Pension Benefit Equalization Plan - Moody's Corp.
PENSION BENEFIT EQUALIZATION PLAN
OF
MOODY'S CORPORATION
I PURPOSE OF THE PLAN
The purpose of the Pension Benefit Equalization Plan of Moody's
Corporation (the "Plan") is to provide a means of equalizing the benefits of
those employees of Moody's Corporation (the "Corporation") and it subsidiaries
participating in the Retirement Account of Moody's Corporation (the "Retirement
Account") whose funded benefits under the Retirement Account are or will be
limited by the application of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), the Internal Revenue Code of 1986, as amended (the
"Code") or any applicable law or regulation. The Plan is intended to be an
"excess benefit plan", as that term is defined in Section 3(36) of ERISA, with
respect to those participants whose benefits under the Retirement Account have
been limited by Section 415 of the Code, and a "top hat" plan meeting the
requirements of Sections 201(2), 301(a)(3), 401(a)(1) and 4021(b)(6) of ERISA
with respect to those participants whose benefits under the Retirement Account
have been limited by Section 401(a)(17) of the Code.
II ADMINISTRATION OF THE PLAN
The Board of Directors ("Board") of the Corporation and the Compensation
and Benefits Committee appointed by the Board (the "Committee") severally (and
not jointly) shall be responsible for the administration of the Plan. The
Committee shall consist of not less than three (3) nor more than seven (7)
members, as may be appointed by the Board from time to time. Any member of the
Committee may resign at will by notice to the Board or be removed at any time
(with or without cause) by the Board.
The members of the Committee may from time to time allocate
responsibilities among themselves and may delegate to any management committee,
employee, director or agent its responsibility to perform any act hereunder,
including without limitation those matters involving the exercise of discretion,
provided that such delegation shall be subject to revocation at any time at its
discretion.
The Committee (and its delegees) shall have the exclusive authority to
interpret the provisions of the Plan and construe all of its terms (including,
without limitation, all disputed and uncertain terms), to adopt, amend, and
rescind rules and regulations for the administration of the Plan, and generally
to conduct and administer the Plan and to make all determinations in connection
with the Plan as may be necessary or advisable. All such actions of the
Committee shall be conclusive and binding upon all Participants, Former
Participants, Vested Former Participants and Surviving Spouses. All deference
permitted by law shall be given to such interpretations, determinations and
actions.
<PAGE> 2
2
Any action to be taken by the Committee shall be taken by a majority of
its members, either at a meeting or by written instrument approved by such
majority in the absence of a meeting. A written resolution or memorandum signed
by one Committee member and the secretary of the Committee shall be sufficient
evidence to any person of any action taken pursuant to the Plan.
Any person, corporation or other entity may serve in more than one
fiduciary capacity under the Plan.
III PARTICIPATION IN THE PLAN
All members of the Retirement Account shall be eligible to participate in
this Plan whenever their benefits under the Retirement Account, as from time to
time in effect, would exceed the limitations on benefits and contributions
imposed by Sections 401, 415 or any other applicable Section of the Code,
calculated from and after September 2, 1974. For purposes of this Plan, benefits
of a participant in this Plan shall be determined as though no provision were
contained in the Retirement Account incorporating limitations imposed by
Sections 401, 415 or any other Section of the Code.
IV EQUALIZED BENEFITS
The Corporation shall pay to each eligible member of the Retirement
Account and his beneficiaries a supplemental pension benefit equal to the
benefit which would have been payable to them under the Retirement Account, as
if no provision were set forth therein incorporating limitations imposed by
Sections 401, 415 or any other applicable Section of the Code, to the extent
that such benefit otherwise payable under the Retirement Account exceeds the
benefit limitations related to the Retirement Account as described in Section
III of this Plan.
