Separation Agreement and General Release - Moody's Investors Service Inc. and Donald Noe
SEPARATION AGREEMENT AND GENERAL RELEASE
AGREEMENT made as of April 10, 2001 by and between Donald Noe ("Employee," "You"
or "Your") and Moody's Investors Service, Inc. (the "Company" or "We"). In
consideration of the promises and conditions set forth below, and intending to
be legally bound, you and the Company agree as follows:
1. Resignation from Employment:
(a) The Company hereby accepts your April 10, 2001 resignation from your
employment with the Company, effective on May 15, 2001. You agree that,
effective as of the resignation date, you were relieved of all management and
operational responsibilities and authority to act on behalf of the Company, but
you will fully cooperate with the Company to provide such information or
assistance as it may deem necessary to ensure an orderly transition of your
former duties. You will continue to receive salary and applicable benefits
through the May 15, 2001 effective date.
(b) You acknowledge that the Company will be issuing a public statement and an
internal announcement concerning your resignation and its surrounding
circumstances in content substantially similar to the draft statement attached
as Appendix "A," and you agree that the Waiver and Release set forth in
paragraph 5 herein includes, inter alia, your release of any claim you might
have arising out of or related to the issuance of Exhibit A or of any statements
substantially similar in content to it.
(c) During the Salary Continuation Period and through the duration of the
investigation being conducted by the United States Department of Justice ("DOJ")
and any litigation or regulatory proceeding arising out of the DOJ
investigation, the facts underlying that investigation or any facts arising out
of, or relating to, your employment, you will be reasonably available to consult
on matters, and will cooperate fully with the Company with respect to any
claims, litigations or investigations, relating to the Company (including
investigations which relate directly or indirectly to Employee's activities at
the Company) by providing truthful and complete information and making yourself
available to provide testimony whenever requested to do so by the Company.
2. Severance Benefit: If you sign this Agreement and comply with its terms, we
will provide you the following severance benefits:
(a) We will continue to pay you salary and provide certain other benefits in
accordance with and pursuant to the terms and conditions of The Moody's Career
Transition Plan ("CTP"); provided, however, that the period of your Salary
Continuation will extend from the effective date of your resignation until the
last date of salary continuation set forth in Appendix "B" (the "Salary
Continuation Period"). In lieu of the outplacement services provided for in
Appendix B, you may elect to receive a payment of $20,000, less deductions.
(b) We will pay you an amount representing 1/3 of your 2001 Target Bonus, less
applicable deductions, within 10 business days after the effective date of your
resignation. You acknowledge that the severance benefits described above include
compensation and benefits in addition to what you would otherwise be entitled to
receive.
3. Undertaking: Your receipt of the severance benefits specified above is
subject to your signing the letter of undertaking in the form annexed hereto as
Appendix "C" (the "Undertaking").
4. Company Property: You acknowledge that you will not retain or remove (and if
you had removed, you will promptly return) any of the Company's or Dun &
Bradstreet's property, documents, information or materials, including, but not
limited to, all files, records, proposals, drawings, specifications, or other
documents, and all computer software, software applications, files, data bases,
and the like relating to the business of the Company or Dun & Bradstreet
(whether confidential, proprietary or otherwise), and you agree to deliver to
the Company
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forthwith any such property currently in your possession or custody or under
your control.
5. Waiver and Release:
(a) In exchange for the promises and commitments made to you by the Company in
this Agreement and the Undertaking, and as a material inducement for such
promises and commitments, 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 have ever
had or may in the future have based upon any matter, cause or thing through the
date of this Agreement, including but not limited to those claims arising out of
your employment with the Company or termination of that employment, except for
payments and rights provided for in this Agreement, for vested rights or
benefits you may have under any applicable Company benefit plan (or any benefit
plan of a predecessor or related entity), for any rights you may have to claim
indemnification (either under the Company's by-laws or under the provisions of
Delaware General Corporation Law) or to claim coverage under any applicable
liability insurance policy relating to your acts while employed by the Company.
This WAIVER and RELEASE includes, but is not limited to, any claim for unlawful
discrimination under Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act of 1990, 42 U.S.C. Section 1981, the Worker
Adjustment and Retraining Notification Act ("WARN"), and 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. To the fullest extent permitted
by law, you PROMISE NOT TO SUE or bring any charges, complaints or lawsuits in
the future related to the claims you are waiving by this Agreement against the
Company and/or related persons, individually or as a member of a class, and you
will immediately withdraw with prejudice any such charges, complaints and
lawsuits that you began before signing this Agreement.
(b) If you violate this Agreement by bringing or maintaining any charges,
claims, grievances, or lawsuits contrary to this Paragraph 5, you will pay all
costs and expenses of the Company and/or related persons in defending against
such charges, claims or actions brought by you or on your behalf, including
reasonable attorneys' fees, and will be required to give back, at the Company's
sole discretion, the value of anything paid by the Company in exchange for this
Agreement.
