Exhibit 10.38
Moody’s
Corporation
1999 Employee Stock Purchase
Plan
(as amended and restated
December 15, 2008)
(Formerly, The Dun &
Bradstreet Corporation
1999 Employee Stock Purchase
Plan)
1. Definitions
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(a)
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“Account” means an Employee Stock Purchase Plan account
maintained by the Company or a designated recordkeeper.
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(b)
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“Board” means the Board of Directors of the
Company.
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(c)
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“Code” means the Internal Revenue Code of 1986, as
amended.
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(d)
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“Committee” means the Governance and Compensation Committee
of the Board.
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(e)
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“Common Stock”
means common stock of the Company
(formerly, common stock of The Dun & Bradstreet
Corporation).
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(f)
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“Company” means Moody’s Corporation, formerly known
as The Dun & Bradstreet Corporation.
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(g)
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“Eligible Compensation”
means the total amount paid by the
Company or any Subsidiary to the Eligible Employee (other than
amounts paid after termination of employment) as salary, wages,
overtime, regular cash bonuses and commissions, and any portion of
such amounts voluntarily deferred or reduced by the Eligible
Employee under any employee benefit plan of the Company or a
Subsidiary available to all levels of Employees on a
nondiscriminatory basis upon satisfaction of eligibility
requirements, but excluding any pension, retainers, severance pay,
special stay-on bonus payments, income derived from stock
appreciation rights and stock options and dispositions of stock
acquired thereunder, payments dependent upon any contingency and
other special remunerations (including performance units). The
Committee shall have the authority to determine and approve all
forms of pay to be included in the definition of Eligible
Compensation and may change the definition on a prospective
basis.
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(h)
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“Eligible Employee”
means an Employee eligible to
participate in the Plan pursuant to the provisions of section
5.
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(i)
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“Employee” means an individual classified as an employee
(within the meaning of Code section 3401(c) and the regulations
thereunder) by the Company or a Subsidiary on the Company’s
or such Subsidiary’s payroll records during the relevant
period.
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(j)
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“Fair
Market Value” means
the mean of the high and low sales prices of a share of Common
Stock on the New York Stock Exchange on the last trading day of the
applicable Stock Purchase Period.
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(k)
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“Participating Employee”
means an Employee (1) for whom
payroll deductions are currently being made or (2) for whom
payroll deductions are not currently being made because he or she
has reached the limitation set forth in section 7.
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(l)
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“Plan” means the Moody’s Corporation 1999
Employee Stock Purchase Plan (formerly, The Dun &
Bradstreet Corporation 1999 Employee Stock Purchase
Plan).
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(m)
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“Regular Paycheck”
means any bi-weekly, limited hour,
or monthly base salary paycheck.
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(n)
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“Stock
Purchase Period” means a calendar month.
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(o)
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“Subsidiary” means any present or future corporation which
(1) is a “subsidiary corporation” of the Company
as that term is defined in Code section 424 and (2) is
designated a participating employer by the Committee.
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2. Purpose of the
Plan
The purpose of the Plan is to secure
for the Company and its stockholders the benefits of the incentive
inherent in the ownership of the Company’s capital stock by
present and future Employees of the Company and its Subsidiaries.
The Plan is intended to comply with the provisions of Code sections
421, 423, and 424. The Plan may also include sub-plans applicable
to non-U.S. jurisdictions that are designed to be outside the scope
of Code section 423.
3. Shares Reserved for the
Plan
There shall be reserved for issuance
and purchase by Participating Employees under the Plan an aggregate
of 3 million shares of Common Stock, subject to adjustment as
provided in section 12. Shares subject to the Plan may be shares
now or hereafter authorized but unissued, or shares that were once
issued and subsequently reacquired by the Company. If and to the
extent that any right to purchase reserved shares shall not be
exercised by any Participating Employee for any reason or if such
right to purchase shall terminate as provided herein, shares that
have not been so purchased hereunder shall again become available
for the purposes of the Plan unless the Plan shall have been
terminated.
4. Administration of the
Plan
The Plan shall be administered, at
the expense of the Company, by the Committee. The Committee
consists of not less than three members of the Board who are not
employees of the Company and who shall serve at the pleasure of the
Board. The Committee may request advice or assistance from or
employ such other persons as are necessary for proper
administration of the Plan. Subject to the express provisions of
the Plan, the Committee shall have authority to interpret the Plan,
to prescribe, amend, and rescind rules and regulations relating to
it, and to make all other determinations necessary or advisable in
administering the Plan, all of which determinations shall be final
and binding upon all persons. Subject to the terms of the Plan, the
Committee may delegate any or all of its administrative duties
under the Plan to a committee consisting of management employees of
the Company.
The Committee may adopt rules or
procedures relating to the operation and administration of the Plan
to accommodate the specific requirements of local laws and
procedures in foreign jurisdictions. Without limiting the
generality of the foregoing, the Committee is specifically
authorized to adopt rules and procedures regarding the handling of
payroll deductions, payment of interest, conversion of local
currency, payroll tax withholding procedures and handling the stock
certificates which may vary with local requirements.
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The Committee may also adopt sub-plans
applicable to particular Subsidiaries or locations, which sub-plans
may be designed to be outside the scope of Code section 423. The
rules of such sub-plans may take precedence over other provisions
of this Plan with the exception of section 3, but unless otherwise
superseded by the terms of any such sub-plan, the provisions of
this Plan shall govern the operation of such sub-plan.
5. Eligible
Employees
Each Employee of the Company or any
Subsidiary shall be eligible to participate in the Plan, provided
that such Employee:
