Exhibit 10.L


 


 


SEPARATION AND RETIREMENT
AGREEMENT


 


This Separation and Retirement Agreement (the “Agreement”), which is
effective as of this 8th day of October, 2002, is entered into by and between
Donald B. Ingle, Jr. (the “Executive”) and Cinergy, with the mutual exchange of
promises as consideration.  Capitalized
words and terms used throughout this Agreement that are not defined elsewhere
in this Agreement are defined in Section 19.


 


Recitals


 


A.            The Executive has
elected to terminate voluntarily his employment with Cinergy and retire
effective December 15, 2002 (the “Termination Date”).


 


B.            The Executive is
currently serving as Vice President of the Company and President of Power
Technology and Infrastructure Services. 
Cinergy desires to have the Executive serve in this position until his
retirement and is willing to provide certain additional benefits and
arrangements to the Executive, provided that upon presentation to the Executive
following the Termination Date the Executive executes and does not timely
revoke this Agreement and a waiver and release, in substantially the form
attached to this Agreement as Exhibit A, of all claims that the
Executive might be able to assert against Cinergy and certain related entities
and individuals (the “Waiver and Release”).


 


C.            The parties have
agreed to enter into this Agreement, which has been specifically negotiated
between the Executive and Cinergy.


 


THEREFORE, Cinergy and the Executive enter into the following
Agreement:


 


Agreement


 


1.             Retirement.


 


a.             Termination of
Employment. The Executive will retire, and his employment with Cinergy will
terminate, effective as of the Termination Date.  Until that time, the Executive will continue to be entitled to
receive the compensation and perquisites to which he is currently entitled
pursuant to the terms of the Employment Agreement between the Executive and
Cinergy dated as of October 1, 2002 (the “Employment Agreement”).


 


b.             Effect on Other
Agreements.  Except as provided in
Sections 1.a, 2.k and 2.o of this Agreement, this Agreement replaces and
supersedes any and all prior employment, separation and retirement agreements
between Cinergy and the Executive, including but not limited to the Employment
Agreement.


 


2.             Separation
Benefits. In exchange for entering into this Agreement and satisfying any
additional conditions set forth in this Agreement, the Executive will receive
the benefits described below in this Section 2.  Each of the benefits described below in this Section 2 shall only
be provided to the Executive if, upon presentation to the Executive following
the Termination Date, the Executive timely executes and does not timely revoke
the Waiver and


 


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Release,
which benefits shall be payable as soon as practicable following the later of
(i) January 15, 2003 or (ii) the expiration of the revocation period contained
in the Waiver and Release, unless otherwise provided below.  Notwithstanding anything herein to the
contrary, Cinergy may withhold from any amounts payable under this Agreement
such federal, state, or local taxes as it reasonably determines are required to
be withheld pursuant to any applicable law or regulation.


 


a.             Severance Pay.  Cinergy agrees to pay the Executive, in lieu
of any other severance benefits that might be payable to the Executive under
any and all prior employment, separation and retirement agreements between
Cinergy and the Executive, severance pay in the gross amount of $1,854,938.


 


b.             Retiree Welfare
Benefits. Upon his retirement under this Agreement, the Executive will be
eligible for comprehensive medical and dental benefits which are not materially
different from the benefits provided to retirees under the Cinergy Corp.
Welfare Benefits Program or any similar program or successor to that
program.  For purposes of determining
the amount of the monthly premiums due from the Executive, the Executive will
receive from Cinergy the maximum subsidy available as of the date of his
retirement to an active Cinergy employee with the same medical benefits
classification/eligibility as the Executive’s medical benefits
classification/eligibility on the date of his retirement.


 


c.             Vacation Pay.  The Executive will receive, in a lump sum
cash payment, six (6) weeks of accrued but unused vacation pay in the gross
amount of $50,510.77.


 


d.             Waiver of
Prepayment Penalty.  If the
prepayment penalty under Cinergy’s Executive Stock Purchase Program is waived
for any participant in that program, it will also be waived for the Executive.


