AGREEMENT ON RETIREMENT
This Agreement on Retirement (this "Agreement") is entered
into by and between Xxxxxx X. Xxxxx XX, Executive Vice President,
General Counsel and Secretary of MDU Resources Group, Inc., and
as a Director and/or Vice President, General Counsel and/or
Secretary of subsidiaries, divisions, affiliates, and limited
liability companies of MDU Resources Group, Inc. and as a member
and the Secretary of the Managing Committees of Montana-Dakota
Utilities Co. and Great Plains Natural Gas Co., divisions of MDU
Resources Group, Inc., and any other currently held positions
within the Companies ("Xxxxxx X. Xxxxx, XX") and MDU Resources
Group, Inc., a Delaware corporation, including all of its
subsidiaries, divisions, affiliates, limited liability companies,
partnerships, both foreign and domestic, successors and assigns
of MDU Resources Group, Inc. ("Companies").
Recitals
A. Xxxxxx X. Xxxxx, XX is retiring from Companies and the
parties wish to set forth certain terms on the severance of their
relationship.
B. The parties also wish to resolve any claim, demand,
liability, action, or cause of action whatsoever by Xxxxxx X.
Xxxxx, XX against the Companies and all other existing
differences completely and amicably. Xxxxxx X. Xxxxx, XX
acknowledges that the mutual covenants and agreements herein,
including payments set forth in Paragraphs 2 and 3, are good and
adequate consideration for this Agreement.
C. The parties represent that they have been advised about
this Agreement by their respective counsel, are competent to
enter into it, fully understand its terms and consequences, and
enter into it knowingly and voluntarily.
Based on these recitals, the parties agree as follows:
Terms
1. Retirement. Xxxxxx X. Xxxxx, XX shall retire from all
positions, memberships and/or contracts held within Companies and
his employment with MDU Resources Group, Inc. shall terminate
effective at the close of business on January 2, 2004. Except as
otherwise provided in this Agreement, all benefits, rights,
authority and privileges of Xxxxxx X. Xxxxx from Companies end as
of the close of business on January 2, 2004, including but not
limited to any ability to obligate Companies pursuant to any
Power of Attorney or agreements not specified herein.
2. Benefits. Xxxxxx X. Xxxxx, XX shall receive payment of
benefits which he has earned or accrued in accordance with MDU
Resources Group, Inc. plans and the award agreements thereunder
as applicable per his retirement date. Xxxxxx X. Xxxxx, XX has
been informed in writing of those and concurs with the Companies'
determination of his benefits to be paid.
a. All payments and benefits to or for Xxxxxx X. Xxxxx, XX
contained in this paragraph shall be payable by Companies in the
ordinary course of its business, but such obligations will be
paid and/or performed within all time frames contained in the
various Companies compensation plans which may be applicable to a
retiring employee. Xxxxxx X. Xxxxx, XX has received payment for
all accrued vacation in his January 23, 2004 payroll check.
b. It is further agreed that Xxxxxx X. Xxxxx, XX may take
the laptop computer, the palm pilot, and a small portable printer
used by Xxxxxx X. Xxxxx, XX, which items shall become the
property of Xxxxxx X. Xxxxx, XX.
3. Consulting Services. Xxxxxx X. Xxxxx, XX, as an
independent contractor without eligibility for employee benefits,
agrees to provide consulting services for Companies for a period
of six months, unless terminated earlier by Companies, following
Xxxxxx X. Xxxxx, II's retirement. Duties to be performed by
Xxxxxx X. Xxxxx, XX shall be those assigned by Companies' Chief
Executive Officer. Xxxxxx X. Xxxxx, XX will be paid one hundred
forty two thousand five hundred dollars ($142,500), payable in a
lump sum three (3) days after the expiration of the time for
revocation of acceptance of this Agreement as specified in
Paragraph 20 in consideration of this Agreement and these
services. Xxxxxx X. Xxxxx, XX will be reimbursed for any
reasonable travel and other expenses necessary to perform these
services pursuant to Companies' then current policies and
procedures.
4. Tax. Appropriate tax deductions will be made by
Companies from the payments made under Paragraphs 2 and 3. The
Companies will withhold applicable federal and state income taxes
and Xxxxxx X. Xxxxx, II's share of state and federal payroll
taxes on the gross amounts allocated to pay in Paragraphs 2 and 3
and provide Xxxxxx X. Xxxxx, XX with a W-2 or other appropriate
form evidencing such amounts.
5. Release.
a. Xxxxxx X. Xxxxx, XX, in exchange for the payment and
other considerations set forth above, the sufficiency of which
is hereby acknowledged and which is acknowledged to provide good
consideration to Xxxxxx X. Xxxxx, XX to which he is not entitled
unless he signs this Agreement, on behalf of himself and his
representatives, spouse, agents, heirs and assigns, releases and
discharges Companies and Companies' former, current or future
officers, employees, representatives, agents, fiduciaries,
attorneys, directors, shareholders, insurers, predecessors,
parents, affiliates, benefit plans, successors, heirs, and
assigns from any and all claims, liabilities, causes of action,
damages, losses, demands or obligations of every kind and nature,
whether now known or unknown, suspected or unsuspected, which
Xxxxxx X. Xxxxx, XX ever had, now has, or hereafter can, shall or
may have for, upon or by reason of any act, transaction,
practice, conduct, matter, cause or thing of any kind whatsoever
relating to or based upon, in whole or in part, any act,
transaction, practice or conduct prior to the date hereof,
including, but not limited to, matters dealing with Xxxxxx X.
