Incentive Compensation Plan

Morgan Stanley 2009 Replacement Equity Incentive Compensation Plan for Morgan Stanley Smith Barney Employees

EXHIBIT 4.2
 
2009 REPLACEMENT EQUITY INCENTIVE COMPENSATION PLAN FOR MORGAN
STANLEY SMITH BARNEY EMPLOYEES

 
1.        Purpose.   The primary purpose of the Morgan Stanley 2009 Replacement Equity Incentive Compensation Plan for Morgan Stanley Smith Barney Employees is to induce employees employed by the Smith Barney or Quilter businesses of Citigroup, employees of Citigroup (or its affiliates), and consultants or other persons who perform services for Citigroup or any of its affiliates, to commence employment with the Company or the MS Group, as applicable, in connection with the Transaction and to contribute to the growth and profits of the Company.
 
2.        Definitions.  Except as otherwise provided in an applicable Award Document, the following capitalized terms shall have the meanings indicated below for purposes of the Plan and any Award:
 
Administrator” means the individual or individuals to whom the Committee delegates authority under the Plan in accordance with Section 5(b).
 
Award” means any award of Restricted Stock, Stock Units, Options, SARs or Other Awards (or any combination thereof) made under and pursuant to the terms of the Plan.
 
Award Date” means the date specified in a Participant’s Award Document as the grant date of the Award.
 
Award Document” means a written document (including in electronic form) that sets forth the terms and conditions of an Award.  Award Documents shall be authorized in accordance with Section 12(e).
 
Board” means the Board of Directors of Morgan Stanley.
 
Citigroup” means Citigroup Inc., a Delaware corporation.
 
Code” means the Internal Revenue Code of 1986, as amended, and the applicable rulings, regulations and guidance thereunder.
 
Committee” means the Compensation, Management Development and Succession Committee of the Board, any successor committee thereto or any other committee of the Board appointed by the Board to administer the Plan or to have authority with respect to the Plan, or any subcommittee appointed by such Committee.
 
Company” means MSSB and all of its Subsidiaries.
 
Eligible Individuals” means the individuals described in Section 6 who are eligible for Awards.
 
 
1

 
 
Employee Trust” means any trust established or maintained by the MS Group in connection with an employee benefit plan (including the Plan) under which current and former employees of the Company or the MS Group constitute the principal beneficiaries.
 
Exchange Act” means the Securities Exchange Act of 1934, as amended, and the applicable rulings and regulations thereunder.
 
Fair Market Value” means, with respect to a Share, the fair market value thereof as of the relevant date of determination, as determined in accordance with a valuation methodology approved by the Committee.
 
Incentive Stock Option” means an Option that is intended to qualify for special federal income tax treatment pursuant to Sections 421 and 422 of the Code, as now constituted or subsequently amended, or pursuant to a successor provision of the Code, and which is so designated in the applicable Award Document.
 
Morgan Stanley” means Morgan Stanley, a Delaware corporation.
 
MS Group” means Morgan Stanley and its Subsidiaries.
 
MSSB” means Morgan Stanley Smith Barney Holdings LLC, a Delaware Limited Liability Company.
 
Option” or “Stock Option” means a right, granted to a Participant pursuant to Section 9, to purchase one Share.
 
 “Other Award” means any other form of award authorized under Section 11 of the Plan, including any such Other Award the receipt of which was elected pursuant to Section 12(a).
 
Participant” means an individual to whom an Award has been made.
 
Plan” means the Morgan Stanley 2009 Replacement Equity Incentive Compensation Plan for Morgan Stanley Smith Barney Employees, as amended from time to time in accordance with Section 15(e) below.
 
Restricted Stock” means Shares granted or sold to a Participant pursuant to Section 7.
 
SAR” means a right, granted to a Participant pursuant to Section 10, to receive upon exercise of such right, in cash or Shares (or a combination thereof) as authorized by the Committee, an amount equal to the increase in the Fair Market Value of one Share over a specified exercise price.
 
Section 409A” means Section 409A of the Code (or any successor provisions thereto).
 
Shares” means shares of Stock.
 
Stock” means the common stock, par value $0.01 per share, of Morgan Stanley.
 
 
2

 
 
Stock Unit” means a right, granted to a Participant pursuant to Section 8, to receive one Share or an amount in cash equal to the Fair Market Value of one Share, as authorized by the Committee.
 
