EXHIBIT 4-jj
FORM OF CASH-SETTLED PRE-PAID PURCHASE CONTRACT
REGISTERED REGISTERED
No. [ ] _________ Purchase Contracts
(each Purchase Contract
having an issue price of
$_________).
CUSIP:
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Purchase Contracts
in definitive registered form, this Purchase Contract may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.](1)
- ------------------------
(1) Applies to global purchase contracts.
MORGAN STANLEY
GLOBAL CASH-SETTLED PRE-PAID PURCHASE CONTRACT SETTLING _______
This Cash-Settled Pre-paid Purchase Contract is one of the Cash-Settled
Pre-Paid Purchase Contracts Settling ____________ (the "Purchase Contracts"),
initially issued as part of a [Separable] Unit Mandatorily Exchangeable for
______________ (a "Unit") consisting of [(i) one Purchase Contract and (ii) one
________ Warrant Settling ______________ (a "_______ Warrant")]. The Units are
governed by a Unit Agreement dated as of ____________ between the Issuer and
JPMorgan Chase Bank, as Unit Agent under the Unit Agreement, Trustee and Paying
Agent under the Senior Indenture and Warrant Agent (the "Warrant Agent") under
the Warrant Agreement dated __________. [Prior to ___________ (the "[Automatic]
Separation Date"), the Purchase Contracts and the _______ Warrants may be
purchased and transferred only as Units. On the Automatic Separation Date, the
Units will automatically separate into their constituent Purchase Contracts and
Put Warrants (which will thereafter trade under separate CUSIP numbers), and the
Units will cease to exist.] Any holder of a Purchase Contract by his acceptance
thereof agrees to (in the absence of any applicable administrative ruling or
judicial determination to the contrary) treat the Purchase Contracts and
Warrants initially comprising Units as separate securities and to file all
United States federal, state and local tax returns consistent with the treatment
of such Units as constituted by separate securities.
Purchase Contract Property...........
Amount of Purchase Contract Property
Deliverable Per Purchase Contract....
Settlement...........................
Contract Settlement Date.............
[Determination Dates]................
Calculation Agent.................... Morgan Stanley & Co. Incorporated.
Other Provisions.....................
2
Morgan Stanley (formerly known as Morgan Stanley Dean Witter & Co.), a
Delaware corporation (together with its successors and assigns, the "Issuer"),
for value received, hereby promises to pay to ________ [CEDE & CO.](2), or
registered assignees, the amount of Purchase Contract Property, as determined in
accordance with the provisions set forth under "Settlement" above, due with
respect to _________ PURCHASE CONTRACTS on the Contract Settlement Date
(including as a result of acceleration or otherwise) specified above.
Reference is hereby made to the further provisions of this Purchase
Contract set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Purchase
Contract shall not be entitled to any benefit under the Senior Indenture or be
valid or obligatory for any purpose.
- ------------------------
(2) Applies to global purchase contracts.
3
IN WITNESS WHEREOF, the Issuer has caused this Purchase Contract to be
duly executed.
DATED: [ ] MORGAN STANLEY
By:
----------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the securities
referred to in the within-
mentioned Senior Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
-----------------------------
Authorized Officer
4
FORM OF REVERSE OF SECURITY
This Cash-Settled Pre-paid Purchase Contract is one of a duly authorized
issue of Cash-Settled Prepaid Purchase Contracts known as the Cash-Settled
Pre-paid Purchase Contracts Settling _____________ (the "Purchase Contracts") of
the Issuer. The Purchase Contracts are issuable under an Amended and Restated
Senior Indenture, dated as of May 1, 1999, between Morgan Stanley (formerly
known as Morgan Stanley Dean Witter & Co.) and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as further
supplemented or amended from time to time, the "Senior Indenture"), to which
Senior Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Purchase Contracts and
the terms upon which the Purchase Contracts are, and are to be, authenticated
and delivered. The Issuer has appointed JPMorgan Chase Bank at its corporate
trust office in The City of New York as the paying agent (the "Paying Agent,"
which term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Purchase Contracts. The terms of individual Purchase
Contracts may vary, all as provided in the Senior Indenture. To the extent not
inconsistent herewith, the terms of the Senior Indenture are hereby incorporated
by reference herein.
