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Sample Business ContractsHome: Sample Business Contracts: Sponsored LinksMORGAN STANLEY BRANCH MANAGER COMPENSATION PLAN (Amended and Restated as of November 27, 2006) SECTION I INTRODUCTION The name of this plan is the Morgan Stanley Branch Manager Compensation Plan (the Plan). The Plan was initially adopted for Fiscal Years beginning with 1984; was amended and restated on December 23, 1985 retroactive to 1984; was amended as of December 8, 1986, January 1, 1988, December 23, 1990, and July 15, 1991; was amended and restated January 1, 1992; was amended and restated as of April 21, 1992, retroactive to January 1, 1992; was amended and restated effective October 1, 1993; was amended effective January 1, 1994; was amended and restated effective January 1, 1994; was amended and restated effective October 21, 1994; was amended effective June 18, 1997; was amended effective September 25, 1998; was amended effective September 21, 1999; was amended effective December 9, 1999; was amended effective March 26, 2001; was amended effective December 11, 2001; was amended in October 2005; and was amended and restated effective November 27, 2006 (the Effective Date). SECTION II PURPOSE OF PLAN The purpose of the Plan is to retain and recruit key Branch Managers for MSDW. SECTION III DEFINITIONS Unless determined otherwise by the Committee and set forth in the applicable Award Certificate, capitalized terms used herein without definition have the meanings set forth below.
(1) for purposes of determining the number of shares of Stock to be allocated pursuant to Section VII(b)(1) to an Award granted pursuant to Section V, the fair market value thereof as of the relevant date of determination, as determined in accordance with a valuation methodology approved by the Board or the Committee; and (2) for purposes of crediting a Participant pursuant to Section VII(b)(3) with shares of Stock based upon cash dividends paid or deemed to be paid on shares of Stock credited to the Participant as of the record date for such dividends, the average of the high and low sales prices, regular way, of a share of Stock as reported on the New York Stock Exchange Composite Tape (the High/Low Price) on the relevant dividend payment date, or, if Stock is not traded on public markets on the relevant dividend payment date, the first preceding date on which Stock is traded on public markets; provided, however, that in the event
2 a Fair Market Value cannot be determined pursuant to the foregoing, the fair market value thereof as of the relevant date of determination, as determined in accordance with a valuation methodology approved by the Committee; and (3) for purposes of distributing cash in lieu of a fractional share pursuant to Section VII(b)(1), the High/Low Price on the date of the distribution, or, if Stock is not traded on public markets on the date of the distribution, the first preceding date on which Stock is traded on public markets; provided, however, that in the event a Fair Market Value cannot be determined pursuant to the foregoing, the fair market value thereof as of the relevant date of determination, as determined in accordance with a valuation methodology approved by the Committee; and (4) for such other purposes as may arise in connection with the Plan, the fair market value of a share of Stock as of the relevant date of determination, as determined in accordance with a valuation methodology approved by the Committee. In respect of each Award granted on or after the Effective Date, Fair Market Value means, with respect to a share of Stock, the fair market value thereof as of the relevant date of determination, as determined in accordance with a valuation methodology approved by the Committee.
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SECTION IV ELIGIBILITY All Branch Managers shall be eligible to participate in the Plan. The Committee shall determine the eligibility criteria applicable for each Award granted under the Plan.
4 SECTION V COMPENSATION
(1) Branch Managers may, in the discretion of MSDW, also be eligible for a Challenge Bonus under the Plan for a Fiscal Year. The Challenge Bonus will be based on the achievement of challenge goals agreed to between each Branch Manager and his or her Regional Director at the beginning of the Fiscal Year for which such Challenge Bonus is being awarded. The Regional Director shall establish a target Challenge Bonus for a Branch Manager at such time as challenge goals are agreed to with each Branch Manager. (2) MSDW, in its sole discretion, shall determine whether a Branch Manager has achieved and/or exceeded the challenge goals agreed to between the Branch Manager and Regional Director. If MSDW determines that a Branch Manager has exceeded the challenge goals agreed to between the Branch Manager and the Regional Director, it may award a Challenge Bonus up to two times the target Challenge Bonus. If a Branch Manager has not achieved the challenge goals for a Fiscal Year agreed to between the Branch Manager and the Regional Director, the Branch Manager may receive a Challenge Bonus that is less than the target Challenge Bonus, in an amount determined solely by MSDW. (3) With respect to any Challenge Bonus awarded under the Plan prior to the Effective Date, MSDW shall pay 80% of the Challenge Bonus in cash as soon as practicable following the end of the Fiscal Year in which the Challenge Bonus is earned. The remaining 20% (the Deferred Bonus), will be granted in the form of an Award of Stock in accordance with Section VII and subject to Appendix A. Challenge Bonuses awarded under the Plan on or after the Effective Date may be paid in the form of cash or granted in the form of cash Awards, Awards of Stock or Stock Units or any combination thereof. The Committee shall determine, in its discretion, the portion, if any, of any Challenge Bonus awarded under the Plan on or after the Effective Date that will be granted in the form of Awards of Stock or Stock Units.
