EXHIBIT 4-bbb
[FORM OF PHYSICALLY-SETTLED PRE-PAID PURCHASE CONTRACT]
MORGAN STANLEY
[Insert Designation of Physically-Settled Pre-paid Purchase Contracts]
PHYSICALLY-SETTLED PRE-PAID PURCHASE CONTRACT(S)
Physically-Settled Pre-paid Purchase Contracts between
Morgan Stanley
and
________________
or registered assigns,
as holder hereunder (the "Holder")
All capitalized terms used but not defined herein that are defined in
the Unit Agreement (described below) have the meanings set forth therein, and
if not defined therein, have the meaning set forth below.
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Pre-paid Purchase Contract Property:
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Quantity:
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Settlement Date:
- --------------------------------------------- ----------------------------------
Settlement Location:
- --------------------------------------------- ----------------------------------
Method of Settlement:
- --------------------------------------------- ----------------------------------
Authorized Number of Pre-paid Purchase
Contracts:
- --------------------------------------------- ----------------------------------
Aggregate Quantity of Pre-paid
Purchase Contract Property:
- --------------------------------------------- ----------------------------------
Contract Fees:
- --------------------------------------------- ----------------------------------
Corporation Acceleration:
- --------------------------------------------- ----------------------------------
- --------------------------------------------- ----------------------------------
Holders' Acceleration:
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Other Terms:
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Morgan Stanley, a corporation duly incorporated and existing under the
laws of the State of Delaware (the "Corporation"), for value received, agrees
to deliver on the Settlement Date, subject to the terms of the Unit Agreement
referred to below and as set forth herein, the Aggregate Quantity of Pre-paid
Purchase Contract Property. The Physically-Settled Pre-paid Purchase
Contract(s) (the "Pre-paid Purchase Contract(s)") evidenced hereby shall not
entitle the Holder to receive the Pre-paid Purchase Contract Property prior to
the Settlement Date.
The Aggregate Quantity of Pre-paid Purchase Contract Property shall be
delivered to the Settlement Location on the Settlement Date pursuant to the
Method of Settlement.
[This Purchase Contract is not redeemable prior to maturity.]
Each Pre-paid Purchase Contract evidenced hereby is one of a duly
authorized issue of not more than the Authorized Number of Pre-paid Purchase
Contracts of the Corporation relating to the delivery of not more than the
Aggregate Quantity of Pre-paid Purchase Contract Property issued under the Unit
Agreement, dated as of November 1, 2004 (the "Unit Agreement"), among the
Corporation, JPMorgan Chase Bank, as Agent (the "Agent") and as Collateral
Agent thereunder, as Warrant Agent (the "Warrant Agent") under the Warrant
Agreement referred to therein, as Trustee (the "Trustee") and Paying Agent
under the Indenture referred to therein, and the holders from time to time of
Units, to which Unit Agreement and supplemental agreements thereto reference is
hereby made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Agent, the Collateral
Agent, the Corporation and the Holders and of the terms upon which the Pre-paid
Purchase Contracts are, and are to be, executed, countersigned, executed on
behalf of the Holder and delivered.
The Agent may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents in connection with any transfer or exchange
of each Pre-paid Purchase Contract evidenced hereby. No service charge shall be
required for any such registration of transfer or exchange, but the Corporation
and the Agent may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection with any registration of transfer or
exchange of Units.
2
Upon registration of transfer of this Pre-paid Purchase Contract, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to the
Unit Agreement), under the terms of the Unit Agreement and the Pre-paid
Purchase Contracts evidenced hereby and the transferor shall be released from
the obligations under the Pre-paid Purchase Contracts hereby. The Corporation
covenants and agrees, and the Holder, by his acceptance hereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.