Subject to Section XI of this Plan, such supplemental pension benefits
shall be payable in accordance with all of the terms and conditions applicable
to the participant's benefits under the Retirement Account, including whatever
optional benefits he may have elected; provided, however, if an Election (as
defined in Section VIII of this Plan) or a Special Election (as defined in
Section IX of this Plan) has been made and becomes effective prior to the date
when benefits under this Plan would otherwise be payable, the form of payment of
benefits under this Plan shall be in the form so elected pursuant to such
Election or Special Election; provided further, that notwithstanding any
Election or Special Election, if the lump sum value, determined in the same
manner as provided under Section VIII below, of the benefits payable under this
Plan is Ten Thousand Dollars ($10,000) or less at the time such benefits are
payable under this Plan, such benefits shall be payable as a lump sum.
Any portion of the benefits payable under this Plan as a lump sum,
including any amounts payable as a lump sum under Section V, shall be paid sixty
(60) days after the date when payments of the same benefits under this Plan, if
payable in the form of an annuity, would otherwise commence, or as soon as
practicable thereafter, provided the Committee has approved such payment. Any
such lump sum distribution of a participant's or beneficiary's benefits under
this Plan shall fully satisfy all present and future Plan liability with respect
to such participant or beneficiary for such portion or all of such benefits so
distributed. Any portion of the benefits
<PAGE> 3
3
payable under this Plan as an annuity shall commence on the date when annuity
benefits under this Plan would otherwise commence, without regard to any
Election or Special Election.
V PAYMENTS OF BENEFITS IN THE EVENT OF DEATH
In case of the death of the participant, the amount in his account shall,
where applicable and subject to Section XI of this Plan, be distributed to the
surviving beneficiary who has been designated to receive benefits under the
Retirement Account and in the manner which has been elected under the Retirement
Account; provided, however, if an Election (as defined in Section VIII of this
Plan) or a Special Election (as defined in Section IX of this Plan) has been
made and becomes effective prior to the date when benefits under this Plan would
otherwise be payable, the form of payment of benefits payable to such surviving
beneficiary under this Plan shall be in the form so elected pursuant to such
Election or Special Election; provided further, that notwithstanding any
Election or Special Election, if the lump sum value, determined in the same
manner as provided under Section VIII below, of the benefits payable under this
Plan is Ten Thousand Dollars ($10,000) or less at the time such benefits are
payable to such surviving beneficiary under this Plan, such benefits shall be
payable as a lump sum.
If the participant has not designated a beneficiary under the Retirement
Account, or if no such beneficiary is living at the time of the participant's
death, the amount, if any, in the participant's account that is distributable
upon his death shall be distributed to the person or persons who would otherwise
be entitled to receive a distribution of the participant's Retirement Account
benefits. Payment to such person or persons shall completely discharge the Plan
with respect to the amount so paid.
VI CHANGE IN CONTROL
(a) Upon the occurrence of a "Change in Control" of the Corporation, as
such term is defined below,
(i) each participant and beneficiary already receiving benefits
and/or survivor's benefits under the Plan shall receive a lump
sum distribution of their unpaid benefits and/or survivor's
benefits under the Plan in an amount equal to the present
value of such benefits and/or survivor's benefits in full
satisfaction of all present and future Plan liability with
respect to such participant or beneficiary, and
(ii) each vested participant who is not already receiving benefits
under the Plan shall receive (a) a lump sum distribution of
the present value of his accrued benefit under the Plan as of
the date of such Change in Control, within thirty (30) days of
the date of such Change in Control and (b) a lump sum
distribution of the present value of his additional benefit,
if any, accrued under the Plan from the date of the Change in
Control until the date he retires or terminates employment
with the Corporation, within thirty (30) days from the date of
the participant's retirement or termination of employment with
the Corporation.
<PAGE> 4
4
(b) In determining the amount of the lump sum distributions to be paid
under this Section VI, the following actuarial assumptions shall be
used:
(i) the interest rate used shall be the interest rate used by the
Pension Benefit Guaranty Corporation for determining the value
of immediate annuities as of January 1st of either the year of
the occurrence of the Change in Control or the participant's
retirement or termination of employment, whichever is
applicable;
(ii) the 1983 Group Annuity Mortality Table shall be used; and
(iii) it shall be assumed that all participants retired or
terminated employment with the Corporation on the date of the
occurrence of the Change in Control for purposes of
determining the amount of the lump sum distribution to be paid
upon the occurrence of the Change in Control.