Xxxxx, II's employment or retirement from employment and/or any
other status with the Companies, or which relate in any way to
injuries or damages suffered by Xxxxxx X. Xxxxx, XX (knowingly or
unknowingly). This Agreement does not eliminate or release any
coverages which Xxxxxx X. Xxxxx, XX may have under applicable
directors and officers insurance or his right to indemnification
under the terms of the Companies' bylaws for his time in office.
This release and discharge includes, but is not limited to,
claims arising under federal, state and local statutory or common
law, including, but not limited to, the federal Age
Discrimination in Employment Act ("ADEA"), Title VII of the Civil
Rights Act of 1964, the North Dakota Human Rights Act, the Fair
Labor Standards Act, the Family and Medical Leave Act of 1993,
the Americans with Disabilities Act, the Employee Retirement
Income Security Act, the North Dakota Whistleblower Act (codified
at N.D.C.C. Section 34-01-20), and the Xxxxxxxx-Xxxxx Act of 2002,
including any and all claims for wrongful discharge under any
public policy or any policy of the Companies, claims for breach
of fiduciary duty, and the laws of contract and tort, and any
claim for attorney's fees or costs.
b. Xxxxxx X. Xxxxx, XX agrees that he has not and will not
institute any lawsuit or commence any action asserting any
claims, losses, liabilities, demands or obligations released
hereunder. Nothing in this provision shall be construed,
however, as prohibiting Xxxxxx X. Xxxxx, XX from filing a charge
or complaint to test the validity under the Older Workers Benefit
Protection Act or the waiver of Xxxxxx X. Xxxxx, II's rights
under the federal ADEA. Nothing contained herein shall be
construed to prohibit Xxxxxx X. Xxxxx, XX from filing a charge or
complaint with the Equal Employment Opportunity Commission or the
North Dakota Department of Labor or participating in
investigations by those entities. However, except for testing
the validity of the waiver noted above, Xxxxxx X. Xxxxx, XX
acknowledges that the release he executes herein waives his right
to file a court action or to seek individual remedies or monetary
damages in any EEOC or North Dakota Department of Labor filed
court action. This release does not extend to rights, remedies,
claims or causes of action arising out of acts governed by
Paragraph 5.a., above, occurring after the effective date of this
Agreement and expiration of the revocation period.
This Agreement does not apply to, or otherwise impair, any
vested right Xxxxxx X. Xxxxx, XX has under a presently existing
employee pension or benefit plan or any other claim that may not
be waived by law.
6. Known or Unknown Claims. Xxxxxx X. Xxxxx, XX
understands and expressly agrees that this Agreement extends to
all claims of every nature and kind, known or unknown, suspected
or unsuspected, past, present, or future, arising from or
attributable to any conduct of the Companies and their
successors, subsidiaries, and affiliates, and all their
employees, owners, shareholders, agents, officers, directors,
predecessors, assigns, agents, representatives, and attorneys,
whether known by Xxxxxx X. Xxxxx, XX or whether or not Xxxxxx X.
Xxxxx, XX believes he may have any claims, and that any and all
rights granted to Xxxxxx X. Xxxxx, XX under N.D.C.C. Section 9-13-02 or
any analogous state law or federal law or regulations, are hereby
expressly WAIVED, if applicable.
7. No Admission. Neither this Agreement nor any action or
acts taken in connection with this Agreement or pursuant to it
will constitute an admission by Xxxxxx X. Xxxxx, XX or by
Companies of any violation of law, nor will it constitute or be
construed as an admission of any wrongdoing whatsoever.
8. Nondisclosure of Proprietary and Trade Secret Business
Information. Xxxxxx X. Xxxxx, XX agrees to retain in strict
confidence and not to use in any way and not to disclose to any
persons any non-public, confidential, proprietary, or trade
secret information of Companies as described in the North Dakota
Uniform Trade Secret Act. Xxxxxx X. Xxxxx, XX further
acknowledges that he has returned to Companies all documents and
information encompassing non-public, confidential, proprietary,
or trade secret information of the Companies. Xxxxxx X. Xxxxx,
XX acknowledges that prior to January 2, 2004, he will have
returned company property in his possession that was used in any
currently held positions within Companies, except for that
property which is listed in Paragraph 2.b.
9. No Disparagement. The parties agree not to make any
disparaging or false statements about each other.
10. Change of Control Employment Agreement. Xxxxxx X.
Xxxxx, XX and MDU Resources Group Inc. are parties to a Change of
Control Employment Agreement dated November 1, 1998. Xxxxxx X.
