AGREEMENT ON RETIREMENT
This Agreement on Retirement (this "Agreement") is entered
into by and between Ronald D. Tipton, Chief Executive Officer of
Montana-Dakota Utilities Co. Division and Chief Executive Officer
of Great Plains Natural Gas Co. Division of MDU Resources Group,
Inc., and as a Director and/or Chairman of the Board, Chief
Executive Officer, Manager, and/or President of subsidiaries,
divisions, affiliates, and limited liability companies of MDU
Resources Group, Inc. and as a member of the Managing Committees
of Montana-Dakota Utilities Co. and Great Plains Natural Gas Co.,
divisions of MDU Resources Group, Inc., and any other currently
held positions within the Companies ("Ronald D. Tipton") and MDU
Resources Group, Inc., a Delaware corporation, including all of
its subsidiaries, divisions, affiliates, limited liability
companies, partnerships, both foreign and domestic of MDU
Resources Group, Inc. ("Companies"). This Agreement shall inure
to the benefit of and be binding upon the Companies and their
successors and assigns.
Recitals
A. Ronald D. Tipton is retiring from Companies and the
parties wish to set forth certain terms on the severance of their
relationship.
B. The parties also wish to resolve any claim, demand,
liability, action, or cause of action whatsoever by Ronald D.
Tipton against the Companies and all other existing differences
completely and amicably. Ronald D. Tipton acknowledges that the
mutual covenants and agreements herein, including payments set
forth in Paragraphs 2 and 3, are good and adequate consideration
for this Agreement.
C. The parties represent that they have been advised about
this Agreement by their respective counsel, are competent to
enter into it, fully understand its terms and consequences, and
enter into it knowingly and voluntarily.
Based on these recitals, the parties agree as follows:
Terms
1. Retirement. Effective as of close of business on
Tuesday, September 28, 2004, Ronald D. Tipton shall retire and
resign as Chief Executive Officer of Montana-Dakota Utilities Co.
Division and Chief Executive Officer of Great Plains Natural Gas
Co. Division of MDU Resources Group, Inc., and as a Director
and/or Chairman of the Board, Chief Executive Officer, and/or
President of subsidiaries, divisions, affiliates, and limited
liability companies of MDU Resources Group, Inc. ("collectively
Companies") and as a member of the Managing Committees of Montana-
Dakota Utilities Co. and Great Plains Natural Gas Co., divisions
of MDU Resources Group, Inc., and any other currently held
positions within the Companies. The form of resignation is
attached hereto as Exhibit A and is incorporated herein by
reference. Ronald D. Tipton will, however, continue to be
employed by Montana-Dakota Utilities Co. as a Special Projects
Advisor through the close of business on January 2, 2005. Except
as otherwise provided in this Agreement, all benefits, rights,
authority and privileges of Ronald D. Tipton from Companies end
as of the close of business on January 2, 2005, including but not
limited to any ability to obligate Companies pursuant to any
Power of Attorney or agreements not specified herein.
2. Benefits. Ronald D. Tipton shall receive payment of
benefits which he has earned or accrued in accordance with MDU
Resources Group, Inc. plans and the award agreements thereunder
as applicable per his retirement date. Ronald D. Tipton has been
informed in a letter of those and concurs with the Companies'
determination of his benefits to be paid. This letter is attached
hereto as Exhibit B and is incorporated herein by reference.
All payments and benefits to or for Ronald D. Tipton contained in
this paragraph shall be payable by applicable plans or Companies
in the ordinary course of its business, but such obligations will
be paid and/or performed within all time frames contained in the
various plans which may be applicable to a retiring employee.
Ronald D. Tipton will receive payment for all accrued vacation as
soon as administratively feasible after the January 2, 2005
payroll check.
3. Compensation. Companies will pay to Ronald D. Tipton as
consideration for settlement and release of all claims,
including, but not limited to, all future participation or
distribution in various stock and bonus plans, the sum of two
million two hundred thirty five thousand seven hundred and seven
dollars ($2,235,707) less legally required deductions. Said
payment will be made as soon as administratively feasible after
January 2, 2005 or upon expiration of the rescission period set
forth in paragraph 20 of this Agreement, whichever date is later.
Ronald D. Tipton acknowledges and agrees that this sum is good
and adequate consideration for this Agreement and is a sum to
which he would not otherwise be entitled.
4. Tax. Appropriate tax deductions will be made by
Companies from the payments made under Paragraphs 2 and 3. The
Companies will withhold applicable federal and state income taxes
and Ronald D. Tipton's share of state and federal payroll taxes
and provide Ronald D. Tipton with a W-2 or other appropriate form
evidencing such amounts.
