EXHIBIT 1-b
UNDERWRITING AGREEMENT
(Preferred Stock, Depositary Shares and Common Stock)
_________, 200_
Morgan Stanley
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, a Delaware corporation (the "Company"), proposes to [issue and
sell ____________ shares of its ___% Cumulative Preferred Stock, par value $.01
per share, stated value $____ per share (the "Firm Offered Securities")](1)
[issue and sell ______ Depositary Shares (the "Firm Offered Securities"), each
representing a [fraction] interest in its __% Cumulative Preferred Stock, par
value $.01 per share, stated value $______ per share](2) [issue and sell
____________ shares of its common stock, par value $.01 per share (the "Firm
Offered Securities")](3). The Company also proposes to [issue and sell not more
than an additional ___________ shares of its ___% Cumulative Preferred Stock,
par value $.01 per share, stated value $___ per share (the "Additional Offered
Securities"),]1 [issue and sell not more than an additional ________ Depositary
Shares (the "Additional Offered Securities"), each representing a [fraction]
interest in its __% Cumulative Preferred Stock, par value $.01 per share,
stated value $______ per share,](2) [issue and sell not more than an additional
___________ shares of its common stock, par value $.01 per share (the
"Additional Offered Securities"),](3) if and to the extent that we shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such Additional Offered Securities referred to below. The Firm Offered
Securities and the Additional Offered Securities are hereinafter collectively
referred to as the "Offered Securities" or as the ["Preferred Shares"/
"Depositary Shares"/"Common Shares"].(4) [The Depositary Shares will be issued
by ______________ (the "Depositary") pursuant to the terms of a Deposit
Agreement (the "Deposit Agreement") to be entered into among the Company,
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(1) Include only for issuances of Preferred Stock.
(2) Include only for issuances of Depositary Shares representing
interests in Preferred Stock.
(3) Include only for issuances of Common Stock.
(4) Delete as appropriate.
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the Depositary, and the holders from time to time of Depositary Receipts issued
thereunder. The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement (the "Depositary Receipts"). The
shares of the Company's ___% Cumulative Preferred Stock, par value $.01 per
share, stated value $________ per share, relating to the Depositary Shares are
hereinafter referred to as the "Underlying Preferred Shares".](5) [The shares
of common stock, par value $.01 per share, of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred
to as the "Common Stock".](6)
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 number of Firm Offered Securities
set forth below opposite their names at $____ per share [plus accrued
dividends, if any, from __________, 200_ to the date of payment and
delivery](7):
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 such Firm 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 the Manager. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date."
Subject to the terms and conditions set forth herein and incorporated
by reference herein, the Company hereby agrees to sell to the Underwriters the
Additional Offered Securities, and the Underwriters shall have a one-time right
to purchase, severally and not jointly, up to __________ Additional Offered
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(5) Include only for issuances of Depositary Shares representing
interests in Preferred Stock.
(6) Include only for issuances of Common Stock.
(7) Include only for issuances of Preferred Stock or issuances of
Depositary Shares representing interests in Preferred Stock.
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Securities at the purchase price set forth above [plus accrued dividends, if
any](8). Additional Offered Securities may be purchased solely for the purpose
of covering over-allotments made in connection with the offering of the Firm
Offered Securities.
If any Additional Offered Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Offered Securities (subject to such adjustments to eliminate
fractional shares as we may determine) that bears the same proportion to the
total number of Additional Offered Securities to be purchased as the number of
Firm Offered Securities set forth above opposite the name of such Underwriter
bears to the total number of Firm Offered Securities. The Underwriters will pay
for any Additional 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 such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor later than ten business
days after the giving of the notice hereinafter referred to) as shall be
designated in a written notice from us to the Company of our determination, on
behalf of the Underwriters, to purchase a number, specified in such notice, of
Additional Offered Securities. The time and date of such payment are
hereinafter referred to as the "Option Closing Date." The notice of the
determination to exercise the option to purchase Additional Offered Securities
may be given at any time within 30 days after the date of this Agreement. The
several obligations of the Underwriters to purchase Additional Offered
Securities are subject to the delivery to us on the Option Closing Date of such
documents as we may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Offered
Securities [and the Underlying Preferred Shares](9) and other matters related to
the issuance of the Additional Offered Securities [and the Underlying Preferred
Shares](9).
The Offered Securities [and the Underlying Preferred Shares](10) shall
have the terms set forth in the Prospectus dated ______________, 200_ and the
Prospectus Supplement dated ____________, 200_[.][, including the following:
Terms of [Underlying](10) Preferred Shares
Dividends:
Rate:
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(8) Include only for issuances of Preferred Stock or issuances of
Depositary Shares representing interests in Preferred Stock.
