Exhibit 10.1
WAIVER AND
RELEASE
This Waiver and Release,
(“Release”, undersigned and dated as of September 1,
2005, (“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 125
South Dakota Avenue, Suite 1100, Sioux Falls, South Dakota,
57104-6403, its officers, agents, directors, employees, successors,
subsidiaries, insurers, parents and/or affiliated companies, and
assigns (“NWEC or Company”) and Roger Schrum
(“Schrum”), a South Dakota resident, to settle all
issues between us in connection with Schrum’s severance of
employment. NWEC and Schrum 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, Schrum will receive a severance payment
of $95,555.60 (Ninety-five thousand five hundred and fifty-five and
60 cents) to be paid within two weeks of signing this
release. In his last payroll check, Schrum shall receive his
accrued but unpaid vacation.
NWEC acknowledges that Schrum has
received a Special Recognition Grant of 10,800 shares of stock and
that Schrum’s ownership rights in 5,400 of those shares have
vested. NWEC hereby agrees that the remaining 5,400 unvested
shares in the Special Recognition Grant shall vest effective Sept.
12, 2005, without further action by NWEC.
2. Employment
Severance .
Schrum’s last date of employment shall be October 7, 2005
(the “Severance Date”), contingent upon signing this
Waiver and Release.
3. Claims
Released . In
exchange for the benefits payable, Schrum 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 Schrum may have arising out of or related to his
employment with or separation from, NWEC
(“Claims”). The Claims Schrum is releasing
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, 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, 39-2-901 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, 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 Schrum 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 Schrum’s
execution of this Release. Schrum will never file any lawsuit,
complaint or claim based on any Claims, and Schrum will withdraw
with prejudice any such lawsuit, complaint, or claim that may
already be pending in any court or administrative agency.
Schrum promises never to seek any damages, remedies, or other
relief for himself personally (any right to which Schrum hereby
waives) by filing or prosecuting a charge with any administrative
agency with respect to the Claims purportedly released by this
Release. This subsection shall not apply to challenges to the ADEA
release, to the extent, if any, prohibited by applicable
law.
4. No admission of
Liability. This
Release is not an admission of guilt or wrongdoing by any released
party. Schrum acknowledges that he has not suffered any age
or other discrimination or wrongful treatment by any released
party.
5. Consideration of
Release. NWEC
advised Schrum to take this Release home, read it, and carefully
consider all of its terms before signing it. NWEC gave Schrum
at least twenty-one (21) days in which to consider this
Release. Schrum waives any right he may have to additional
time beyond this consideration period within which to consider this
Release. Schrum understands that he has seven (7) days after
signing this Release to revoke it. If Schrum chooses to
revoke this Release, Schrum agrees to provide such revocation in
writing, accompanied by any sums received pursuant to this Release,
to be received by the Vice President and General Counsel by the end
of the seven (7) day period. NWEC, in writing,
2
advised Schrum to discuss this Release with his
own attorney (at Schrum’s own expense) during this period if
Schrum wished to do so. Schrum has carefully read this
Release, fully understands what it means, and is entering into it
voluntarily. Schrum is receiving valuable consideration in exchange
for his execution of this Release that he would not otherwise be
entitled to receive.
6. Company
Property. Schrum
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.
7. False Claims
Representations and Promises. Schrum 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 United States. Schrum
promises to cooperate fully in any investigation NWEC or any
affiliate undertakes into matters occurring during his employment
with NWEC or any affiliate. Schrum understands that nothing in this
Release prevents his from cooperating with any U.S. government
investigation. In addition, to the fullest extent permitted
my law, Schrum hereby irrevocably assigns to the U.S. government
any right he may hav
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