 


e.             Executive
Supplemental Life Insurance.  The
Executive will receive the value of the additional life insurance provided to
the Executive under the Executive Supplemental Life Insurance Program, which is
$150,000. This amount will be paid to the Executive in cash, in equal annual
installments of $15,000 over a ten (10) year period beginning in February of
2003.


 


f.              Stock Options.
Any rights the Executive may have with respect to the stock options granted to
the Executive pursuant to the Cinergy Corp. Stock Option Plan will be determined
under the terms of any applicable stock option agreement and the Cinergy Corp.
Stock Option Plan. Similarly, any rights the Executive may have with respect to
the stock options granted to the Executive pursuant to the Cinergy Corp. 1996
Long-Term Incentive Compensation Plan (“LTIP”) will be determined in accordance
with the terms of the LTIP, the relevant administrative guidelines and any
applicable stock option agreement. Notwithstanding the foregoing, the Executive
acknowledges and agrees that he shall not sell or otherwise dispose of any
shares of Company stock acquired pursuant to the exercise of a stock option,
other than shares sold in order to pay an option exercise price or the related
tax withholding obligation, until 90 days after the Termination Date.  Notwithstanding the foregoing, Cinergy, in
its sole discretion, may waive the restrictions contained in the previous
sentence.


 


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g.             Long-Term
Incentive Plan.  The Executive shall
receive any performance shares award to which he may become entitled under any
then-outstanding performance cycle of the LTIP and the Cinergy Corp. Value
Creation Plan.  The amount of any such
award shall be determined and pro-rated, and any such award shall be paid to
the Executive, in accordance with the terms of the LTIP, the Value Creation
Plan, any relevant administrative guidelines, and any applicable performance
shares agreements, provided that the award will be determined as if the
Executive had remained employed with Cinergy during the entire 2002 calendar
year.


 


h.             Tax Counseling.  The Executive will receive a lump sum
payment of $15,000 to cover the cost of tax counseling services to the
Executive through an agency selected by the Executive. In the event any payment
to the Executive pursuant to this Section 2.h is subject to any federal, state,
or local income or employment taxes, Cinergy shall provide to the Executive an
additional payment in an amount necessary such that after payment by the
Executive of all such taxes (calculated after assuming that the Executive pays
such taxes for the year in which the payment occurs at the highest marginal tax
rate applicable), including the taxes imposed on the additional payment, the
Executive retains an amount equal to the payment provided pursuant to this
Section 2.h.


 


i.              Automobile
Allowance.  The Executive will
receive a lump sum payment of $50,000 to cover the cost of the Executive’s
automobile. In the event any payment to the Executive pursuant to this Section
2.i is subject to any federal, state, or local income or employment taxes,
Cinergy shall provide to the Executive an additional payment in an amount
necessary such that after payment by the Executive of all such taxes
(calculated after assuming that the Executive pays such taxes for the year in
which the payment occurs at the highest marginal tax rate applicable),
including the taxes imposed on the additional payment, the Executive retains an
amount equal to the payment provided pursuant to this Section 2.i.


 


j.              Personal
Computer.  The Executive will
receive a personal computer at least comparable to the personal computer made
available to him by Cinergy immediately prior to the Termination Date. In the
event any benefit provided to the Executive pursuant to this Section 2.j is
subject to any federal, state, or local income or employment taxes, Cinergy
shall provide to the Executive an additional payment in an amount necessary
such that after payment by the Executive of all such taxes (calculated after
assuming that the Executive pays such taxes for the year in which the benefit
occurs at the highest marginal tax rate applicable), including the taxes
imposed on the additional payment, the Executive retains an amount equal to the
benefit provided pursuant to this Section 2.j.


