Exhibit
10.3
REGISTRATION RIGHTS AGREEMENT
, dated October 13, 2008 (this “ Agreement ”)
between Morgan Stanley (the “ Company ” ) and
Mitsubishi UFJ Financial Group, Inc. (the “ Investor
”).
RECITALS
A. The Securities
Purchase Agreement . The
Company and the Investor are parties to a Securities Purchase
Agreement, made as of September 29, 2008 (as it may be amended from
time to time, the “ Securities Purchase
Agreement ”), pursuant to which Investor is
purchasing Securities (defined below) from the Company, and are
concurrently herewith entering into an Investor Agreement (the
“ Investor Agreement ”) pursuant to the terms of
the Securities Purchase Agreement. The Investor Agreement contains
restrictions on transfer of the Registrable Securities (defined
below), which are incorporated by reference herein.
B. Registration
Rights . In connection with the
consummation of the transactions contemplated by the Securities
Purchase Agreement, and pursuant to the terms of the Securities
Purchase Agreement, the parties desire to enter into this Agreement
in order to grant certain registration rights to the Investor as
set forth below.
NOW, THEREFORE , in consideration of the premises and of the
representation, warranties, covenants and agreements set forth
herein, the parties agree as follows:
ARTICLE I
GENERAL
1.1 Definitions
. As used in this Agreement, the following terms shall have the
following respective meanings:
“ Common Stock
” means shares of common
stock, $0.01 par value per share, of the Company.
“ Exchange Act
” means the Securities
Exchange Act of 1934, as amended, or similar federal statute, and
the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
“ Holder ” means the Investor and any other holder
of Registrable Securities to whom the registration rights conferred
by this Agreement have been transferred in compliance with Section
2.9 hereof.
“ Holders’ Counsel
” means one counsel for the
selling Holders chosen by Holders holding a majority interest in
the Registrable Securities being registered.
“ Investor Agreement
” has the meaning ascribed to it in Recital A.
“ Person ” means any individual, corporation,
partnership, joint venture, limited liability company, business
trust, joint stock company, trust or unincorporated organization or
any government or any agency or political subdivision
thereof.
“ Register ,” “ registered
,” and “ registration ” shall refer to a
registration effected by preparing and (a) filing a registration
statement in compliance with the Securities Act and applicable
rules and regulations thereunder, and the declaration or ordering
of effectiveness of such registration statement or (b) filing a
prospectus and/or prospectus supplement in respect of an
appropriate effective registration statement on Form S-3.
“ Registrable Securities
” means the Shares; provided
that the Shares shall cease to be Registrable Securities when (i)
they are sold pursuant to an effective registration statement under
the Securities Act, (ii) they are sold pursuant to Rule 144, (iii)
they shall have ceased to be outstanding or (iv) they have been
sold in a private transaction in which the transferor’s
rights under this Agreement are not assigned to the transferee of
the Shares. No Registrable Securities may be registered under more
than one registration statement at any one time.
“ Registration Expenses
” shall mean all expenses
incurred by the Company in effecting any registration pursuant to
this Agreement, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel
for the Company, blue sky fees and expenses, one-half of the fees
and disbursements of Holders’ Counsel, and expenses of the
Company’s independent accountants in connection with any
regular or special reviews or audits incident to or required by any
such registration, but shall not include Selling Expenses, the
other half of the fees and disbursements of Holders’ Counsel,
and the compensation of regular employees of the Company, which
shall be paid in any event by the Company.
“ SEC” or
“Commission ” means
the Securities and Exchange Commission and any successor
agency.
“ Scheduled Black-out
Period ” means the period
from and including the fifth business day preceding the last day of
a fiscal quarter of the Company to and including the business day
after the day on which the Company publicly releases its earnings
for such fiscal quarter.
“ Securities
” has the meaning ascribed to
such term in the Securities Purchase Agreement.
“ Securities Act
” shall mean the Securities
Act of 1933, as amended, or similar federal statute, and the rules
and regulations of the Commission thereunder, all as the same shall
be in effect at the time.
“ Securities Purchase
Agreement ” has the meaning ascribed to it in Recital
A.
2
“ Selling Expenses
” shall mean all underwriting
discounts, selling commissions and stock transfer taxes applicable
to the sale of Registrable Securities and fees and disbursements of
counsel for any Holder (other than the fees and disbursements of
counsel included in Registration Expenses).
“ Shares ” mean shares of Common Stock issued by
the Company or issuable by the Company pursuant to the terms of
Securities.
ARTICLE II
REGISTRATION
2.1 Demand
Registration .
(a)
Subject to the conditions of this Section 2.1 and the terms
and conditions of the Investor Agreement, if at any time the
Company shall receive a written request from the Investor that the
Company register under the Securities Act Registrable Securities
having an aggregate offering or sale price of at least
$500,000,000, then the Company shall, subject to the limitations of
this Section 2.1, effect, as promptly as reasonably practicable,
the registration under the Securities Act of all Registrable
Securities that the Investor requests to be registered.
(b)
If the Investor intends to distribute the Registrable Securities
covered by its request by means of an underwriting, (1) it shall so
advise the Company as a part of its request made pursuant to this
Section 2.1, (2) it shall have the right to appoint a book runner
reasonably acceptable to the Company, and (3) Morgan Stanley &
Co. Incorporated or another Affiliate of the Company shall have the
right to act as either joint bookrunner and global coordinator with
the bookrunner appointed by the Investor, or in the event that the
Investor declines its option to appoint a bookrunner, sole
bookrunner and global coordinator or joint bookrunner and global
coordinator with one other bookrunner, as the Company may
elect.
