Exhibit 10.1(Q)


 


MEMORANDUM OF ENGAGEMENT

Daniel K. Newell

Blue Dot Services. Inc.


 


This memorandum outlines the general terms and conditions of Blue Dot
Services, Inc. (“Blue Dot” or the “Company”) continued retention of Daniel K.
Newell (“Newell”) in the capacity of Chief Executive Officer of Blue Dot as
follows:


 


1.             Position
and Duties:


 


Newell shall continue to serve as the Chief Executive Officer (“CEO”)
and a Director of Blue Dot and shall continue to perform such duties as are
customarily associated with such positions, consistent with the bylaws and
policies of Blue Dot and as required by Blue Dot’s Board of Directors. Such
services shall specifically include, but not be limited to, restructuring Blue
Dot’s operations and disposing of those assets and operations which are deemed
to be necessary in the business judgment of Blue Dot and its Board, exclusive
of the operations and assets located in Minneapolis, Minnesota which shall be
retained by the Company.


 


Except as set forth in this Memorandum of Engagement and except with
respect to his position as a director of Cornerstone Propane GP, Newell shall
resign as an officer, director and any other position that he may hold at
NorthWestern Corporation and any of its subsidiaries which resignations shall be
automatically effective upon the execution of this agreement. NorthWestern,
Blue Dot and Newell agree to issue a joint press release regarding Newell’s
resignation promptly after his resignation as shall be mutually agreed upon by
NorthWestern, Blue Dot and Newell. NorthWestern, Blue Dot and Newell all
acknowledge that a) Newell’s resignation is to accommodate NorthWestern; b) is
a direct result of the bankruptcy filing by NorthWestern; c) NorthWestern does
not need the services of Newell as a result of such bankruptcy filing except as
set forth herein with respect to Blue Dot; and d) Newell’s resignation results
from his Termination without Cause from NorthWestern as a result of its
bankruptcy filing. The continuing claims Newell has against NorthWestern are
governed by paragraphs 5 and 10 below.


 


2.             Term:


 


The term (“Term”) of this Memorandum of Engagement shall be for the
period commencing on September 1, 2003 and ending on the earlier of
Newell’s termination or the first anniversary of the effective date.


 

















 


3.             Compensation:


 


(A)          Base salary – $366,000 per year plus an
amount equal to the annual dues owed to a country club where he is a member and
any other mutually agreed upon amounts;


 


(B)           Incentive-based addition – (i) $700,000
payable immediately upon the receipt by Blue Dot of $30,000,000 of Net Proceeds
from the completion of the sale or disposition any and all transactions with
respect to the Company’s operations that are to be sold, liquidated or
otherwise disposed of determined on an aggregate basis taking into account the
Net Proceeds of any and all such transactions (the “Net Proceeds”), plus
(ii) 6.0% (up to a maximum of $900,000) of all Net Proceeds received by Blue
Dot in excess of $20,000,000. As used herein the term “Net Proceeds” shall mean
cash and cash equivalents (“Cash”) received from the sale of assets and/or
stock of Blue Dot and its subsidiaries plus the total of any Blue Dot
corporate-level liabilities assumed by buyers, less payments arising from
securities including Class C stock, preferred stock and “earnout” claims.  Cash shall also include notes receivable and
contingent consideration receivable if and when converted to cash or cash
equivalents. It has been decided that Standard Heating & Air Conditioning
Co. (“SHACC”) will not be sold, but, nonetheless, the parties hereto agree that
$4,000,000 of Net Proceeds shall be taken into account as if SHACC had been
sold. If senior management of Blue Dot decides not to sell other businesses,
facilities or other assets, Net Proceeds shall include additional amounts with
respect to such other businesses, facilities or assets determined on a basis
consistent with the amount determined for SHACC. Net Proceeds will not include
normal working capital or payments arising from working capital adjustments to
Blue Dot arising in connection with the sale, liquidation or disposition of
Blue Dot’s business and assets. Net Proceeds will be calculated beginning after
June 30, 2003.


 


The payment of any amounts earned under subsection (ii) of this Section
3.(B) shall be paid upon the earlier of (1) the closing of the sale,
liquidation or disposition of Blue Dot’s business and assets for which Newell
shall be responsible (disregarding SHACC and any other businesses or assets
which senior management has decided not to sell); or (2) the receipt by Blue
Dot of $40,000,000 in Net Proceeds.