(c) For purposes of this Plan, a "Change in Control" shall be deemed to
have occurred if
(i) any "Person," as such term is used in Section 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Corporation, any trustee or
other fiduciary holding securities under an employee benefit
plan of the Corporation, or any corporation owned, directly or
indirectly, by the shareholders of the Corporation in
substantially the same proportions as their ownership of stock
of the Corporation), is or becomes the "Beneficial Owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Corporation representing
twenty percent (20%) or more of the combined voting power of
the Corporation's then outstanding securities;
(ii) during any period of twenty-four (24) months (not including
any period prior to the effective date of this provision),
individuals who at the beginning of such period constitute the
Board, and any new director (other than (1) a director
designated by a person who has entered into an agreement with
the Corporation to effect a transaction described in clause
(A), (C) or (D) of this Section), (2) a director designated by
any Person (including the Corporation) who publicly announces
an intention to take or to consider taking actions (including,
but not limited to, an actual or threatened proxy contest)
which if consummated would constitute a Change in Control or
(3) a director designated by any Person who is the Beneficial
Owner, directly or indirectly, of securities of the
Corporation representing ten percent (10%) or more of the
combined voting power of the Corporation's securities) whose
election by the Board or nomination for election by the
Corporation's shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose
election or nomination
<PAGE> 5
5
for election was previously so approved cease for any reason
to constitute at least a majority thereof;
(iii) the shareholders of the Corporation approve a merger or
consolidation of the Corporation with any other company, other
than (1) a merger or consolidation which would result in the
voting securities of the Corporation outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity) more than fifty percent (50%) of the
combined voting power of the voting securities of the
Corporation or such surviving entity outstanding immediately
after such merger or consolidation and (2) after which no
Person holds twenty percent (20%) or more of the combined
voting power of the then outstanding securities of the
Corporation or such surviving entity; or
(d) the shareholders of the Corporation approve a plan of complete
liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation of all or substantially all of the
Corporation's assets.
VII FUNDING
Benefits payable under this Plan shall not be funded and shall be made out
of the general funds of the Corporation; provided, however, that the Corporation
reserves the right to establish one (1) or more trusts to provide alternate
sources of benefit payments under this Plan, provided further, however, that
upon the occurrence of a "Potential Change in Control" of the Corporation, as
defined below, the appropriate officers of the Corporation are authorized to
make contributions to such a trust fund, established as an alternate source of
benefits payable under the Plan, as are necessary to fund the lump sum payments
to Plan participants required pursuant to Section VI of this Plan in the event
of a Change in Control of the Corporation; provided further, however, that if
payments are made from such trust fund, such payments will satisfy the
Corporation's obligations under this Plan to the extent made from such trust
fund.
(a) In determining the amount of the necessary contribution to the trust
fund in the event of a Potential Change in Control, the following
actuarial assumptions shall be used:
(i) the interest rate used shall be the interest rate used by the
Pension Benefit Guaranty Corporation for determining the value
of immediate annuities as of January 1st of the year of the
occurrence of the Potential Change in Control;
(ii) the 1983 Group Annuity Mortality Table shall be used; and
(iii) it shall be assumed that all participants will retire or
terminate employment with the Corporation as soon as
practicable after the occurrence of the Potential Change in
Control.
<PAGE> 6
6
(b) For the purposes of this Plan, "Potential Change in Control" means:
(i) the Corporation enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control of
the Corporation;
(ii) any person (including the Corporation) publicly announces an
intention to take or to consider taking actions which if
consummated would constitute a Change in Control of the
Corporation;
(iii) any person, other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Corporation
(or a Corporation owned, directly or indirectly, by the
stockholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation),
who is or becomes the beneficial owner, directly or
indirectly, of securities of the Corporation representing nine
and one-half percent (9.5%) or more of the combined voting
power of the Corporation's then outstanding securities,
increases his beneficial ownership of such securities by five
percent (5%) or more over the percentage so owned by such
person; or
(iv) the Board of Directors of the Corporation adopts a resolution
to the effect that, for purposes of this Plan, a Potential
Change in Control of the Corporation has occurred.
