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, 


 


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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 have to any proceeds or awards in
connection with any false claims proceedings against NWEC or any affiliate.


 


8.  Non-Disclosure, Return of Proprietary
Information, and Inventions and Patents.  NWEC and Schrum
agree that during his employment with NWEC, Schrum
has received and become acquainted with confidential, proprietary, and trade
secret information of NWEC including, but not limited to, information regarding
NWEC business programs, plans, and strategies; finances; customers and
prospective customers; suppliers and vendors; marketing plans and results;
personnel matters regarding NWEC employees, officers, directors, and owners;
manners of operation and services provided; negotiating positions and
strategies; legal arguments, theories, claims, investigations, and audits; or
information regarding the operation and business of NWEC.  Schrum
acknowledges that such information has been developed or acquired by NWEC
through the expenditure of substantial time, effort, and money, that such
information provides NWEC with strategic and business advantages over others
who do not know or use such information, and that NWEC has implemented specific
policies and practices to keep such information secret.  Schrum
agrees that he shall not during the term of employment or at any time
thereafter, directly or indirectly:


 


A.  Use for his own purpose or for the
benefit of any person or entity other than NWEC, or otherwise disclose or
permit others to obtain access to, any proprietary of confidential information
to any individual or entity unless such disclosure has been authorized in
writing by NWEC or is otherwise required by law.  Information or material that is not novel or
copyrighted or patented may nonetheless be proprietary information.  Proprietary information shall not include,
however, any information that is or becomes generally known to the industries
in which NWEC competes through sources independent of NWEC or Schrum or through authorized publication by
NWEC to persons other than NWEC employees.


 


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B.  Except as required by law, give or
disclose any records containing confidential information or material to, or
permit any inspection or copying of such records by, any individual or entity
other than in the authorized course and scope of such individual’s or entity’s
employment or retention by NWEC.  In
addition, Schrum shall promptly return to
NWEC all such records upon resignation hereunder and shall not use or retain
any such records thereafter.  Records
subject to this subsection shall include, but not be limited to, all
correspondence, memoranda, files, analyses, studies, reports, notes, documents,
manuals, books, lists, financial, operating, or marketing records, computer
software, magnetic tape, or electronic or other media or equipment of any kind
that may be in the my possession or under Schrum’s
control or accessible to his which contain or may be derived from proprietary
or confidential information covered by this section.  All such records are and will remain the sole
property of NWEC.


 


9.  Confidentiality.  Schrum
agrees that he will keep confidential the existence and terms of this Release;
provided, however, that nothing herein shall prevent Schrum from disclosing the fact and terms of this Release to his
attorney, accountant, or financial advisor for the purposes of receiving
professional advice from such individual in that capacity.  Schrum
will advise those individuals that the existence and terms of this Agreement
shall be kept confidential.


 


10.  Public
Statements.  Except as
necessary to secure other employment or for other necessary reasons, Schrum
agrees that he will make no public statements concerning his employment or the
severance thereof with NWEC.  NWEC by its
senior management and Schrum also agree
neither party will make any disparaging remarks to any third parties concerning
the other party.  Schrum further agrees that he will not disparage NWEC’s business
capabilities, products, plans, or management to any customer, potential
customer, vendor, suppler, contractor or subcontractor of NWEC so as to affect
adversely the good will or business of NWEC. 
NWEC by and through its senior management agrees that it will refrain
from making any adverse, derogatory or disparaging comments or statements about
Schrum or his performance during his
employment with NWEC and will be supportive of Schrum’s
attempts to secure future employment.  If
either party is contacted by the media concerning Schrum’s departure from NWEC, either party may explain that Schrum left NWEC to pursue other business
opportunities.


 


11.  Consequences of
Violating Promises:


 


A.  General Consequences. 
In addition to any other remedies or relief that may be available, Schrum agrees to pay the reasonable attorneys’
fees and any damages Released Parties may incur as a result of his breaching a
promise he made in this Release (such as by suing a Released Party over a
released Claim) or if any representation he made in this Release was false when
made.  Schrum
agrees that the minimum damages for each breach will be half of the attorney’s
fees each Released Party incurs as a result of the breach, which is a
reasonable estimate of the value of the time the Released Party is likely to
have to spend seeking a remedy for the breach. 
Schrum further agrees that NWEC
would be irreparably harmed by any actual or


 


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threatened
violation of any paragraph of this Waiver and Release that involves
Release-related disclosures or disclosure or use of confidential information or
trade secrets, and that NWEC will be entitled to an injunction prohibiting Schrum from committing any such violation.