Subsidiary” means (i) a corporation or other entity with respect to which either MSSB or Morgan Stanley (as applicable), directly or indirectly, has the power, whether through the ownership of voting securities, by contract or otherwise, to elect at least a majority of the members of such corporation’s board of directors or analogous governing body, or (ii) any other corporation or other entity in which either MSSB or Morgan Stanley (as applicable), directly or indirectly, has an equity or similar interest and which the Committee designates as a Subsidiary for purposes of the Plan.  For purposes of the Plan, the Company shall not be deemed to be a Subsidiary of Morgan Stanley.
 
Transaction” means the transactions contemplated pursuant to the Joint Venture Contribution and Formation Agreement, dated as of January 13, 2009, as it may be amended, by and between Morgan Stanley and Citigroup.
 
3.        Effective Date and Term of Plan.
 
(a)       Effective Date.  The Plan shall become effective upon the later of its adoption by the Board and the consummation of the Transaction.
 
(b)       Term of Plan.   No Awards may be made under the Plan after the date that is five years from the Plan’s effective date.
 
4.        Stock Subject to Plan.
 
(a)        Overall Plan Limit.  The total number of Shares that may be delivered pursuant to Awards shall be 5,000,000 as calculated pursuant to Section 4(c).  The number of Shares available for delivery under the Plan shall be adjusted as provided in Section 4(b).  Shares delivered under the Plan may be authorized but unissued shares or treasury shares that Morgan Stanley acquires in the open market, in private transactions or otherwise.
 
(b)        Adjustments for Certain Transactions.  In the event of a stock split, reverse stock split, stock dividend, recapitalization, reorganization, merger, consolidation, extraordinary dividend or distribution, split-up, spin-off, combination, reclassification or exchange of shares, warrants or rights offering to purchase Stock at a price substantially below Fair Market Value or other change in corporate structure or any other event that affects Morgan Stanley’s capitalization, the Committee shall equitably adjust (i) the number and kind of shares authorized for delivery under the Plan, including the maximum number of Incentive Stock Options as provided in Section 4(d), and (ii) the number and kind of shares subject to any outstanding Award and the exercise or purchase price per share, if any, under any outstanding Award.  In the discretion of the Committee, such an adjustment may take the form of a cash payment to a Participant.  The Committee shall make all such adjustments, and its determination as to what adjustments shall be made, and the extent thereof, shall be final.  Unless the Committee determines otherwise, such adjusted Awards shall be subject to the same vesting schedule and restrictions to which the underlying Award is subject.
 
 
3

 
 
(c)       Calculation of Shares Available for Delivery.  In calculating the number of Shares that remain available for delivery pursuant to Awards at any time, the following rules shall apply (subject to the limitation in Section 4(d)):
 
1.      The number of Shares available for delivery shall be reduced by the number of Shares subject to an Award and, in the case of an Award that is not denominated in Shares, the number of Shares actually delivered upon payment or settlement of the Award.
 
2.      The number of Shares tendered (by actual delivery or attestation) or withheld from an Award to pay the exercise price of the Award or to satisfy any tax withholding obligation or liability of a Participant shall be added back to the number of Shares available for delivery pursuant to Awards.
 
3.      The number of Shares in respect of any portion of an Award that is canceled or that expires without having been paid or settled by the Company or the MS Group shall be added back to the number of Shares available for delivery pursuant to Awards to the extent such Shares were counted against the Shares available for delivery pursuant to clause (1).
 
4.      If an Award is settled or paid by the Company or the MS Group in whole or in part through the delivery of consideration other than Shares, or by delivery of fewer than the full number of Shares that was counted against the Shares available for delivery pursuant to clause (1), there shall be added back to the number of Shares available for delivery pursuant to Awards the excess of the number of Shares that had been so counted over the number of Shares (if any) actually delivered upon payment or settlement of the Award.
 
(d)        ISO Limit.  The full number of Shares available for delivery under the Plan may be delivered pursuant to Incentive Stock Options, except that in calculating the number of Shares that remain available for Awards of Incentive Stock Options the rules set forth in Section 4(c) shall not apply to the extent not permitted by Section 422 of the Code.
 