(c) As referred to in this Agreement, "the Company and/or related persons"
includes the Company, its parents, subsidiaries, affiliates and divisions, their
respective successors and assigns, and all of their past and present directors,
officers, representatives, attorneys, consultants, employees, whether as
individuals or in their official capacity, and the respective heirs and personal
representatives of any of them.
(d) This WAIVER, RELEASE and PROMISE NOT TO SUE is binding on you, your heirs,
legal representatives and assigns.
6. Non-disparagement: You will not disparage, denigrate or defame the Company or
any related person, or any of their business products or services.
7. Non-Disclosure: You agree that you will not directly or indirectly take,
publish, use or disclose any Confidential Information, to any person, except as
may be required by law, provided that you have first given prompt written notice
to the Company of such legal requirement in enough time for it to obtain an
appropriate protective order or other remedy. For purposes of this Agreement,
"Confidential Information" shall include, but not be limited to, all past,
present or future business or trade secrets, know-how and other information,
whether or not reduced to writing, that is disclosed to or acquired by you
during or in the course of your employment that relates to the business of the
Company and is not generally available to the public or generally known in the
industry in which the Company is, or may become engaged, including, without
limitation, any business, technical, marketing, financial or other information
relating to the Company, regardless of its form, means of communication or
source, and any formulas, patterns, devices, inventions, methods, techniques,
software programs, source codes, reports, specifications, designs, technology or
processes, or combinations thereof, or compilations of information, records and
specification which are owned by the Company and any other information of the
Company relating to its services and products (offered or to be offered)
including, among other things, information relating to research, development,
marketing, pricing, clients and prospective clients, business methods,
strategies, financial condition, personnel, plans, policies or prospects.
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8. Non-Competition; Non-Solicitation:
(a) You agree that during the Salary Continuation Period, you will not become a
stockholder (unless such stock is listed on a national securities exchange or
traded on a daily basis in the over-the-counter market and your ownership
interest is not in excess of 2% of the company whose shares are being
purchased), employee, officer, director or consultant of or to a corporation, or
a member or an employee of or a consultant to a partnership or any other
business or firm, which competes with any of the businesses owned or operated by
the Company; nor if you become associated with a company, partnership or
individual which company, partnership or individual acts as a consultant to
businesses in competition with the Company will you provide services to such
competing businesses. The restrictions contained in this paragraph shall apply
whether or not you accept any form of compensation from such competing entity or
consultant.
(b) You also agree that during the Salary Continuation Period, you will not (i)
directly or indirectly, either personally or on behalf of any other person or
entity (whether as director, stockholder, owner, partner, consultant, principal,
employee, agent or otherwise) solicit or entice any customers of the Company or
any businesses or organizations identified during your employment as a
prospective customer of the Company, to become customers of any business entity
which competes with any of the businesses owned or operated by the Company, or
(ii) recruit, solicit, employ or attempt to employ any employee of the Company
to become an employee of any business or entity.
(c) For purposes of this Paragraph 8, the Company's competitors are Standard &
Poor's Rating Services, Fitch IBCA, Inc., A.M. Best Company, and any of their
subsidiaries and affiliates.
(d) You acknowledge that the restrictions contained in this Paragraph 8 are
appropriate and necessary for the protection of the business and goodwill of the
Company and are considered by you to be reasonable for such purpose.
9. No Other Assurances: You acknowledge that in deciding to sign this Agreement
you have not relied on any promises or commitments, whether spoken or in
writing, made to you by any Company representative, except for what is expressly
stated in this Agreement, the CTP and the Undertaking. This Agreement, the CTP
or the Undertaking constitute the entire understanding and agreement between you
and the Company, except as may otherwise be provided herein, and replace and
cancel all previous agreements and commitments, whether spoken or written, with
respect to the subject matter thereof. In the event of a conflict between the
language of the CTP and this Agreement, this Agreement shall be controlling.
10. Effect of Non-Enforcement: If any term, provision, covenant or restriction
contained in this Agreement, or any part thereof, is held by a court of
competent jurisdiction or any foreign, federal, state, country or local
government or any other governmental regulatory or administrative agency or
authority or arbitration panel to be invalid, void, unenforceable or against
public policy for any reason, the remainder of the terms, provisions, covenants
and restrictions of the Agreement shall remain in full force and effect.
11. Governing Law; Jurisdiction; Jury Trial Waiver: This Agreement shall be
construed, governed by and enforced in accordance with the laws of the State of
New York, without regard to its conflicts of law principles. Any action arising
out of or relating to this Agreement may, at the election of the Company, be
brought and prosecuted only in that State, and in the event of such election,
you consent to the jurisdiction and venue of any courts of or in such
jurisdiction and waive trial by jury.
12. Modification in Writing: This Agreement cannot be changed or modified except
by written agreement signed by both you and an authorized Company
representative.
