Waiver and Release Agreement
This
Waiver and Release Agreement (“Release”), undersigned and dated as of January 5,
2010, is entered into by and between NorthWestern Corporation d/b/a NorthWestern
Energy, a Delaware corporation with its principal place of business located at
0000 Xxxx 00xx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx, 00000, its officers, agents,
directors, employees, successors, subsidiaries, insurers, parents and/or
affiliated companies, and assigns (“NorthWestern” or “Company”) and Xxxxxx X.
Xxxxxxxx (“Xxxxxxxx” or “You”), a South Dakota resident, to settle all issues in
connection with the severance of Xxxxxxxx’x employment relationship with the
Company. NorthWestern and Xxxxxxxx are collectively referred to herein as the
“Parties.”
NOW,
THEREFORE, in consideration of the foregoing premises and further in
consideration of the mutual covenants, conditions, and agreements contained in
this Release and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. Benefits Payable. In
exchange for this Release, Xxxxxxxx will receive a severance payment of
$285,000.00 (Two Hundred Eighty Five Thousand Dollars), less all applicable
taxes, consistent with the Company’s Executive Severance Plan, to be paid in the
next regularly scheduled payroll cycle occurring no more than 15 business days
after January 5, 2010.
In
addition to this severance payment, Xxxxxxxx will be eligible to receive for a
2009 incentive award in accordance with the terms of the 2009 Annual Incentive
Plan, and paid at the same time as other participants in the Plan are paid, but
in any event, no later than March 15, 2010. Such award will be calculated
assuming a personal performance factor of 100 percent and an individual
performance rating of at least “meets expectations”. Such an award
may be subject to taxes.
Xxxxxxxx
explicitly waives any right to receive shares of NorthWestern common stock after
January 5, 2010.
With
respect to COBRA continuation premiums, for the 12 (twelve)-month period
starting February 1, 2010, and continuing until February 1, 2011, NorthWestern
will continue to pay the same percentage of premiums as it was paying for group
medical and other group insurance coverage subject to COBRA continuation
immediately prior to the date of separation from the Company. For the same
12(twelve) month period, Xxxxxxxx will pay the employee portion of such COBRA
premiums and will be reimbursed by the Company for each COBRA premium she pays
in the first regularly scheduled pay period of each applicable month, less all
applicable taxes. Notwithstanding the foregoing, Xxxxxxxx shall no longer be
entitled to such reimbursement of COBRA premiums under this Release if she
becomes eligible for medical coverage under another employer’s group medical
plan(s).
Waiver & Release Agreement Initials MEC
Page 1 of
9
Outplacement
services with a service provider of Xxxxxxxx’x choice will be provided up to
$12,000.00 (Twelve Thousand Dollars) during the 12 (twelve) month period
following the date employment has ended. As additional outplacement
services, Xxxxxxxx may receive reimbursement for up to $7,500.00 (Seven Thousand
Five Hundred Dollars) for the actual cost of packing and/or moving her personal
belongings. Any payments for such outplacement services, including
the costs of packing and/or moving of personal belongings, will be grossed up
for tax purposes, according to normal NorthWestern policies.
In
addition to these outplacement services, Xxxxxxxx will have access to the
equivalent of 5 (five) one-hour coaching sessions with Thrive consultants Xxxxx
Xxxxxx and/or XxxxXxxxx Xxxxxxxx between January 5, 2010 and February 26,
2010.
Xxxxxxxx
will retain such interests as she may have as a former employee of NorthWestern
in any NorthWestern benefit plans, including, but not limited to, any pension or
401(k) plans. Xxxxxxxx shall further retain such rights as she may have to elect
to continue certain medical and other benefits under COBRA and comparable state
laws or as a retiree.
Xxxxxxxx
will retain all rights and claims she has under the Indemnification Agreement
between the Parties dated November 16, 2009, which agreement shall remain in
full force and effect in accordance with its terms.