5.        Administration.
 
(a)       Committee Authority Generally.  The Committee shall administer the Plan and shall have full power and authority to make all determinations under the Plan, subject to the express provisions hereof, including without limitation: (i) to select Participants from among the Eligible Individuals; (ii) to make Awards; (iii) to determine the number of Shares subject to each Award or the cash amount payable in connection with an Award; (iv) to establish the terms and conditions of each Award, including, without limitation, those related to vesting, cancellation, payment, exercisability, and the effect, if any, of certain events on a Participant’s Awards, such as the Participant’s termination of employment with the Company or the MS Group; (v) to specify and approve the provisions of the Award Documents delivered to Participants in connection with their Awards; (vi) to construe and interpret any Award Document delivered under the Plan; (vii) to prescribe, amend and rescind rules and procedures relating to the Plan; (viii) to make all determinations necessary or advisable in administering the Plan and Awards, including without limitation determinations as to whether (and if so as of what date) a Participant has commenced, or has experienced a termination of, employment; provided, however, that to the extent full or partial payment of any Award that constitutes a deferral of compensation
 
 
4

 
 
subject to Section 409A is made upon or as a result of a Participant’s termination of employment, the Participant will be considered to have experienced a termination of employment if, and only if, the Participant has experienced a separation from service with the Participant’s employer for purposes of Section 409A; (ix) to vary the terms of Awards to take account of securities law and other legal or regulatory requirements of jurisdictions in which Participants work or reside or to procure favorable tax treatment for Participants; and (x) to formulate such procedures as it considers to be necessary or advisable for the administration of the Plan.
 
(b)       Delegation.  To the extent not prohibited by applicable laws or rules of the New York Stock Exchange, the Committee may from time to time delegate some or all of its authority under the Plan to one or more Administrators consisting of one or more members of the Committee as a subcommittee or subcommittees thereof or of one or more members of the Board who are not members of the Committee or one or more officers of the Company or the MS Group (or of any combination of such persons).  Any such delegation shall be subject to the restrictions and limits that the Committee specifies at the time of such delegation or thereafter.  The Committee may at any time rescind all or part of the authority delegated to an Administrator or appoint a new Administrator.  At all times, an Administrator appointed under this Section 5(b) shall serve in such capacity at the pleasure of the Committee.  Any action undertaken by an Administrator in accordance with the Committee’s delegation of authority shall have the same force and effect as if undertaken directly by the Committee, and any reference in the Plan to the Committee shall, to the extent consistent with the terms and limitations of such delegation, be deemed to include a reference to an Administrator.
 
(c)       Authority to Construe and Interpret.  The Committee shall have full power and authority, subject to the express provisions hereof, to construe and interpret the Plan.
 
(d)      Committee Discretion.  All of the Committee’s determinations in carrying out,  administering, construing and interpreting the Plan shall be made or taken in its sole discretion and shall be final, binding and conclusive for all purposes and upon all persons.  In the event of any disagreement between the Committee and an Administrator, the Committee’s determination on such matter shall be final and binding on all interested persons, including any Administrator.  The Committee’s determinations under the Plan need not be uniform and may be made by it selectively among persons who receive, or are eligible to receive, Awards under the Plan (whether or not such persons are similarly situated).  Without limiting the generality of the foregoing, the Committee shall be entitled, among other things, to make non-uniform and selective determinations, and to enter into non-uniform and selective Award Documents, as to the persons receiving Awards under the Plan, and the terms and provisions of Awards under the Plan.
 
(e)       No Liability.  Subject to applicable law: (i) no member of the Committee or any Administrator shall be liable for anything whatsoever in connection with the exercise of authority under the Plan or the administration of the Plan except such person’s own willful misconduct; (ii) under no circumstances shall any member of the Committee or any Administrator be liable for any act or omission of any other member of the Committee or an Administrator; and (iii) in the performance of its functions with respect to the Plan, the Committee and an Administrator shall be entitled to rely upon information and advice furnished
 
 
5

 
 
by the officers, accountants and counsel of the Company or the MS Group and any other party the Committee or the Administrator deems necessary, and no member of the Committee or any Administrator shall be liable for any action taken or not taken in good faith reliance upon any such advice.
 
6.        Eligibility; Nature of Awards.  Eligible Individuals shall include all officers and other employees (including prospective employees) of the Company or the MS Group who were formerly employed by the Smith Barney or Quilter businesses of Citigroup, and all other employees of Citigroup (or its affiliates), and consultants or other persons who performed services for Citigroup or any of its affiliates, in each case, who commence employment with the Company or the MS Group in connection with the Transaction (or whose employer becomes an affiliate of MSSB in connection with the Transaction).  Any Award made to a prospective employee shall be conditioned upon, and effective not earlier than, such person’s becoming an employee.  An individual’s status as an Administrator will not affect his or her eligibility to receive Awards under the Plan.  Notwithstanding the above, Awards shall be granted under the Plan only in compliance with the rules of the New York Stock Exchange governing inducement awards or such other rules of the New York Stock Exchange, including the New York Stock Exchange Corporate Governance Listing Standards, that allow grants of equity compensation awards without obtaining stockholder approval of the plan pursuant to which such award is granted, or of the award itself.
 