 


k.             Supplemental
Retirement Benefit.  The Executive
will be entitled to, and fully vested in, a supplemental retirement benefit in
accordance with the terms of Section 3b(ii) of the Employment Agreement,
subject to the following provisions:


 


(A)          For purposes of calculating the amount of the Executive’s
supplemental retirement benefit, the Executive’s “Highest Average Earnings”
shall be determined after assuming that the only amount that the Executive
received pursuant to the Cinergy Corp. Annual Incentive Plan during the
one-year period ending on the Termination Date is the award for the 2002
performance period that the Executive would have received pursuant to the
Cinergy Corp. Annual Incentive Plan if he had remained


 


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employed during the entire
2002 performance period, the amount of which shall be based on a level three
payout with respect to both individual and corporate goals.  For purposes of clarity, the parties hereto
acknowledge and agree that the Executive’s “Highest Average Earnings” for any
year shall not include any benefits received by the Executive pursuant to
Section 2 of this Agreement, other than the benefits provided in  Section 2.c and in the preceding sentence.


 


(B)           Commencing with the month following the month in which the
Executive attains age 55, the Executive will be deemed to have 35 “Years of
Participation” (as that term is defined in the Employment Agreement) for
purposes of determining the amount of the Executive’s supplemental retirement
benefit.


 


(C)           In the event that the Executive makes a special payment
election pursuant to Section 3b(ii)(3)(A) of the Employment Agreement and a
lump sum cash payment is made pursuant to that election, such payment shall
discharge all obligations of Cinergy pursuant to this Section 2.k.


 


l.              Annual
Incentive Plan.  The Executive will
receive an award under the Cinergy Corp. Annual Incentive Plan for the 2002
performance period equal to the award that he would have received if he had remained
employed during the entire 2002 performance period, which award will be paid
based on a level three payout with respect to both individual and corporate
goals, which payment shall be payable in March, 2003.


 


m.            Physical Exam.  Cinergy will furnish to the Executive one
physical exam within the one-year period beginning on the Date of Termination in
accordance with Cinergy practices, programs, and policies in effect from time
to time, and at least comparable to those received by active Cinergy Tier II executives
for such period.  In the event any
benefit provided to the Executive pursuant to this Section 2.m is subject to
any federal, state, or local income or employment taxes, Cinergy shall provide
to the Executive an additional payment in an amount necessary such that after
payment by the Executive of all such taxes (calculated after assuming that the
Executive pays such taxes for the year in which the benefit occurs at the
highest marginal tax rate applicable), including the taxes imposed on the additional
payment, the Executive retains an amount equal to the benefit provided pursuant
to this Section 2.m.


 


n.             Country Club.  Cinergy will continue to pay the annual dues
of the Executive incurred on or before December 31, 2005 for membership in one
country club of the Executive’s choice. In the event any benefit provided to
the Executive pursuant to this Section 2.n is subject to any federal, state, or
local income or employment taxes, Cinergy shall provide to the Executive an
additional payment in an amount necessary such that after payment by the
Executive of all such taxes (calculated after assuming that the Executive pays
such taxes for the year in which the benefit occurs at the highest marginal tax
rate applicable), including the taxes imposed on the additional payment, the
Executive retains an amount equal to the benefit provided pursuant to this
Section 2.n.


 


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o.             Section 280G
Gross-Up.  In the event that any
benefits paid or payable to the Executive or for his benefit pursuant to the
terms of this Agreement or any other plan or arrangement in connection with, or
arising out of, his employment with Cinergy or a change in ownership or
effective control of Cinergy or of a substantial portion of its assets would be
subject to an excise tax under Section 4999 of the Internal Revenue Code of
1986, as amended, then the Executive will be entitled to the benefits provided
in Section 5c. of the Employment Agreement.


 


3.             Basis for
Entitlement. The Executive acknowledges that he would not be entitled to
certain of the benefits described in this Agreement absent his election to
terminate employment voluntarily and retire voluntarily and his execution of
this Agreement and the Waiver and Release.


 


4.             Adequate
Consideration. The Executive agrees that this Agreement provides good,
valuable, and sufficient consideration for the obligations he assumes in
Sections 5 through 11 and Section 14 and the Waiver and Release.