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(1) The Committee may establish the criteria which will entitle a Branch Manager to receive an Award under the Plan for a given Fiscal Year. A Branch Manager who achieves such criteria in a Fiscal Year shall receive an Award for that Fiscal Year. Any Awards granted pursuant to this Section V(d)(1) prior to the Effective Date shall be made subject to the same terms and conditions as Deferred Bonuses granted under Section V(c)(3) prior to the Effective Date and shall be Payment Obligations for purposes of Section VIII. (2) The Committee, may, in its discretion from time to time, make to an individual, in consideration of such individual becoming a Branch Manager, remaining a Branch Manager or such other consideration as the Committee may determine, an Award on such terms and conditions as the Committee may determine, which terms and conditions need not be uniform with the terms and conditions of Section VI, VII or VIII hereof.
6 SECTION VI ACCOUNTS - ESCROW AGENT
SECTION VII AWARD PAYMENTS
(1) Deferred Bonuses will be granted in the form of Awards of Stock, payable as soon as practicable following the close of the Fiscal Year for which the Award is granted. For purposes of determining the number of shares of Stock that constitutes a Deferred Bonus, the Stock may be valued at a discount, determined by the Committee, from Fair Market Value. Awards under Section V(d) may be paid in cash or granted in the form of Awards of Stock as determined by the Committee. The number of shares of Stock payable with respect to a Deferred Bonus shall be calculated by reference to the amount of the Deferred Bonus determined under Section V. Deferred Bonuses granted in the form of Awards of Stock shall be paid in the form of whole shares and cash in lieu of any fractional share. A Participant on a leave of absence approved by MSDW or who is absent due to Disability on the date payment is made shall not be entitled to payment of such Deferred Bonus until the Participant returns to MSDW following completion of such leave of absence or Disability.
7 (2) Stock awarded with respect to a Fiscal Year shall vest four years and three months following the close of that Fiscal Year, provided that the Participant's status as an Employee has not been terminated prior to such date. Upon the Participant's termination of employment with MSDW, all unvested Stock shall be forfeited. Notwithstanding anything in this Plan to the contrary, if a Participant terminates employment with MSDW due to Disability or Retirement, or upon a Participant's death, all of the Participant's Awards shall vest immediately and be paid as promptly as practicable. (3) A Participant may vote and receive dividends on any Award of Stock awarded to such Participant under Section VII(b)(1) or credited under this Section VII(b)(3); provided that all dividends on such Stock (other than dividends payable in Stock) shall be reinvested in shares of Stock at 100% of the Fair Market Value of Stock which shares shall be credited to the Participant and held by the Custodian. All shares of Stock received as a distribution with respect to an Award of Stock or acquired with reinvested dividends under this Section VII(b)(3) shall be subject to the same restrictions as the Award of Stock on which such distribution or dividend is awarded. (4) Except as provided in this Section VII(b), payments made hereunder shall be made in cash and shall not be eligible for rollover or transfer into other retirement or deferred compensation plans sponsored by MSDW, Morgan Stanley or any of their affiliates. (5) A Participant shall be entitled to payment of his or her Account pursuant to this Section VII(b) provided the Participant is employed by MSDW at the time such payment is due, regardless of the position in which the Participant is employed at such time.