7.        Restricted Stock.  An Award of Restricted Stock shall be subject to the terms and conditions established by the Committee in connection with the Award and specified in the applicable Award Document.  Restricted Stock may, among other things, be subject to restrictions on transfer, vesting requirements or cancellation under specified circumstances.
 
8.        Stock Units.  An Award of Stock Units shall be subject to the terms and conditions established by the Committee in connection with the Award and specified in the applicable Award Document.  Each Stock Unit awarded to a Participant shall correspond to one Share.  Upon satisfaction of the terms and conditions of the Award, a Stock Unit will be payable, at the discretion of the Committee, in Stock or in cash equal to the Fair Market Value on the payment date of one Share.  As a holder of Stock Units, a Participant shall have only the rights of a general unsecured creditor of Morgan Stanley.  A Participant shall not be a stockholder with respect to the Shares underlying Stock Units unless and until the Stock Units convert to Shares.  Stock Units may, among other things, be subject to restrictions on transfer, vesting requirements or cancellation under specified circumstances.
 
9.        Options.
 
(a)       Options Generally.  An Award of Options shall be subject to the terms and conditions established by the Committee in connection with the Award and specified in the applicable Award Document.  The Committee shall establish (or shall authorize the method for establishing) the exercise price of all Options awarded under the Plan, except that the exercise price of an Option shall not be less than 100% of the Fair Market Value of one Share on the Award Date.  Upon satisfaction of the conditions to exercisability of the Award, a Participant shall be entitled to exercise the Options included in the Award and to have delivered, upon Morgan Stanley’s receipt of payment of the exercise price and completion of any other
 
 
6

 
 
conditions or procedures specified by Morgan Stanley, the number of Shares in respect of which the Options shall have been exercised.  Options may be either nonqualified stock options or Incentive Stock Options; provided that, unless the Committee specifically determines otherwise upon the advice of counsel, Incentive Stock Options may not be granted to employees of the Company.  Options and the Shares acquired upon exercise of Options may, among other things, be subject to restrictions on transfer, vesting requirements or cancellation under specified circumstances.
 
(b)       Prohibition on Restoration Option Grants.  Anything in the Plan to the contrary notwithstanding, the terms of an Option shall not provide that a new Option will be granted, automatically and without additional consideration in excess of the exercise price of the underlying Option, to a Participant upon exercise of the Option.
 
(c)       Prohibition on Repricing of Options and SARs.  Anything in the Plan to the contrary notwithstanding, the Committee may not reprice any Option or SAR.  “Reprice” means any action that constitutes a “repricing” under the rules of the New York Stock Exchange.
 
(d)       Payment of Exercise Price.  Subject to the provisions of the applicable Award Document and to the extent authorized by rules and procedures of Morgan Stanley from time to time, the exercise price of the Option may be paid in cash, by actual delivery or attestation to ownership of freely transferable Shares already owned by the person exercising the Option, or by such  other means as Morgan Stanley may authorize.
 
(e)       Maximum Term on Stock Options and SARs.  No Option or SAR shall have an expiration date that is later than the tenth anniversary of the Award Date thereof.
 
10.     SARs.  An Award of SARs shall be subject to the terms and conditions established by the Committee in connection with the Award and specified in the applicable Award Document.  The Committee shall establish (or shall authorize the method for establishing) the exercise price of all SARs awarded under the Plan, except that the exercise price of a SAR shall not be less than 100% of the Fair Market Value of one Share on the Award Date.  Upon satisfaction of the conditions to the payment of the Award, each SAR shall entitle a Participant to an amount, if any, equal to the Fair Market Value of one Share on the date of exercise over the SAR exercise price specified in the applicable Award Document.  At the discretion of the Committee, payments to a Participant upon exercise of an SAR may be made in Shares, cash or a combination thereof.  SARs and the Shares that may be acquired upon exercise of SARs may, among other things, be subject to restrictions on transfer, vesting requirements or cancellation under specified circumstances.
 