 


5.             Future
Employment. The Executive waives any right to assert any claim or demand
for reemployment with Cinergy. The Executive, however, may accept an offer of
reemployment with Cinergy in the event such an offer is made.


 


6.             Nondisclosure of
Confidential Information. The Executive will not at any time, directly or
indirectly, use any trade secrets or confidential information of Cinergy for
his benefit or the benefit of any other person or, directly or indirectly,
disclose any trade secrets or confidential information of Cinergy to any other
person, unless he is required by law or any lawful authority to do so. For
purposes of this Section, “confidential information of Cinergy” means all
secret, proprietary information, knowledge, or data relating to Cinergy and its
businesses that have been obtained by the Executive during the Executive’s
employment by Cinergy that have not been now or subsequently become public
knowledge (other than by acts of the Executive or representatives of the
Executive in violation of this Agreement).


 


7.             Consulting
Arrangement. The Executive agrees to serve as a business consultant to
Cinergy for a period of three (3) years beginning on the Termination Date (the
“Consulting Period”). The consulting services to be provided by the Executive
during the Consulting Period will consist of consultation with, and advice to,
the officers and managerial employees of Cinergy, as requested by Cinergy, on
matters relating to Cinergy’s business affairs about which the Executive has
knowledge and experience. The consulting services will be performed at
reasonable times when and as needed, as determined by mutual agreement between
Cinergy and the Executive. The parties understand and agree that all of the
consulting services to be provided by the Executive under this Agreement will
be performed by him as an independent contractor and not as an employee of
Cinergy. The Executive will not have any authority to act as an agent or
representative of Cinergy, except to the extent expressly authorized in writing
by Cinergy. The Executive will perform his consulting services to the best of
his abilities. The Executive’s duties pursuant to this Paragraph are purely
those of a consultant, and Cinergy is free to accept or reject his advice, as
it deems appropriate. Cinergy is responsible for all actions it chooses to take
based on the Executive’s advice, and Cinergy agrees to hold the Executive
harmless for the results of those actions, including all losses and damages
resulting from any legal or regulatory action.


 


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Cinergy
will reimburse the Executive for all expenses authorized by Cinergy and
incurred by the Executive, including but not limited to telephone, duplication,
secretarial services, mail and courier services, and normal supplies that may
reasonably be required. Reimbursement will be made within thirty (30) days of
Cinergy’s receipt of reasonable and customary documentation. For any travel
requested and authorized by Cinergy, the Executive will be reimbursed for all
reasonable and customary expenses, including transportation, parking, food, and
lodging. Nothing in this Section 7 will prohibit the Executive from seeking or
accepting other employment, engaging in any other consulting services, or
participating in any other endeavor for profit, as he deems appropriate,
provided that, in so doing, he does not breach any of his other obligations
under this Agreement.  Notwithstanding
the foregoing sentence, Cinergy, in its sole discretion, may permit the
Executive to remain on the Board of Directors of any company of which he serves
as a director on the Termination Date.


 


8.             Non-Solicitation and Non-Competition. At no time during the Consulting Period will the
Executive: (a) employ or seek to employ any person employed at that time by
Cinergy or otherwise encourage or entice any such person to leave employment
with Cinergy; (b) become employed by, enter into a consulting arrangement with,
or otherwise agree to perform personal services for, a Competitor without the
written consent of Cinergy; (c) acquire an ownership interest in a Competitor,
provided that the Executive may, for investment purposes, own not more than 3%
of the outstanding stock of any class of a Competitor that is publicly traded;
or (d) solicit any customers or vendors of Cinergy on behalf of or for the
benefit of a Competitor.


 


The Executive acknowledges that monetary damages will not be an
adequate remedy for Cinergy in the event of a breach of this Section 8, and
that it would be impossible for Cinergy to measure damages in the event of such
a breach. Therefore, the Executive agrees that, in lieu of any other remedy
that Cinergy may have for such a breach, Cinergy is entitled to an injunction
preventing the Executive from any breach of this Section 8.