2. Employment Severance.
Xxxxxxxx’x last date of employment was January 5, 2010 (the “Severance Date”),
and she is signing this Waiver and Release, effective after her employment
ended.
3. Claims Released. In
exchange for the benefits payable, Xxxxxxxx, for herself and for her heirs,
executors, administrators, successors, assigns, and trustees, irrevocably and
unconditionally covenants not to xxx and releases NorthWestern; its current,
former, and future parent, subsidiary, and related companies; its current and
former directors, trustees, officers, employees, agents, attorneys, successors,
and assigns; and all persons acting by, through, under, or in concert with any
of them (the “Released Parties”) from all actions, causes of action, suits,
debts, charges, complaints, claims, obligations, promises, contracts,
agreements, controversies, damages, judgments, rights, costs, losses, expenses,
liabilities, and demands of any nature, whether known or unknown, whether actual
or potential, whether specifically mentioned herein or not, in law or equity,
whether statutory or common law, whether federal, state, local, or otherwise, as
a result of any act that has occurred, including, without limitation, any claim
that Xxxxxxxx may have arising out of or related to her employment with or
separation from NorthWestern (“Claims”), except Xxxxxxxx is not releasing any
former employee whose employment was terminated during May 2009 for any claims
arising after the date of his or her termination of employment.
Waiver & Release
Agreement Initials MEC
Page 2 of
9
Xxxxxxxx
is releasing the following claims which include, without limitation, claims
under her original employment terms, which are canceled as of the Severance Date
with no further benefits or payments to be provided thereunder: any
and all claims under the WARN Act, as amended; any and all claims of wrongful
discharge or breach of contract; any and all claims for equitable estoppel,
except as provided in Section 1 above; any and all claims for employee benefits,
including, but not limited to, any and all claims under the Employee Retirement
Income Security Act of 1974, as amended; any and all claims of employment
discrimination on any basis, including, but not limited to, any and all claims
under Title VII of the Civil Rights Act of 1964, as amended, under the Age
Discrimination in Employment Act of 1967, as amended, under the Older Worker’s
Benefit Act, under the Civil Rights Act of 1866, 42 U.S.C. § 1981, under
the Civil Rights Act of 1991, as amended, under the Americans with Disabilities
Act of 1990, as amended, under the Family and Medical Leave Act of 1993, under
the Immigration Reform and Control Act of 1986, as amended; any and all claims
under the Fair Labor Standards Act, as amended, 29 U.S.C. § 201, et seq.; any and all
claims under any federal, state, or local law enforcing express or implied
employment contracts or requiring an employer to deal with employees fairly or
in good faith; any claim filed in NorthWestern’s bankruptcy proceedings; any and
all claims under any other federal, state, or local labor law, civil rights law,
fair employment practices law, or human rights law; any and all claims of
slander, libel, defamation, invasion of privacy, intentional or negligent
infliction of emotional distress, intentional or negligent misrepresentation,
fraud, or prima facie tort; and any and all claims for monetary recovery,
including, but not limited to, back pay, front pay, liquidated, compensatory,
and punitive damages, and attorney fees, expert fees, disbursements, and costs
against the Released Parties that Xxxxxxxx ever had, now has, or hereafter can,
shall, or may have for, upon, or by reason of any matter, cause, or thing
whatsoever from the beginning of time to the date of Xxxxxxxx’x execution of
this Release. Xxxxxxxx will never file any lawsuit, complaint, or claim
involving such released matters. Xxxxxxxx represents that she has not filed any
administrative charge of discrimination to date. However, notwithstanding any
other provision herein, Xxxxxxxx acknowledges that this waiver of claims only
applies to claims she is legally permitted to release and, as such, does not
preclude her from filing a charge of discrimination, though she will not be able
to recover any damages if she does file such a charge or if she has filed such a
charge.
