NORTHWESTERN CORPORATION
CASH BALANCE SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Effective January 1, 2000
The Northwestern Corporation Cash Balance Supplemental
Executive Retirement Plan (the 'Plan') is hereby established and
shall be maintained by Northwestern Corporation solely for the
purpose of providing benefits in excess of the limitations on
benefits imposed by certain sections of the Internal Revenue Code
for certain of its employees who participate in the Northwestern
Pension Plan.
Accordingly, Northwestern Corporation hereby adopts the
Plan, effective January 1, 2000, as hereinafter set forth:
ARTICLE I
DEFINITIONS
Wherever used herein the following terms shall have the
meanings hereinafter set forth:
1.1 'Affiliate' means (i) any corporation while it is
a member of the same 'controlled group' of corporations (within
the meaning of Code Section 414(b)) as the Company; (ii) any
trade or business (whether or not incorporated) while it is under
'common control' (within the meaning of Code Section 414(c)) with
the Company; (iii) any organization during any period in which it
(along with the Company) is a member of an 'affiliated service
group' (within the meaning of Code Section 414(m)); or (iv) any
other entity during any period in which it is required to be
aggregated with the Company under Code Section 414(o).
1.2 'Annuity Starting Date' means the date that a Plan
benefit is paid or commences under Section 3.7.
1.3 'Applicable Interest Rate' for each Plan Year
shall mean the annual rate of interest on 30-year Treasury
securities for the month of November immediately preceding the
first day of such Plan Year.
1.4. 'Attained Age' means, at the time any
determination is being made, a Participant's age in whole years
and a fractional year as of the date such determination is made.
The fractional year shall be calculated by using the number of
days in the applicable partial year as the numerator and 365 as
the denominator.
1.5. 'Beneficiary' means a person or entity designated
by a Participant under the Qualified Plan to receive benefits
thereunder following his death.
1.6. 'Board' means the Board of Directors of the Company.
1.7. 'Code' means the Internal Revenue Code of 1986, as
amended from time to time, and any regulations relating thereto.
1.8. 'Company' means Northwestern Corporation, a
Delaware corporation, or, to the extent provided in Section 7.9
below, any successor corporation or other entity resulting from a
merger or consolidation into or with the Company or a transfer or
sale of substantially all of the assets of the Company.
1.9. 'Compensation' means Compensation for service
rendered to an Employer excluding overtime pay, shift
differentials, commissions and bonuses.
1.10. 'Compensation Limit' means $170,000 or, if
greater, the compensation limit applicable to qualified
retirement plans as set forth pursuant to Code Section 401(a)(17)
or any successor section.
1.11. 'Employee' means an individual employed by an
Employer. Only an individual who is paid as an employee by an
Employer and treated by an Employer at all times as an Employee
shall be deemed an Employee for purposes of the Plan, and no
independent contractor shall be treated as an Employee under the
Plan during the period that he renders services to an Employer as
an independent contractor. Any person retroactively or in any
other way held or found to be a 'common law employee' shall not
be eligible to participate in the Plan for any period during
which he was not treated as an Employee by an Employer.
1.12. 'Employer' means the Company and any
Affiliate that adopts the Plan with the approval of the Company.
1.13. 'Normal Retirement Date' means the first day
of the month coinciding with or next following a Participant's
65th birthday.
1.14. Participant' means each Employee who (i) is
a participant in the Qualified Plan, and (ii) at any time earns
annual Supplemental Compensation, other than each Employee who is
designated by name as a participant in the Northwestern
Corporation Traditional Pension Equalization Plan.
1.15. 'Plan' means the Northwestern Corporation
Cash Balance Supplemental Executive Retirement Plan.
1.16. 'Plan Year' means the calendar year.
1.17. 'Prior Service Credit' means Service credited
to a Participant for employment, prior to his date of employment
or reemployment by the Company or an Affiliate, as determined by
the Chief Executive Officer of the Company. Prior Service Credit
applicable to a Participant shall be set forth opposite such
Participant's name on Schedule A hereto.