5. Release.
a. Ronald D. Tipton, in exchange for the payment and other
considerations set forth above, the sufficiency of which is
hereby acknowledged and which is acknowledged to provide good
consideration to Ronald D. Tipton to which he is not entitled
unless he signs this Agreement, on behalf of himself and his
representatives, spouse, agents, heirs and assigns, releases and
discharges Companies and Companies' former, current or future
officers, employees, representatives, agents, fiduciaries,
attorneys, directors, shareholders, insurers, predecessors,
parents, affiliates, benefit plans, successors, heirs, and
assigns from any and all claims, liabilities, causes of action,
damages, losses, demands or obligations of every kind and nature,
whether now known or unknown, suspected or unsuspected, which
Ronald D. Tipton ever had, now has, or hereafter can, shall or
may have for, upon or by reason of any act, transaction,
practice, conduct, matter, cause or thing of any kind whatsoever
relating to or based upon, in whole or in part, any act,
transaction, practice or conduct prior to the date hereof,
including, but not limited to, matters dealing with Ronald D.
Tipton's employment or retirement from employment and/or any
other status with the Companies, or which relate in any way to
injuries or damages suffered by Ronald D. Tipton (knowingly or
unknowingly). This Agreement does not eliminate or release any
coverages which Ronald D. Tipton may have under applicable
directors and officers insurance or his right to indemnification
under the terms of the Companies' bylaws for his time in office.
This release and discharge includes, but is not limited to,
claims arising under federal, state and local statutory or common
law, including, but not limited to, the federal Age
Discrimination in Employment Act ("ADEA"), Title VII of the Civil
Rights Act of 1964, the North Dakota Human Rights Act, the Fair
Labor Standards Act, the Family and Medical Leave Act of 1993,
the Americans with Disabilities Act, the Employee Retirement
Income Security Act, the North Dakota Whistleblower Act (codified
at N.D.C.C. Section 34-01-20), and the Sarbanes-Oxley Act of
2002, including any and all claims for wrongful discharge under
any public policy or any policy of the Companies, claims for
breach of fiduciary duty, and the laws of contract and tort, and
any claim for attorney's fees or costs.
b. Ronald D. Tipton agrees that he has not and will not
institute any lawsuit or commence any action asserting any
claims, losses, liabilities, demands or obligations released
hereunder. Nothing in this provision shall be construed,
however, as prohibiting Ronald D. Tipton from filing a charge or
complaint to test the validity under the Older Workers Benefit
Protection Act or the waiver of Ronald D. Tipton's rights under
the federal ADEA. Nothing contained herein shall be construed to
prohibit Ronald D. Tipton from filing a charge or complaint with
the Equal Employment Opportunity Commission or the North Dakota
Department of Labor or participating in investigations by those
entities. However, except for testing the validity of the waiver
noted above, Ronald D. Tipton acknowledges that the release he
executes herein waives his right to file a court action or to
seek individual remedies or monetary damages in any EEOC or North
Dakota Department of Labor filed court action. This release does
not extend to rights, remedies, claims or causes of action
arising out of acts governed by Paragraph 5.a., above, occurring
after the effective date of this Agreement and expiration of the
revocation period.
This Agreement does not apply to, or otherwise impair, any
vested right Ronald D. Tipton has under a presently existing
employee pension or benefit plan or any other claim that may not
be waived by law.
6. Known or Unknown Claims. Ronald D. Tipton understands
and expressly agrees that this Agreement extends to all claims of
every nature and kind, known or unknown, suspected or
unsuspected, past, present, or future, arising from or
attributable to any conduct of the Companies and their
successors, subsidiaries, and affiliates, and all their
employees, owners, shareholders, agents, officers, directors,
predecessors, assigns, agents, representatives, and attorneys,
whether known by Ronald D. Tipton or whether or not Ronald D.
Tipton believes he may have any claims, and that any and all
rights granted to Ronald D. Tipton under N.D.C.C. Section 9-13-02
or any analogous state law or federal law or regulations, are
hereby expressly WAIVED, if applicable.
7. No Admission. Neither this Agreement nor any action or
acts taken in connection with this Agreement or pursuant to it
will constitute an admission by Ronald D. Tipton or by Companies
of any violation of law, nor will it constitute or be construed
as an admission of any wrongdoing whatsoever.
8. Nondisclosure of Proprietary and Trade Secret Business
Information. Ronald D. Tipton agrees to retain in strict
confidence and not to use in any way and not to disclose to any
persons any non-public, confidential, proprietary, or trade
secret information of Companies as described in the North Dakota
Uniform Trade Secret Act. Ronald D. Tipton further acknowledges
that he has returned to Companies all documents and information
encompassing non-public, confidential, proprietary, or trade
secret information of the Companies.
9. No Disparagement. The parties agree not to make any
disparaging or false statements about each other.
10. Change of Control Employment Agreement. Ronald D.
Tipton and MDU Resources Group Inc. are parties to a Change of
Control Employment Agreement dated November 1, 1998. Ronald D.
Tipton acknowledges that no "Change of Control" has occurred, as
that term is defined in that agreement and that agreement is
hereby terminated.
11. Agreement Regarding No Right to Future Employment.
Ronald D. Tipton agrees that he will not at any time in the
future bring a claim against Companies for any failure to offer
him future employment or failure to accept from him an
application for future employment with Companies.
