exv10w52



 



EXHIBIT 10.52



SEPARATION AGREEMENT AND

RELEASE OF ALL CLAIMS



     This Separation Agreement including the Release Agreement attached as
Exhibit A (“Agreement”) is made and entered into by and between James T.
Petillo (Participant) and Xcel Energy Inc., and its subsidiaries and affiliates
(collectively “the Company”).


     WHEREAS, Participant is a Participant in the Xcel Energy Senior Executive
Severance Policy (Policy); and


     WHEREAS, the parties wish to enter into an agreement whereby the Company
obtains a waiver of all benefits payable under the Policy along with the
Release Agreement required by the Policy from Participant, and Participant
retires and receives severance benefits from the Company; and


     WHEREAS, August 8, 2003 will be the last day the Participant is required
to report to work. The Company agrees that Participant will remain an active
employee and utilize Paid Time Off (PTO) until August 31, 2003 (Date of
Termination). Upon the Date of Termination, the Participant will offer and the
Company will accept his voluntary resignation as an employee and officer of the
Company, effective August 31, 2003. During the time between August 8, 2003 and
the Date of Termination, the Participant will be available to provide
consultative services to the Company.


     NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged,


     IT IS AGREED, by and between the undersigned, as follows:


	1.
	 	Payment to Participant




	 
	 	In return for the promises made herein, the sufficiency of which
Participant acknowledges, the Company shall provide Participant with the
following severance benefits after the Date of Termination, provided that
Participant signs this Agreement, and, on or about the Date of
Termination, signs and does not rescind the Release Agreement attached as
Exhibit A:




	 	a.
	 	A lump sum payment of two million dollars ($
2,000,000.00) payable within fifteen days of the date upon
which the Release Agreement becomes irrevocable;




	 	b.
	 	The Company shall, at its sole expense as
incurred, make available for use by the Participant
outplacement services the scope and provider of which shall be
selected by the Participant in his sole discretion (but at a
cost to the Company of not more than $30,000);




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	 	c.
	 	For a period of two and one-half years following
the Date of Termination, the Participant and his family shall
be provided with medical, vision and dental benefits as if the
Participant’s employment had not been terminated;




	 	d.
	 	The Company shall continue to provide the
Participant with financial planning counseling benefits
through the second anniversary of the Date of Termination, on
the same terms and conditions as were in effect immediately
before the termination or, if more favorable, on the Effective
Date.




	 
	 	Payments subject to tax withholding will be less applicable withholdings.




	2.
	 	Other Payments




	 
	 	Participant acknowledges that the benefits payable under this Agreement
are in lieu of any other severance payments from the Company and hereby
expressly waives any and all rights to benefits under the Policy and
other severance benefits from the Company. Participant agrees that under
no circumstances will he be eligible for Separation Benefits under both
this Agreement and the Policy.




	3.
	 	Sufficiency of Consideration




	 
	 	Participant acknowledges that the payments and other benefits described
in Paragraph 1 above are sufficient consideration for this Agreement.




	4.
	 	Certain Additional Payments or Reductions in Payments




	 
	 	In the event that it shall be determined that any Payments made under
this Agreement would be subject to Excise Tax, then the Participant shall
be entitled to receive an additional payment (a Gross-Up Payment). In an
amount such that after payment by the Participant of all taxes (including
any interest or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, the Participant retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.




	5.
	 	Confidentiality/Nondisclosure




	 
	 	Participant agrees that he will forever treat the terms and conditions of
this Agreement as confidential and shall not disclose them to any person,
other than to his immediate family, accountant(s), tax consultant(s),
attorney(s), state and federal taxing authorities and financial
institutions on a “need to know” basis, or as may be required in a court
of competent jurisdiction or to a governmental agency, when required by
subpoena, court order, law or administrative regulation. The Company
agrees that it will respond to all inquiries into Participant’s
employment history by disclosing the dates of Participant’s employment
with the Company and the title of the position he last held.




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	6.
	 	Non-Disparagement




	 
	 	Participant agrees to refrain from making any statements or
communications which in any way allege that the Company acted in any
manner which was wrongful, tortious or unlawful or which gave rise to
liability or fault. Participant further agrees that he will not disparage
the Company or its employees in any manner. The Company agrees that it,
its agents, or employees will not disparage Participant in any manner.