11.     Other Awards.  The Committee shall have the authority to establish the terms and provisions of other forms of equity-based or equity-related Awards (such terms and provisions to be specified in the applicable Award Document) not described above that the Committee determines to be consistent with the purpose of the Plan and the interests of the Company or the MS Group, which Awards may provide for (i) cash or Stock payments based in whole or in part on the value or future value of Stock or on any amount that Morgan Stanley pays as dividends or otherwise distributes with respect to Stock, (ii) the acquisition or future acquisition of Stock, (iii) cash or Stock payments (including  payment of dividend equivalents in cash or Stock) based
 
 
7

 
 
on one or more criteria determined by the Committee unrelated to the value of Stock, or (iv) any combination of the foregoing.  Awards pursuant to this Section 11 may, among other things, be made subject to restrictions on transfer, vesting requirements or cancellation under specified circumstances.
 
12.     General Terms and Provisions.
 
(a)       Awards in General.  Awards may, in the discretion of the Committee, be made in substitution in whole or in part for cash or other compensation payable to an Eligible Individual.  In accordance with rules and procedures authorized by the Committee, an Eligible Individual may elect one form of Award in lieu of any other form of Award, or may elect to receive an Award in lieu of all or part of any compensation that otherwise might have been paid to such Eligible Individual; provided, however, that any such election shall not require the Committee to make any Award to such Eligible Individual.  Any such substitute or elective Awards shall have terms and conditions consistent with the provisions of the Plan applicable to such Award.  Awards may be granted in tandem with, or independent of, other Awards. The grant, vesting or payment of an Award may, among other things, be conditioned on the attainment of performance objectives, including without limitation objectives based in whole or in part on net income, pre-tax income, return on equity, earnings per share, total shareholder return or book value per share.
 
(b)       Discretionary Awards.  All grants of Awards and deliveries of Shares, cash or other property under the Plan shall constitute a special discretionary incentive payment to the Participant and shall not be required to be taken into account in computing the amount of salary, wages or other compensation of the Participant for the purpose of determining any contributions to or any benefits under any pension, retirement, profit-sharing, bonus, life insurance, severance or other benefit plan of the Company or the MS Group or other benefits from either the Company or the MS Group or under any agreement with the Participant, unless the Company or the MS Group specifically provide otherwise.
 
(c)       Dividends and Distributions.  If Morgan Stanley pays any dividend or makes any 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 a 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, restrictions on transfer or other conditions.  Any determination by the Committee with respect to a Participant’s entitlement to receive any amounts related to dividends or distributions to holders of Stock, as well as the terms and conditions of such entitlement, if any, will be part of the terms and conditions of the Award, and will be included in the Award Document for such Award.
 
(d)       Deferrals.  In accordance with the procedures authorized by, and subject to the approval of, the Committee, Participants may be given the opportunity to defer the payment or settlement of an Award to one or more dates selected by the Participant.  To the extent an Award constitutes a deferral of compensation subject to Section 409A, the Committee shall set forth in writing (which may be in electronic form), on or before the date the applicable deferral election is required to be irrevocable in order to meet the requirements of Section 409A, the conditions under which such election may be made.
 
 
8

 
 
(e)       Award Documentation and Award Terms.  The terms and conditions of an Award shall be set forth in an Award Document authorized by the Committee.  The Award Document shall include any vesting, exercisability, payment and other restrictions applicable to an Award (which may include, without limitation, the effects of termination of employment, cancellation of the Award under specified circumstances, restrictions on transfer or provision for mandatory resale to the Company or the MS Group).
 
13.     Certain Restrictions.
 
(a)       Stockholder Rights.  No Participant (or other persons having rights pursuant to an Award) shall have any of the rights of a stockholder of Morgan Stanley with respect to Shares subject to an Award until the delivery of the Shares, which shall be effected by entry of the Participant’s (or other person’s) name in the share register of Morgan Stanley or by such other procedure as may be authorized by Morgan Stanley.  Except as otherwise provided in Section 4(b) or 12(c), no adjustments shall be made for dividends or distributions on, or other events relating to, Shares subject to an Award for which the record date is prior to the date such Shares are delivered.  Notwithstanding the foregoing, the terms of an Employee Trust may authorize some or all Participants to give voting or tendering instructions to the trustee thereof in respect of Shares that are held in such Employee Trust and are subject to Awards.  Except for the risk of cancellation and the restrictions on transfer that may apply to certain Shares (including restrictions relating to any dividends or other rights) or as otherwise set forth in the applicable Award Document, the Participant shall be the beneficial owner of any Shares delivered to the Participant in connection with an Award and, upon such delivery shall be entitled to all rights of ownership, including, without limitation, the right to vote the Shares and to receive cash dividends or other dividends (whether in Shares, other securities or other property) thereon.
 
