Severance Agreement - North Dakota

SEVERANCE AND GENERAL RELEASE AGREEMENT

[North Dakota]

TABLE OF CONTENTS

I. Document Header........................................................... 2
II. Definitions............................................................... 3
III. Operative Provisions...................................................... 5
IV. Representations & Warranties.............................................. 7
V. Covenants & Restrictions.................................................. 8
VI. Default & Remedies........................................................ 10
VII. Risk Allocation........................................................... 11
VIII. Dispute Resolution....................................................... 13
IX. General Provisions........................................................ 15
X. Execution Block........................................................... 17

[Page numbers are for drafting convenience only and should be updated prior to finalization.]

I. DOCUMENT HEADER

1. Parties.
   This Severance and General Release Agreement (the “Agreement”) is entered into by and between [EMPLOYER LEGAL NAME], a [STATE OF INCORPORATION] [ENTITY TYPE] having its principal place of business at [ADDRESS] (“Employer”), and [EMPLOYEE LEGAL NAME], an individual residing at [ADDRESS] (“Employee”) (each a “Party,” and collectively the “Parties”).

2. Effective Date.
   The “Effective Date” of this Agreement shall be the eighth (8th) calendar day after Employee signs this Agreement, provided Employee has not exercised the revocation right described in Section III.5.

3. Purpose and Consideration.
   Employer wishes to provide Employee with certain severance benefits in exchange for the releases, covenants, and agreements set forth herein. Employee acknowledges that such benefits constitute adequate and valuable consideration to which Employee is not otherwise entitled.

4. Governing Law and Jurisdiction.
   This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of North Dakota, without regard to its conflict-of-laws rules, except as pre-empted by federal law.

II. DEFINITIONS

For purposes of this Agreement, the following capitalized terms have the meanings set forth below. Defined terms appear in alphabetical order and are cross-referenced throughout this Agreement.

1. ADEA means the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., as amended by the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f).
2. Agreement has the meaning set forth in the Document Header.
3. Claims means any and all claims, demands, causes of action, complaints, suits, liabilities, debts, obligations, damages, or expenses of any kind, whether known or unknown, suspected or unsuspected, vested or contingent, that Employee ever had, now has, or may in the future have against Employer or Employer ever had, now has, or may in the future have against Employee, based on acts occurring on or before the date Employee signs this Agreement.
4. COBRA means the continuation coverage requirements beginning at 29 U.S.C. § 1161.
5. Confidential Information means all non-public information of or about Employer, its Affiliates, clients, or customers, in any form, whether oral, written, electronic, or otherwise, including trade secrets as defined under applicable law.
6. Decisional Unit has the meaning set forth in 29 C.F.R. § 1625.22(f)(3) and applies only if a “group termination” or “program” is involved.
7. Employee Group Release Package means the disclosures required by 29 C.F.R. § 1625.22(f)(1)(iii) for group terminations, if applicable.
8. Employer has the meaning set forth in the Document Header.
9. Severance Amount means the gross amount of severance pay identified in Section III.2(a).
10. Severance Period means the period starting on the Effective Date and continuing through the final installment of the Severance Amount.

III. OPERATIVE PROVISIONS

1. Separation from Employment.
   a. Employee’s employment with Employer terminated effective [TERMINATION DATE] (“Separation Date”).
   b. Employer will pay all unpaid wages or compensation on the regular payday established for the period worked and will mail discharged-employee wages by certified mail to the address Employee designates unless the Parties agree otherwise. N.D.C.C. § 34-14-03. Accrued PTO will be handled under N.D.C.C. § 34-14-09.2 and the governing written policy. Final compensation is due regardless of whether Employee signs this Agreement.

2. Severance Benefits. Employer shall provide Employee the following, subject to Section III.3:
   a. Severance Pay. A total gross sum of [${AMOUNT}] (“Severance Amount”), less payroll deductions and required withholdings, paid in [lump sum / equal installments] over [NUMBER] weeks following the Effective Date.
   b. COBRA Subsidy. Employer will pay [100 % / __ %] of Employee’s monthly COBRA premium for [NUMBER] months following the Separation Date.
   c. Outplacement Assistance (Optional). [DESCRIPTION OR “None”].