VIII ELECTION OF FORM OF PAYMENT
A participant under this Plan may make an election, on a form supplied by
the Committee, to receive all, none, or a specified portion of his benefits
under this Plan in a lump sum and to receive any balance of such benefits in the
form of an annuity (an "Election"); provided, that any such Election shall be
effective for purposes of this Plan only if (i) such participant remains in the
employment of the Corporation or an Affiliate (as defined under Section XI
below), as the case may be, for the full twelve (12) calendar months immediately
following the Election Date of such Election, except in the case of such
participant's death or disability, as provided below, and (ii) such participant
complies with the administrative procedures set forth by the Committee with
respect to the making of the Election. A participant making such Election shall
be subject to the provisions of Section XI of this Plan.
A participant may elect a payment form different than the payment form
previously elected by him under this Section VIII by filing a revised election
form; provided, that any such new Election shall be effective only if the
conditions in clauses (i) and (ii) of the immediately preceding paragraph are
satisfied with respect to such new Election. Any prior Election made by a
participant that has satisfied such conditions remains effective for purposes of
this Plan until such participant has made a new Election that satisfies such
conditions.
A participant making an election under this Section VIII may specify the
portion of his benefits under this Plan to be received in a lump sum as follows:
zero percent (0%), twenty five percent (25%), fifty percent (50%), seventy-five
percent (75%) or one hundred percent (100%).
<PAGE> 7
7
In the event a participant who has made an Election dies or becomes
"totally disabled" (as defined in and for purposes of the long term disability
plan of the Corporation as in effect from time to time) while employed by the
Corporation or an Affiliate and such death or total disability occurs during the
twelve (12) calendar month period immediately following the Election Date of
such Election, the condition that such participant remain employed with the
Corporation or an Affiliate (as defined in Section XI) for such twelve (12)
month period shall be deemed to be satisfied and such Election shall be
effective with respect to benefits payable to such participant or participant's
beneficiaries under this Plan.
The amount of any portion of the benefits payable as a lump sum under this
Section VIII will equal the present value of such portion of such benefits, and
the present value shall be determined (i) based on a discount rate equal to the
average of eighty-five percent (85%) of the fifteen (15) year non-callable U.S.
Treasury bond yields as of the close of business on the last business day of
each of the three (3) months immediately preceding the date the annuity value is
determined and (ii) using the 1983 Group Annuity Mortality Table.
"Election Date" for purposes of this Plan means the date that a properly
completed election form with respect to an Election or Special Election (as
defined in Section X below) is received by the Corporate Assistant Treasurer of
the Corporation.
IX SPECIAL ELECTION OF FORM OF PAYMENT
Any Participant who, as of the Effective Time, had made a valid Special
Election in accordance with the procedures set forth in Section X of the Pension
Benefit Equalization Plan of The Dun and Bradstreet Corporation, will be
entitled to receive all, none, or his or her specified percentages of his or her
Retirement Benefit under the Plan in a lump sum and to receive the balance of
such Retirement Benefit in the form of an annuity. (A list of such Participants
is annexed hereto as Schedule A.) The amount of any portion of a Participant's
or a Vested Former Participant's Retirement Benefit payable as a lump sum under
this Section 4.6 will equal the present value of such portion of the Retirement
Benefit, and such present value shall be determined (A) based on a discount rate
equal to the average of eighty-five percent (85%) of the fifteen (15) year
non-callable U.S. Treasury bond yields as of the close of business on the last
business day of each of the three (3) months immediately preceding the date the
annuity value is determined, and (B) using the 1993 Group Annuity Mortality
Table.
In the event a participant who has made a Special Election dies or becomes
"totally disabled" (as defined in the long term disability plan of the
Corporation as in effect from time to time) while employed by the Corporation or
an Affiliate (as defined in Section XI below) and such death or total disability
occurs during the one (1) calendar month period immediately following the
Election Date of such Special Election, the participant shall, for purposes of
this Section IX, be deemed to have been employed with the Corporation or an
Affiliate (as defined in Section XI below), as the case may be, for such one (1)
calendar month period, and such Special Election shall be effective with respect
to benefits payable to such participant or participant's beneficiaries under
this Plan.