 


(C)           The maximum amount to be paid with respect
to Items (i) and (ii) of Section 3.(B), above, shall not exceed $1,600,000
in the aggregate.


 


(D)          To receive the compensation provided for in
subsections (A) and (B) of this Section 3.  Newell must remain engaged as CEO of the Company. If and to the


 


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extent that Newell’s engagement as CEO of Blue Dot has been involuntary
terminated by the Company, Newell shall receive payments based upon the Net
Proceeds received by Blue Dot as of the termination date under this
Section 3 and including as Net Proceeds, even though payment has not yet
made, all amounts specified in any letter of intent or agreement to sell any
business or assets of Blue Dot executed on or before such termination date or
within thirty (30) days after such termination including any note receivables
or contingent consideration receivable as Cash even though such amounts have
not been converted to cash or cash equivalents. In addition, Newell shall
receive severance in the amount of $350,000 to be paid in equal monthly
installments over a period of one year following the effective date of his
termination; provided  however, if Newell voluntarily terminates
his employment prior to completing the disposition, sale or liquidation of Blue
Dot’s assets or business for which he shall be responsible, he must repay to
Blue Dot any compensation paid to him with respect to subsection (B) of
this Section 3.


 


(E)           If Blue Dot involuntarily terminates
Newell’s employment before the end of the Term and Newell is not offered
continued employment by a successor of Blue Dot, Newell shall receive six (6)
months of executive outplacement services to be provided and paid for directly
by Blue Dot in an amount not to exceed $10,000 for such services. Blue Dot
will, at its sole discretion, determine the provider and nature of such
services to be provided to Newell.


 


(F)           Upon any termination of employment or in any
event at the end of the Term, Newell shall be allowed to retain all computer
equipment and cell phone but will be responsible for all monthly bills
associated therewith going forward.


 


(G)           Blue Dot may terminate Newell’s employment
in the event Newell suffers a disability that renders Newell unable to perform
the essential functions of his position, even with reasonable accommodation,
for nine (9) months within in any twelve (12) month period and within thirty
(30) days after written notice of termination is thereafter given by Blue Dot
or Newell shall not have returned to substantially full-time performance of his
duties (“Disability”). In the event Newell has a Termination for Disability,
Newell shall be paid the cash payments provided in and in accordance with
paragraph (D) of Section 3 above.


 


(H)          If Newell dies prior to the expiration of the
term of this Agreement, Newell’s representative shall be paid the cash payments
provided in and in accordance with paragraph (D) of Section 3 above.


 


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4.             Expense Reimbursement:


 


In addition to the compensation paid as outlined in Section 3
above, Blue Dot agrees to reimburse Newell for all reasonable out-of-pocket
expenses incurred by Newell in carrying out the terms of his engagement as CEO,
including communication charges, travel expenses, copy expenses, delivery and
distribution charges and such other reasonable costs and expenses incurred by
Newell in the performance of his duties as CEO. In addition, Blue Dot agrees to
reimburse Newell for all reasonable legal expenses incurred by him for the
preparation and negotiation of this Memorandum of Engagement. All
reimbursements shall be made promptly after such payments accrue and are
submitted to Blue Dot with appropriate documentation for the payment hereunder.


 


5.             Benefits:


 


During the Term, Newell shall be entitled to all of the following
benefits and prerequisites offered by Blue Dot to senior executives generally:
(a) participate in the Company’s benefits plan in existence as of
September 1, 2003 which shall include, but not be limited to, all the
benefit plans listed on Schedule A attached hereto; and (b) participate in
or receive benefits under any other employee benefit plan or other arrangement
made available by Blue Dot to any similarly situated senior management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plan or arrangement. In no event shall any
benefits be duplicated. In the event Blue Dot terminates any of these benefits,
the Company shall provide to Newell an alternative plan with substantially
equivalent benefits in all material respects. Blue Dot agrees to reimburse
Newell for any COBRA premium payments that he pays for health care coverage for
his family in the event Newell makes a COBRA election to obtain medical and
health care benefits from the medical plan maintained by NorthWestern
Corporation. On or before December 31, 2003, Blue Dot agrees to pay Newell
for his accrued vacation benefits for calendar year 2003 under the NorthWestern
vacation plan unless NorthWestern has made such payment on or before said date.