1.18. 'Qualified Plan' means the Northwestern
Pension Plan, as amended and restated effective January 1, 2000,
and as further amended from time to time.
1.19. 'Qualified Plan Death Benefit' means the
aggregate benefit payable to the Surviving Spouse or Beneficiary
of a Participant pursuant to the Qualified Plan and all annuities
purchased for the Participant under the Qualified Plan (whether
or not terminated) in the event of the death of the Participant
at any time prior to commencement of payment of his Qualified
Plan Retirement Benefit.
1.20. 'Qualified Plan Retirement Benefit' means the
aggregate benefit payable to a Participant pursuant to the
Qualified Plan and all annuities purchased for the Participant
under the Qualified Plan (whether or not terminated) by reason of
his termination of employment with the Company and all Affiliates
for any reason other than death.
1.21. 'Service' means the sum of (i) Service as
defined in the Qualified Plan, and (ii) the Prior Service Credit,
if any, applicable to a Participant and set forth opposite his
name on Schedule A hereto.
1.22. 'Supplemental Cash Account Balance' means the
balance of the hypothetical account that is established for each
Participant pursuant to subsection 3.1(b).
1.23. 'Supplemental Compensation' means Compensation in excess
of the Compensation Limit.
1.24. 'Supplemental Death Benefit' means the benefit payable
to a Surviving Spouse or Beneficiary pursuant to the Plan.
1.25. 'Supplemental Retirement Benefit' means the
benefit payable to a Participant pursuant to the Plan by reason
of his termination of employment with the Company and all
Affiliates for any reason other than death. The amount of such
benefit shall be the Actuarial Equivalent (determined pursuant to
subsection 3.1(c)) of a Participant's Supplemental Cash Account
Balance at the date of termination.
1.26. 'Surviving Spouse' means a person who is married to
a Participant at the date of his death and for at least one year prior
thereto.
1.27. Words in the masculine gender shall include
the feminine and the singular shall include the plural, and vice
versa, unless qualified by the context. Any headings used herein
are included for ease of reference only, and are not to be
construed so as to alter the terms hereof.
1.28 Any defined term not specifically defined herein
shall have the meaning set forth in the Qualified Plan.
ARTICLE II
ELIGIBILITY
A Participant shall be eligible to receive a
Supplemental Retirement Benefit. The Surviving Spouse or
Beneficiary of a Participant who dies prior to commencement of
payment of a Participant's Qualified Plan Retirement Benefit
shall be eligible to receive a Supplemental Death Benefit.
ARTICLE III
SUPPLEMENTAL RETIREMENT BENEFIT
3.1. General.
(a) The Supplemental Retirement Benefit of a
Participant is equal to the balance of his Supplemental Cash
Account Balance as of the date of determination.
(b) A Participant's Supplemental Cash
Account Balance shall consist of the sum of his
(i) Supplemental Opening Balance (as determined pursuant to
Section 3.2), (ii) allocated Supplemental Pay Credits (as
determined pursuant to Section 3.3), (iii) allocated
Supplemental Interest Credits (as determined pursuant to
Section 3.4), and (iv) allocated Other Supplemental Cash
Account Contributions (as determined pursuant to
Section 3.5).
(c) A Supplemental Retirement Benefit that
is payable in any form other than a Lump Sum, or that
commences at any time prior to the Participant's Normal
Retirement Date, shall be the Actuarial Equivalent of the
Supplemental Retirement Benefit set forth in subsection
3.1(a) as determined by the same actuarial adjustments as
those specified in the Qualified Plan.
3.2. Supplemental Opening Balance.
A Participant's 'Supplemental Opening Balance' means an
amount equal to the difference between (a) and (b) below:
(a) The Opening Balance to which the
Participant would have been entitled under the Qualified
Plan if such Opening Balance were computed (i) without
giving effect to any limitation on benefits imposed by any
provision of the Code, and (ii) after including the
Participant's Prior Service Credit, if any, as set forth
opposite his name on Schedule A hereto;
LESS
(b) The Opening Balance, if any, actually
computed for such Participant under the Qualified Plan.