	7.
	 	Complete Agreement




	 
	 	The parties acknowledge and represent that no promise or representation
not contained in this Agreement has been made to them and acknowledge and
represent that this Agreement contains the entire understanding between
the parties and contains all terms and conditions pertaining to the
settlement of the parties disputes. To the extent included in this
Agreement, capitalized terms shall have the same meaning as defined in
the Policy unless otherwise indicated herein.




	8.
	 	Knowing and Voluntary Execution




	 
	 	The parties hereto acknowledge that they have read this Agreement, that
they fully understand their rights, privileges and duties thereunder and
that they enter into the Agreement freely and voluntarily. They further
acknowledge that they have had an opportunity to consult with attorneys
of their choice to explain the terms of this Agreement and the
consequences of signing it.




	9.
	 	Binding Effect




	 
	 	This Agreement and all covenants and releases set forth herein shall be
binding upon and shall inure to the benefit of the respective parties
hereto, their legal predecessors, successors, heirs, assigns, partners,
representatives, parent companies, subsidiary companies, agents and
attorneys. The terms of this Agreement constitute a binding contract.




	10.
	 	Construction




	 
	 	This Agreement shall not be construed or interpreted for or against any
party hereto because that party drafted or caused the party’s legal
representative to draft any of its provisions. The parties agree that
this Agreement shall be interpreted as a whole in accordance with the
laws of the State of Minnesota.




	11.
	 	Severability




	 
	 	If any provision of this Agreement or application thereof is held
invalid, the invalidity shall not affect other provisions or applications
of this Agreement which can be given effect without the invalid provision
or application. To this end, the provisions of this Agreement are
severable.




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	12.
	 	Counterparts




	 
	 	This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and the
counterparts shall together constitute one and the same agreement.




THIS AGREEMENT IS INTENDED TO BE A LEGALLY BINDING DOCUMENT FULLY ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS. IF IN DOUBT, SEEK COMPETENT LEGAL ADVICE BEFORE
SIGNING.




	 	 	 	 	 
	 	 	 	 	/s/ James T. Petillo
	 	 	

	Dated: August 21, 2003.	 	 	 	James T. Petillo
	 	 	 	 	 
	 	 	Xcel Energy Inc.
	 	 	 	 	 
	Dated: August 21, 2003.	 	
By:
	 	/s/ Parker W. Newcomb
	 	 	 	 	

	 	 	 	 	Parker W. Newcomb





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EXHIBIT A

RELEASE AGREEMENT



THIS Exhibit A to the Separation Agreement by and between Xcel Energy Inc. and
its subsidiaries and affiliates (collectively the “Company”), a Minnesota
corporation, and James T. Petillo (the “Participant”) is entered into this      day
of                    , 2003.



WHEREAS, the Participant has become entitled to receive Separation Benefits
under the Agreement on the condition that the Participant enter into this
Release Agreement.



NOW, THEREFORE, in consideration of the payments and other benefits described
in paragraph 1 of the Agreement, the Participant, intending to be legally
bound, agrees as follows:



	1.
	 	Acknowledgment.




     (a) The Participant understands and agrees that, in addition to the
Participant’s below-described exposure to the Company’s Confidential
Information or Trade Secrets, the Participant may, in his capacity as an
employee, at times meet with the Company’s customers and suppliers, and that as
a consequence of using and associating with the Company’s name, goodwill, and
professional reputation, the Participant will be in a position to develop
personal and professional relationships with the Company’s past, current, and
prospective customers and suppliers. The Participant further acknowledges that
during the course and as a result of employment by the Company, the Participant
may be provided certain specialized training or know-how. The Participant
understands and agrees that this goodwill and reputation, as well as the
Participant’s knowledge of Confidential Information or Trade Secrets and
specialized training and know-how, could be used unfairly in competition
against the Company.