 


9.             Cooperation With
Litigation. Upon Cinergy’s request, the Executive agrees to render
reasonable assistance to Cinergy in connection with any litigation or
investigation relating to Cinergy’s business, provided that rendering such
assistance does not impose an unreasonable burden on the Executive. Such
assistance will include, but will not be limited to, providing information,
attending meetings, assisting with interrogatories, giving depositions, and
making court appearances. The Executive agrees to notify the General Counsel of
the Company promptly of any requests for information or testimony that the
Executive receives in connection with any litigation or investigation relating
to Cinergy’s business. Cinergy agrees to reimburse the Executive for any monies
necessary to discharge the Executive’s obligations under this Section and for
his time and out-of-pocket expenses in meeting those obligations.


 


10.           Return of
Corporate Property. Except as otherwise provided in this Agreement, the
Executive agrees to return to Cinergy all keys, identification badges,
electronic passes, credit cards, computer programs, and other property
belonging to Cinergy when requested and to do so by Cinergy’s representative.


 


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11.           Communications.
While the Executive is employed by Cinergy and thereafter, Cinergy will not
make any untrue, disparaging, defamatory, or derogatory statements about the
Executive, and the Executive will not make any untrue, disparaging, defamatory,
or derogatory statements about Cinergy.


 


12.           Severability.
If any portion of this Agreement is found to be unenforceable for any reason,
the parties agree that the remaining portions will remain in effect (to the
extent the invalidity of the particular portion does not substantially
undermine the purpose of this Agreement).


 


13.           Consultation With
Attorney Advised. The Executive is advised to consult with an attorney
prior to executing this Agreement. The Executive acknowledges being given that
advice. The Executive represents that he has read and fully understands all of
the provisions of this Agreement. The Executive represents that he is
voluntarily signing this Agreement.


 


14.           Confidentiality.
The Executive covenants and agrees to keep completely confidential and not to
disclose the existence or terms of this Agreement except to Executive’s spouse,
legal counsel, accountant, and financial advisors, unless he is required by law
or any lawful authority to do so. The Executive will advise those to whom
proper disclosure is made that this is a confidential agreement, and he will
instruct them that they are not to disclose the existence or terms of this
Agreement. In addition, the Executive covenants and agrees that any breach of
this confidentiality provision will be considered a breach of this Agreement.


 


15.           Binding Effect of
Agreement. This Agreement will be binding upon and will operate for the
benefit of, the heirs, executors, administrators, assigns, and successors in
interest of the Executive and Cinergy. Cinergy agrees that in the event of a
sale, merger, acquisition, or other change in structure (including the
cessation or restructuring of any part of Cinergy’s business) and/or ownership,
Cinergy will ensure that the contract language pertaining to the transaction
confirms the continuing liability of Cinergy (and its assigns and successors in
interest) to the Executive under this Agreement.  The Executive agrees that Cinergy Services, Inc. (and/or any of
its authorized employees) is authorized to act for Cinergy with respect to all
aspects pertaining to the administration and interpretation of this Agreement.


 


16.           Complete
Agreement. Except as otherwise expressly provided in this Agreement, the
terms of this Agreement constitute the entire Agreement between the parties and
supersede all previous communications, representations, and agreements, oral or
written, between the parties with respect to the subject matter of this
Agreement. No agreement or understanding modifying this Agreement will be
binding on either party unless it is in writing and signed by an authorized
representative of the party sought to be bound. If any part of this Agreement
is adjudged by a court of competent jurisdiction to be contrary to law, then
this Agreement will, in all other respects, remain effective and binding to the
full extent permitted by law.