This Purchase Contract and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
[This Purchase Contract is not redeemable prior to maturity.]
This Purchase Contract, and any Purchase Contract or Purchase Contracts
issued upon transfer or exchange hereof, is issuable only in fully registered
form in minimum denominations of ______ Purchase Contracts and any integral
multiple of ______ Purchase Contracts in excess thereof.
The Trustee has been appointed registrar for the Purchase Contracts, and
the Trustee shall maintain at its office in The City of New York a register for
the registration and transfer of Purchase Contracts. This Purchase Contract may
be transferred at the aforesaid office of the Trustee by surrendering this
Purchase Contract for cancellation, accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Trustee and duly executed by
the registered holder hereof in person or by the holder's attorney duly
authorized in writing, and thereupon the Trustee shall issue in the name of the
transferee or transferees, in exchange herefor, a new Purchase Contract or
Purchase Contracts having identical terms and provisions and having a like
number of Purchase Contracts in authorized denominations, subject to the terms
and conditions set forth herein. Purchase Contracts are exchangeable at said
office for other Purchase Contracts of other authorized denominations and having
identical terms and provisions. All such exchanges and transfers of Purchase
Contracts shall be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Purchase Contracts surrendered for exchange shall be accompanied
by a written instrument of transfer in form
5
satisfactory to the Issuer and the Trustee and executed by the registered holder
in person or by the holder's attorney duly authorized in writing. The date of
registration of any Purchase Contracts delivered upon any exchange or transfer
of Purchase Contracts shall be such that no gain or loss of interest results
from such exchange or transfer.
In case any Purchase Contract shall at any time become mutilated, defaced
or be destroyed, lost or stolen and such Purchase Contract or evidence of the
loss, theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Trustee, the Issuer in its discretion may
execute a new Purchase Contract of like tenor in exchange for the Purchase
Contract so mutilated or defaced, or in lieu of the Purchase Contract so
destroyed or lost or stolen, but, if this Purchase Contract is destroyed, lost
or stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this Purchase Contract was destroyed or lost or stolen and, if
required, upon receipt also of indemnity satisfactory to each of them. All
expenses and reasonable charges associated with procuring such indemnity and
with the preparation, authentication and delivery of a new Purchase Contract
shall be borne by the owner of the Purchase Contract mutilated, defaced,
destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default (as defined
in the Senior Indenture) due to the default in payment of principal of, premium,
if any, or interest on, any series of debt securities issued under the Senior
Indenture, including a default in payment of the Purchase Contract Property (as
defined on the face of this instrument) or any other amount due with respect to
the series of Prepaid Purchase Contracts of which this Purchase Contract forms a
part, or due to the default in the performance or breach of any other covenant
or warranty of the Issuer applicable to the debt securities of such series but
not applicable to all outstanding debt securities issued under the Senior
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the outstanding
debt securities of each affected series, voting as one class, by notice in
writing to the Issuer and to the Trustee, if given by the holders of the debt
securities, may then declare the principal of all debt securities of all such
series and interest accrued thereon to be due and payable immediately and (b) if
an Event of Default due to a default in the performance of any other of the
covenants or agreements in the Senior Indenture applicable to all outstanding
debt securities issued thereunder, including this Purchase Contract, or due to
certain events of bankruptcy, insolvency or reorganization of the Issuer, shall
have occurred and be continuing, either the Trustee or the holders of not less
than 25% in aggregate principal amount of all outstanding debt securities issued
under the Senior Indenture, voting as one class, by notice in writing to the
Issuer and to the Trustee, if given by the holders of the debt securities, may
declare the principal of all such debt securities and interest accrued thereon
to be due and payable immediately, but upon certain conditions such declarations
may be annulled and past defaults may be waived (except a continuing default in
payment of principal (or premium, if any) or interest on such debt securities)
by the holders of a majority in aggregate principal amount of the debt
securities of all affected series then outstanding.
