WAIVER AND
RELEASE
This Waiver and
Release, ("Release", undersigned and dated as of September 5, 2008,
("Release"), is entered into by and between NorthWestern
Corporation, d/b/a NorthWestern Energy, a Delaware corporation with
its principal place of business located at 3010 West 69
th Street, Sioux Falls, South Dakota, 57108, its
officers, agents, directors, employees, successors, subsidiaries,
insurers, parents and/or affiliated companies, and assigns ("NWEC
or Company") and Thomas J. Knapp ("Knapp" or "You"), a Maryland
resident, to settle all issues between us in connection with
Knapp's severance of employment. NWEC and Knapp 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
hereto do hereby agree as follows:
1.
Benefits
Payable. In exchange for this Release,
Knapp will receive a severance payment of $284,012.00 (Two Hundred
Eighty-four Thousand and Twelve Dollars) less all applicable taxes
and deductions to be paid in the next regularly scheduled payroll
cycle occurring seven (7) days after he signs this Release. In his
last regularly scheduled payroll check, Knapp shall receive his
accrued but unpaid vacation.
Knapp will be
eligible for a pro-rated 2008 incentive award based on the amount
of time served in an eligible status during the performance period
to be calculated at the end of the performance period, payable in
accordance with the terms of the 2008 Employee 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, 2009. Such award will be
calculated assuming a personal performance factor of 100 percent
and an individual performance rating of at least "meets
expectations".
With respect to
COBRA continuation premiums, for the twelve (12) month period
following the date of termination, NWEC will continue to pay the
same percentage of premiums as it was paying for group health and
other group insurance coverage subject to COBRA continuation,
immediately prior to the date of termination. For the same twelve
(12) month period, Knapp will pay the employee portion of such
COBRA premiums, and will be reimbursed for each COBRA premium he
pays in the first regularly scheduled pay period of each applicable
month. Outplacement services with a service provider of Knapp's
choice, will be provided up to $12,000 (Twelve thousand dollars)
during the twelve (12) month period following the date employment
is terminated.
Whether or not
Knapp signs this Agreement, he will retain such interests as he may
have as a former employee of NWEC in any NWEC benefit plans,
including, but not limited to, any pension, or 401K plans. He shall
further retain such rights as he may have to elect to continue
certain health and other benefits under COBRA and comparable state
laws.
2.
Employment
Severance. Knapp's last date of
employment shall be August 29, 2008 (the "Severance Date"),
contingent upon signing this Waiver and Release.
3.
Claims
Released. In exchange for the benefits
payable, Knapp for himself, his heirs, executors, administrators,
successors, assigns and trustees irrevocably and unconditionally
releases NWEC, its current, former and future, parent, subsidiary
and related companies, its directors, trustees, officers,
employees, agent, 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 heretofore occurred,
including, without limitation that Knapp may have arising out of or
related to his employment with or separation from, NWEC ("Claims").
Knapp is releasing the following claims which include, without
limitation, claims under his original employment terms, which are
canceled as of the Severance Date with no further benefits or
payments to be provided thereunder, 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, and 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 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, under the Fair Labor Standards
Act, as amended, 29 U.S.C. §201 et seq.,
the Older Workers
Benefit Protection Act, as amended, the Wrongful Discharge from
Employment Act, 39-2901 et seq., MCA, 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 including 27-1-221, MCA, any federal, state, or local laws
prohibiting employment discrimination, such as in the State of
South Dakota, any claim filed in NWEC's bankruptcy proceedings, and
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, and prima facie tort, any and all claims for monetary
recovery, including but not limited to, back pay, front pay,
liquidated, compensatory, and punitive
damages, and attorneys' fees, experts' fees, disbursements and costs which
against the Released Parties, that Knapp ever had, now have, 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 Knapp's execution of this Release. Knapp will never
file any lawsuit, complaint or claim based on any Claims, and Knapp
will withdraw with prejudice any such lawsuit, complaint, or claim
that may already be pending in any court or administrative agency.
Knapp promises never to seek any damages, remedies, or other relief
for himself personally (any right to which Knapp hereby waives) by
filing or prosecuting a charge with any administrative agency with
respect to the Claims purportedly released by this Release.
Notwithstanding any provision to the contrary, this subsection
shall not apply (a) to challenges to the ADEA release, to the
extent, if any, prohibited by applicable law; (b) to claims to
enforce Knapp's rights under this Agreement, (c) to claims that
cannot legally be released under applicable law; (d) to claims by
Knapp for benefits under benefit plans in which he maintains an
interest as a former employee of NWEC, (e) to all rights and claims
of contribution and of indemnification Knapp may have, whether
under this Agreement, under the NWEC's Bylaws, by common law,
statute, or otherwise, and (f) to rights and claims Knapp may have
under any policies of directors and officers liability
insurance.
NWEC hereby
releases Knapp and his 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,
attorneys' 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 heretofore occurred (all
hereinafter
referred to as "NWEC Claims"). NWEC further will never
file any lawsuit,
complaint, or claim based on any NWEC Claims, and NWEC will
withdraw with prejudice any such lawsuit. Notwithstanding any
provision to the contrary, this subsection shall not apply (a) to
claims to enforce NWEC's rights under this Agreement, and (b) to
claims that Knapp 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. Knapp
acknowledges that he has not suffered any age or other
discrimination or wrongful treatment by any released
party.
5.
Consideration
of Release. NWEC advised Knapp to take
this Release home, read it, and carefully consider all of its terms
before signing it. NWEC gave Knapp at least twenty-one (21) days in
which to consider this Release. Knapp waives any right he may have
to additional time beyond this consideration period within which to
consider this Release. Knapp understands that he has seven (7) days
after signing this Release to revoke it. If Knapp chooses to revoke
this Release, Knapp agrees to provide suc
