EXHIBIT 10(a)(27)
SEVERANCE PAYMENT AGREEMENT
RELEASE AND WAIVER OF CLAIMS
Aquila, Inc., and its subsidiaries and affiliates, (collectively referred
to as "The Company"), and Xxx X Xxxxxx ("You") agree as follows:
1. Except as otherwise provided in this Agreement, Your employment
status, pay, and benefits with The Company will end on November 20, 2002. You
agree to cooperate and assist The Company in the orderly transition of business.
You further agree not to apply for employment or re-employment by The Company
without advance written approval from the Sr. VP and Chief Administrative
Officer or his successor. If You at any time after signing this Agreement return
to work for The Company, including for any of its subsidiaries, affiliates, or
successors, then any non-monetary benefits provided to You under this Agreement
will end immediately and any severance pay provided to You on a bi-weekly basis
under this Agreement will end immediately.
2. Responses to prospective employment inquiries made to The Company and
any public announcement or comment by The Company concerning Your separation of
employment will generally be limited to a statement that Your position was
eliminated because of departmental reorganization.
3. You are not otherwise entitled to any severance benefits under any
policy or practice of The Company. However, in exchange for Your entering into
this Agreement, the Company agrees to provide to You a severance payment
equaling $548,001.60 (24 months of base pay). Twelve months of base pay, less
applicable taxes, will be paid to You in the payroll period following execution
of this agreement. The remaining twelve months of base pay will be paid to You
in bi-weekly installments and continued participation in the medical, dental,
vision, and employee life insurance plan benefits as applicable and as You were
participating in those benefits as of the date You learned Your employment
status with The Company would terminate. The Company will deduct required
federal, state and FICA taxes, and other authorized deductions from any
payment(s) made under this Agreement.
4. In exchange for this Agreement, including the severance payments set
forth in this Agreement, You (on behalf of You and anyone claiming through or on
behalf of You), release The Company, and its successors and assigns, and all
employees and agents from any and all claims, demands and causes of action You
have or may have had against any of them prior to the date You sign this
Agreement, to the maximum extent permitted by law. This release includes, but is
not limited to, any and all claims, demands and causes of action which are
related to or concern: Your employment and Your termination of employment;
discrimination under local, state or federal law; Title VII of the Civil Rights
Act of 1964; the Civil Rights Act of 1991; the Americans with Disabilities Act;
the Age Discrimination in Employment Act; the Employee Retirement Income
Security Act; the Family and Medical Leave Act; and all other claims, demands,
and causes of action, all to the maximum extent permitted by law.
5. This Agreement is not admission of wrongdoing or liability by You, The
Company or any of the individuals or entities set forth in paragraph 4 above.
Any and all such wrongdoing or liability is expressly denied.
6. You represent that You have returned all The Company's files, records,
documents, plans, drawings, specifications, equipment, software, pictures,
videotapes, or any property or other items of The Company or concerning the
business of The Company, whether prepared by You or otherwise coming into Your
possession or control.
7. You agree that You shall not at any time, except as authorized by The
Company, communicate, divulge or use for Your own benefit or for the benefit of
any other person, firm, or corporation, any confidential or proprietary
information concerning The Company's business, including but not limited to The
Company's operations, services, materials, policies, and the manner in which
they are developed, marketed, and provided, attorney-client privileged
information, attorney work product-privileged information, and such other
information regarded as trade secrets or confidential or proprietary information
under any applicable law, regulation, rule and/or ethical guidelines. You
further agree that Your divulging any such information to competitors or other
persons not in the employ of The Company would be damaging to the business and
business prospects of The Company and would constitute a material breach of this
Agreement.
8. You agree to keep the content of this Agreement, and Your discussions
with The Company pertaining to it, confidential. You will not communicate or
allow the communication in any manner with respect to the content of this
Agreement, and the discussions pertaining to it, except that the Agreement may
be disclosed by You to Your immediate family members, Your attorney and
accountant or to governmental taxing authorities, pursuant to an order of a
court of competent jurisdiction, or if required by applicable laws.
9. You received this Agreement on or about November 19, 2002. You have
twenty-one (21) calendar days, after the date You receive this Agreement, within
which to consider this Agreement, sign it, and return it to The Company. The
Company has advised You that You may consult with an attorney prior to signing
this Agreement. You may revoke this Agreement within seven (7) calendar days
after You sign it by returning written revocation in that time to Aquila, Inc.,
Sr. VP and Chief Administrative Officer, 00 X. 0xx, Xxxxxxxxx: Xxx Xxxxxx,
Xxxxxx Xxxx, XX 00000. The Agreement is effective and enforceable on the eighth
(8th) calendar day following the date You sign the Agreement.
10. You acknowledge that no representations have been made to You by The
Company, or their agents or legal counsel regarding the tax implication of any
payments made pursuant to this Agreement. All liability for federal, state, and
local taxes (including FICA) remains with You, unless otherwise agreed to in
writing by The Company, and The Company shall deduct all required withholdings
from the consideration payable under this Agreement.
11. This Agreement shall be subject to and construed in accordance with
the laws of the State of Missouri.
12. This Agreement contains the entire agreement of the parties with
respect to the matters contemplated by this Agreement; provided, however, this
Agreement is subject to the terms of applicable benefit plans in effect as of
the date of this Agreement. No change, modification or waiver of any provision
of the Agreement will be valid unless in writing and signed by the parties to be
bound.
13. You represent and agree that You freely and voluntarily executed this
Agreement, that You have had the opportunity to consult with an attorney, and
that no promise, inducement or agreement not expressed in this Agreement has
been made to You by The Company.
14. You and The Company agree that if a dispute arises out of or is related
to this Agreement or Your employment by The Company, other than a dispute
regarding the obligations under Paragraphs 6, 7 or 8, such dispute shall be
submitted to binding arbitration under the Employment Rules of the American
Arbitration Association, or the equivalent, to the maximum extent permitted by
applicable law. Either party may provide written notice to the other party that
the dispute is not able to be resolved and such notifying party shall then
contact the American Arbitration Association for appointment of an arbitrator to
resolve such dispute. Any arbitration hearing shall take place in Xxxxxxx
County, Missouri, unless otherwise ordered by the arbitrator. In addition to all
other remedies otherwise available to the Company, The Company shall have the
right to injunctive relief to restrain and enjoin any actual or threatened
breach of the provisions of Paragraphs 6, 7 or 8.
15. This Agreement is binding on and insures to the benefit of The
Company's successors and assigns and Your heirs and assigns.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION THAT MAY BE ENFORCED BY
THE PARTIES.
Dated: October 17, 2002 /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
For The Company:
Dated: October 17, 2002 By: /s/ Xxx Xxxxxx
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Xxx Xxxxxx