The extent to which, and the terms upon which, any property (other than
the Pre-paid Purchase Contract Property) is deliverable with respect to the
Pre-paid Purchase Contracts evidenced hereby is described above under "Contract
Fees". The extent to which, and the terms upon which, the Corporation may
accelerate the obligations of the Corporation evidenced hereby is described
above under "Corporation Acceleration". The extent to which, and the terms upon
which, the Holders of such Pre-paid Purchase Contracts may accelerate the
obligations of the Corporation is described above under "Holders'
Acceleration".
Subject to certain exceptions, the terms of the Pre-paid Purchase
Contracts and the provisions of the Unit Agreement may be amended with the
consent of the Holders of not less than a majority of the affected Outstanding
Purchase Contracts and certain Purchase Contract Defaults may be waived with
the consent of the Holders of a majority of the affected Outstanding Purchase
Contracts. Without the consent of any Holder of Units, the terms of the Unit
Agreement and the Pre-paid Purchase Contracts may be amended to, among other
things, cure any ambiguity, to correct or supplement any provision in the Unit
Agreement or the Pre-paid Purchase Contract, to add to covenants of the
Corporation, Collateral Agent or Agent or to make any other provisions with
respect to matters or questions arising under the Unit Agreement or the
Pre-paid Purchase Contracts that do not adversely affect the interests of the
Holders in any material respect.
Holders of the Pre-paid Purchase Contracts may not enforce the Unit
Agreement or such Pre-paid Purchase Contracts except as provided in the Unit
Agreement.
Any incorporator, or past, present or future stockholder, officer,
attorney-in-fact or director, as such, of the Corporation or of any successor
corporation shall not have any liability for any obligations of the Corporation
under the Pre-paid Purchase Contracts or the Unit Agreement or for any claim
based on, with respect to or by reason of such obligations or their creation.
The Holder by his acceptance hereof waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Pre-paid
Purchase Contracts.
The Pre-paid Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
3
Prior to due presentment of a Unit Certificate or Pre-paid Purchase
Contract for registration of transfer, the Corporation, the Trustee, the Agent,
the Warrant Agent and the Collateral Agent, and any agent of the Corporation,
the Trustee, the Agent, the Warrant Agent and the Collateral Agent may treat
the Person in whose name this Pre-paid Purchase Contract is registered as a
party to the Pre-paid Purchase Contracts evidenced hereby for the purpose of
performance of such Pre-paid Purchase Contracts and for all other purposes
whatsoever, and neither the Corporation, the Trustee, the Agent, the Warrant
Agent and the Collateral Agent nor any such agent shall be affected by notice
to the contrary.
The Holder, by his acceptance hereof, authorizes the Agent to execute the
Pre-paid Purchase Contracts evidenced hereby on his behalf, authorizes and
directs the Agent on his behalf to take such other action, and covenants and
agrees to take such other action, as may be necessary or appropriate, or as may
be required by the Agent, to effectuate the provisions of the Unit Agreement
relating to the settlement or delivery of the Pre-paid Purchase Contract
Property, appoints the agent as his attorney-in-fact for any and all such
purposes, and agrees to be bound by the terms thereof.
The Pre-paid Purchase Contracts shall not, prior to the performance
thereof, entitle the Holder to any of the rights of a holder of the Pre-paid
Purchase Contract Property.
No provision of this Pre-paid Purchase Contract or of the Unit Agreement
shall alter or impair the obligation of the Corporation, which is absolute and
unconditional, to deliver the Pre-paid Purchase Contract Property.
No Pre-paid Purchase Contract evidenced hereby shall be valid or
obligatory for any purpose until countersigned and executed on behalf of the
Holder by the Agent, pursuant to the Unit Agreement.
4
IN WITNESS WHEREOF, Morgan Stanley has caused this instrument to be duly
executed.
MORGAN STANLEY
By :
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Name:
Title:
JPMORGAN CHASE BANK,
as Agent, and as attorney-in-fact
of the Holder hereof
By:
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Authorized Officer
Countersigned
JPMORGAN CHASE BANK,
s Agent
By:
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Authorized Officer