13. Joint Preparation: The language of all parts of the provisions of this
Agreement shall in all cases be construed as a whole, extending to it its fair
meaning, and not strictly for or against any of the parties. The parties agree
that, in consultation with their attorneys, they have jointly prepared and
approved the language of the provisions of this Agreement and that should any
dispute arise concerning the interpretation of any provision hereof, neither
party shall be deemed the drafter nor shall any such language be presumptively
construed in favor of or against either party.
14. No Admission of Liability: This Agreement does not constitute an admission
of any unlawful discrimination, wrongful acts or liability of any kind by the
Company and/or related persons, or anyone acting under their supervision or on
their behalf. This Agreement does not constitute an admission of any wrongful
conduct of any kind by you. This Agreement may not be used or introduced as
evidence in any legal proceeding, except to enforce its terms.
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15. Employee Acknowledgement: In signing this Agreement, you acknowledge and
adopt the following declaration:
I Donald Noe, acknowledge that I have carefully read and considered this
Agreement; that I have been given the opportunity to review this Agreement with
legal or other advisors of my choice; that I understand that by signing this
Agreement I RELEASE legal claims and WAIVE certain rights; and that I freely and
voluntarily consent to all terms of this Agreement with full understanding of
what they mean.
DONALD NOE MOODY'S INVESTORS SERVICE, INC.
_____________________________ By:____________________________________
John Rutherfurd,
Date:_________________________ President
Appendix A
The company also announced today that Donald E. Noe, Senior Vice President -
Global Ratings & Research, Kenneth J.H. Pinkes, Senior Vice President and Chief
Credit Officer, and M. Douglas Watson, Jr., Group Managing Director, Public
Finance, had submitted their resignations and the company has accepted them
effective May 15, 2001.
The company emphasized that none of the three individuals resigning today
engaged in destruction of documents or any obstruction of justice referred to in
the company's plea agreement with the Justice Department. However, issues arose
regarding the timeliness of the executives' reporting of information relating to
the conduct by another employee underlying the government's charges.
Mr. Rutherfurd said, "Don, Ken and Doug each have provided long and valuable
service to the company. We appreciate that they recognize their resignations are
in the best interest of Moody's, and help the company to put this behind us. We
are grateful for their service to the company and wish them well in the future."
Appendix B
Donald Noe
Termination Date: May 15, 2001
Salary Continuation Period.:
May 16, 2001 - February 15, 2003
Last day of Salary Continuation:
February 15, 2003
Welfare Benefit Continuation Period:
May 16, 2001 - February 15, 2003
Outplacement Services: As provided by the Company to a
maximum of $20,000
The description of benefits contained in this Appendix B is only a summary and
is subject to the terms and conditions of the CTP and this Agreement.
Stock Options: Employee may exercise any vested stock options which he may have
pursuant to and in accordance with the terms and conditions of the CTP and the
applicable stock option plan which, inter alia, entitle him to exercise his
vested stock options up to May 15, 2001.
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Appendix C
Moody's Investors Service, Inc.
99 Church Street, New York, NY 10007
Legal Department
April __, 2001
Donald Noe
New York, New York
Re: Undertaking For Reasonable Attorneys' Fees:
Dear Mr. Noe:
Moody's Investors Service, Inc. ("Moody's") has made a determination at this
point to advance to you your reasonable attorneys' fees actually and necessarily
incurred by you, on account of any litigation, claim, or official investigation
arising out of the United States Department of Justice ("DOJ") investigation,
the facts underlying that investigation, or any facts arising out of, or
relating to, your employment (the "Proceedings"). These attorneys' fees are
being paid to you only on the terms set forth in this letter and the Separation
Agreement and General Release dated April 10, 2001 between Moody's and you, and
pending a later determination by Moody's that you should be indemnified for such
attorney's fees. In order to indemnify you for such attorney's fees, Moody's
must find that:
a) No final judgment or other final adjudication by a court or government agency
adverse to you establishes that your acts were in violation of the law,
committed in bad faith, or were the result of active or deliberate dishonesty,
or that you personally gained in fact a financial profit or other advantage to
which you were not legally entitled and that you otherwise are eligible for
indemnification under applicable by-laws or law. In order for Moody's to
continue to pay your reasonable attorneys' fees, it is necessary that you
promise to repay such monies, in case you are ultimately found not to be in
compliance with paragraph a) above in connection with the Proceedings, and/or
you fail to continue to provide truthful and complete information to the Company
at all times in connection with the Proceedings. Your signature on this letter
will constitute your promise to repay if required.
If the foregoing is acceptable to you, please indicate by signing in the space
provided below.
Sincerely yours,
John J. Goggins
Senior Vice President and General Counsel
On Behalf of Moody's Investors Service, Inc.
ACCEPTED TO AND AGREED:
Donald Noe
Dated: April 10, 2001
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