(c)
The Company shall not be required to effect a registration
pursuant to this Section 2.1: (i) prior to the first anniversary of
the Closing under the Securities Purchase Agreement; (ii) after the
Company has effected five (5) registrations pursuant to this
Section 2.1, and each of such registrations has been declared or
ordered effective and kept effective by the Company as required by
Section 2.4(a) of this Agreement; (iii) with respect to a
registration of Registrable Securities during the period starting
with the date thirty (30) days prior to the Company’s good
faith estimate of the launch date of, and ending on a date ninety
(90) days after the closing date of, a Company-initiated registered
offering of equity securities or securities convertible into or
exchangeable for equity securities; provided that the Company is
actively employing in good faith all commercially reasonable
efforts to launch such registered offering; (iv) during any
Scheduled Black-out Period; or (v) if the Company has notified the
Investor that in the good faith judgment of the Company, it would
be materially detrimental to the Company or its securityholders for
such registration to be effected at such time, in which event the
Company shall have the right to defer such filing for a period of
not more than ninety (90) days after receipt of the request of the
Investor; provided that such right to delay a request shall
be
3
exercised by the Company for not more than
two periods in any twelve (12) month period and not more than
ninety (90) days in the aggregate in any twelve (12) month
period.
(d)
One registration pursuant to this Section 2.1 may be required by
the Investor to be effected by means of a shelf registration
statement (a “ Shelf Registration Statement ”)
relating to any or all of the Registrable Securities in accordance
with the methods and distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act. The
Company shall use its commercially reasonable efforts to cause any
Shelf Registration Statement to remain effective, including by
filing extensions of the Registration Statement, until the
termination of the period contemplated in Section 2.6.
2.2 [Reserved]
2.3 Expenses of
Registration . Except as
specifically provided herein, all Registration Expenses incurred in
connection with any registration, qualification or compliance
hereunder shall be borne by the Company. All Selling Expenses
incurred in connection with any registrations hereunder, shall be
borne by the holders of the securities so registered pro rata on
the basis of the aggregate offering or sale price of the securities
so registered. The Company shall not, however, be required to pay
for expenses of any registration proceeding begun pursuant to
Section 2.1, the request of which has been subsequently withdrawn
by the Investor or requesting Holder(s) unless (a) the withdrawal
is based upon (i) any fact, circumstance, event, change, effect or
occurrence that individually or in the aggregate with all other
facts or circumstances, events, changes, effects or occurrences has
a material adverse effect on the Company, or (ii) material adverse
information concerning the Company that the Company had not
publicly revealed at least forty-eight (48) hours prior to the
request or that the Company had not otherwise notified the Investor
or requesting Holders of at the time of such request or (b) the
Investor or the Holders of a majority of Registrable Securities, as
the case may be, agree to forfeit their right to one requested
registration pursuant to Section 2.1, as applicable, in which event
such right shall be forfeited by all Holders.
If the Investor and/or the Holders
are required to pay Registration Expenses, such expenses shall be
borne by the Investor or the Holders of Registrable Securities
requesting such registration in proportion to the number of Shares
(either outstanding or issuable pursuant to the terms of the
Securities) for which registration was requested. If the Company is
required to pay the Registration Expenses of a withdrawn offering
pursuant to clause (a) above, then the Investor or the Holders, as
the case may be, shall not forfeit their rights pursuant to Section
2.1.
2.4 Obligations of
the Company . Whenever required
to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably
practicable:
(a)
Prepare and file with the SEC not later than thirty (30) days
after the request a registration statement with respect to such
Registrable Securities and use all commercially reasonable efforts
to cause such registration statement to become effective, or
prepare and file with the SEC a prospectus supplement with respect
to such Registrable Securities pursuant to an effective
registration statement and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep
such registration statement effective or such prospectus supplement
current, for up to one hundred and twenty (120) days
4
other than a registration statement
required by the Investor to be effected by means of a Shelf
Registration Statement pursuant to Section 2.1(d) or, if earlier,
until the Holder or Holders have completed the distribution related
thereto.
(b)
Prepare and file with the SEC such amendments and supplements
to the applicable registration statement and the prospectus or
prospectus supplement used in connection with such registration
statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement for the period set forth in
paragraph (a) above.
(c)
Furnish to the Holders such number of copies of the applicable
registration statement and each such amendment and supplement
thereto (including in each case all exhibits) and of a prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as
they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them.
(d)
Use its commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders, to keep such registration or
qualification in effect for so long as such registration statement
remains in effect, and to take any other action which may be
reasonably necessary to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such
Holder; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any
such states or jurisdictions.
(e)
Enter customary agreements (including if the method of distribution
is by means of an underwriting, an underwriting agreement in
customary form with the managing underwriter(s) of such offering)
and take such other actions (including participating in and making
documents available for the due diligence review of underwriters if
the method of distribution is by means of an underwriting) as are
reasonably required in order to facilitate the disposition of such
Registrable Securities. Each Holder participating in such
underwriting shall also enter into and perform its obligations
under such underwriting agreement.
(f)
Notify each Holder of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which
the applicable prospectus, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing.
(g)
Use its commercially reasonable efforts to furnish, on the date
that such Registrable Securities are delivered to the underwriters
for sale, if such securities are being sold through underwriters,
(i) an opinion, dated as of such date, of outside legal counsel
representing the Company for the purposes of such registra