3. Conditions Precedent. Employer’s obligation to provide the Severance Benefits is contingent upon:
   a. Employee’s timely execution and non-revocation of this Agreement;
   b. expiration of the Revocation Period without revocation; and
   c. Severance Benefits being consideration in addition to Final Compensation and other amounts already owed.

4. Consideration Period and Consultation Rights.
   a. Employee is hereby advised to consult with an attorney of Employee’s choosing before signing.
   b. Employee has [“21 days” for individual releases / “45 days” for group program] from the date of receipt of this Agreement to consider its terms (the “Consideration Period”).
   c. If this is a group termination, Employer shall provide the Employee Group Release Package contemporaneously with this Agreement.
   d. For a group or class program, the written disclosure must identify the decisional unit, eligibility factors and time limits, job titles and individual ages of eligible or selected employees, and individual ages of employees in the same job classification or organizational unit who were not eligible or selected.
   e. Nothing requires tender back of consideration or imposes a condition precedent, penalty, attorney-fee liability, damages, or another limitation that adversely affects Employee’s right to challenge the validity of the ADEA waiver.

5. Revocation Period. Employee may revoke this Agreement within seven (7) calendar days after signing by delivering written notice of revocation to [CONTACT NAME & ADDRESS]. This Agreement shall not become effective until the Revocation Period expires without timely revocation.

6. Tax Withholding. The Severance Amount will be reported on [Form W-2 / Form 1099], consistent with applicable law. Employee is responsible for all taxes due beyond withholdings made by Employer.

7. Section 409A Compliance. The Parties intend that payments under this Agreement be exempt from or comply with Section 409A of the Internal Revenue Code. This Agreement shall be interpreted consistently with such intent.

IV. REPRESENTATIONS & WARRANTIES

1. Mutual Authority. Each Party represents and warrants that it has full authority to enter into and perform its obligations under this Agreement.

2. Employee Representations. Employee represents, warrants, and covenants that:
   a. Employee has identified any known unpaid-compensation or benefit issue here: [________________________________];
   b. this disclosure does not waive protected agency rights or delay payment of amounts already owed;
   c. Employee has not assigned or transferred any Claim released herein; and
   d. Employee enters into this Agreement knowingly, voluntarily, and free from duress or undue influence.

3. Survival. The representations and warranties in this Section shall survive the Effective Date for the applicable statute-of-limitations period.

V. COVENANTS & RESTRICTIONS

1. Confidentiality. Employee shall protect legitimate trade secrets and non-public proprietary information. This Section does not restrict truthful testimony, government reports, protected communications, discussions of wages or working conditions protected by law, or other protected conduct. The Agreement itself is not designated categorically confidential.

2. Non-Disparagement. During [TIME PERIOD], neither Party shall knowingly make a false statement of fact intended to harm the other Party’s reputation. This Section does not restrict truthful statements, government communications, whistleblower reports, testimony, discussions of wages or working conditions protected by law, or other protected conduct.

3. Cooperation. Employee shall reasonably cooperate with Employer in any investigation, litigation, or administrative proceeding relating to matters that arose during Employee’s employment.

4. Return of Property. No later than the Separation Date (or such later date allowed by Employer in writing), Employee shall return all Employer property, including documents and electronic data.

5. Post-Termination Restrictive Covenants. No employment noncompetition covenant is incorporated. N.D.C.C. § 9-08-06 generally voids restraints on a lawful profession, trade, or business, subject to its ownership-sale and ownership-dissolution exceptions. Any confidentiality or non-solicitation obligation must be separately identified and reviewed under current law.

6. Notice and Cure. Before alleging any breach of this Section V, the complaining Party shall provide written notice specifying the alleged breach and allow ten (10) calendar days to cure.