 


17.           Arbitration.
The parties agree that any dispute, claim, or controversy based on common law,
equity, or any federal, state, or local statute, ordinance, or regulation
(other than workers’ compensation claims) arising out of or relating in any way
to the Executive’s employment, the terms, benefits, and conditions of
employment, or concerning this Agreement or its termination and any resulting
termination of employment, including whether such a dispute


 


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is
arbitrable, will be settled by arbitration. This agreement to arbitrate
includes but is not limited to all claims for any form of illegal
discrimination, improper or unfair treatment or dismissal, and all tort claims.
The Executive will still have a right to file a discrimination charge with a
federal or state agency, but the final resolution of any discrimination claim
will be submitted to arbitration instead of a court or jury. The arbitration
proceeding will be conducted under the employment dispute resolution
arbitration rules of the American Arbitration Association in effect at the time
a demand for arbitration under the rules is made, and such proceeding will be
adjudicated in the state of Ohio in accordance with the laws of the state of
Ohio. The decision of the arbitrator(s), including determination of the amount
of any damages suffered, will be exclusive, final, and binding on all parties,
their heirs, executors, administrators, successors and assigns. Each party will
bear its own expenses in the arbitration for arbitrators’ fees and attorneys’
fees, for its witnesses, and for other expenses of presenting its case. Other
arbitration costs, including administrative fees and fees for records or
transcripts, will be borne equally by the parties. Notwithstanding anything in
this Section to the contrary, if the Executive prevails with respect to any
dispute submitted to arbitration under this Section, Cinergy will reimburse or
pay all legal fees and expenses that the Executive may reasonably incur as a
result of the dispute.


 


18.           Governing Law.
This Agreement will be interpreted, enforced, and governed under the laws of
the State of Ohio, without regard to any principles of conflicts of laws.


 


19.           Definitions.
As used in this Agreement, the following terms, when capitalized, will have the
following meanings:


 


a.             Agreement. “Agreement”
means this Separation and Retirement Agreement.


 


b.             Cinergy.
“Cinergy” means the Company, its subsidiaries, and/or its affiliates, and
any successors to the foregoing.


 


c.             Company.
“Company” means Cinergy Corp.


 


d.             Competitor.
“Competitor” means any person or entity that sells goods or services that are
directly competitive with those sold by a business that (1) is being conducted
by Cinergy at the time in question and (2) was being conducted by Cinergy on
the Termination Date. Notwithstanding anything in the preceding sentence, goods
or services will not be deemed to be competitive with those of Cinergy solely
as a result of the Executive being employed by or otherwise associated with a
business that is in competition with Cinergy but as to which the Executive does
not have direct or indirect responsibilities for the products or services
involved.


 


e.             Executive. “Executive”
means Donald B. Ingle, Jr.


 


f.              Executive Supplemental
Life Program. “Executive Supplemental Life Program” means the
Cinergy Corp. Executive Supplemental Life Insurance Program and any successor
of that plan.


 


g.             Termination Date. “Termination
Date” has the meaning given such term in the Recitals to this Agreement.


 


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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed, effective as of the date above written.


 


	
  CINERGY
  SERVICES, INC.

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  James E. Rogers

  	
   

  	
  /s/
  Donald B. Ingle, Jr.

  
	
   

  	
  James
  E. Rogers

  	
   

  	
  Donald
  B. Ingle, Jr.

  
	
   

  	
  Chairman
  and Chief Executive Officer

  	
   

  	
   

  



 


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EXHIBIT A


 


*****


 


WAIVER AND RELEASE AGREEMENT


 


THIS WAIVER AND RELEASE AGREEMENT (this “Waiver and Release”)
is entered into by and between Donald B. Ingle, Jr. (the “Executive”) and
Cinergy Corp.  (“Cinergy”)
(collectively, the “Parties”).


 


WHEREAS, the Parties have entered into the Separation and
Retirement Agreement
dated                              (the
“Agreement”);


 


WHEREAS, the Executive’s employment has been terminated in
accordance with the terms of the Agreement;


 


WHEREAS, the Executive is required to sign this Waiver and
Release in order to receive the payment of certain compensation under the
Agreement following termination of employment; and


 


WHEREAS, Cinergy has agreed to sign this Waiver and
Release.


