RETIREMENT AGREEMENT AND GENERAL RELEASE
Exhibit 10.2
RETIREMENT AGREEMENT AND GENERAL RELEASE
Cascade Natural Gas Corporation (“Cascade”) and W. Xxxxx Xxxxxxxxx, his heirs, executors, administrators, successors, and assigns (collectively referred to throughout this Retirement Agreement and General Release as “Matsuyama”), agree:
1. Last Day of Employment. Matsuyama’s last day of employment with Cascade will be March 31, 2005.
2. Consideration. In consideration for signing this fully executed original Retirement Agreement and General Release and in compliance with the promises made herein, Cascade agrees to provide the following payments and other benefits to Matsuyama after receiving the original of this fully executed Retirement Agreement and General Release and the original letter from Matsuyama in the form attached hereto as Exhibit ”A.” Matsuyama acknowledges that he would not otherwise receive this consideration but for signing this Retirement Agreement and General Release.
Cascade shall pay Matsuyama the sum of Fifty Thousand Dollars ($50,000) on or about April 30, 2005, and Two Hundred Fifty Thousand Dollars ($250,000) on or about April 30, 2006, less lawful deductions. Matsuyama agrees that said payments are in lieu of eligibility to retire early without actuarial reduction of benefits pursuant to Article 3.2(g) of Cascade’s Executive Supplemental Retirement Income Plan.
3. General Release of Claims. Matsuyama knowingly and voluntarily releases and forever discharges, to the full extent permitted by law, Cascade, its parent corporation, affiliates, subsidiaries, divisions, successors, predecessors and assigns and the current and former employees, attorneys, insurers, partners, owners, officers, directors, shareholders, agents thereof, the employee benefit plan for Cascade, plan fiduciaries and plan administrators (whether internal or external), (collectively referred to as “Releasees”), of and from any and all claims, known and unknown, asserted and unasserted, Matsuyama has or may have against Releasees as of the date of execution of this Retirement Agreement and General Release, including, but not limited to, any alleged violation of:
• Title VII of the Civil Rights Act of 1964, as amended;
• The Civil Rights Act of 1991;
• Sections 1981 through 1988 of Title 42 of the United States Code, as amended;
• The Employee Retirement Income Security Act of 1974, as amended;
• The Immigration Reform and Control Act, as amended;
• The Americans with Disabilities Act of 1990, as amended;
• The Workers Adjustment and Retraining Notification Act, as amended;
• The Occupational Safety and Health Act, as amended;
• The Xxxxxxxx-Xxxxx Act of 2002;
• The Family Medical Leave Act, as amended to the extent permitted by law;
• The Equal Pay Act, as amended;
• Washington Law Against Discrimination, as amended, RCW 49.60 et seq.;
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Matsuyama’s initials |
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• The National Labor Relations Act;
• The Age Discrimination in Employment Act of 1967, as amended;
• The Older Workers Benefit Protection Act;
• The Consolidated Omnibus Budget Reconciliation Act (“COBRA”), to the extent permitted by law;
• Any provision of Title 49 of the Revised Code of Washington;
• The Washington Minimum Wage Law, as amended, to the extent permitted by law;
• Any provision of Title 296 of the Washington Administrative Code;
• Any claim for failure to pay wages, bonuses, or commissions, including any claim for liquidated or double damages, to the extent permitted by law;
• The Industrial Insurance Act of Washington, as amended, to the extent permitted by law;
• The Washington Consumer Protection Act, RCW 19.86 et seq.;
• Any claim under a Collective Bargaining Agreement;
• Any claim for negligent misrepresentation, intentional misrepresentation or fraud;
• Any claim for intentional injury, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, negligent hiring, supervision or retention, or defamation;
• Any claim for disparate impact on any basis;
• Any claim for discrimination, harassment, failure to accommodate or retaliation;
• Any public policy, contract, tort, or common law, including but not limited to claim(s) for wrongful termination in violation of public policy, wrongful termination for any reason, or constructive discharge;
• Any claim for breach of any term or condition of an employee handbook or policy manual, including any claim for breach of any promise of specific treatment in specific circumstances;
• Any claim for breach of contract, including but not limited to an employment contract;
• Any claim for violation of any legal or equitable duty of good faith and fair dealing;
• Any other federal, state or local civil or human rights law or any other local, state or federal law, regulation or ordinance; or
• Any claim for costs, fees, or other expenses including attorneys’ fees incurred in these matters.