The amount of any portion of the benefits payable as a lump sum under this
Section IX will equal the present value of such portion of such benefits, and
the present value shall be
<PAGE> 8
8
determined (i) based on a discount rate equal to the average of eighty-five
percent (85%) of the fifteen (15) year non-callable U.S. Treasury bond yields as
of the close of business on the last business day of each of the three (3)
months immediately preceding the date the annuity value is determined and (ii)
using the 1983 Group Annuity Mortality Table.
X INDEMNIFICATION
Subject to certain conditions as provided below, the Corporation shall
indemnify each participant or beneficiary who receives any benefits under this
Plan in the form of an annuity for any interest and penalties that may be
assessed by the U.S. Internal Revenue Service (the "Service") with respect to
U.S. federal income tax on such benefits (payable under the Plan in the form of
an annuity) upon final settlement or judgment with respect to any such
assessment in favor of the Service, provided the basis for the assessment is
that the amendment of this Plan to provide for the Election or the Special
Election causes the participant or the beneficiary, as the case may be, to be
treated as being in constructive receipt of such benefits prior to the time when
such benefits are actually payable under the Plan.
In case any such assessment shall be made against a participant or
beneficiary, such participant or beneficiary, as the case may be (the
"indemnified party"), shall promptly notify the Corporation's Treasurer in
writing, and the Corporation, upon request of such indemnified party, shall
select and retain an accountant or legal counsel reasonably satisfactory to the
indemnified party to represent the indemnified party in connection with such
assessment and shall pay the fees and expenses of such accountant or legal
counsel related to such representation, and the Corporation shall have the right
to determine how and when such assessment by the Service should be settled,
litigated or appealed. In connection with any such assessment, any indemnified
party shall have the right to retain his own accountant or legal counsel, but
the fees and expenses of such accountant or legal counsel shall be at the
expense of such indemnified party unless the Corporation and the indemnified
party shall have mutually agreed to the retention of such accountant or legal
counsel.
The Corporation shall not be liable to a participant or beneficiary for
any payments under this Section X with respect to any assessment described in
the second preceding paragraph if such participant or beneficiary against whom
such assessment is made has not notified or allowed the Corporation to
participate with respect to such assessment in the manner described above or,
following demand by the Corporation, has not made the deposit to avoid
additional interest or penalties as described below, or has agreed to, or
otherwise settled with the Service with respect to, such assessment without the
Corporation's written consent, provided, however, (i) if such assessment is
settled with such consent or if there is a final judgment for the Service, (ii)
the Corporation has been notified and allowed to participate in the manner as
provided above, and (iii) such participant or beneficiary has made any required
deposit to avoid additional interest or penalties as described below, the
Corporation agrees to indemnify the indemnified party to the extent set forth in
this Section X.
In the event a final settlement or judgment with respect to an assessment
as described under this Section X has been made against a participant or
beneficiary, such participant or beneficiary may elect to receive a portion or
all of his benefits that is otherwise payable as an annuity under the Plan in
the form of a lump sum in accordance with procedures as the
<PAGE> 9
9
Committee may set forth, and such lump sum distribution will be made as soon as
practicable after any such election. At the time such assessment is made against
such participant or beneficiary (the "assessed party") and prior to any final
settlement or judgement with respect to such assessment, if so directed by the
Corporation, such assessed party shall, as a condition to receiving an indemnity
under this Section X, as soon as practicable after notification of such
assessment make a deposit with the Service to avoid any additional interest or
penalties with respect to such assessment and, upon the request of such assessed
party, the Corporation shall lend, or arrange for the lending to, such assessed
party a portion of his remaining benefit under the Plan, not to exceed the lump
sum value of such benefit under the Plan, determined using the actuarial
assumptions set forth in Section VIII, solely for purposes of providing the
assessed party with funds to make a deposit with the Service to avoid any
additional interest or penalties with respect to such assessment.