Notwithstanding
any provision to the contrary, this subsection shall not apply to the
following: (a) challenges to the ADEA release to the extent, if
any, prohibited by applicable law; (b) claims to enforce Xxxxxxxx’x rights
under this Release; (c) claims that cannot legally be released under
applicable law; (d) to claims by Xxxxxxxx for benefits under benefit plans
in which she maintains an interest as a former employee of NorthWestern;
(e) all rights or claims of contribution and of indemnification Xxxxxxxx
may have under the Indemnification Agreement between NorthWestern and Xxxxxxxx
dated November 16, 2009; (f) all additional or other rights and claims of
contribution and indemnification Xxxxxxxx may have whether under this Release,
under NorthWestern’s Bylaws, by common law, by statute, or otherwise; and
(g) all rights or claims Xxxxxxxx may have under any policies of directors
and officers liability insurance.
Waiver & Release Agreement Initials MEC
Page 3 of
9
NorthWestern
hereby releases Xxxxxxxx and her heirs, successors, or assigns from all actions,
causes of action, suits, debts, charges, complaints, claims, obligations,
promises, contracts, agreements, controversies, damages, judgments, rights,
costs, losses, expenses, attorney fees, liabilities, and demands of any nature,
whether known or unknown, whether actual or potential, whether specifically
mentioned herein or not, in law or equity, whether statutory or common law,
whether federal, state, local, or otherwise, as a result of any act that has
occurred (all hereinafter referred to as “NorthWestern Claims”). NorthWestern
will never file any lawsuit, complaint, or claim based on any NorthWestern
Claims, and NorthWestern will withdraw with prejudice any such lawsuit.
Notwithstanding any provision to the contrary, this subsection shall not apply
to (a) claims to enforce NorthWestern’s rights under this Release or
(b) claims that Xxxxxxxx has committed fraud or willful
misconduct.
4. No Admission of
Liability. This Release is not an admission of guilt or wrongdoing by any
released party. Xxxxxxxx acknowledges that she has not suffered any age or other
discrimination or wrongful treatment by any released party.
5. Consideration of
Release. NorthWestern has advised Xxxxxxxx, in writing, to take this
Release home, read it, and carefully consider all of its terms before signing
it. NorthWestern has offered Xxxxxxxx 21 (twenty-one) days in which to consider
this Release. Xxxxxxxx waives any right she may have to additional time beyond
this consideration period within which to consider this Release. Xxxxxxxx
understands that she has 7
(seven)
days after signing this Release to revoke it. If Xxxxxxxx chooses to revoke this
Release, she agrees to provide such revocation in writing, accompanied by any
sums received pursuant to this Release, to be received by one of NorthWestern’s
internal legal counsel by the end of the 7 (seven) day period. NorthWestern, in
writing, advised Xxxxxxxx to discuss this Release with her own attorney (at
Xxxxxxxx’x own expense) during this period if Xxxxxxxx wished to do so. Xxxxxxxx
has carefully read this Release, fully understands what it means, and is
entering into it voluntarily. Xxxxxxxx is receiving valuable consideration in
exchange for her execution of this Release that she would not otherwise be
entitled to receive.
6. Company Property.
Xxxxxxxx warrants and represents that she has returned to NorthWestern, by
January 5, 2010, all files, memoranda, documents, records, copies of the
foregoing, credit cards, security-related equipment such as keys or key cards.
and any other property of NorthWestern or its affiliates in her
possession. Copies of Agreements between Xxxxxxxx and NorthWestern
are the property of both Xxxxxxxx and NorthWestern, and Xxxxxxxx may retain such
copies. Consistent with the Consulting Agreement executed between the
parties, Xxxxxxxx may retain her computer and Blackberry during the term of the
Consulting Agreement and will return that property according to the Consulting
Agreement.