3.3 Supplemental Pay Credits.
(a) Supplemental Pay Credits shall mean for
each Contribution Date (as determined by subsection 3.3(b))
a contribution allocated to the Supplemental Cash Account of
a Participant. Pursuant to the table set forth below,
Supplemental Pay Credits shall be credited to a
Participant's Supplemental Cash Account as of each
Contribution Date based on a Participant's aggregate
Attained Age and Service on December 31, 1999, and such
Participant's Supplemental Compensation paid with respect to
the Plan Year that includes such Contribution Date. For
purposes of applying the following table, any person who is
not considered to be an Employee on December 31, 1999, but
who is later hired or rehired by an Employer after such
date, shall be deemed to have an aggregate Attained Age and
Service as determined by the Chief Executive Officer of the
Company. If no such determination is made, such Employee
shall be deemed to have an aggregate Attained Age and
Service totaling less than 45.
Aggregate of
Attained Age and Contribution as a Percent
Service on 12/31/99 of Supplemental Compensation
------------------- -----------------------------
Less than 45 6.0%
More than 45 but less than 46 7.0%
More than 46 but less than 47 7.2%
More than 47 but less than 48 7.4%
More than 48 but less than 49 7.6%
More than 49 but less than 50 7.8%
More than 50 but less than 51 8.0%
More than 51 but less than 52 8.2%
More than 52 but less than 53 8.4%
More than 53 but less than 54 8.6%
More than 54 but less than 55 8.8%
More than 55 but less than 56 9.0%
More than 56 but less than 57 9.2%
More than 57 but less than 58 9.4%
More than 58 but less than 59 9.6%
More than 59 but less than 60 9.8%
More than 60 but less than 61 10.0%
More than 61 but less than 62 10.2%
More than 62 but less than 63 10.4%
More than 63 but less than 64 10.6%
More than 64 but less than 65 10.8%
More than 65 but less than 66 11.0%
More than 66 but less than 67 11.2%
More than 67 but less than 68 11.4%
More than 68 but less than 69 11.6%
More than 69 but less than 70 11.8%
More than 70 but less than 71 12.0%
More than 71 but less than 72 12.2%
More than 72 but less than 73 12.4%
More than 73 but less than 74 12.6%
More than 74 but less than 75 12.8%
More than 75 but less than 76 13.0%
More than 76 but less than 77 13.2%
More than 77 but less than 78 13.4%
More than 78 but less than 79 13.6%
More than 79 but less than 80 13.8%
More than 80 but less than 81 14.0%
More than 81 but less than 82 14.2%
More than 82 but less than 83 14.4%
More than 83 but less than 84 14.6%
More than 84 but less than 85 14.8%
85 or more 15.0%
(b) A Participant's Contribution Date shall be
determined as follows:
(i) The Contribution Date for each Participant who is
(i) actively employed on the last day of the Plan Year
or (ii) Totally Disabled, shall be the last day of the
Plan Year.
(ii) The Contribution Date for each Participant who
terminates employment during the Plan Year for any
reason, including death, shall be such Participant's
Retirement Date, his Termination Date, or his date of
death, as the case may be.
(iii) Notwithstanding the foregoing, no Participant who has
not completed at least 1,000 Hours of Service during a Plan Year
shall have a Contribution Date for such Plan Year, unless his
employment terminates during such Plan Year because of death,
Total Disability or attainment of a Retirement Date.
(c) Notwithstanding any other provision of the
Plan to the contrary, if a Participant does not have a Contribution Date
during any Plan Year of employment because of his failure to meet the
eligibility criteria for Plan participation set forth in Article II,
such Participant shall, if he is eligible for a Contribution Date during
the first Plan Year of his eligibility, receive a Supplemental Pay Credit
for such first Plan Year that is based on his Supplemental Compensation
for all of the Plan Years of his employment.
3.4 Supplemental Interest Credits.
(a) As of the last day of each Plan Year, the
Supplemental Cash Account of each Participant shall be
credited with a Supplemental Interest Credit. 'Supplemental
Interest Credit' means the product of the Participant's
Supplemental Cash Account Balance as of the close of the
immediately preceding Plan Year, and the Investment Credit
Percentage for that Plan Year.
