on the delivery dates set forth in Schedule A. Each such
date on which Securities are to be purchased hereunder is hereinafter referred
to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made in immediately available funds at the office
of , New York, N.Y., at 10:00 A.M. (New York time) on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is
to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith.
I-1
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this agreement is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding agreement, as of the date first above written, between
the Company and the undersigned when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
-----------------------------
(Purchaser)
By:
---------------------------
Name:
Title:
Address:
Accepted as of the date hereof:
MORGAN STANLEY DEAN WITTER & CO.
By:
-----------------------------
Name:
Title:
I-2
PURCHASER-- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative(s) of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows:
(Please print.)
Telephone No.
(including area
Name code) Department
---- ---------------- ----------
- ------------------- ---------------- --------------
- ------------------- ---------------- --------------
- ------------------- ---------------- --------------
- ------------------- ---------------- --------------
I-3
SCHEDULE A
Securities:
- ----------
Principal Amounts or Numbers to be Purchased:
- --------------------------------------------
Purchase Price:
- --------------
Delivery Dates:
- --------------
I-4