7. False Claims Representations
and Promises. Xxxxxxxx has disclosed to NorthWestern any information she
has concerning any conduct involving NorthWestern or any affiliate that she has
any reason to believe may be unlawful or that involves any false claims to the
United States. Xxxxxxxx promises to cooperate fully in any investigation
NorthWestern or any affiliate undertakes into matters occurring during her
employment with NorthWestern or any affiliate. Xxxxxxxx understands that nothing
in this Release prevents her from cooperating with any United States government
investigation. In addition, to the fullest extent permitted by law, Xxxxxxxx
hereby irrevocably assigns to the United States government any right she may
have to any proceeds or awards in connection with any false claims proceedings
against NorthWestern or any affiliate.
Waiver & Release Agreement Initials MEC
Page 4 of
9
8. Nondisclosure, Return of
Proprietary Information, and Inventions and Patents. NorthWestern and
Xxxxxxxx agree that during her employment with NorthWestern, Xxxxxxxx has
received and become acquainted with confidential, proprietary, and trade secret
information of NorthWestern, including, but not limited to, information
regarding NorthWestern business programs, plans, and strategies; finances;
customers and prospective customers; suppliers and vendors; marketing plans and
results; personnel matters regarding NorthWestern employees, officers,
directors, and owners; manners of operation and services provided; negotiating
positions and strategies; legal arguments, theories, claims, investigations, and
audits; or information regarding the operation and business of NorthWestern.
Xxxxxxxx acknowledges that such information has been developed or acquired by
NorthWestern through the expenditure of substantial time, effort, and money,
that such information provides NorthWestern with strategic and business
advantages over others who do not know or use such information, and that
NorthWestern has implemented specific policies and practices to keep such
information secret. This does not preclude Xxxxxxxx from making statements that
are required by legal process, applicable law, or a regulatory agency with
jurisdiction over her.
The
Company agrees that Xxxxxxxx has not to date, and Xxxxxxxx agrees that she will
not at any time thereafter, directly or indirectly:
|
a.
|
Use
for her own purpose or for the benefit of any person or entity other than
NorthWestern, or otherwise disclose or permit others to obtain access to,
any proprietary or confidential information unless such disclosure has
been authorized in writing by NorthWestern or is otherwise required by
law. Information or material that is not novel or copyrighted or patented
may nonetheless be proprietary information. Proprietary information shall
not include any information that is or becomes generally known to the
industries in which NorthWestern competes through sources independent of
NorthWestern or Xxxxxxxx or through authorized publication by NorthWestern
to persons other than NorthWestern employees. Nothing about this section
will be interpreted as prohibiting Xxxxxxxx from using her generalized
knowledge of and expertise in the utilities industry in future employment
settings.
|
|
b.
|
Except
as required by law, give or disclose any records containing confidential
information or material to, or permit any inspection or copying of such
records by, any individual or entity other than in the authorized course
and scope of such individual’s or entity’s employment or retention by
NorthWestern. In addition, Xxxxxxxx warrants and represents that she has
returned to NorthWestern all such records upon resignation or separation
hereunder and shall not use or retain any such records thereafter. Records
subject to this subsection shall include, but not be limited to, all
correspondence, memoranda, files, analyses, studies, reports, notes,
documents, manuals, books, lists, financial records, operating records,
marketing records, computer software, magnetic tape, or electronic or
other media or equipment of any kind that may be in Xxxxxxxx’x possession
or under her control or accessible to her which contains or may be derived
from proprietary or confidential information covered by this section. All
such records are and will remain the sole property of
NorthWestern.
|
Waiver & Release Agreement Initials MEC
Page 5 of
9
9. Public Statements.
Except as necessary to secure other employment or for other necessary reasons or
as may be required by law, Xxxxxxxx agrees that she will make no public
statements concerning the severance of her employment with
NorthWestern. Xx. Xxxxxx X. Xxxx has provided Xxxxxxxx with a letter
of recommendation, which she may share with future employers. Xx.