(b) 'Investment Credit Percentage' means the
Applicable Interest Rate. In the case of a Participant who
terminates employment and defers distribution of his
Supplemental Retirement Benefit, the Investment Credit
Percentage shall continue to be credited to the
Participant's Supplemental Cash Account Balance until his
Annuity Starting Date. 'Applicable Interest Rate' for a
partial Plan Year shall mean the annual rate of interest on
30-year Treasury securities for the month of November
immediately preceding such partial Plan Year, multiplied by
a fraction, the numerator of which is the number of
completed months in such partial Plan Year, and the
denominator of which is 12.
3.5. Other Supplemental Cash Account Contribution. The
Company may allocate an additional contribution to the
Supplemental Cash Account of a Participant at such times, in such
manner and in such amount as may be determined by the Chief
Executive Officer of the Company. Such contribution may be made
for any reason, including, but not limited to, offsetting any
reduction in a Participant's Qualified Plan Retirement Benefit
caused by Code Section 415 or any other provision of the Code, or
to reflect an additional Prior Service Credit for any
Participant.
3.6. Form of Benefit. Subject to Section 7.7, the
Supplemental Retirement Benefit payable to a Participant shall be
paid in one of the following forms as elected by him as a
condition of participation in the Plan:
(a) Life and Ten Year Period Certain. A Participant
may receive a Supplemental Retirement Benefit payable
monthly during his lifetime and, in the event of his death
within a period of ten (10) years after the commencement of
payments, the same amount shall be payable monthly for the
remainder of such ten (10) year period to his Beneficiary or
Beneficiaries.
(b) Single Life Annuity. A Participant may receive a
Supplemental Retirement Benefit payable monthly during his
life, ending on the first day of the month during which the
death of the Participant occurs.
(c) Joint and Survivor Annuity. A Participant may
receive a Supplemental Retirement Benefit payable to the
Participant for his life with a survivor annuity payable to
his Spouse for the life of such Spouse in an amount equal to
50%, 66-2/3% or 100% (as selected by the Participant) of the
amount payable during the life of the Participant.
(d) Lump Sum. A Participant may receive the entire
amount of his Supplemental Cash Account Balance in a single
sum.
(e) Installments. A Participant may receive a
Supplemental Retirement Benefit in monthly installments over
a period selected by the Participant which shall be not less
than five years nor more than 20 years. In the event of the
death of the Participant prior to receipt of his entire
Supplemental Retirement Benefit, the remaining installments
shall be paid to his Beneficiary.
(f) Social Security Adjustment. A Participant may
receive a Supplemental Retirement Benefit in a form that
provides for larger payments to the Participant from his
Retirement Date to the date Social Security benefits are
expected to commence and reduced payments thereafter during
the Participant's lifetime. The amount of reduction is
equal to the Primary Social Security Insurance Benefit to
which the Participant is entitled. The amount of the
Primary Social Security Insurance Benefit is the primary
insurance amount of the Old Age Insurance Benefits payable
to the Participant under the Social Security Act as
estimated by the Company. The date Social Security benefits
are expected to commence is the first day of the month next
following the Participant's attainment of his sixty-fifth
birthday.
Amount of Benefit. The increased yearly amount of
Supplemental Retirement Benefit payable under this option
to the Participant until the attainment of his sixty-fifth
birthday shall be equal to the sum of-
(A) the yearly amount of Supplemental Retirement
Benefit otherwise payable to the Participant if
the Single Life Annuity option were in effect with
respect to him, and
(B) the amount of the Participant's expected
yearly Primary Social Security Insurance Benefit.
The reduced yearly amount of Supplemental Retirement Benefit
payable under this option to the Participant during his
lifetime after the attainment of his sixty-fifth birthday
shall be equal to the excess of-
(i) the increased yearly amount of
Supplemental Retirement Benefit payable to
the Participant until the attainment of his
sixty-fifth birthday, over
(ii) the amount of the Participant's expected
yearly Primary Social Security Insurance
Benefit.
