AGREEMENT ON RETIREMENT
AGREEMENT
ON RETIREMENT
This
Agreement on Retirement (this “Agreement”) is entered into by and between Xxxxxx
X. Xxxxxxxx, Executive Vice President and Chief Financial Officer of MDU
Resources Group, Inc., and as a Director and/or Chief Executive Officer,
President, Executive Vice President, Vice President, Chief Financial Officer,
Treasurer, and/or Manager, of subsidiaries, divisions, affiliates, and limited
liability companies of MDU Resources Group, Inc. and as a member 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. Xxxxxxxx”)
and
MDU Resources Group, Inc., a Delaware corporation, including all of its
subsidiaries, divisions, affiliates, limited liability companies, partnerships,
both foreign and domestic of MDU Resources Group, Inc. (“Companies”).
This
Agreement shall inure to the benefit of and be binding upon the Companies
and
their successors and assigns.
Recitals
A. Xxxxxx
X. Xxxxxxxx
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. Xxxxxxxx
against
the Companies
and all
other existing differences completely and amicably. Xxxxxx
X. Xxxxxxxx
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.
Effective
as of close of business on Tuesday, January 3, 2006, Xxxxxx
X. Xxxxxxxx
shall
retire and resign as Executive Vice President and Chief Financial Officer of
MDU
Resources Group, Inc., and as a Director and/or Chief Executive Officer,
President, Executive Vice President, Vice President, Chief Financial Officer,
Treasurer, and/or Manager, of subsidiaries, divisions, affiliates, and limited
liability companies of MDU Resources Group, Inc. and as a member 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.
The
form of resignation is attached hereto as Exhibit A and is incorporated herein
by reference. Xxxxxx
X. Xxxxxxxx
will,
however, continue to be employed by MDU Resources Group, Inc. as a Special
Projects Advisor through the close of business on February 17, 2006.
2. Benefits.
Xxxxxx
X. Xxxxxxxx
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. Xxxxxxxx
has been
informed in letters of those and concurs with the Companies’
determination of his benefits to be paid. These letters are attached hereto
as
Exhibit B and Exhibit C and are incorporated herein by reference. All payments
and benefits to or for Xxxxxx
X. Xxxxxxxx
contained in this paragraph shall be payable by applicable plans or 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 plans which may be
applicable to a retiring employee. Xxxxxx
X. Xxxxxxxx
will
receive payment for all accrued vacation as soon as administratively feasible
after February 17, 2006. Except for Accelerated Restricted Stock Awards vesting
on February 16, 2006, Xxxxxx
X. Xxxxxxxx
shall
not after January 3, 2006, be eligible as a Special Projects Advisor for any
additional compensation or employee benefits, nor shall he have the authority
to
obligate Companies
pursuant
to any power of attorney or other agreements.
3. Compensation.
Companies
will pay
to Xxxxxx
X. Xxxxxxxx as
consideration for settlement and release of all claims, including, but not
limited to, all future participation or distribution in various stock and bonus
plans, the sum of one million dollars ($1,000,000.00) less legally required
deductions. Said payment will be made as soon as administratively feasible
after
February 17, 2006 or upon expiration of the rescission period set forth in
paragraph 20 of this Agreement, whichever date is later. Xxxxxx
X. Xxxxxxxx
acknowledges and agrees that this sum is good and adequate consideration for
this Agreement and is a sum to which he would not otherwise be
entitled.
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. Xxxxxxxx’x
share
of state and federal payroll taxes and provide Xxxxxx
X. Xxxxxxxx
with a
W-2 or other appropriate form evidencing such amounts.
5. Release.
a. Xxxxxx
X. Xxxxxxxx,
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. Xxxxxxxx
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. Xxxxxxxx
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 February 18, 2006, including, but not limited
to,
matters dealing with Xxxxxx
X. Xxxxxxxx’x
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. Xxxxxxxx
(knowingly or unknowingly). This Agreement does not eliminate or release any
coverages which Xxxxxx
X. Xxxxxxxx
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.
§ 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.
x.
Xxxxxx
X. Xxxxxxxx
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. Xxxxxxxx
from
filing a charge or complaint to test the validity under the Older Workers
Benefit Protection Act or the waiver of Xxxxxx
X. Xxxxxxxx’x
rights
under the federal ADEA. Nothing contained herein shall be construed to prohibit
Xxxxxx
X. Xxxxxxxx
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. Xxxxxxxx
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. Xxxxxxxx
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. Xxxxxxxx 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. Xxxxxxxx
or
whether or not Xxxxxx
X. Xxxxxxxx
believes
he may have any claims, and that any and all rights granted to Xxxxxx
X. Xxxxxxxx
under
N.D.C.C. § 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. Xxxxxxxx
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. Xxxxxxxx
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. Xxxxxxxx
further
acknowledges that he will have returned to Companies
by
February 17, 2006 all documents and information encompassing non-public,
confidential, proprietary, or trade secret information of the Companies.
Xxxxxx X. Xxxxxxxx
acknowledges that prior to February 17, 2006, he will have returned company
property in his possession that was used in any currently held positions within
Companies.
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. Xxxxxxxx
and MDU
Resources Group, Inc. are parties to a Change of Control Employment Agreement
dated November 11, 1998. Xxxxxx
X. Xxxxxxxx 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. Xxxxxxxx
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. Xxxxxxxx
to test
the validity under the Older Workers Benefit Protection Act or the waiver of
Xxxxxx
X. Xxxxxxxx’x
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. Xxxxxxxx.
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. Xxxxxxxx
acknowledges that he has been advised in writing by Companies
to
consult with an attorney prior to signing it. Xxxxxx
X. Xxxxxxxx
may have
up to twenty-one (21) days from the date this Agreement is presented to
Xxxxxx
X. Xxxxxxxx
to
accept the terms of this Agreement, although Xxxxxx
X. Xxxxxxxx
may
accept it at any time within those twenty-one (21) days. Xxxxxx
X. Xxxxxxxx
agrees
that any changes to this Agreement, whether material or not, will not restart
the period for acceptance. After acceptance, Xxxxxx
X. Xxxxxxxx
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. Xxxxxxxx
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. Xxxxxxxx
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. Xxxxxxxx
nor the
Companies
shall
have any further rights or obligations pursuant to this Agreement.
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.
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EMPLOYEE
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Dated:
11-21-05
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/s/
XXXXXX X. XXXXXXXX
Xxxxxx
X. Xxxxxxxx
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Dated:
11-23-05
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/s/
XXXXXX X. XXXXX
Xxxxxx
X. Xxxxx
Chairman
of the Board,
and
Chief Executive Officer
MDU
Resources Group, Inc.
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