(1) Awards may be made in cash, Stock, Stock Units or any combination thereof, as determined by the Committee. The number of shares of Stock payable with respect to an Award granted on or after the Effective Date shall be determined in accordance with a valuation methodology approved by the Committee and such Awards shall be subject to the conditions to payment determined by the Committee and set forth in the applicable Award Certificate. (2) If Morgan Stanley pays any ordinary or regular dividend or makes any ordinary or regular distribution to holders of Stock, the Committee may in its discretion authorize payments (which may be in cash, Stock (including restricted Stock) or Stock Units or any combination thereof) with respect to the shares corresponding to an Award, or may authorize appropriate adjustments to outstanding Awards, to reflect such dividend or distribution. The Committee may make any such payments subject to vesting, deferral or restrictions on transfer.
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SECTION VIII SUBORDINATION OF DEFERRED BONUSES
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SECTION IX ADMINISTRATION
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SECTION X MISCELLANEOUS
SECTION XI EFFECTIVE DATE, AMENDMENT, SUSPENSION AND DISCONTINUANCE
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12 APPENDIX A TO THE MORGAN STANLEY BRANCH MANAGER COMPENSATION PLAN For purposes of this Appendix A, a Branch Manager who is designated in writing by Morgan Stanley DW Inc. as a participant under the Plan, shall be known as a Participant, Morgan Stanley DW Inc. shall be known as MSDW, and MSDW's Payment Obligation shall be as defined below. 1. Payment Obligation (a) Payment Obligations shall consist of any deferred payments of Challenge Bonuses owed from time to time to a Participant by MSDW pursuant to the Plan. (b) Payment Obligations including the dates payments are due, shall be determined in accordance with the provisions of the Plan as in effect on the date hereof, or as hereafter amended. As provided in Sections 4 and 5 of this Appendix A, no payment of any amount of a Payment Obligation may be made sooner than five years following the year for which such Payment Obligation is accrued by MSDW. If any provision of the Plan as now in effect or as hereafter amended shall be inconsistent with this Appendix A, this Appendix A shall govern. 2. Subordination of Right of Payment (a) Payment Obligations are and shall be subordinated in right of payment and subject to prior payment or provision for payment in full of all claims of other present and future creditors of MSDW whose claims are not similarly subordinated (claims hereunder shall rank pari passu with claims similarly subordinated) and to claims which are now or hereafter expressly stated in the instruments creating such claims to be senior in right of payment to the claims or the class of claims hereunder which arise out of any matter occurring prior to the maturity date of any payment under the Payment Obligation. (b) In the event of the appointment of a receiver or trustee for MSDW or in the event of its insolvency, liquidation pursuant to the Securities Investor Protection Act of 1970 (SIPA) or otherwise, its bankruptcy, assignment for the benefit of creditors, reorganization whether or not pursuant to bankruptcy laws or any other marshaling of the assets and liabilities of MSDW, Participants shall not be entitled to participate or share, ratably or otherwise, in the distribution of the assets of MSDW until all claims of all other present and future creditors of MSDW whose claims are senior to claims hereunder have been fully satisfied or provision has been made therefor. (c) Notwithstanding the maturing of the Payment Obligation under any provision of the Plan or this Appendix A, the right of a Participant to receive payment of any Payment Obligation is and shall remain subordinate as provided in this Section 2.