Xxxxx, XX acknowledges that no "Change of Control" has occurred,
as that term is defined in that agreement and that agreement is
hereby terminated.
11. Agreement Regarding No Right to Future Employment.
Xxxxxx X. Xxxxx, II's provision of consulting services will end
on June 30, 2004, unless that consulting relationship is
terminated earlier by Companies. Xxxxxx X. Xxxxx, XX agrees that
he will not at any time in the future bring a claim against
Companies for any failure to offer him future employment or
failure to accept from him an application for future employment
with Companies.
12. Further Documents. Each party agrees to execute or
cause their counsel to execute any additional documents and take
any further action which may reasonably be required in order to
consummate this Agreement or otherwise fulfill the obligations of
the parties thereunder.
13. Choice of Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of North
Dakota.
14. Attorneys' Fees. Should any action be brought by any
party to this Agreement to enforce any provision thereof, the
prevailing party shall be entitled to recover, in addition to any
other relief, reasonable attorneys' fees and costs and expenses
of litigation or arbitration. This provision shall not apply to
charges or complaints filed by Xxxxxx X. Xxxxx, XX to test the
validity under the Older Workers Benefit Protection Act or the
waiver of Xxxxxx X. Xxxxx, II's rights under the ADEA.
15. Integration. This Agreement constitutes an integration
of the entire understanding and agreement of the parties with
respect to the matters referred to in this Agreement. Any
representation, warranty, promise or condition, whether written
or oral, between the parties with respect to the matters referred
to in this Agreement which is not specifically incorporated in
this Agreement shall not be binding upon any of the parties
hereto and the parties acknowledge that they have not relied, in
entering into this Agreement, upon any representations,
warranties, promises or conditions not specifically set forth in
this Agreement. No prior or contemporaneous oral or written
understanding, covenant, or agreement between the parties, with
respect to the matters referred to in this Agreement, shall
survive the execution of this Agreement. This Agreement may be
modified only by a written agreement executed by both parties
hereto.
16. Binding Agreement. The parties understand and
expressly agree that this Agreement shall bind the heirs,
subsidiaries, affiliates, successors, and assigns of the
Companies and Xxxxxx X. Xxxxx, XX.
17. Construction. The language of this Agreement shall be
construed as to its fair meaning and not strictly for or against
either party. If any part of this Agreement is construed to be a
violation of law, such part shall be modified to achieve the
objective of the parties to the fullest extent permitted and the
balance of this Agreement shall remain in full force and effect.
18. Counterparts. This Agreement may be executed in
counterparts and when each party has signed and delivered at
least one such counterpart, each counterpart shall be deemed an
original and all counterparts taken together shall constitute one
and the same Agreement, which shall be binding and effective as
to all parties.
19. Headings. Headings in this Agreement are for
convenience of reference only and are not a part of the substance
hereof.
20. Time for Acceptance and Revocation. Xxxxxx X. Xxxxx,
XX acknowledges that he has been advised in writing by Companies
to consult with an attorney prior to signing it. Xxxxxx X.
Xxxxx, XX may have up to twenty-one (21) days from the date this
Agreement is presented to Xxxxxx X. Xxxxx, XX to accept the terms
of this Agreement, although Xxxxxx X. Xxxxx, XX may accept it at
any time within those twenty-one (21) days. Xxxxxx X. Xxxxx, XX
agrees that any changes to this Agreement, whether material or
not, will not restart the period for acceptance. After
acceptance, Xxxxxx X. Xxxxx, XX will still have an additional
seven (7) days in which to revoke his acceptance as it relates to
federal age discrimination claims and reinstate any potential
claims he might have under the ADEA. To so revoke, Xxxxxx X.
Xxxxx, XX must send the Companies a written statement of
revocation. To be effective, the revocation must be in writing
and hand-delivered or mailed to the Companies addressed as
follows: MDU Resources Group, Inc., c/o Chief Executive Officer,
X.X. Xxx 0000, Xxxxxxxx, XX 00000-0000, within the seven (7) day
period. If mailed, the revocation must be postmarked within the
seven (7) day period.
This Agreement will not be effective and no payment will be
made hereunder until the revocation period has expired. If
Xxxxxx X. Xxxxx, XX exercises his option to revoke his ADEA
waiver, the entire Agreement is voidable at the Companies' option
within seven (7) days and neither Xxxxxx X. Xxxxx, XX nor the
Companies shall have any further rights or obligations pursuant
to this Agreement.
21. Severability. Should any court with jurisdiction
determine that any provision of this Agreement is invalid, void
or unenforceable, the remaining provisions shall remain in full
force and effect.
EMPLOYEE
Dated: February 2, 2004 /s/ XXXXXX X. XXXXX, XX
Xxxxxx X. Xxxxx, XX
Dated: January 29, 2004 FOR THE COMPANIES
/s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Chairman of the Board,
President and Chief Executive Officer
MDU Resources Group, Inc.
