CONSULTING AGREEMENT
This Consulting Agreement, dated as of September 5, 2008, (the "Agreement"), is entered into by and between NorthWestern Energy ("NWEC" or "Company"), a Delaware corporation with its principal place of business located at 0000 Xxxx 00xx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx, 00000 and Xxxxxx X. Xxxxx ("Xxxxx" or "Consultant"), a Maryland resident. NWEC and Xxxxx are collectively referred to herein as the "Parties."
WHEREAS, Xxxxx was employed with NWEC through August 29, 2008; and
WHEREAS, the Company and Xxxxx amicably agree to terminate his employment; and
WHEREAS, NWEC is agreeable to ending Xxxxx'x employment with NWEC and entering into a agreement with Xxxxx with agreed upon consulting services to NWEC for the period September 1, 2008 through December 31, 2008, unless terminated by NWEC, by Xxxxx or on the date Xxxxx has secured other employment unless extended by mutual agreement; and
WHEREAS, Xxxxx desires to provide certain consulting services;
NOW, THEREFORE, in consideration of the mutual promises made herein, and for other good and valuable consideration, the parties hereby agree as follows:
1. Engagement.
a. NWEC agrees to engage Xxxxx, and Xxxxx agrees to provide certain agreed upon consulting services on behalf of NWEC as more fully described in Exhibit A attached hereto and incorporated herein by reference (hereinafter "Consulting Services.") It is the intent of the Parties and it is understood and agreed that, in the performance of such Consulting Services under the terms of this Agreement, and any amendments thereto, Xxxxx shall perform such Consulting Services as an independent contractor with respect to NWEC, and not as an employee of NWEC, it being specifically agreed that the relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement.
b. The Parties agree that NWEC shall determine the Consulting Services to be performed by Xxxxx under this Agreement, subject to the conditions set forth within this Agreement. Xxxxx understands and agrees that in performing such Consulting Services. Xxxxx agrees that he may not transfer, assign or subcontract his obligations under this Agreement without the express written consent of NWEC.
c. For the purposes of this Agreement, it is understood and agreed by the Parties that Xxxxx shall perform the Consulting Services from 0000 Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 or such other location as Xxxxx determines or the Company requires. Xxxxx may be required to travel in performance of the Consulting Services but only upon approval by NWEC.
d. NWEC is not responsible for payroll withholdings, and shall not withhold FICA or taxes of any kind from any payments that it owes Xxxxx.
x. Xxxxx agrees that neither Xxxxx his employees, employees of a business entity for which Xxxxx serves as an employee, partner or other type of owner, shall be entitled to receive any benefits which employees of NWEC are entitled to receive. Further, Xxxxx agrees that he is not eligible to receive and is not covered by NWEC workers' compensation, unemployment compensation, health insurance, life insurance, paid vacations, paid holidays, incentive compensation, pension, or profit sharing, or any similar employee benefit.
x. Xxxxx shall be solely responsible for paying his employees, if any, and shall be solely responsible for paying any and all taxes, FICA, workers' compensation, unemployment compensation, health insurance, life insurance, paid vacations, paid holidays, pension, profit sharing and other similar benefits for Xxxxx and his employees, servants and agents. Xxxxx shall also be responsible for likewise paying any employees of a business entity for whom Xxxxx serves as an employee, partner or other type of owner as well as any third party entities or individuals with whom he may contract. Xxxxx will indemnify and hold harmless NWEC from any and all loss or liability, including attorney's fees, arising from his failure to make any of these payments or withholdings, or provide these benefits, if any.
g. If the Internal Revenue Service or any other governmental agency should question or challenge Xxxxx'x independent consulting status, Xxxxx and NWEC shall have the right to participate in any discussion or negotiation occurring with any agency or agencies, regardless of with whom or by whom these discussions or negotiations are initiated.
2. Work. Xxxxx shall perform the work as more particularly described in Exhibit X.
x. Xxxxx agrees to comply with all applicable laws, codes and regulations and other instructions, standards of conduct, policies and procedures established and/or promulgated by NWEC, orally or in written or electronic form, which may be amended from time to time.
x. Xxxxx shall report on legal matters to the Vice President, General Counsel and Corporate Secretary and on governmental affairs matters to the Vice President, Government and Regulatory Affairs of NorthWestern Energy, unless otherwise instructed.
x. Xxxxx shall have access to only the following NWEC property: Company email system, computer equipment, cellular phone, corporate jet and other resources mutually agreed upon for business purposes.
3. Compensation. Xxxxx shall be paid a retainer fee for work rendered to NWEC in the amount of $15,000.00 (Fifteen Thousand Dollars) to be paid within the first five (5) working days after acceptance of this agreement by both parties and thereafter the same amount to be paid within the first five (5) days of each subsequent month covered by this Agreement. A Form 1099 shall be issued each year for all payments made. No deductions will be made from these checks.
4. Intellectual Property. Xxxxx shall make no use of NWEC trademarks, trade names, service marks, copyrights or other intellectual property of NWEC, NWEC engage in any program or activity that makes use of or contains any reference to NWEC, its trademarks, trade names, service marks, or copyrights except with written consent of NWEC, expressed in a duly executed license agreement or otherwise. By executing this Agreement, NWEC hereby grants Xxxxx its written consent to refer to NWEC in discussions and through forms, correspondence or other documentation provided and/or approved by NWEC. Xxxxx shall report to NWEC all violations of NWEC's intellectual property and other proprietary rights and other works immediately upon discovery of such violations by Xxxxx.