For purposes of such default provisions and any other provisions of the
Senior Indenture that require a calculation of a percentage of the principal
amount of debt securities outstanding under the
6
Senior Indenture, such Purchase Contract shall be deemed to represent a
principal amount outstanding equal to [the purchase price of the Units including
such Purchase Contract at issuance].(3)
The Senior Indenture permits the Issuer and the Trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of the
debt securities of all series issued under the Senior Indenture then outstanding
and affected (voting as one class), to execute supplemental indentures adding
any provisions to or changing in any manner the rights of the holders of each
series so affected; provided that the Issuer and the Trustee may not, without
the consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption or repayment thereof, or
change the currency of payment thereof, or modify or amend the provisions for
conversion of any currency into any other currency, or modify or amend the
provisions for conversion or exchange of the debt securities for stock or other
securities of the Issuer or of other entities or for other property or the cash
value of the property (other than as provided in the antidilution provisions or
other similar adjustment provisions of the debt securities or otherwise in
accordance with the terms thereof) or impair or affect the rights of any holder
to institute suit for the payment thereof or (b) reduce the aforesaid percentage
in principal amount of debt securities the consent of the holders of which is
required for any such supplemental indenture.
So long as this Purchase Contract shall be outstanding, the Issuer shall
cause to be maintained an office or agency for the payment of the Purchase
Contract Property or any other amount due with respect to this Purchase Contract
as herein provided in the Borough of Manhattan, The City of New York, and an
office or agency in said Borough of Manhattan for the registration, transfer and
exchange as aforesaid of the Purchase Contracts. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places (subject to applicable laws and regulations) as the Issuer may decide.
So long as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so designated.
With respect to Purchase Contract Property paid by the Issuer and held by
the Trustee or any Paying Agent for payment of any Purchase Contract that
remains unclaimed at the end of two years after such Purchase Contract shall
have become due and payable (whether on the Contract Settlement Date (as defined
on the face of this instrument) or as a result of acceleration or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Purchase
Contracts that such Purchase Contract Property shall be repaid to the Issuer and
any person claiming such Purchase Contract Property shall thereafter look only
to the Issuer for payment thereof and (ii) such Purchase Contract Property shall
be so repaid to the Issuer. Upon such repayment all liability of the Trustee or
such Paying Agent with respect to such Purchase Contract Property shall
thereupon cease, without limiting in any way any obligation that the Issuer may
have to pay the Purchase Contract Property on this Purchase Contract.
- ------------------------
(3) Unless otherwise indicated in the Issuer Order.
7
No provision of this Purchase Contract or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the Purchase Contract Property on this Purchase Contract
at the time, place, and rate, and in the coin or currency, herein prescribed
unless otherwise agreed between the Issuer and the registered holder of this
Purchase Contract.
Prior to due presentment of this Purchase Contract for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder in whose name this Purchase Contract is registered as the owner
hereof for all purposes, whether or not this Purchase Contract be overdue, and
none of the Issuer, the Trustee or any such agent shall be affected by notice to
the contrary.
No recourse shall be had for the payment of the Purchase Contract Property
on this Purchase Contract, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Senior Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Purchase Contract shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Purchase Contract which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ____________________ Custodian _______________________
Minor) (Cust)
Under Uniform Gifts to Minors Act _____________________________
(State)
Additional abbreviations may also be used though not in the above list.
___________________
9
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Purchase Contract and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such purchase
contract on the books of the Issuer, with full power of substitution in the
premises.
Dated:______________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Purchase Contract in every
particular without alteration or enlargement or any change whatsoever.
10