     (b) Accordingly, the Participant agrees that during the period of one year
after the Date of Termination (the “Covenant Period”), the Participant shall
not:


     (i) Directly or indirectly solicit, service, contract with, or
otherwise engage any past (one (1) year prior), existing or
prospective customer, client, or account who then has a
relationship with the Company for current or prospective business
on behalf of an individual or entity that is engaged in a Competing
Business (as defined below), or on the Participant’s own behalf for
a Competing Business; the term “Competing Business” meaning for
purposes of this clause (i) a business or enterprise that is
engaged in the business of generation, purchase, transmission,
distribution, or sale of electricity, or in the purchase,
transmission, distribution, sale or transportation of natural gas
within the States of Colorado, Kansas, Minnesota, New Mexico, North
Dakota, Oklahoma, South Dakota, Texas, Wisconsin or Wyoming; and
the Participant and the Company agree that this provision is
reasonably enforced with reference to the foregoing states to the
extent applicable to such relationships with the Company;



     (ii) Cause or attempt to cause any existing or prospective
customer, client, or account, who then has a relationship with the
Company for current or



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prospective business, to divert, terminate, limit or in any
manner modify, or fail to enter into any actual or potential
business relationship with the Company; and the Participant and the
Company agree that this clause (ii) is reasonably enforced with
reference to any geographic area applicable to such relationships
with the Company; and



     (iii) Directly or indirectly solicit, employ or conspire with
others to employ any of the Company’s employees; the term “employ”
for purposes of this clause (iii) meaning to enter into an
arrangement for services as a full-time or part-time employee,
independent contractor, consultant, agent or otherwise; and the
Participant and the Company agree that this clause (iii) is
reasonably enforced as to any geographic area.



     (c) The Participant further agrees to inform any new employer or other
person or entity with whom the Participant enters into a business relationship
during the Covenant Period, before accepting such employment or entering into
such a business relationship, of the existence of this Agreement and give such
employer, person or other entity a copy of this Agreement.


     2. Return of Property. The Participant agrees that upon the Date of
Termination, the originals and all copies of any and all documents (including
computer data, diskettes, programs, or printouts) that contain any customer
information, financial information, product information, or other information
that in any way relates to the Company, its products or services, its clients,
its suppliers, or other aspects of its business that are in the Participant’s
possession shall be immediately returned to the Company. The Participant
further agrees to not retain any summary of such information.


     3. Confidential Information/Trade Secrets.


     (a) The Participant acknowledges that during the course and as a result of
his employment, the Participant may receive or otherwise have access to, or
contribute to the production of, Confidential Information or Trade Secrets.
“Confidential Information or Trade Secrets” means information that is
proprietary to or in the unique knowledge of the Company (including information
discovered or developed in whole or in part by the Participant); the Company’s
business methods and practices; or information that derives independent
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy. It includes,
among other things, strategies, procedures, manuals, confidential reports,
lists of clients, customers, suppliers, past, current or possible future
products or services, and information concerning research, development,
accounting, marketing, selling or leases and the prices or charges paid by the
Company’s customers to the Company, or by the Company to its suppliers. The
Participant acknowledges his continuing agreement to abide by the terms of the
Xcel Energy Code of Conduct.


     (b) The Participant further acknowledges and appreciates that any
Confidential Information or Trade Secret constitutes a valuable asset of the
Company and that the Company intends any such information to remain secret and
confidential. The Participant therefore specifically agrees that except to the
extent required by the Participant’s duties to the Company or


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as permitted by the express written consent of the Board of Directors, the
Participant shall never, either during employment with the Company or at any
time thereafter, directly or indirectly use, discuss or disclose any
Confidential Information or Trade Secrets of the Company or otherwise use such
information to his own or a third party’s benefit.


     4. Consideration. The Participant and the Company agree that the above
provisions of this Agreement are reasonable and necessary for the protection of
the Company and its business. In exchange for the Participant’s agreement to
be bound by the terms of this Agreement, the Company has provided the
Participant the Separation Benefits under this Agreement. The Participant
accepts and acknowledges the adequacy of such consideration for this Agreement.


     5. Remedies for Breach. The Participant acknowledges that a breach of the
above provisions of this Agreement will cause the Company irreparable harm that
would not be fully remedied by monetary damages. Accordingly, the Participant
agrees that the Company shall, in addition to the requirement to return the
Covenant Consideration to the Company and any relief afforded by law, be
entitled to injunctive relief. The Participant agrees that both damages at law
and injunctive relief shall be proper modes of relief and are not to be
considered alternative remedies.


     6. Release.


     (a) In consideration of the Separation Benefits, the Participant does
hereby fully and completely release, discharge and waive any and all claims,
complaints, causes of action or demands of whatever kind which the Participant
has or may have against the Company and its predecessors, successors,
subsidiaries and affiliates, corporations, partnerships or other business
enterprises and all officers, directors, stockholders, owners, supervisors,
managers, partners, employees and agents of those persons and companies arising
out of any actions, conduct, decisions, behavior or events occurring to the
date of his execution of this Release, whether known or unknown, suspected or
unsuspected.