XI LIMITATIONS ON PAYMENT OF BENEFITS
If a participant under this Plan has, at any time, made an Election or a
Special Election to have all or a portion of the benefits under this Plan
distributed in a lump sum, such participant shall be subject to this Section XI.
(a) Notwithstanding any other provision of this Plan to the contrary, no
benefits or further benefits, as the case may be, shall be paid to a
participant who is subject to this Section XI, if the Committee
reasonably determines that such participant has:
(i) To the detriment of the Corporation or any Affiliate, directly
or indirectly acquired, without the prior written consent of
the Committee, an interest in any other company, firm,
association, or organization (other than an investment
interest of less than one percent (1%) in a publicly-owned
company or organization), the business of which is in direct
competition with the business (present or future) of the
Corporation or any of its Affiliates;
(ii) To the detriment of the Corporation or any Affiliate, directly
or indirectly competed with the Corporation or any Affiliate
as an owner, employee, partner, director or contractor of a
business, in a field of business activity in which the
participant has been primarily engaged on behalf of the
Corporation or any Affiliate or in which he has considerable
knowledge as a result of his employment by the Corporation or
any Affiliate, either for his own benefit or with any person
other than the Corporation or any Affiliate, without the prior
written consent of the Committee; or
(iii) Been discharged from employment with the Corporation or any
Affiliate for "Cause."
An "Affiliate" for purposes of this Plan means any corporation,
partnership, division or other organization controlling, controlled by or under
common control with the Corporation or any joint venture entered into by the
Corporation.
<PAGE> 10
10
(b) "Cause" for purposes of this Section XI shall include the occurrence
of any of the following events or such other dishonest or disloyal
act or omission as the Committee determines to be "cause":
(i) The participant has misappropriated any funds or property of
the Corporation or any Affiliate;
(ii) The participant has, without the prior knowledge or written
consent of the Committee, obtained personal profit as a result
of any transaction by a third party with the Corporation or
any Affiliate; or
(iii) The participant has sold or otherwise imparted to any person,
firm, or corporation the names of the customers of the
Corporation or any Affiliate or any confidential records,
data, formulae, specifications and other trade secrets or
other information of value to the Corporation or any Affiliate
derived by his or her association with the Corporation or any
Affiliate.
In any case described in this Section XI, the participant shall be given
prior written notice that no benefits or no further benefits, as the case may
be, will be paid to such participant. Such written notice shall specify the
particular act(s), or failures to act, on the basis of which the decision to
terminate his benefits has been made.
Notwithstanding any other provision of this Plan to the contrary, a
participant who receives in a lump sum any portion of his benefits under this
Plan pursuant to an Election or Special Election shall receive such lump sum
portion of his benefits subject to the condition that if such participant
engages in any of the acts described in clause (i) or (ii) of this Section XI,
then such participant shall, within sixty (60) days after written notice by the
Corporation, repay to the Corporation the amount described in the immediately
following sentence. The amount to be repaid shall equal the amount, as
determined by the Committee, of the participant's lump sum benefit paid under
this Plan to which such participant would not have been entitled, if such lump
sum benefit had instead been payable in the form of an annuity under this Plan
and such annuity payments were subject to the provisions of this Section XI.
XII MISCELLANEOUS
This Plan may be terminated at any time by the Board, in which event the
rights of participants to their accrued benefits shall become nonforfeitable.
This Plan may also be amended at any time by the Board, except that no such
amendment shall deprive any participant of his benefits accrued at the time of
such amendment.
No right to payment or any other interest under this Plan may be
alienated, sold, transferred, pledged, assigned, or made subject to attachment,
execution, or levy of any kind.
Nothing in this Plan shall be construed as giving any employee the right
to be retained in the employ of the Corporation. The Corporation expressly
reserves the right to dismiss any employee at any time without regard to the
effect which such dismissal might have upon him under the Plan.
<PAGE> 11
11
This Plan shall be construed, administered and enforced according to the
laws of the State of New York.
XIII EFFECTIVE DATE
This Plan shall be effective as of September 30, 2000, upon its adoption
by the Board of Directors of Moody's Corporation.