 


B.  Challenges to Validity.  Should Schrum
attempt to challenge the enforceability of this Release, Schrum agrees first (1) to deliver a certified
check to NWEC for all amounts he has received because he signed this Release
(2) to direct in writing that all future benefits or payments Schrum is to receive because he signed this
Release be suspended, and (3) to invite NWEC to cancel this Release.  If NWEC accepts Schrum’s offer, this Release will be canceled.  If it rejects Schrum’s
offer, NWEC will notify Schrum and
deposit the amount Schrum repaid, plus
all suspended future benefits and payments, in an interest-bearing account
pending a determination of the enforceability of this Release.  If the Release is determined to be
enforceable, NWEC is to pay Schrum the
amount in the account, less any amounts Schrum
owes NWEC.  If the Release is determined
to be unenforceable, the amount credited to the account shall be paid to the
entities that paid the consideration for this Release in proportion to their
payments, and the suspension of future benefits or payments shall become
permanent.


 


C.  ADEA Claims.  This section shall not apply to ADEA Claims to
the extent, if any, prohibited by applicable law.


 


12.  Successors and
Assigns.  This Release shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, successors, legal representatives, and assigns.  However, neither this Release nor any right
or interest hereunder shall be assignable by Schrum, Schrum’s beneficiaries, or
legal representatives, except as provided by law or pursuant to referenced
benefit policy documents.


 


13.  Severability and
Reformation.  The provisions
of this Release are severable.  If any
provision of this Release shall be determined to be invalid, illegal, or
unenforceable, in whole or in part, neither the validity of the remaining parts
of such provision nor the validity of any other provision of this Release shall
in any way be affected thereby.  In lieu
of such invalid, illegal, or unenforceable provision, there shall be added
automatically as part of this Release a provision as similar in terms to such
invalid, illegal, or unenforceable provision as may be possible and be valid,
legal, and enforceable.  Each party also
agrees that, without receiving further consideration, it will sign and deliver
such documents and do anything else necessary in the future to make the provisions
of this Release effective.


 


14.  Taxes. 
Schrum understands that he will be responsible for paying all taxes that
may become due on any of the payments provided herein. If Schrum fails to pay
any taxes due and owing on any of the payments, or any taxing authority alleges
that Schrum has failed to do so or that NWEC is responsible for the payment of
these taxes, for any reason, Schrum agrees to be fully responsible for any
judgments or orders, fines and penalties, and that he will indemnify NWEC including,
but not limited to, the satisfaction of judgments, orders, fines or penalties


 


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in the payment of NWEC’s defense by counsel of its choice in such
proceedings.  The taxability of the
amounts contained herein shall not affect the validity of this Release.


 


15.  Governing Law and Jurisdiction.  This Agreement shall be governed by, and
construed in accordance with, the laws of the State of South Dakota, without reference to conflict of laws principles thereof.
The Parties also hereby irrevocably and unconditionally submit to the
jurisdiction of any South Dakota state
court or federal court sitting in South
Dakota and any appellate court from any such court, in any suit, action
or proceeding arising out of or relating to this Agreement, or for recognition
or enforcement of any judgment resulting from any such suit, action or
proceeding, and each party hereby irrevocably and unconditionally agrees that
all claims in respect of any such suit, action or proceeding may be heard and
determined in such South Dakota state
court or, to the extent permitted by law, by removal or otherwise, in such
federal court.


 


16.  Further Assurances. 
Each party agrees to take all further actions and to execute and deliver
all further documents and instruments that are reasonably necessary or
appropriate in order to effectuate the purposes of this Agreement and the transactions contemplated
hereby.


 


17.  Waiver. 
Any failure by a party hereto to comply with any obligation, agreement
or condition contained herein may only be waived in a writing executed by the
party granting the waiver, but such waiver or failure to insist upon strict
compliance with such obligation, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, such failure or any subsequent or other
failure.  All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law.


 


18.  Entire Agreement.  This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements and
arrangements, written or oral, relating to the subject matter hereof.


 


19.  Amendment.  This
Agreement may be amended only by a written instrument executed by both of the
parties hereto.


 


20.  Successors or Survivors and Assigns.  This
Agreement shall inure to the benefit of, and be binding upon, the parties
hereto and their respective successors. 
NWEC may assign this Agreement without the prior consent of Executive or his/her successors and
assigns.  Nothing in this Agreement,
express or implied, is intended to confer on any person other than the parties
hereto and the Released Parties, or their respective successors or permitted
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement.


 


21.  Notice. 
Any notice required or permitted by this Agreement shall be in writing
and shall be deemed delivered when delivered personally or by overnight
courier or sent by telegram, fax, or email, or forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such party’s address or
fax number set forth on the


 


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signature page hereto, as appropriate, which address or fax number may
be subsequently modified by a written notice delivered in accordance with this
section.


 


	
  TAKE THIS RELEASE HOME, READ IT, AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS
  BEFORE SIGNING IT: IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS. IF YOU
  WISH, YOU SHOULD TAKE ADVANTAGE OF THE FULL CONSIDERATION PERIOD AFFORDED BY
  SECTION 5 AND YOU SHOULD CONSULT YOUR ATTORNEY.

  



 


 


	
  Schrum

  	
   

  	
  NORTHWESTERN ENERGY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Address: 

  	
   

  	
   

  	
  Its: 

  	
  Vice President and General Counsel 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
   

  	
  , 2005

  	
   

  	
  Date: 

  	
   

  	
  , 2005

  
										



 


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