Xxxx will provide oral recommendations consistent with his letter, as
requested. The current Chairman of NorthWestern’s Board and the
current Chairs of the Audit and Governance Committees have also agreed to
provide Xxxxxxxx with positive letters of recommendation no later than January
15, 2010. NorthWestern, by its Board of Directors and senior management, and
Xxxxxxxx also agree that neither party, including NorthWestern’s current
employees, will make any disparaging remarks to any third parties concerning the
other party. Xxxxxxxx further agrees that she will not disparage NorthWestern’s
business capabilities, products, plans, or senior management to any customer,
potential customer, vendor, suppler, contractor, or subcontractor of
NorthWestern so as to affect adversely the goodwill or business of NorthWestern.
NorthWestern, by and through its Board of Directors and senior management,
agrees that it will refrain from making any adverse, derogatory, or disparaging
comments or statements about Xxxxxxxx or her performance during her employment
with NorthWestern.
10. Consequences of Violating
Promises. In addition to any other remedies or relief that may be
available, upon any breach of this Release (for this purpose, a breach will
include proof that a representation was false when made), the breaching party
agrees to pay the reasonable attorney fees and any damages the non-breaching
party incurs as a result of such breach (such as by suing a released party over
a released claim). Xxxxxxxx further agrees that NorthWestern could be
irreparably harmed by any actual or threatened violation of Section 8 of this
Waiver and Release and that NorthWestern will be entitled to an injunction
prohibiting Xxxxxxxx from committing any such violation.
11. Successors and
Assigns. This Release shall inure to the benefit of and be binding upon
the Parties hereto and their respective heirs, successors, legal
representatives, and assigns. NorthWestern may assign this Release
without the prior consent of Xxxxxxxx or her successors and
assigns. However, neither this Release, nor any right or interest
hereunder, shall be assignable by Xxxxxxxx, Xxxxxxxx'x beneficiaries, or her
legal representatives, except as provided by law or pursuant to referenced
benefit policy documents. Nothing in this Release, express or implied, is
intended to confer on any person other than the Parties hereto and the Released
Parties, or their respective successors or permitted assigns, any rights,
remedies, obligations, or liabilities under or by reason of this
Release.
Waiver & Release Agreement Initials MEC
Page 6 of
9
12. Severability and
Reformation. The provisions of this Release are severable. If any
provision of this Release shall be determined to be invalid, illegal, or
unenforceable, in whole or in part, neither the validity of the remaining parts
of such provision nor the validity of any other provision of this Release shall
in any way be affected thereby. In lieu of such invalid, illegal, or
unenforceable provision, there shall be added automatically as part of this
Release a provision as similar in terms to such invalid, illegal, or
unenforceable provision as may be possible and be valid, legal, and enforceable.
Each party also agrees that, without receiving further consideration, it will
sign and deliver such documents and do anything else necessary in the future to
make the provisions of this Release effective.
13. Taxes. Xxxxxxxx
understands that NorthWestern will withhold all applicable income and payroll
taxes. Xxxxxxxx understands that she will be responsible for paying any
additional taxes that may become due on any of the payments provided herein. If
Xxxxxxxx fails to pay any taxes due and owing on any of the payments, or any
taxing authority alleges that Xxxxxxxx has failed to do so or that NorthWestern
is responsible for the payment of these taxes, for any reason, except to the
extent that NorthWestern was responsible for the error (for example, an error in
withholding), Xxxxxxxx agrees to be fully responsible for any judgments or
orders, fines, and penalties and that she will indemnify NorthWestern,
including, but not limited to, the satisfaction of judgments, orders, fines, or
penalties in the payment of NorthWestern’s defense by counsel of its choice in
such proceedings. The taxability of the amounts contained herein shall not
affect the validity of this Release.
14. Governing Law and
Jurisdiction. This Release shall be governed by and construed in
accordance with the laws of the State of South Dakota without reference to
conflict of laws principles thereof. The Parties also hereby irrevocably and
unconditionally submit to the jurisdiction of any South Dakota state court or
federal court sitting in South Dakota and any appellate court from any such
court in any suit, action, or proceeding arising out of or relating to this
Release, or for recognition or enforcement of any judgment resulting from any
such suit, action, or proceeding; and each party hereby irrevocably and
unconditionally agrees that all claims in respect of any such suit, action, or
proceeding may be heard and determined in such South Dakota state court or, to
the extent permitted by law, by removal or otherwise, in such federal court.