5. Covenants of Xxxxx. Xxxxx covenants as follows:
x. Xxxxx shall exercise reasonable efforts to not at any time, during or after the term of this Agreement, directly or indirectly divulge or otherwise disclose to anyone other than an employee of NWEC the procedures and policies of NWEC, or other information which is confidential or proprietary to NWEC, unless under legal obligation to do so or unless NWEC gives its prior written consent to such disclosure.
b. All books, records, notes, reports, copies, advertising, contracts, documents and other information or writings relating to NWEC's business or its customers, employees, contractors, or agents, whether prepared by Xxxxx or otherwise coming into the possession of Xxxxx, are and shall remain the exclusive property of NWEC and shall be returned to NWEC upon termination of this Agreement or upon demand. No copies shall be retained by Xxxxx.
x. Xxxxx acknowledges that each of the foregoing matters is important and material to the business and success of NWEC and agrees that any breach of this paragraph 5 is a material breach of this Agreement, from which Xxxxx may be enjoined and for which Xxxxx shall be liable for to NWEC for appropriate compensatory damages which arise from the breach, together with interest and costs.
6. Non-Exclusive Agreement. The work performed for NWEC under this Agreement is not intended to be exclusive. Xxxxx shall be free to undertake additional consulting activities for another party provided that such activities do not interfere with the timely execution of the Work set forth in this Agreement. Xxxxx agrees to request the consent of NWEC for any consulting activities with any entity in order to insure that a material conflict does not exist. To the extent such conflict involves the provision of legal services, NWEC's Law Department will determine if the conflict can be waived. To the extent such conflict involves the provision of non-legal services, NWEC shall not unreasonably withhold such consent.
7. Indemnification. To the maximum extent permitted by law, Xxxxx shall defend, indemnify and hold harmless NWEC and its related and affiliated companies and all divestitures, directors, officers and employees, and hold them from all obligations, costs, fees, losses, liabilities, claims, judgments, actions, damages and expenses suffered, incurred or sustained by NWEC, its related and affiliated companies and all their respective directors, officers and employees which, in connection with this Agreement, arise out of or are related to (a) Xxxxx'x intentional wrongdoing, intentional breach of duty, fraud, and/or intentional violation of any applicable laws, rules and regulations of federal or state governmental and regulatory agencies; (b) any activity by Xxxxx outside the scope of this Agreement; or (c) claims for benefits, compensation, damages or other amounts by any individual employed or retained by Xxxxx. Nothing about this provision shall in any way diminish or restrict any rights or claims Xxxxx may have for indemnification, including any under the Indemnification Agreement dated April 11, 2006 between the parties, or under any other agreement, statute, or common law theory.
8. Expenses. Xxxxx shall be reimbursed by NWEC for reasonable and verifiable expenses within thirty (30) days of presentation.
9. Term and Termination. This Agreement is effective as of September 1, 2008 and shall continue in effect through December 31, 2008. NWEC may terminate this Agreement for cause upon written notice to Xxxxx. Cause shall be defined as the failure of Xxxxx to cure after being provided written notification of a breach of the terms of this Agreement, failure to fulfill the duties and conditions of this Agreement, violation of NorthWestern's Code of Business Conduct and Ethics, or a violation of any of the laws and regulations applicable to the Work within this Agreement. If NWEC terminates for cause, no payments will be due Xxxxx under this Agreement. In the event NWEC elects to terminate this Agreement for convenience, NWEC shall pay Xxxxx a termination fee equal to $60,000.00 (Sixty Thousand Dollars) less the cumulative amount of all fees paid to Xxxxx prior to the termination date. In the event that Xxxxx secures other employment, Xxxxx agrees to use his best efforts to negotiate terms that would allow him to fulfill the terms of this Agreement. All such notices shall be delivered via email or US mail to NWEC's Vice President, General Counsel and Corporate Secretary or Xxxxx at the address indicated herein or to such other place as designated in writing by the Parties.
10. Assignment. Xxxxx may not assign his rights or delegate his duties under this Agreement without the prior written consent of NWEC. However, NWEC's rights and obligations under this Agreement may be assigned and delegated upon written notice to Xxxxx.
11. Waiver. Waiver by NWEC of any breach by Xxxxx shall not operate or be construed as a waiver of any subsequent breach by Xxxxx.
12. Law, Jurisdiction and Venue. The validity, interpretation, and performance of this Agreement shall be controlled by and construed in accordance with the laws of the State of South Dakota..
13. Arbitration of Disputes. NWEC and Xxxxx agree to resolve any claims they may have with each other through final and binding arbitration in accordance with the then current arbitration rules and procedures for disputes governing arbitrations administered by the Judicial Arbitration and Mediation Service (JAMS).
14. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the consulting arrangement between the parties hereof and supersedes any other agreement relating to any consulting arrangement. It specifically does not supersede and has no effect on the Waiver and Release between the parties, any of Xxxxx'x rights to severance benefits under that agreement, or the Indemnification Agreement between the parties dated April 11, 2006. This Agreement may be modified or amended only by an instrument in writing signed by both parties hereof.
15. Captions. The captions stated herein are for convenience only and are not intended to alter any of the provisions of this Agreement.
| Xxxxxx X. Xxxxx | NorthWestern Corporation | |||||
| By: /s/ XXXXXX X. XXXXX | By: /s/ XXXXXX XXXXXXXX | |||||
| Address: 7116 Xxxxx Road | Its: Vice President, General Counsel | |||||
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Xxxxxxxx, Xxxxxxxx 00000 |
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and Corporate Secretary |
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| Date: September 13 ,2008 | Date: September 5, 2008 | |||||
EXHIBIT A
All requests for service by Xxxxx from NWEC will be communicated from NWEC officers or NWEC outside counsel.
Initial Services include, but are not limited to, the following:
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Continued work on Colstrip 4 Rate Base Docket and Investigation |
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Continued work to finalize the Touch America settlement |
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Continued work to build relationships with NWEC's congressional delegations |
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