 


6.             Termination and Severance:


 


Blue Dot or Newell may, at any time, terminate Newell’s continued
engagement as CEO without liability or continuing obligation, by providing
thirty (30) days prior written notice thereof to the other party; provided,
however, that except as otherwise provided in Section 3 of this
Memorandum of Engagement, no termination of Newell’s continued engagement as
CEO shall affect Newell’s right to receive, and the Company’s obligation to
pay, (a) any claims for indemnification as provided for under this Memorandum
of Engagement or (b) the compensation to be paid to Newell as provided for in
Section 3 of this Memorandum of Engagement.


 


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7.             Bankruptcy:


 


In the event that Newell or
anyone engaged by Newell is required to directly or indirectly return, refund
or remit all or a portion of any payments made or funds paid by NorthWestern to
Newell or anyone engaged by Newell (a “Remittance”), for any reason including,
without limitation, to a trustee in bankruptcy pursuant to an order of a
bankruptcy court declaring any portion of the Remittance to be a preference
under the United States bankruptcy laws or a fraudulent transfer, then Blue Dot
shall make payment of any such amounts within five (5) days of such Remittance.


 


8.             Indemnification:


 


Blue Dot shall, to the fullest
extent to which it is empowered to do so by the General Corporation Law of
Delaware, or any other applicable laws, as from time to time in effect, and in
the manner therein provided, indemnify and hold harmless Newell, through the
duration of all statutory periods during which any such claim may be brought or
asserted, from and against any actual, threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, investigative or
otherwise, to which Newell is or is threatened to be made a party by reason of
the fact that he is or was a director, officer, employee or agent of Blue Dot,
or is or was serving at the request of Blue Dot as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against all expenses (including attorney’s fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding. Expenses incurred by Newell in
defending a civil, criminal, administrative, investigative or other action,
suit or proceeding shall be paid by Blue Dot in advance of the final
disposition of such action, suit or proceeding upon receipt of an agreement by
or on behalf of Newell to repay such amount if it is ultimately determined that
Blue Dot is entitled to recover such expenses. The indemnification and
advancement provisions set forth in this Agreement shall not be deemed
exclusive but shall be cumulative with all other rights to indemnification or
expense advancement to which Newell may be entitled.


 


9.             Survival:


 


The provisions of Sections 3
and 8 of this Memorandum of Engagement shall survive the termination or
expiration of Newell’s continued engagement as CEO.


 


10.           Supercedes Prior Agreement:


 


This Memorandum of Engagement supersedes and replaces that certain
Employment and Severance Agreement executed by and among Blue Dot, Newell and
NorthWestern Corporation dated as of July 1, 2003 in all respects and
Newell relinquishes and releases any claim thereunder, except that paragraphs
5, 6, 14, 15, 17 and 21 of such Employment


 


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and Severance Agreement shall remain applicable and continue to be
binding upon NorthWestern, Blue Dot and Newell through the Term of this Memorandum
of Engagement.


 


11.           Government
Law:


 


This Memorandum of Engagement shall be interpreted, administered and
enforced in accordance with the laws of the State of Delaware, except to the
extent pre-empted by Federal law.


 


 


	
   

  	
  BLUE DOT SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/

  	
  Gary Drook

  	
   

  
	
   

  	
   

  	
  Gary Drook

  
	
   

  	
   

  	
  Chairman of the Board

  
	
   

  	
  Date:

  	
  November 6, 2003

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Daniel K. Newell

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DANIEL K. NEWELL

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  November 6, 2003

  



 


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Schedule A


 


Participation in Benefit Plans
- During the term hereof, Newell shall be entitled to participate in the
plans and programs of Blue Dot available to employees of Newell’s level as
generally listed below (copies or summaries of the plans are incorporated by
reference and are available to Newell upon request):


 


•              Health Plans


 


•              401(k) Plan


 


•              Short-Term and
Long-Term Disability Plans


 


•              Standard Life
Insurance Plan


 


•              Standard Vacation
Plan


 


•              Standard Executive
Reimbursement Program for Business Expenses


 


A-1