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Exhibit
10.44
SEPARATION AGREEMENT
AND GENERAL RELEASE
AGREEMENT, by and between
Jeanne M. Dering (“Employee,” “you” or
“your”) and Moody’s Corporation (the
“Company,” “we” or “our”), with
its principal place of business in New York, New York.
In consideration of the
promises and conditions set forth below, and intending to be
legally bound, the parties agree as follows:
1. Termination of
Employment. Your employment with the Company, and your
membership on any committees, is terminated effective on the date
specified in Exhibit A (the “Termination Date”), and
you agree not to apply for or seek re-employment with the Company,
its parent companies, subsidiaries and affiliates after that date.
You agree to continue working through the Termination Date, unless
released from working earlier by the Company, in which case you
will continue to receive your regular salary and benefits and will
be deemed to be an employee of the Company through the Termination
Date. After the Termination Date, the Company will pay you for all
accrued and unused vacation days you had as of the Termination
Date.
2. Special Severance
Benefits. If you sign this Agreement on or after the
Termination Date, and fully comply with the terms of this
Agreement, the Company will provide you with the following special
severance benefits:
(a) You will be paid salary
continuation during the salary continuation period (“salary
continuation period”), as set forth in Exhibit A, less
benefit deductions, tax withholdings and other deductions required
by law. You acknowledge that the salary continuation includes
compensation and benefits in addition to what you would otherwise
be entitled;
(b) Medical, dental and life
insurance benefits shall be provided throughout the salary
continuation period at the levels in effect for you immediately
prior to the termination of your employment, but in no event
greater than the levels in effect for active employees generally
during the salary continuation period, provided that you shall pay
the employee portion of any required premium payments at the level
in effect for employees of the Company generally. Since as of the
Termination Date, you were between the ages of 50 and 55 with 10 or
more years of credited service with the Company, you also will be
eligible for any post-employment medical and dental coverage that
may be offered by the Company following the salary continuation
period, at the Company’s full cost per participant for such
coverage but otherwise on the same terms and conditions as coverage
for employees of the Company, provided that the Company may modify
or discontinue such post-employment coverage at any time for any
reason, without any liability to you;
(c) In further consideration
for your execution of this Agreement, the Company will not contest
your eligibility for your 2007 bonus pursuant to the Executive
Performance Incentive Compensation (EPIC) Plan, and will pay you a
bonus under EPIC in the first quarter of 2008 in accordance with
the letter to you, dated March 9, 2007 (which is attached as
Exhibit E), and a recommended discretionary reduction of 16.7% for
having met expectations with respect to non-financial objectives.
The Company is agreeing to make this payment to you, in connection
with your execution of this Agreement, without prejudice to its
position that this amount is not due and owing to you under any
bonus plan, policy, or past practice;
(d) The Company will waive
Section 4.02(b)(i) of the Supplemental Executive Benefit Plan
(“SEBP”), a copy of which is attached as Exhibit F,
which would otherwise reduce the
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amount of your SEBP Retirement Benefit
by 60%, and will provide you a SEBP Retirement Benefit as
calculated pursuant to Section 4.02(b), it being mutually
understood that all other provisions of the SEBP shall continue to
apply. Your projected annual benefits under the SEBP are set forth
on Exhibit G;
(e) For purposes of the 1998
Moody’s Corporation Key Employees’ Stock Incentive Plan
and the Amended and Restated 2001 Moody’s Corporation Key
Employees’ Stock Incentive Plan (collectively, the
“Stock Incentive Plans”), your termination of
employment with the Company shall be treated as a
“Retirement” within the meaning of Section 2(bb)
and Section 2(y), respectively. As a consequence, any and all
outstanding stock options held by you for more than one year as of
the Termination Date shall be exercisable in accordance with the
rules of Section 7(f) of the Stock Incentive Plans relating to
exercisability upon termination of employment by reason of
Retirement, and any outstanding restricted stock award held by you
for more than one year as of the Termination Date shall be
exercisable in accordance with the rules of Section 9(c)(iv)
of the 2001 Moody’s Corporation Key Employees’ Stock
Incentive Plan relating to immediate vesting in full of restricted
stock upon a termination of employment by reason of Retirement. A
schedule of your outstanding stock options and restricted stock
grants is attached hereto as Exhibit H; and
(f) You will be provided
outplacement services through an outplacement service provider
selected by the Company, which said amount shall be determined by
your job classification. You will not be entitled to the cost of
outplacement services if you choose not to elect them.
You acknowledge that the
special severance benefits set forth above include compensation
and/or benefits in addition to what you would otherwise be entitled
to receive. The special severance benefits will not become due on
or before the Effective Date of the Agreement, as defined in
Paragraph 17(f).
3. Approvals. The
Company represents and warrants that all necessary approvals to
grant the special severance benefits set forth in Paragraph 2 have
been obtained.
4. Waiver and
Release.
(a) In exchange for special
severance benefits promised to you in this Agreement, and as a
material inducement for that promise, you hereby WAIVE,
RELEASE and FOREVER DISCHARGE the Company and/or related
persons from any and all claims, rights and liabilities of every
kind, whether or not you now know them to exist, which you ever had
or may have arising out of your employment with the Company or
termination of that employment. This WAIVER and
RELEASE includes, but is not limited to, any claim for
severance benefits provided by the Company, as stated in an offer
letter, individual contract, or otherwise, unlawful discrimination
or sexual harassment under Title VII of the Civil Rights Act of
1964, as amended, the Age Discrimination in Employment Act, the
Americans with Disabilities Act of 1990, 42 U.S.C. § 1981, the
Worker Adjustment and Retraining Notification Act, the Family and
Medical Leave Act of 1993, and any violation of any other federal,
state or local constitution, statute, rule, regulation or
ordinance, or for breach of contract, wrongful discharge, tort or
other civil wrong. This Waiver and Release excludes (i) any
claim for a breach of the Company’s obligations set forth in
this Agreement and (ii) any rights or claims regarding accrued
benefits pursuant to any qualified or nonqualified retirement or
profit sharing plan in which you were a participant immediately
prior to the Termination Date.
(b) You represent that you
have not filed any complaints, charges, claims, grievances, or
lawsuits against the Company and/or any related persons with any
local, state or federal agency or court.
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(c) You acknowledge that you
may discover facts different from or in addition to those you now
know or believe to be true with respect to the claims, demands,
causes of action, obligations, damages, and liabilities of any
nature whatsoever that are the subject of this Agreement, and you
expressly agree to assume the risk of the possible discovery of
additional or different facts, and agree that this Agreement shall
be and remain in effect in all respects regardless of such
additional or different facts.
(d) If you violate this
Agreement by misrepresenting that you have not filed any
complaints, charges, claims, grievances, or lawsuits against the
Company and/or any related persons with any local, state or federal
agency or court, or by bringing or maintaining any complaints,
charges, claims, grievances, or lawsuits contrary to this Paragraph
4, you will pay all costs and expenses of the Company and/or any
related persons in defending against such charges, cl
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