Notwithstanding the foregoing, the release set forth in this section shall not apply to any vested benefits accrued by Matsuyama prior to the effective date of this Agreement under any compensation or benefit plan maintained by Cascade for the benefit of its employees and subject to ERISA.
4. Indemnity. In the event of any claims against Matsuyama that may arise out of his employment, Cascade will in good faith, defend, indemnify and hold harmless Matsuyama in the same manner and to the same extent that it would any officer then in the employ of Cascade and only to that extent.
5. Non-Disparagement Obligation. Matsuyamashall not defame, disparage or demean Cascade or any director, officer, employee or agent of the same in any manner whatsoever; and directors and officers of Cascade shall not defame, disparage or demean
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Matsuyama in any manner whatsoever. This paragraph shall not preclude either party from responding truthfully to inquiries made in connection with any legal or governmental proceeding pursuant to subpoena or other legal process. As a material portion of this Retirement Agreement and General Release, Matsuyama agrees that he will not appear as a witness in any matter adverse to Cascade except under subpoena and for a period of one year following Matsuyama’s last date of employment not provide any consultative services that are adverse to Cascade in any way. Matsuyama also agrees that if he is at any time requested to provide information, whether by subpoena or otherwise, in any matter involving or affecting Cascade in which Matsuyama was involved during his tenure as an employee, Matsuyama will (1) notify Cascade as soon as practicable, but in any event before providing the requested information; and (2) provide Cascade the opportunity to participate in any meeting or proceeding to provide such information.
6. Affirmations.
6(a). Matsuyama affirms that he has not filed, caused to be filed, or presently is a party to any claim, complaint, or action against Cascade in any forum or form.
6(b). Matsuyama further affirms that he has been paid and/or has received all compensation, wages, bonuses, commissions, and/or benefits to which he may currently be entitled and that no other compensation, wages, bonuses, commissions and/or benefits are currently due to him, except (1) for benefits to which he is entitled under the Retirement Plan for Employees of Cascade Natural Gas Corporation and the Cascade Natural Gas Corporation Executive Supplemental Retirement Income Plan, (2) for previously accrued paid time off, (3) for post-retirement medical benefits for which he qualifies, and (4) as provided in this Retirement Agreement and General Release.
6(c). Matsuyama furthermore affirms that he has no known workplace injuries or occupational diseases and has been provided and/or has not been denied any leave requested under the Family and Medical Leave Act.
6(e). Matsuyama further affirms that the amounts in Paragraph “2” above are not subject to any liens for attorneys’ fees or costs and that he is responsible to pay all his own attorneys’ fees and costs incurred in this matter.
7. Taxation. If any taxing authority determines that any portion of the amounts in Paragraph “2” is taxable, Matsuyamaagrees to pay all taxes, penalties, and interest assessed and to hold harmless and indemnify Cascade for all amounts assessed. Releasees make no representation as to the taxability of the amounts paid to Matsuyama. Cascade will issue an IRS W-
2 Form to Matsuyama for both payments.
8. Governing Law and Interpretation. This Retirement Agreement and General Release shall be governed and conformed in accordance with the laws of Washington State without regard to its conflict of laws provision. In the event Matsuyama or Cascade breaches any provision of this Retirement Agreement and General Release, Matsuyama and Cascade affirm that either may institute an action to specifically enforce any term or terms of this Retirement Agreement and General Release. Should any provision of this Retirement Agreement and General Release be declared illegal or unenforceable by any court of competent
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jurisdiction and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Retirement Agreement and General Release in full force and effect.
9. Amendment. This Retirement Agreement and General Release may not be modified, altered or changed except upon express written consent of all parties wherein specific reference is made to this Retirement Agreement and General Release.