(b)       Transferability.  No Award granted under the Plan shall be transferable, whether voluntarily or involuntarily, other than by will or by the laws of descent and distribution; provided that, except with respect to Incentive Stock Options, the Committee may permit transfers on such terms and conditions as it shall determine.  During the lifetime of a Participant to whom Incentive Stock Options were awarded, such Incentive Stock Options shall be exercisable only by the Participant.
 
14.     Representation; Compliance with Law.  The Committee may condition the grant, exercise, settlement or retention of any Award on the Participant making any representations required in the applicable Award Document.  Each Award shall also be conditioned upon the making of any filings and the receipt of any consents or authorizations required to comply with, or required to be obtained under, applicable law.
 
15.     Miscellaneous Provisions.
 
(a)       Satisfaction of Obligations.  As a condition to the making or retention of any Award, the vesting, exercise or payment of any Award or the lapse of any restrictions pertaining thereto, Morgan Stanley may require a Participant to pay such sum to the Company or the MS Group as may be necessary to discharge such entities’ obligations with respect to any taxes, assessments or other governmental charges (including FICA and other social security or similar tax) imposed on property or income received by a Participant pursuant to the Award or to satisfy any obligation
 
 
9

 
 
that the Participant owes to the Company or the MS Group. In accordance with rules and procedures authorized by Morgan Stanley, (i) such payment may be in the form of cash or other property, including the tender of previously owned Shares, and (ii) in satisfaction of such taxes, assessments or other governmental charges or, exclusively in the case of an Award that does not constitute a deferral of compensation subject to Section 409A, of other obligations that a Participant owes to the Company or the MS Group, Morgan Stanley may make available for delivery a lesser number of Shares in payment or settlement of an Award, may withhold from any payment or distribution of an Award or may enter into any other suitable arrangements to satisfy such withholding or other obligation.  To the extent an Award constitutes a deferral of compensation subject to Section 409A, neither the Company nor the MS Group may offset from the payment of such Award amounts that a Participant owes to the Company or the MS Group with respect to any such other obligation except to the extent such offset is not prohibited by Section 409A and would not cause a Participant to recognize income for United States federal income tax purposes prior to the time of payment of the Award  or to incur interest or additional tax under Section 409A.
 
(b)       No Right to Continued Employment.  Neither the Plan nor any Award shall give rise to any right on the part of any Participant to continue in the employ of the Company or the MS Group.
 
(c)       Headings.  The headings of sections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of the Plan.
 
(d)       Governing Law.  The Plan and all rights hereunder shall be construed in accordance with and governed by the laws of the State of New York, without regard to any conflicts or choice of law, rule or principle that might otherwise refer the interpretation of the award to the substantive law of another jurisdiction.
 
(e)       Amendments and Termination.  The Board or Committee may modify, amend, suspend or terminate the Plan in whole or in part at any time and may modify or amend the terms and conditions of any outstanding Award (including by amending or supplementing the relevant Award Document at any time); provided, however, that no such modification, amendment, suspension or termination shall, without a Participant’s consent, materially adversely affect that Participant’s rights with respect to any Award previously made; and provided, further, that the Committee shall have the right at any time, without a Participant’s consent and whether or not the Participant’s rights are materially adversely affected thereby, to amend or modify the Plan or any Award under the Plan in any manner that the Committee considers necessary or advisable to comply with any law, regulation, ruling, judicial decision, accounting standards, regulatory guidance or other legal requirement.  Notwithstanding the preceding sentence, neither the Board nor the Committee may accelerate the payment or settlement of any Award, including, without limitation, any Award subject to a prior deferral election, that constitutes a deferral of compensation for purposes of Section 409A except to the extent such acceleration would not result in the Participant incurring interest or additional tax under Section 409A.  No amendment to the Plan may render any Board member who is not an employee of the Company or the MS Group eligible to receive an Award at any time while such member is serving on the Board.  To the extent required by applicable law or the rules of the New York Stock Exchange, amendments to the Plan shall not be effective unless they are approved by Morgan Stanley’s stockholders.
 
 
10