(9) Include only for issuances of Depositary Shares representing
interests in Preferred Stock.
(10) Include only for issuances of Depositary Shares representing
interests in Preferred Stock.
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Dividend Payment Dates: _________, _________,_________, and _________,
commencing _________, 20__; Dividends cumulate from ________, 20__ Liquidation
Preference: $_____ per share
Redemption:
[Conversion/Exchange Provisions:]
[Other Terms:]
[Terms of Depositary Shares
Dividends:
Rate:
Dividend Payment Dates: _________, _________, _________, and
_________, commencing _________, 20__; Dividends cumulate from ________, 20__
Liquidation Preference: $_____ per share (equivalent to $____ per
Underlying Preferred Share)
Redemption:
[Other Terms:]](11)(12)
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 the provisions contained in the
document entitled Morgan Stanley Underwriting Agreement Standard Provisions
(Preferred Stock, Depositary Shares and Common Stock) dated , 2003, (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, [and
(ii) all references in such document to Common Stock, Common Shares, Depositary
Shares, Depositary Receipts, Underlying Preferred Shares and the Deposit
Agreement shall not be
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(11) Include only for issuances of Preferred Stock or issuances of
Depositary Shares representing interests in Preferred Stock.
(12) Include only for issuances of Depositary Shares representing
interests in Preferred Stock.
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deemed to be part of this Agreement](13) [and (ii) all references in such
document to Preferred Shares, Depositary Shares, Depositary Receipts,
Underlying Preferred Shares and the Deposit Agreement shall not be deemed to be
part of this Agreement](14) [and (ii) all references in such document to Common
Stock and Common Shares shall not be deemed to be part of this Agreement.](15)
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(13) Include only for issuances of Preferred Stock.
(14) Include only for issuances of Common Stock.
(15) Include for issuances of Depositary Shares representing interests in
Preferred Stock.
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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
By: ___________________________________
Name:
Title:
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MORGAN STANLEY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK, DEPOSITARY SHARES AND COMMON STOCK)
, 2003
From time to time, Morgan Stanley, 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 has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Offered Securities and any Underlying Preferred Shares 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") specifically relating to the Offered Securities and any Underlying
Preferred Shares pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement as amended to the date of this Agreement. The term
"Basic Prospectus" means the prospectus relating to the Offered Securities and
any Underlying Preferred Shares 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 and any Underlying
Preferred Shares 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").
1. Representations and Warranties. The Company represents and warrants
to each of the Underwriters as of the date of the Underwriting Agreement that:
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(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) 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 when so filed in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder.
(c) (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 paragraph (c) 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 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.
(d) 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.
2
(e) 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.
(f) The authorized capital stock of the Company, the Offered
Securities, any Underlying Preferred Shares, any Depositary Shares and
any Deposit Agreement conform as to legal matters to the descriptions
thereof contained in the Prospectus.
(g) In the case of Offered Securities that are Common Shares,
the shares of the Company's Common Stock outstanding prior to the
issuance of the Offered Securities have been duly authorized and are
validly issued, fully paid and non-assessable.
(h) The Preferred Shares, the Underlying Preferred Shares or
the Common Shares, as the case may be, have been duly authorized by
the Company and, when such shares are issued and delivered as
contemplated by the terms of this Agreement, such shares will be
validly issued, fully paid and non-assessable, and the issuance of
such shares is not subject to any preemptive or similar rights.
(i) In the case of Offered Securities that are Depositary
Shares, the deposit of the Underlying Preferred Shares by the Company
in accordance with any Deposit Agreement has been duly authorized and,
when the Depositary Shares are issued and delivered in accordance with
the terms of this Agreement, the Depositary Shares will represent
legal and valid interests in the Underlying Preferred Shares.
(j) Assuming due authorization, execution and delivery of any
Deposit Agreement by the Depositary, each Depositary Share, if any,
will represent the interest described in the Prospectus in a validly
issued, outstanding, fully paid and non-assessable Underlying
Preferred Share; assuming due execution and delivery of the Depositary
Receipts, if any, by the Depositary pursuant to such Deposit
Agreement, the Depositary Receipts will entitle the holders thereof to
the benefits provided therein and in the Deposit Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
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(l) The Deposit Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company.
(m) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
any certificate of designation relating to the Preferred Shares or the
Underlying Preferred Shares, as the case may be (the "Certificate of
Designation"), and the Deposit 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 Certificate of Designation, if any, and the Deposit
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.