10. Revocation. Matsuyama may revoke this Retirement Agreement and General Release for a period of seven calendar days following the day he executes this Retirement Agreement and General Release. Any revocation within this period must be submitted, in writing, to LarryRosok and state, “I hereby revoke my acceptance of our Retirement Agreement and General Release.” The revocation must be personally delivered to Xxxxx Xxxxx or the designee of Rosok, or mailed and postmarked within seven calendar days of execution of this Retirement Agreement and General Release to:
Xx. Xxxxx Xxxxx
Cascade Natural Gas Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
This Retirement Agreement and General Release shall not become effective or enforceable until the revocation period has expired and a letter in the form attached as Exhibit ”A,” dated and signed no sooner than eight days after W. Xxxxx Xxxxxxxxx dates and signs this Retirement Agreement and General Release, is received by Xxxxx Xxxxx. If the last day of the revocation period is a Saturday, Sunday or legal holiday in Washington State, then the revocation period shall not expire until the next following day which is not a Saturday, Sunday or legal holiday.
11. Entire Agreement. This Retirement Agreement and General Release sets forth the entire agreement between the parties hereto, and fully supersedes any prior obligations of Releasees to Matsuyama. However, the Cascade Non-Competition Agreement dated June 2, 1997, previously signed by Matsuyama shall survive this Retirement Agreement and General Release and continue in full force and effect. Matsuyama acknowledges he has not relied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this Retirement Agreement and General Release, except for those set forth in this Retirement Agreement and General Release.
12. Counterparts and Facsimile Signatures. This Retirement Agreement and General Release may be executed in counterparts, and, as executed, shall constitute one agreement. A facsimile signature shall be considered the same as the original, provided that the original signature page is delivered within ten days.
MATSUYAMA HAS BEEN ADVISED THAT HE HAS AT LEAST SEVEN CALENDAR DAYS TO CONSIDER THIS RETIREMENT AGREEMENT AND GENERAL RELEASE AND HEREBY IS ADVISED IN WRITING TO CONSULT WITH AN
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ATTORNEY PRIOR TO EXECUTION OF THIS RETIREMENT AGREEMENT AND GENERAL RELEASE.
MATSUYAMA AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS RETIREMENT AGREEMENT AND GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL SEVEN CALENDAR DAY CONSIDERATION PERIOD.
HAVING HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY, AND HAVING ELECTED TO EXECUTE THIS RETIREMENT AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES AND TO RECEIVE THE SUMS AND BENEFITS IN PARAGRAPH “2” ABOVE, MATSUYAMA FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS DOCUMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST CASCADE AND/OR RELEASEES.
IN WITNESS WHEREOF, Matsuyama hereto knowingly and voluntarily executes this Retirement Agreement and General Release as of the date set forth below:
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/s/ W. Xxxxx Xxxxxxxxx |
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Dated: |
March 3, 2005 |
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W. Xxxxx Xxxxxxxxx |
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/s/ Xxxxx X. Xxxxx |
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Dated: |
March 3, 2005 |
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Xxxxx
X. Xxxxx, Chairman of the Board |
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EXHIBIT A
Xx. Xxxxx Xxxxx
Cascade Natural Gas Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Re: Retirement Agreement and General Release
Dear Xx. Xxxxx:
On (date), I executed a Retirement Agreement and General Release between myself and Cascade Natural Gas Corporation. I was advised by Cascade in writing, to consult with an attorney of my choosing, prior to executing this Retirement Agreement and General Release.
More than seven calendar days have elapsed since I executed the above-mentioned Retirement Agreement and General Release. I have at no time revoked my acceptance or execution of that Retirement Agreement and General Release and hereby reaffirm my acceptance of that Retirement Agreement and General Release. Therefore, in accordance with the terms of the Retirement Agreement and General Release, I hereby request payment of the monies described in Paragraph “2” of that Agreement.
Dated this day of , 2005.
Very truly yours,
W. Xxxxx Xxxxxxxxx
NOTICE: Per paragraph 10 of the Release, DO NOT SIGN THIS LETTER, until eight days after you have signed the Retirement Agreement and General Release