A-1 3. Suspension of Maturity During Net Capital Stringency (a) MSDW's Payment Obligations shall be suspended and not mature for any period of time during which, after giving effect to such Payment Obligations (together with the payment of any other subordinated obligation of MSDW payable at or prior to such payment of the Payment Obligations), (i) if MSDW is not operating pursuant to the alternative net capital requirements provided for in paragraph (f) of Rule 15c3-1 (the Rule) under the Securities Exchange Act of 1934 (the Act), the aggregate indebtedness of MSDW would exceed 1,200 percentum of its net capital, as those terms are defined in the Rule, as in effect at the time such payment is to be made, or such percentum as may be made applicable to MSDW from time to time by the Examining Authority (as defined in paragraph 7(f) hereof) plus an amount equal to the guaranty deposits with clearing organizations, other than the Chicago Board of Trade (CBOT), which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, or (ii) if MSDW is operating pursuant to the alternative net capital requirements provided for in paragraph (f) of the Rule, its net capital would be less than five (5) percentum of aggregate debit items (or such other percentum as may be made applicable to MSDW by the Examining Authority) computed in accordance with Exhibit A to Rule 15c3-3 under the Act or any successor rule as in effect at the time such payment is to be made, plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, or (iii) if MSDW is registered as a futures commission merchant under the Commodity Exchange Act (the CEA), the net capital of MSDW would be less than the greatest of (A) six (6) percentum of the funds required to be segregated pursuant to the CEA and Commodities Futures Trading Commission (CFTC) Regulations and the foreign futures or foreign options secured amount exclusive of the market value of commodity options purchased by option customers of MSDW on or subject to the rules of a contract market or a foreign board of trade, provided the deduction for each option customer shall be limited to the amount of customer funds in each option customer's account(s), and foreign futures and foreign options secured amounts plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, (B) such amount as may be made applicable to MSDW at the time of such payment by the Examining Authority under Rule 15c3-1(b)(7), or (C) $2,000,000 (or such other amount as required by the CEA and CFTC Regulations), or
A-2 (iv) if MSDW's net capital, as defined in the Rule or any successor rule as in effect at the time such payment is to be made, would be less than 120 percentum (or such other percentum as may be made applicable to MSDW at the time of such payment by the Examining Authority) of the minimum dollar amount required by the Rule as in effect at such time, or such dollar amount as may be made applicable to MSDW by the Examining Authority, plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, or (v) if MSDW is registered as a futures commission merchant under the CEA and if its net capital, as defined in the CEA or CFTC Regulations thereunder as in effect at the time of such payment, would be less than 120 percentum (or such other percentum as may be made applicable to MSDW by the Examining Authority) of the minimum dollar amount required by the CEA or the regulations thereunder as in effect at such time (or such other dollar amount as may be made applicable to MSDW by the Examining Authority at the time of such payment), plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, or (vi) if MSDW is subject to the provisions of paragraph (a)(6)(v) or (a)(7)(iv) or (c)(2)(x)(B)(1) of the Rule, its net capital would be less than the amount required to satisfy the 1,000 percentum test (or such other percentum test as may be made applicable to MSDW by the Examining Authority at the time of such payment) stated in such applicable paragraph, plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes. The net capital required by (i)-(vi) above, is hereinafter referred to as the Applicable Minimum Capital. During any such suspension MSDW shall, as promptly as consistent with the protection of its customers, reduce its business to a condition whereby payment due under Payment Obligations could be made (together with the payment of any other subordinated obligation of MSDW payable at or prior to such payment) without MSDW's net capital being below the Applicable Minimum Capital, at which time MSDW shall make payment due under Payment Obligations on not less than five days prior written notice to the Examining Authority. (b) If immediately after any payment of a Payment Obligation MSDW's net capital is less than the Applicable Minimum Capital, whether or not the Participant had any knowledge or notice of such fact at the time of any such payment, a Participant must repay to MSDW, its successors or assigns, any sum so paid, to be held by MSDW pursuant to the provisions of the Plan as if such payment had never been made; provided, however, that any suit for the recovery of any such payment must be commenced within two years of the date of such payment. MSDW reserves the right to withhold from the Participant's compensation the amount of any Payment Obligation which a Participant fails to repay as required herein.