(n) 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).
(o) 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.
(p) The Company is not, and after giving effect to the offering
and sale of the Preferred Shares, the Underlying Preferred Shares or
the Common Shares, as the case may be, and the application of the
proceeds thereof as described in the Prospectus will not be required
to register as, an
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"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. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered 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
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Firm Offered Securities and
any Additional Offered Securities shall be made to the Company in immediately
available funds at the time and place set forth in the Underwriting Agreement.
Payment for any Firm Offered Securities and Additional Offered
Securities that are in the form of Depositary Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters of Depositary
Receipts evidencing such Firm Offered Securities or Additional Offered
Securities, as the case may be, registered in such names and in such
denominations as the Manager shall request in writing not later than one full
business day prior to the Closing Date or the Option Closing Date, as the case
may be, with any transfer taxes payable in connection with the transfer of such
Offered Securities to the Underwriters duly paid.
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Certificates for any Firm Offered Securities and Additional Offered
Securities shall be in definitive form and registered in such names and in such
denominations as the Manager shall request in writing not later than one full
business day prior to the Closing Date or the Option Closing Date, as the case
may be. The certificates evidencing such Firm Offered Securities and Additional
Offered Securities shall be delivered to you on the Closing Date or the Option
Closing Date, as the case may be, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer
of such Offered Securities to the Underwriters duly paid, against payment of
the purchase price therefor.
4. 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 (a)(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.
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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 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) the authorized capital stock of the Company, the
Offered Securities, any Underlying Preferred Shares, any
7
Depositary Shares and any Deposit Agreement conform as to legal
matters to the descriptions thereof contained in the
Prospectus;
(v) in the case of Offered Securities that are Common
Shares, the shares of the Company's Common Stock outstanding
prior to the issuance of the Offered Securities have been duly
authorized and are validly issued, fully paid and
non-assessable;
(vi) the Preferred Shares, the Underlying Preferred Shares
or the Common Shares, as the case may be, have been duly
authorized and, when such shares are issued and delivered as
contemplated by the terms of this Agreement, such shares will
be validly issued, fully paid and non-assessable, and the
issuance of such shares is not subject to any preemptive or
similar rights;
(vii) in the case of Offered Securities that are
Depositary Shares, the deposit of the Underlying Preferred
Shares by the Company in accordance with any Deposit Agreement
has been duly authorized and, when the Depositary Shares are
issued and delivered in accordance with the terms of this
Agreement, the Depositary Shares will represent legal and valid
interests in the Underlying Preferred Shares;
(viii) assuming due authorization, execution and delivery
of any Deposit Agreement by the Depositary, each Depositary
Share, if any, will represent the interest described in the
Prospectus in a validly issued, outstanding, fully paid and
non-assessable Underlying Preferred Share; assuming due
execution and delivery of the Depositary Receipts, if any, by
the Depositary pursuant to such Deposit Agreement, the
Depositary Receipts will entitle the holders thereof to the
benefits provided therein and in the Deposit Agreement;
(ix) this Agreement has been duly authorized, executed and
delivered by the Company;
(x) the Deposit Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company;
(xi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Certificate of Designation, if any, and the
Deposit 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
8
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
Certificate of Designation, if any, and the Deposit 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 Basic Prospectus under
"Description of Capital Stock" and "Plan of Distribution," (2)
in the Prospectus Supplement under "Description of Cumulative
Preferred Stock," "Description of Depositary Shares" or
"Description of Offered Common Stock," as the case may be, and
under "Dividend Policy" and "Underwriters," (3) in the
Registration Statement under Item 15, (4) in "Item 3. Legal
Proceedings" of the most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (5) 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 incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated by
reference as required;
9
(xiv) the Company is not, and after giving effect to the
offering and sale of the Preferred Shares, the Underlying
Preferred Shares or the Common Shares, as the case may be, 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; and
(xv) such counsel (1) believes that each document 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) 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) 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, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in subparagraphs
(iv), (v), (vi), (vii), (viii), (ix), (x), clauses (1) and (2) of
subparagraph (xii) and clauses (2), (3) and (4) of subparagraph (xv)
of paragraph (c) above.
10
With respect to subparagraph (xv) 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 any amendments
or supplements thereto 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 (xv)
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 and any amendments or supplements
thereto (other than the documents incorporated by reference) and review and
discussion of the contents thereof (including documents incorporated 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 Section 4(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.