 


NOW, THEREFORE, in consideration of the promises and
agreements contained herein and other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, and intending to be legally
bound, the Parties agree as follows:


 


1.             This Waiver and Release is
effective on the date hereof and will continue in effect as provided herein.


 


2.                                       In
consideration of the payments to be made and the benefits to be received by the
Executive pursuant to the Agreement (the “Severance Benefits”), which the
Executive acknowledges are in addition to payment and benefits to which the
Executive would be entitled to but for the Agreement, the Executive, on behalf
of himself, his heirs, representatives, agents and assigns hereby COVENANTS NOT
TO SUE OR OTHERWISE VOLUNTARILY PARTICIPATE IN ANY LAWSUIT AGAINST, FULLY
RELEASES, INDEMNIFIES, HOLDS HARMLESS, and OTHERWISE FOREVER DISCHARGES (i)
Cinergy, (ii) its subsidiary or affiliated entities, (iii) all of their present
or former directors, officers, employees, shareholders, and agents as well as
(iv) all predecessors, successors and assigns thereof (the persons listed in
clauses (i) through (iv) hereof shall be referred to collectively as the
“Company”) from any and all actions, charges, claims, demands, damages or
liabilities of any kind or character whatsoever, known or unknown, which
Executive now has or may have had through the effective date of this Waiver and
Release.  Executive acknowledges and
understands that he is not hereby prevented from filing a charge of
discrimination with the Equal Employment Opportunity Commission or any state-equivalent
agency or otherwise participate in any proceedings before such
Commissions.  Executive also
acknowledges and understands that in the event he does file such a charge, he
shall be entitled to no


 


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remuneration, damages, back
pay, front pay, or compensation whatsoever from the Company as a result of such
charge.


 


3.                                       Without
limiting the generality of the foregoing release, it shall include:  (i) all claims or potential claims arising
under any federal, state or local laws relating to the Parties’ employment
relationship, including any claims Executive may have under the Civil Rights
Acts of 1866 and 1964, as amended, 42 U.S.C. §§ 1981 and 2000(e) et  seq.;
the Civil Rights Act of 1991; the Age Discrimination in Employment Act, as
amended, 29 U.S.C. §§ 621 et  seq.; the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12,101 et  seq.;
the Fair Labor Standards Act, 29 U.S.C. §§ 201 et  seq.; the
Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101, et
seq.; the Ohio Civil Rights Act, Chapter 4112 et  seq.; and
any other federal, state or local law governing the Parties’ employment
relationship; (ii) any claims on account of, arising out of or in any way
connected with Executive’s employment with the Company or leaving of that
employment; (iii) any claims alleged or which could have been alleged in any
charge or complaint against the Company; (iv) any claims relating to the
conduct of any employee, officer, director, agent or other representative of
the Company; (v) any claims of discrimination or harassment on any basis; (vi)
any claims arising from any legal restrictions on an employer’s right to
separate its employees; (vii) any claims for personal injury, compensatory or
punitive damages or other forms of relief; and (viii) all other causes of
action sounding in contract, tort or other common law basis, including: (a) the
breach of any alleged oral or written contract; (b) negligent or intentional
misrepresentations; (c) wrongful discharge; (d) just cause dismissal; (e)
defamation; (f) interference with contract or business relationship; or (g)
negligent or intentional infliction of emotional distress.


 


4.                                       The Parties
acknowledge that it is their mutual and specific intent that the above waiver
fully complies with the requirements of the Older Workers Benefit Protection
Act (29 U.S.C. § 626) and any similar law governing release of claims.  Accordingly, Executive hereby acknowledges
that:


 


a.                                       He has
carefully read and fully understands all of the provisions of this Waiver and
Release and that he has entered into this Waiver and Release knowingly and
voluntarily after extensive negotiations and having consulted with his counsel;


 


b.                                      The Severance
Benefits offered in exchange for Executive’s release of claims exceed in kind
and scope that to which he would have otherwise been legally entitled;


 


c.                                       Prior to
signing this Waiver and Release, Executive had been advised in writing by this
Waiver and Release as well as other writings to seek counsel from, and has in
fact had an opportunity to consult with, an attorney of his choice concerning
its terms and conditions; and


 


d.                                      He has been
offered at least twenty-one (21) days within which to review and consider this
Waiver and Release.