A-3 (c) If pursuant to the terms hereof payment of MSDW's Payment Obligations are suspended, MSDW may be summarily suspended by the Examining Authority. 4. Permissive Prepayment With the prior written permission of the Examining Authority, MSDW may, at its option and to the extent permitted by the Plan, pay all or any portion of the Payment Obligation to the Participant (such payment hereinafter referred to as a Prepayment) at any time subsequent to one year from the date subordinated funds became subject to this Appendix A. No Prepayment shall be made, however, if after giving effect thereto (and to all other payments of any other subordinated obligation of MSDW payable within six months of such Prepayment) without reference to any projected profit or loss of MSDW, (i) in the event that MSDW is not operating pursuant to the alternative net capital requirement provided for in paragraph (f) of the Rule, the aggregate indebtedness of MSDW would exceed 1,000 percentum of its net capital as those terms are defined in the Rule or any successor rule as in effect at the time such Prepayment is to be made (or such other percentum as may be made applicable at such time to MSDW by the Examining Authority), plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, or (ii) in the event that MSDW is operating pursuant to such alternative net capital requirement, the net capital of MSDW would be less than 5 percentum (or such other percentum as may be made applicable to MSDW at the time of such Prepayment by the Examining Authority) of aggregate debit items computed in accordance with Exhibit A to Rule 15c3-3 under the Act or any successor rule as in effect at such time, plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, or (iii) in the event that MSDW is registered as a futures commission merchant under the CEA, the net capital of MSDW (as defined in the CEA or CFTC Regulations as in effect at the time of such Prepayment) would be less than the greatest of (A) 7 percentum (or such other percentum as may be made applicable to MSDW at the time of such Prepayment by the Examining Authority) of the funds required to be segregated pursuant to the CEA and CFTC Regulations and the foreign futures or foreign options secured amount, exclusive of the market value of commodity options purchased by option customers on or subject to the rules of a contract market or a foreign board of trade (provided the deduction for each option customer shall be limited to the
A-4 amount of customer funds in each option customer's account(s) and foreign futures and foreign options secured amounts), plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, (B) such amount as may be made applicable to MSDW by an Examining Authority under Rule 15c3-1(b)(7) or (C) $2,000,000 (or such other amount as required by the CEA or CFTC Regulations), or (iv) MSDW's net capital as defined in the Rule or any successor rule as in effect at the time of such Prepayment, would be less than 120 percentum (or such other percentum as may be made applicable to MSDW at the time of such Prepayment by the Examining Authority) of the minimum dollar amount required by the rule as in effect at such time (or such other dollar amount as may be made applicable to MSDW at the time of such Prepayment by the Examining Authority), plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, or (v) in the event that MSDW is registered as a futures commission merchant under the CEA, its net capital, as defined in the CEA or the regulations thereunder, as in effect at the time of such Prepayment would be less than 120 percentum (or such other percentum as may be made applicable to MSDW at the time of such Prepayment by the Examining Authority) of the minimum dollar amount required by the CEA or the regulations thereunder as in effect at such time or such other dollar amount as may be made applicable to MSDW at the time of such Prepayment by the Examining Authority, plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT, which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes, or (vi) in the event that MSDW is subject to the provision of paragraph (a)(6)(v) or (a)(7)(iv) or (c)(2)(x)(B)(1) of the Rule, the net capital of MSDW would be less than the amount required to satisfy the 1,000 percentum test (or such other percentum test as may be made applicable to MSDW at the time of such Prepayment by the Examining Authority) stated in such applicable paragraph, plus an amount equal to the guaranty deposits with clearing organizations other than the CBOT which were included in current assets under Section 211 of the CBOT Capital Requirements for Member FCM's, to the extent such deposits cannot be used for margin purposes. If Prepayment is made of all or any part of the Payment Obligation before the date payment is due and if MSDW's net capital is less than the amount required to permit such Prepayment pursuant to the foregoing provisions of this paragraph, the Participant agrees irrevocably (whether or not such Participant had any knowledge or notice of such fact at the time of such Prepayment) to
A-5 repay MSDW, its successors or assigns, the sum so paid to be held by MSDW pursuant to the provisions hereof as if such Prepayment had never been made; provided, however, that any suit for the recovery of any such Prepayment must be commenced within two years of the date of such Prepayment. MSDW reserves the right to withhold from the Participant's compensation the amount of any Payment Obligation which a Participant fails to repay as required herein. 5. Special Prepayment MSDW, at its option and as permitted by the Plan, but not at the option of the Participant, may make a payment of all or any portion of the Payment Obligation hereunder sooner than one year from the date on which such amount became subject to this agreement (a Special Prepayment), if the written consent of the appropriate regulatory authority is first obtained. If MSDW shall be a futures commission merchant, as that term is defined in the CEA and CFTC Regulations, no such prepayment shall be made if: (i) after giving effect thereto (and to all payments of payment obligations under any other Subordination Agreements then outstanding, the maturities or accelerated maturities of which are scheduled to fall due within six months after the date such Special Prepayment is to occur pursuant to this provision or on or prior to the date on which the Payment Obligation with respect to such Special Prepayment is scheduled to mature disregarding this provision whichever date is earlier) without reference to any projected profit or loss of MSDW the net capital of MSDW is less than the greatest of (A) 10 percentum of the funds required to be segregated pursuant to the CEA and CFTC Regulations and the foreign futures or foreign options secured amount, exclusive of the market value of commodity options purchased by option customers of MSDW on or subject to the rules of a contract market or a foreign board of trade (provided the deduction for each option customer shall be limited to the amount of customer funds in such option customer's account(s) and foreign futures and foreign options secured amount), plus an amount equal to the guaranty deposits with clearing organizations, other than the CBOT, which were included in current assets under Section 211, (B) if MSDW is a securities broker or dealer, the amount of net capital specified in Rule 15c3-1d(c)(5)(ii) of the regulations of the Securities and Exchange Commission (17 C.F.R. 240.15c3-1d(c)5(ii), or (C) $2,000,000 (or such other amount as required by the CEA or CFTC Regulations), or (ii) Pretax losses during the latest three month period were greater than 15% of current excess adjusted net capital. 6. Maturity Upon Certain Events Notwithstanding the provisions of Section 3 hereof, the Payment Obligation shall (to the extent not already matured) forthwith mature, together with all other Subordination Agreements then outstanding, in the event of any receivership, insolvency, liquidation pursuant to SIPA or otherwise, bankruptcy, assignment for the benefit of creditors, reorganization whether or not pursuant to bankruptcy laws, or any other marshaling of the assets and liabilities of MSDW.