(f) In the case of Offered Securities that are Common Shares or
Preferred Shares convertible into Common Shares, the Manager shall
have received "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between the Manager and certain shareholders,
officers and directors of the Company relating to sales and certain
other dispositions of shares of Common Stock or certain other
securities, delivered to the Manager on or prior the date of the
Underwriting Agreement, and each such lock-up agreement shall be in
full force and effect on the Closing Date.
5. 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
11
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 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.
12
(f) To use its best efforts to accomplish the listing of the
Offered Securities on the New York Stock Exchange and, in the case of
Offered Securities that are Common Shares, the Pacific Exchange.
(g) In the case of Offered Securities that are Preferred Shares
or Depositary Shares, 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
preferred stock of the Company, as the case may be, substantially
similar to the Offered Securities (other than the Offered Securities),
without the prior written consent of the Manager.
(h) In the case of Offered Securities that are Common Shares,
during the period beginning on the date of the Underwriting Agreement
and continuing to and including [90] days after the date of the
Prospectus, not (i) to offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether such
transaction described in clause (i) or (ii) above is to be settled by
delivery of the Common Stock or such other securities, in cash or
otherwise, without the prior written consent of the Manager. The
restrictions contained in the preceding sentence shall not apply to
(i) the Common Shares to be sold hereunder or (ii) the issuance by the
Company of shares of Common Stock upon the exercise of an option or
warrant or the conversion of a restricted stock unit or other security
outstanding on the date of the Underwriting Agreement of which the
Manager has been advised in writing.
(i) 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: (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 Depositary and its
counsel, (iv) the qualification of the Offered Securities under
securities or Blue Sky laws in accordance with the provisions of
Section 5(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
13
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.
6. 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
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
14
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 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.
15
To the extent the indemnification provided for in the first or second
paragraph of this Section 6 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 of 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 6 were determined by pro
rata allocation (even if the 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 6, 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
16
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' respective obligations to contribute pursuant to this Section 6
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 6 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.
7. 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 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.
8. Defaulting Underwriters. If, on the Closing Date or the Option
Closing Date, as the case may be, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of
the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Firm Offered
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate number of Firm Offered 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 Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Offered
Securities that any Underwriter has agreed to purchase pursuant to the
Underwriting Agreement be increased pursuant to this Section 8 by an amount in
excess of one-ninth of such number 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 Firm Offered Securities and the
aggregate number of Firm Offered
17
Securities with respect to which such default occurs is more than one-tenth of
the aggregate number of Firm Offered Securities to be purchased on such date,
and arrangements satisfactory to the Manager and the Company for the purchase
of such Firm 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. If, on the Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Offered
Securities and the aggregate number of Additional Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Offered Securities to be purchased on such date, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Offered Securities or (ii) purchase
not less than the number of Additional Offered Securities that such
non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. 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.
9. 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.
10. 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 controlling persons referred to in Section 6, and no
other person will have any right or obligation hereunder.
18
11. 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.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. 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.
19
EXHIBIT A
[FORM OF LOCK-UP LETTER]
_______ __, 200_
Morgan Stanley & Co. Incorporated
[Morgan Stanley DW Inc.]
[Name of other Lead Managers]
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs:
The undersigned understands that Morgan Stanley & Co. Incorporated
("MS & Co.") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with Morgan Stanley, a Delaware corporation (the
"Company"), providing for the public offering (the "Public Offering") by the
several Underwriters, including MS & Co. (the "Underwriters"), of [___
shares (the "Shares") of the common stock, par value $.01 per share, of the
Company (the "Common Stock")] [____ shares of the Company's __% Cumulative
Preferred Stock, par value $.01 per share, stated value $______.per share (the
"Preferred Stock"), convertible into the common stock, par value $.01 per
share, of the Company (the "Common Stock")].
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of MS & Co.
on behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending [90] days after the date of the final prospectus
relating to the Public Offering (the "Prospectus"), (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
the sale of any [Shares/Preferred Stock] to the Underwriters pursuant to the
Underwriting Agreement or (b) transactions relating to shares of Common Stock
or other securities acquired in open market transactions after the completion
of the Public Offering. In addition, the undersigned agrees that, without the
prior written consent of MS & Co. on behalf
A-1
of the Underwriters, it will not, during the period commencing on the date
hereof and ending [90] days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable
for Common Stock. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent and registrar against
the transfer of the undersigned's shares of Common Stock except in compliance
with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up
Agreement is irrevocable and shall be binding upon the undersigned's heirs,
legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
___________________________________________
(Name)
___________________________________________
(Address)
A-2