(g) Other Form. A Participant may receive a
Supplemental Retirement Benefit in such other optional form
as is selected by the Participant and approved by the
Company.
3.7. Commencement of Benefit. Payment of the
Supplemental Retirement Benefit to a Participant shall commence
on any date following his termination of employment as elected by
him as a condition of participation in the Plan.
3.8. Election Modification. A Participant may modify
his election as to the form or commencement of payment of his
Supplemental Retirement Benefit by writing filed with the Company
at any time prior to his Annuity Starting Date. A Participant's
modification of his election as to form or commencement of
payment will be ineffective, unless (1) the modification is made
more than six months prior to his Annuity Starting Date and the
modification is filed in a calendar year prior to the calendar
year in which payment of the Benefit is made or commences, or
(2) the Participant elects by written instrument delivered to the
Company prior to his Annuity Starting Date to have his
Supplemental Retirement Benefit reduced by 10%. This reduction
will be forfeited and used by the Plan to reduce expenses of
administration. This reduction is intended to discourage a
Participant from modifying his election as to form of payment and
commencement within the periods set forth in clause (1) above and
prevent him from being deemed in constructive receipt of his
Supplemental Retirement Benefit prior to its actual payment to
him.
ARTICLE IV
SUPPLEMENTAL DEATH BENEFIT
If a Participant dies prior to his Annuity Starting
Date, a Supplemental Death Benefit shall be paid to the
Participant's Beneficiary. If such Beneficiary is not the
Participant's Spouse, the Beneficiary shall receive, as soon as
practicable after the Participant's date of death, a single-sum
payment equal to the Participant's Supplemental Cash Account
Balance determined as of the Participant's date of death.
If such Beneficiary is the Participant's Spouse,
payment of the Participant's Supplemental Retirement Benefit
shall be made in the form of a Supplemental Preretirement
Survivor Annuity based on the Attained Age of the Spouse at the
Annuity Starting Date. The Supplemental Preretirement Survivor
Annuity shall be payable to the Surviving Spouse in equal monthly
installments commencing on an Annuity Starting Date elected by
the Spouse that is the first day of any month (as elected by the
surviving Spouse) following the Participant's death and
terminating on the first day of the month in which the Surviving
Spouse dies; provided, however, in lieu of the Supplemental
Preretirement Survivor Annuity, the Surviving Spouse may elect to
receive, as soon as practicable after the Participant's death, a
single-sum payment equal to the Participant's Supplemental Cash
Account Balance determined as of the Participant's date of death.
no event may the Spouse elect an Annuity Starting Date
that is later than the later of (1) what would have been the
Participant's Normal Retirement Date and (2) the first day of the
first month following the Participant's death. If the Spouse
does not elect an Annuity Starting Date, then the Spouse's
Annuity Starting Date shall be the later of the dates set forth
in the immediately preceding sentence.
'Supplemental Preretirement Survivor Annuity' shall mean,
with respect to the Spouse of a deceased Participant, an amount
payable to such Spouse for the life of the Spouse, based upon the
Participant's Supplemental Retirement Benefit at the date of his
death. The Supplemental Preretirement Survivor Annuity shall be
a Single Life Annuity that is the Actuarial Equivalent
(determined pursuant to subsection 3.1(c)) of the Participant's
Supplemental Cash Account Balance at the Participant's death,
based on the Spouse's Attained Age as of the Annuity Starting
Date.
ARTICLE V
ADMINISTRATION OF THE PLAN
5.1. Administration by the Company. The Company shall be
responsible for the general operation and administration of the
Plan and for carrying out the provisions thereof.
5.2. General Powers of Administration. All provisions set
forth in the Qualified Plan with respect to the administrative
powers and duties of the Company and the Supervisory Committee,
expenses of administration, and procedures for filing claims
shall also be applicable with respect to the Company in its role
as administrator of the Plan. The Company shall be entitled to
rely conclusively upon all tables, valuations, certificates,
opinions and reports furnished by any actuary, accountant,
controller, counsel, or other person employed or engaged by the
Company with respect to the Plan.