12. Further Documents. Each party agrees to execute or
cause their counsel to execute any additional documents and take
any further action which may reasonably be required in order to
consummate this Agreement or otherwise fulfill the obligations of
the parties thereunder.
13. Choice of Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of North
Dakota.
14. Attorneys' Fees. Should any action be brought by any
party to this Agreement to enforce any provision thereof, the
prevailing party shall be entitled to recover, in addition to any
other relief, reasonable attorneys' fees and costs and expenses
of litigation or arbitration. This provision shall not apply to
charges or complaints filed by Ronald D. Tipton to test the
validity under the Older Workers Benefit Protection Act or the
waiver of Ronald D. Tipton's rights under the ADEA.
15. Integration. This Agreement constitutes an integration
of the entire understanding and agreement of the parties with
respect to the matters referred to in this Agreement. Any
representation, warranty, promise or condition, whether written
or oral, between the parties with respect to the matters referred
to in this Agreement which is not specifically incorporated in
this Agreement shall not be binding upon any of the parties
hereto and the parties acknowledge that they have not relied, in
entering into this Agreement, upon any representations,
warranties, promises or conditions not specifically set forth in
this Agreement. No prior or contemporaneous oral or written
understanding, covenant, or agreement between the parties, with
respect to the matters referred to in this Agreement, shall
survive the execution of this Agreement. This Agreement may be
modified only by a written agreement executed by both parties
hereto.
16. Binding Agreement. The parties understand and
expressly agree that this Agreement shall bind the heirs,
subsidiaries, affiliates, successors, and assigns of the
Companies and Ronald D. Tipton.
17. Construction. The language of this Agreement shall be
construed as to its fair meaning and not strictly for or against
either party. If any part of this Agreement is construed to be a
violation of law, such part shall be modified to achieve the
objective of the parties to the fullest extent permitted and the
balance of this Agreement shall remain in full force and effect.
18. Counterparts. This Agreement may be executed in
counterparts and when each party has signed and delivered at
least one such counterpart, each counterpart shall be deemed an
original and all counterparts taken together shall constitute one
and the same Agreement, which shall be binding and effective as
to all parties.
19. Headings. Headings in this Agreement are for
convenience of reference only and are not a part of the substance
hereof.
20. Time for Acceptance and Revocation. Ronald D. Tipton
acknowledges that he has been advised in writing by Companies to
consult with an attorney prior to signing it. Ronald D. Tipton
may have up to twenty-one (21) days from the date this Agreement
is presented to Ronald D. Tipton to accept the terms of this
Agreement, although Ronald D. Tipton may accept it at any time
within those twenty-one (21) days. Ronald D. Tipton agrees that
any changes to this Agreement, whether material or not, will not
restart the period for acceptance. After acceptance, Ronald D.
Tipton will still have an additional seven (7) days in which to
revoke his acceptance as it relates to federal age discrimination
claims and reinstate any potential claims he might have under the
ADEA. To so revoke, Ronald D. Tipton must send the Companies a
written statement of revocation. To be effective, the revocation
must be in writing and hand-delivered or mailed to the Companies
addressed as follows: MDU Resources Group, Inc., c/o Chief
Executive Officer, P.O. Box 5650, Bismarck, ND 58506-5650,
within the seven (7) day period. If mailed, the revocation must
be postmarked within the seven (7) day period.
This Agreement will not be effective and no payment will be
made hereunder until the revocation period has expired. If
Ronald D. Tipton exercises his option to revoke his ADEA waiver,
the entire Agreement is voidable at the Companies' option within
seven (7) days and neither Ronald D. Tipton nor the Companies
shall have any further rights or obligations pursuant to this
Agreement.
21. Severability. Should any court with jurisdiction
determine that any provision of this Agreement is invalid, void
or unenforceable; the remaining provisions shall remain in full
force and effect.
EMPLOYEE
Dated: October 4, 2004 /s/ RONALD D. TIPTON
Ronald D. Tipton
FOR THE COMPANIES
Dated: October 4, 2004 /s/ MARTIN A. WHITE
Martin A. White
Chairman of the Board,
President and Chief Executive Officer
MDU Resources Group, Inc.
EXHIBIT A
Resignation of Ronald D. Tipton
I, Ronald D. Tipton, hereby resign effective September 28,
2004 from my employment as Chief Executive Officer of Montana-
Dakota Utilities Co. Division and Chief Executive Officer of
Great Plains Natural Gas Co., Division of MDU Resources Group,
Inc., and as a Director and/or Chairman of the Board, Chief
Executive Officer, Manager, and/or President of subsidiaries,
divisions, affiliates, and limited liability companies of MDU
Resources Group, Inc. ("collectively Companies") and as a member
of the Managing Committees of Montana-Dakota Utilities Co. and
Great Plains Natural Gas Co., divisions of MDU Resources Group,
Inc., and any other currently held positions within the
Companies. I will, however, continue to be employed by Montana-
Dakota Utilities Co. as a Special Projects Advisor through the
close of business on January 2, 2005.
/s/ RONALD D. TIPTON October 4, 2004
Ronald D. Tipton Dated