Notwithstanding this consent to jurisdiction, NorthWestern and Xxxxxxxx agree to
resolve any claims they may have with each other through final and binding
arbitration. Such arbitration shall be conducted according to the
then current arbitration rules and procedures for disputes governing
arbitrations administered by the Judicial Arbitration and Mediation Service
(JAMS); however, it need not be administered by JAMS. Either party
may commence arbitration by providing to the other party a written request for
arbitration, setting forth the subject of the dispute and the relief requested.
The parties will cooperate with one another in selecting an arbitrator to
preside over the arbitration and in scheduling the arbitration. The
Parties agree that any such arbitration shall take place within the state of
South Dakota.
Waiver & Release Agreement Initials MEC
Page 7 of
9
15. Further Assurances.
Each party agrees to take all further actions and to execute and deliver all
further documents and instruments that are reasonably necessary or appropriate
in order to effectuate the purposes of this Release and the transactions
contemplated hereby.
16. Waiver. Any failure
by a party hereto to comply with any obligation, agreement, or condition
contained herein may only be waived in a writing executed by the party granting
the waiver; but such waiver or failure to insist upon strict compliance with
such obligation, agreement, or condition shall not operate as a waiver of, or
estoppel with respect to, such failure or any subsequent or other failure. All
remedies hereunder are cumulative and are not exclusive of any other remedies
provided by law.
17. Entire Agreement.
This Release and the Indemnification Agreement between the Parties dated as of
November 16, 2009, set forth the entire agreements and understandings of the
Parties relating to the subject matter hereof and supersede all prior agreements
and arrangements, written or oral, relating to the subject matter
hereof. The Parties contemplate entering into a Consulting Agreement
dated January 6, 2010.
18. Amendment. This
Release may be amended only by a written instrument executed by both of the
parties hereto.
19. Notice. Any notice
required or permitted by this Release shall be in writing and shall be deemed
delivered when delivered personally or by overnight courier or sent by
facsimile, or email or 48 (forty eight) hours after being deposited in the U.S.
mail, as certified or registered mail, with postage prepaid and addressed to the
party to be notified at such party’s address or fax number set forth on the
signature page hereto, as appropriate, which address or fax number may be
subsequently modified by a written notice delivered in accordance with this
section.
20. Counterparts. This
Release may be executed in counterparts, each of which shall be deemed an
original, and all of which, taken together, shall constitute one and the same
agreement.
Waiver & Release Agreement Initials MEC
Page 8 of
9
| Take this
release home, read it, and carefully consider all of its provisions before
signing it. It includes a release of known and unknown claims. If you
wish, you should take advantage of the full consideration period afforded
by Section 5, and you should consult your attorney.
Xxxxxx
X. Xxxxxxxx acknowledges that she has read this release in its entirety,
that she understands its terms, and that she is entering into this
agreement release knowingly and
voluntarily.
|
|
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx X.
Xxxxxxxx
Xxxxxx X. Xxxxxxxx
000
Xxxx Xxxxxx Xxxxx
Xxxxx
Xxxxx, XX 00000
Date: January
5, 0000
|
XxxxxXxxxxxx
Xxxxxxxxxxx d/b/a NorthWestern Energy
/s/ Xxxxx X.
Xxxxxxxxxx
By: Xxxxx
X. Xxxxxxxxxx
Its: VP-Customer
Care, Comm., HR
0000
Xxxx 00xx
Xxxxxx
Xxxxx
Xxxxx, XX 00000
Facsimile:
(000) 000-0000
Date: January
8, 2010
|
Waiver & Release Agreement Initials MEC
Page 9 of
9