ARTICLE VI
AMENDMENT OR TERMINATION
6.1. Amendment or Termination. The Company intends the Plan
to be permanent but reserves the right to amend or terminate the
Plan when, in the sole opinion of the Company, such amendment or
termination is advisable. Any such amendment or termination
shall be made pursuant to a resolution of the Board and shall be
effective as of the date of such resolution.
6.2. Effect of Amendment or Termination. No amendment or
termination of the Plan shall directly or indirectly deprive any
current or former Participant, Surviving Spouse or Beneficiary of
all or any portion of any Supplemental Retirement Benefit or
Supplemental Death Benefit payment which has commenced prior to
the effective date of such amendment or termination or which
would be payable if the Participant terminated employment for any
reason, including death, on such effective date.
ARTICLE VII
GENERAL PROVISIONS
7.1. Funding. The Plan at all times shall be entirely
unfunded and no provision shall at any time be made with respect
to segregating any assets of any Employer for payment of any
benefits hereunder. No Participant, Surviving Spouse,
Beneficiary, or any other person shall have any interest in any
particular assets of any Employer by reason of the right to
receive a benefit under the Plan and any such Participant,
Surviving Spouse, Beneficiary, or other person shall have only
the rights of a general unsecured creditor with respect to any
rights under the Plan.
7.2. General Conditions. Except as otherwise expressly
provided herein, all terms and conditions of the Qualified Plan
applicable to a Qualified Plan Retirement Benefit or a Qualified
Plan Death Benefit shall also be applicable to a Supplemental
Retirement Benefit or a Supplemental Death Benefit payable
hereunder. Any Qualified Plan Retirement Benefit or Qualified
Plan Death Benefit, or any other benefit payable under the
Qualified Plan, shall be paid solely in accordance with the terms
and conditions of the Qualified Plan and nothing in this Plan
shall operate or be construed in any way to modify, amend or
affect the terms and provisions of the Qualified Plan.
7.3. No Guaranty of Benefits. Nothing contained in the Plan
shall constitute a guaranty by any Employer or any other entity
or person that the assets of any Employer will be sufficient to
pay any benefit hereunder.
7.4. No Enlargement of Employee Rights. No Participant,
Surviving Spouse or Beneficiary shall have any right to a benefit
under the Plan except in accordance with the terms of the Plan.
Establishment of the Plan shall not be construed to give any
Participant the right to be retained in the service of any
Employer.
7.5. Spendthrift Provision. No interest of any person or
entity in, or right to receive a benefit under, the Plan shall be
subject in any manner to sale, transfer, assignment, pledge,
attachment, garnishment, or other alienation or encumbrance of
any kind; nor may such interest or right to receive a benefit be
taken, either voluntarily or involuntarily, for the satisfaction
of the debts of, or other obligations or claims against, such
person or entity, including claims for alimony, support, separate
maintenance, and claims in bankruptcy proceedings.
Notwithstanding the foregoing, the Supplemental Retirement
Benefit of any Participant may be offset by an amount set forth
in a court order or requirement to pay that arises from (i) a
judgment of conviction for a crime involving the Plan, (ii) a
civil judgment (or consent order or decree) that is entered by a
court in an action brought in connection with a breach (or
alleged breach) of a fiduciary duty or any obligation that arises
under the Employee Retirement Income Security Act of 1974, as
amended ('ERISA'), or (iii) a settlement agreement entered into
by the Participant with the Secretary or Labor in connection with
a breach of any obligation that arises under ERISA.
7.6. Applicable Law. The Plan shall be construed and
administered under the laws of the State of South Dakota, except
to the extent preempted by applicable federal law.
7.7. Small Benefits. If the Actuarial Equivalent
(determined pursuant to subsection 3.1(c)) of any Supplemental
Retirement Benefit or Supplemental Death Benefit is less than
$5,000, the Company may pay the Actuarial Equivalent of such
Benefit to the Participant, Surviving Spouse or Beneficiary in a
single lump sum in lieu of any further benefit payments
hereunder.