A-6 7. Miscellaneous Provisions (a) Participants may not rely upon any commodity exchange or securities exchange to provide any information concerning or relating to MSDW. Such exchanges have no responsibility to disclose to the Participant any information concerning or relating to MSDW which they may have now or at any future time. The Participant agrees that the New York Stock Exchange (the NYSE), its Special Trust Fund or any director, officer, trustee or employee of the NYSE or said Trust Fund or any other exchange or director, officer, trustee or employee thereof shall not be liable to the Participant with respect to the Plan or any distribution pursuant thereto. (b) The funds represented by the Payment Obligations shall be dealt with in all respects as capital of MSDW, shall be subject to the risks of the business and may be deposited in an account or accounts in MSDW's name in any bank or trust company. (c) Payment Obligations under the Plan may not be transferred, sold, assigned, pledged or otherwise encumbered or disposed of and no lien, charge or other encumbrance may be created or permitted to be created hereon, without the prior written consent of the Examining Authority. (d) If MSDW is a futures commission merchant as that term is defined in the CEA, MSDW agrees, consistent with the requirements of Section 1.17(h) of the CFTC Regulations that whenever prior written notice by MSDW to the Examining Authority is required pursuant to the provisions of this agreement, the same prior written notice shall be given by MSDW to (1) the CFTC at its principal office in Washington, D.C., Attention Chief Accountant of Division of Trading and Markets, and/or (2) the commodity exchanges of which Morgan Stanley is a member and which are then designated by the CFTC as MSDW's designated self-regulatory organizations as defined in Section 1.3(ff) of the CFTC Regulations (the DSROs). (e) Subordination Agreement as used herein shall include any subordinated loan agreement and any secured demand note agreement constituting a satisfactory subordination agreement under the Rule under which MSDW is the borrower or the pledgee of collateral, and reference herein to the payment of a subordinated obligation of MSDW shall be deemed to include the return to the maker-pledgor of any secured demand note and the collateral therefor held by MSDW. (f) The term Examining Authority shall refer to the regulatory body, specified in paragraph (c)(12) of the Rule, responsible for inspecting or examining MSDW for compliance with financial responsibility requirements. If MSDW is and continues to be a member of the NYSE, the references herein to the Examining Authority shall be deemed to refer to the NYSE. If MSDW is and continues to be a futures commission merchant as that term is defined in the CEA and regulations thereunder, references to the Examining Authority shall also be deemed to refer to the CFTC and MSDW's DSROs.
A-7 (g) The provisions of this Appendix A shall be binding upon and inure to the benefit of MSDW, its successors and assigns and the Participant and the Participant's heirs, executors and administrators. (h) Any controversy arising out of or relating to this Plan shall be submitted to and settled by arbitration pursuant to the Constitution and Rules of the NYSE, MSDW and Participant shall be conclusively bound by such arbitration. (i) MSDW shall not modify, amend or cancel this Appendix or any provision of the Plan governing the Payment Obligations that are the subject of the Appendix without the prior approval of the Examining Authority. (j) This agreement shall be deemed to have been made under and shall be governed by the laws of the State of New York.
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