VI. DEFAULT & REMEDIES

1. Events of Default. Any of the following constitutes a default under this Agreement:
   a. Material breach of Sections V.1–V.4;
   b. Failure of Employer to timely pay the Severance Amount; or
   c. Any misrepresentation in Section IV.2.

2. Cure Period. The non-defaulting Party shall provide written notice and a fifteen (15) day opportunity to cure before pursuing remedies, unless a court with jurisdiction determines that immediate relief is lawfully available. No remedy may restrict protected conduct.

3. Lawful Remedies. A Party may pursue lawful contract remedies for a proven material breach. No remedy creates a release-challenge penalty, requires repayment merely for filing or participating in an agency matter, delays amounts already owed, or creates a prevailing-party fee shift.

VII. RISK ALLOCATION

1. Mutual General Release.
   a. Employee Release. In exchange for the Severance Benefits, Employee irrevocably and unconditionally releases Employer, its Affiliates, and their respective officers, directors, employees, and agents from all Claims based on acts occurring on or before the date Employee signs this Agreement, including but not limited to those arising under federal, state, or local employment laws, the ADEA, the North Dakota Human Rights Act, the Fair Labor Standards Act, Title VII of the Civil Rights Act, the ADA, and any common-law theories.
   i. ADEA Compliance. Employee specifically acknowledges that this release of ADEA Claims is knowing and voluntary in accordance with 29 U.S.C. § 626(f).
   b. Employer Release. In consideration of the promises herein, Employer releases Employee from any Claims it may have against Employee based on acts occurring on or before the date Employee signs this Agreement, excluding Claims based on fraud, embezzlement, or willful misconduct.
   c. Carve-Outs. Nothing in this Section prevents either Party from (i) enforcing this Agreement; (ii) seeking wages, unemployment benefits, workers’ compensation, or vested ERISA benefits; (iii) filing a charge with, or participating in an investigation by, the EEOC, the North Dakota Department of Labor and Human Rights, or other governmental agency; or (iv) asserting rights that cannot be waived by law. Any effect of the release on individual monetary recovery is governed by applicable law.

2. No Employee Risk-Shifting. This Agreement does not impose employee indemnity, a liability cap, a force-majeure excuse for payment, a severance clawback, or a penalty for a good-faith challenge to the release.

VIII. DISPUTE RESOLUTION

1. Governing Law. See Section I.4.

2. Forum. An action concerning this Agreement may be filed in a North Dakota state or federal court with subject-matter and personal jurisdiction and proper venue.

3. Arbitration. No arbitration clause is included. If selected, use a separately reviewed addendum addressing formation, costs, discovery, remedies, and governing law.

4. Jury Trial. No predispute jury waiver is included in this template.

IX. GENERAL PROVISIONS

1. Amendment; Waiver. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. A waiver on one occasion is not a waiver on any subsequent occasion.

2. Assignment. Employee may not assign or delegate any rights or obligations under this Agreement. Employer may assign this Agreement to a successor in interest.

3. Successors and Assigns. This Agreement binds and inures to the benefit of the Parties and their respective successors and permitted assigns.

4. Severability; Reformation. If any provision is held unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be interpreted to best accomplish its intended purpose within legal limits.

5. Integration. This Agreement constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior agreements, understandings, or representations, whether oral or written.

6. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (including via electronic signature), each of which is deemed an original and all of which constitute one instrument.

7. Headings. Headings are for convenience only and do not affect interpretation.

X. EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth below.

[Optional Notary Acknowledgment, if required by Employer policy.]

Sources and References

• 29 U.S.C. § 626(f)
• 29 C.F.R. § 1625.22
• 29 C.F.R. § 1625.23
• 29 U.S.C. § 157
• 29 U.S.C. § 1053
• 29 U.S.C. § 1161
• 29 U.S.C. § 2615
• 42 U.S.C. § 2000e-2
• 42 U.S.C. § 12112
• N.D.C.C. ch. 34-14
• N.D.C.C. ch. 14-02.4
• N.D.C.C. ch. 9-08