This Waiver Agreement involves
Title: WAIVER AND RELEASE
Governing Law: South Dakota Date: 10/30/2008
Industry: Electric Utilities Sector: Utilities
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 such revocation in writing, accompanied by any sums received pursuant to this Release, to be received by the Vice President, General Counsel and Corporate Secretary by the end of the seven (7) day period. NWEC, in writing, advised Knapp to discuss this Release with his own attorney (at Knapp's own expense) during this period if Knapp wished to do so. Knapp has carefully read this Release, fully understands what it means, and is entering into it voluntarily. Knapp is receiving valuable consideration in exchange for his execution of this Release that he would not otherwise be entitled to receive.
6. Company Property. Knapp agrees to return to NWEC, by his Severance Date, all files, memoranda, documents, records, copies of the foregoing, credit cards, and any other property of NWEC or its affiliates in his possession. Knapp will permanently retain his BlackBerry, the phone number associated with the Blackberry as well as the laptop computer and associated equipment.
7. False Claims Representations and Promises. Knapp has disclosed to NWEC any information he has concerning any conduct involving NWEC or any affiliate that he has any reason to believe may be unlawful or that involves any false claims to the