     (b) The Participant understands and accepts that this release specifically
covers but is not limited to any and all claims, complaints, causes of action
or demands of whatever kind which the Participant has or may have against the
above-referenced released parties relating in any way to the terms, conditions
and circumstances of his employment to date, whether based on statutory,
regulatory or common law claims for employment discrimination, including but
not limited to race, color, national origin, handicap, religion, sex, age,
retaliation or reprisal discrimination, arising under Title VII of the Federal
Civil Rights Act of 1964, as amended, Executive Order 11246, the 1866 Civil
Rights Act, the Age Discrimination in Employment Act, as amended, the
Americans with Disabilities Act, the Rehabilitation Act of 1973, the Colorado
Civil Rights Act, the Minnesota Human Rights Act, the Fair Labor Standards Act,
National Labor Relations Act, Worker Adjustment and Retraining Notification Act
or any other administrative order, federal or state statute or local ordinance,
wrongful discharge, breach of contract, breach of any express or implied
promise, misrepresentation, fraud, reprisal, retaliation, breach of public
policy, infliction of emotional distress, defamation, promissory estoppel,
invasion of privacy, negligence, or any other theory, whether legal or
equitable; except that this release will not impair any existing rights



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the Participant may have under any presently existing pension, retirement or
employee benefit plan of the Company.


     (c) By signing below, the Participant acknowledges that he fully
understands and accepts the terms of this release, and represents and agrees
that his signature is freely, voluntarily and knowingly given and that he has
been provided a full opportunity to review and reflect on the terms of this
release for at least 21 days and to seek the advice of legal counsel of his
choice, which advice the Participant has been encouraged to obtain.


     7. The Participant’s Acknowledgment of Review; Right
to Revoke.


     (a) The Participant represents that the Participant has carefully read and
fully understands all provisions of this Agreement and that the Participant has
had a full opportunity to review this Agreement before signing and to have all
the terms of this Agreement explained to him by counsel.


     (b) This Agreement may be revoked by the Participant by written notice
given to:



	 	Gary Johnson, Vice President and General Counsel

800 Nicollet Mall, Suite 3000

Minneapolis, Minnesota 55402



	
within 15 business days after being signed by the Participant.





     8. General Provisions. The Participant and the Company acknowledge and
agree as follows:


     (a) This Agreement contains the entire understanding of the parties with
regard to all matters contained herein. There are no other agreements,
conditions, or representations, oral or written, express or implied, with
regard to such matters;


     (b) This Agreement may be amended or modified only by a writing signed by
both parties;


     (c) Waiver by either the Company or the Participant of a breach of any
provision, term or condition hereof shall not be deemed or construed as a
further or continuing waiver thereof or a waiver of any breach of any other
provision, term or condition of this Agreement;


     (d) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would have been required to
perform it if no such succession had taken place. As used in this Agreement,
“the Company” shall mean the Company and its affiliates or assigns and any such
successor that assumes and agrees to perform this Agreement, by operation of
law or otherwise. No assignment of this Agreement shall be made by the
Participant, and any purported assignment shall be null and void;


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     (e) If any court finds any provision or part of this Agreement to be
unreasonable, in whole or in part, such provision shall be deemed and construed
to be reduced to the maximum duration, scope or subject matter allowable under
applicable law. Any invalidation of any provision or part of this Agreement
will not invalidate any other part of this Agreement;


     (f) This Agreement will be construed and enforced in accordance with the
laws and legal principles of the State of Minnesota. The Participant consents
to the jurisdiction of the Minnesota courts for the enforcement of this
Agreement; and


     (g) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.


THIS AGREEMENT IS INTENDED TO BE A LEGALLY BINDING DOCUMENT FULLY ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS. IF IN DOUBT, SEEK COMPETENT LEGAL ADVICE BEFORE
SIGNING.




	 	 	 
	
	 	

	James T. Petillo	 	
Date





XCEL ENERGY INC.



	 	 	 	 	 
	By	 	 	 	 
	 	 	
	 	

	 	 	 	 	Date






	 	 	 	 	 
	Its	 	 	 	 
	 	 	

	 	 





The Participant acknowledges that he has received a copy of this Agreement.





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