7.8. Incapacity of Recipient. If any person entitled to a
benefit payment under the Plan is deemed by the Company to be
incapable of personally receiving and giving a valid receipt for
such payment, then, unless and until claim therefor shall have
been made by a duly appointed guardian or other legal
representative of such person, the Company may provide for such
payment or any part thereof to be made to any other person or
institution then contributing toward or providing for the care
and maintenance of such person. Any such payment shall be a
payment for the account of such person and a complete discharge
of any liability of the Company and the Plan therefor.
7.9. Corporate Successors. The Plan shall not be
automatically terminated by a transfer or sale of assets of the
Company or by the merger or consolidation of the Company into or
with any other corporation or other entity, but the Plan shall be
continued after such sale, merger or consolidation only if and to
the extent that the transferee, purchaser or successor entity
agrees to continue the Plan. In the event that the Plan is not
continued by the transferee, purchaser or successor entity, then
the Plan shall terminate subject to the provisions of Section
6.2.
7.10. Unclaimed Benefit. Each Participant shall keep
the Company informed of his current address and the current
address of his spouse and Beneficiaries. The Company shall not
be obligated to search for the whereabouts of any person. If the
location of a Participant is not made known to the Company within
three (3) years after the date on which payment of the
Participant's Supplemental Retirement Benefit may first be made,
payment may be made as though the Participant had died at the end
of the three-year period. If, within one additional year after
such three-year period has elapsed, or, within three years after
the actual death of a Participant, the Company is unable to
locate any Surviving Spouse or Beneficiary of the Participant,
then the Company shall have no further obligation to pay any
benefit hereunder to such Participant, Surviving Spouse,
Beneficiary, or any other person and such benefit shall be
irrevocably forfeited.
7.11. Limitations on Liability. Notwithstanding any of
the preceding provisions of the Plan, no Employer or any
individual acting as an employee or agent of any Employer shall
be liable to any Participant, former Participant, Surviving
Spouse, Beneficiary, or any other person for any claim, loss,
liability or expense incurred in connection with the Plan.
7.12. Taxable Distribution. The Company shall determine
the manner and amount of payments to be made to the Participant,
Surviving Spouse or Beneficiary, and shall make such payments, in
accordance with the terms of the Plan. Notwithstanding anything
to the contrary contained herein or in the Qualified Plan, (a) in
the event that the Internal Revenue Service prevails in its claim
that the amount of any benefit accrued under the Plan constitutes
taxable income to a Participant, Surviving Spouse or Beneficiary
for any taxable year, prior to the taxable year in which such
benefit is distributed, or (b) in the event that legal counsel,
satisfactory to the Company and the applicable Participant,
Surviving Spouse or Beneficiary, renders an opinion that the
Internal Revenue Service would likely prevail in such a claim,
such benefits under the Plan, to the extent constituting taxable
income, shall be immediately distributed to the Participant,
Surviving Spouse or Beneficiary. For purposes of this Section,
the Internal Revenue Service shall be deemed to have prevailed in
a claim if such claim is upheld by a court of final jurisdiction,
or if the Company, based upon an opinion of legal counsel
satisfactory to the Company and the Participant, Surviving Spouse
or Beneficiary, fails to appeal a decision of the Internal
Revenue Service, or a court of applicable jurisdiction, with
respect to such claim, to an appropriate Internal Revenue Service
appeals authority or to a court of higher jurisdiction within the
appropriate time period.
IN WITNESS WHEREOF, Northwestern Corporation has caused this
Plan to be executed in its name, by its duly authorized officer,
on this ____ day of __________, 2000, effective as of January 1,
2000.
NORTHWESTERN CORPORATION
By: _______________________
SCHEDULE A
Name of Participant Social Security Number Prior Service Credit
- -------------------- ---------------------- -------------- -----
Michael J. Hanson ###-##-#### 17.0000
Glen R. Herr ###-##-#### 17.3333
Gregory G. Trandem ###-##-#### 23.1667