WAIVER AND
RELEASE
This Waiver and
Release, (“Release”), undersigned and dated as of
January 29, 2009, (“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 Greg Trandem
(“Trandem” or “You”), a Montana resident,
to settle all issues between us in connection with Trandem's
severance of employment. NWEC and Trandem 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 and provided, Trandem does not exercise his right of
rescission per Section 5, he will receive a severance payment of
$216,000(Two Hundred and Sixteen Thousand Dollars) less all
applicable taxes and deductions to be paid in the next regularly
scheduled payroll cycle occurring fifteen business (15) days after
he signs this Release.
Whether or not
Trandem executes this Release, Trandem shall receive his accrued
but unpaid vacation.
Whether or not
Trandem executes this Release, he will receive his 2008 incentive
award 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.
In
exchange for this Release and provided Trandem does not exercise
his right of rescission per Section 5, Trandem will receive 5,084
shares of NWEC common stock. Such stock will be fully vested and
unrestricted and will be delivered to Trandem eight (8) days after
he signs this Release.
With respect to
health care benefits, Trandem shall elect whether the involuntary
separation is a termination which will carry with it the COBRA
benefits described below or a retirement for the purposes of NWEC
Retiree Health Benefits described below:
A.
COBRA: 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, Trandem 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.
B.
Retirement Health Benefits: Early Retiree
Health Benefits, 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 prior to the date of termination. For the twelve
(12) month period immediately following the date of termination
Trandem will pay the employee portion of such Early Retiree Health
Benefits, and will be reimbursed for each premium he pays in the
first regularly scheduled pay period of each applicable
month.
Outplacement
services with a service provider of Trandem’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
Trandem 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 or as a retiree.
Whether or not
Trandem signs this Agreement, Trandem shall retain all rights and
claims he has under the Indemnification Agreement between the
parties dated April 11, 2006, (the “Indemnification
Agreement”), which agreement shall remain in full force and
effect in accordance with its terms.
2.
Employment Severance. Trandem’s
last date of employment was January 30, 2009 (the “Severance
Date”), and he is signing this Waiver and Release after his
employment ended.
3.
Claims Released . In exchange for the benefits payable,
Trandem for himself, his heirs, executors, administrators,
successors, assigns and trustees irrevocably and unconditionally
covenants not to sue and releases NWEC, its current, former and
future, parent, subsidiary and related companies, its current and
former directors, trustees, officers, employees, agents, 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 Trandem may have arising out of or related to his
employment with or separation from, NWEC (“Claims”).
Trandem is releasing the following claims which include, without
limitation, claims under his original employment terms, which are
canceled as of the
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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
Older Worker’s Benefit Act, 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 Montana
Wrongful Discharge from Employment Act, 39-2-901 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 and Montana, 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 Trandem 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 Trandem’s execution of this Release.
Trandem will never file any lawsuit, complaint or claim. Trandem
represents that he has not filed any administrative charge of
discrimination to date. However, notwithstanding any other
provision herein, Trandem acknowledges that this waiver of claims
only applies to claims he is legally permitted to release, and, as
such, does not preclude him from filing a charge of discrimination,
though he will not be able to recover any damages if he does file
such a charge or if he has filed such a charge.
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
Trandem’s rights under this Agreement, (c) to claims that
cannot legally be released under applicable law; (d) to claims by
Trandem 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 Trandem may have under the
Indemnification Agreement between NWEC and Trandem dated April 11,
2006, whether under this Agreement, under the NWEC’s Bylaws,
by common law, statute, or otherwise, (f) to all additional or
other rights and claims of contribution and indemnification Trandem
may have whether under this Agreement, under the NWEC’s
Bylaws, by common law, statute or otherwise, and (g) to all rights
and claims Trandem may have under any policies of directors and
officers liability insurance.
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NWEC hereby
releases Trandem and his heirs, successors or assigns, from all
actions, causes of action, suits, debts, charges, complaints,
claims, obliga