 


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5.                                       The Parties
agree that this Waiver and Release shall not become effective and enforceable
until the date this Waiver and Release is signed by both Parties or seven (7)
calendar days after its execution by Executive, whichever is later.  Executive may revoke this Waiver and Release
for any reason by providing written notice of such intent to Cinergy within
seven (7) days after he has signed this Waiver and Release, thereby forfeiting
Executive’s right to receive any Severance Benefits provided hereunder and
rendering this Waiver and Release null and void in its entirety.


 


6.                                       The Executive
hereby affirms and acknowledges his continued obligations to comply with the
post-termination covenants contained in the Agreement, including but not
limited to, the Confidential Information provisions of Section 6 of the
Agreement.  Executive acknowledges that
the restrictions contained therein are valid and reasonable in every respect,
are necessary to protect the Company’s legitimate business interests and hereby
affirmatively waives any claim or defense to the contrary.


 


7.                                       Executive
specifically agrees and understands that the existence and terms of this Waiver
and Release are strictly CONFIDENTIAL and that such confidentiality is a
material term of this Waiver and Release. 
Accordingly, except as required by law or unless authorized to do so by
Cinergy in writing, Executive agrees that he shall not communicate, display or
otherwise reveal any of the contents of this Waiver and Release to anyone other
than his spouse, primary legal counsel or financial advisor, provided, however,
that they are first advised of the confidential nature of this Waiver and
Release and Executive obtains their agreement to be bound by the same.  Cinergy agrees that Executive may respond to
legitimate inquiries regarding his employment with Cinergy by stating that he
voluntarily resigned to pursue other opportunities, that the Parties terminated
their relationship on an amicable basis and that the Parties have entered into
a confidential Waiver and Release that prohibits him from further discussing
the specifics of his separation. 
Nothing contained herein shall be construed to prevent Executive from
discussing or otherwise advising subsequent employers of the existence of any
obligations as set forth in the Agreement. 
Further, nothing contained herein shall be construed to limit or
otherwise restrict the Company’s ability to disclose the terms and conditions
of this Waiver and Release as may be required by business necessity.


 


8.                                       In the event
that Executive breaches or threatens to breach any provision of this Waiver and
Release, he agrees that Cinergy shall be entitled to seek any and all equitable
and legal relief provided by law, specifically including immediate and
permanent injunctive relief.  Executive
hereby waives any claim that Cinergy has an adequate remedy at law.  In addition, and to the extent not
prohibited by law, Executive agrees that Cinergy shall be entitled to an award
of all costs and attorneys’ fees incurred by Cinergy in any successful effort
to enforce the terms of this Waiver and Release.  Executive agrees that the foregoing relief shall not be construed
to limit or otherwise restrict Cinergy’s ability to pursue any other remedy
provided by law, including the recovery of any actual, compensatory or punitive
damages.  Moreover, if Executive pursues
any claims against the Company subject to the foregoing Waiver and Release,
Executive agrees to immediately reimburse the Company for the value of all
benefits received under this Waiver and Release to the fullest extent permitted
by law.


 


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9.                                       Cinergy hereby
releases the Executive, his heirs, representatives, agents and assigns from any
and all known claims, causes of action, grievances, damages and demands of any
kind or nature based on acts or omissions committed by the Executive during and
in the course of his employment with Cinergy provided such act or omission was
committed in good faith and occurred within the scope of his normal duties and
responsibilities.


 


10.                                 The Parties
acknowledge that this Waiver and Release is entered into solely for the purpose
of ending their employment relationship on an amicable basis and shall not be
construed as an admission of liability or wrongdoing by either Party and that
both Cinergy and Executive have expressly denied any such liability or
wrongdoing.


 


11.                                 Each of the
promises and obligations shall be binding upon and shall inure to the benefit
of the heirs, executors, administrators, assigns and successors in interest of
each of the Parties.


 


12.                                 The Parties
agree that each and every paragraph, sentence, clause, term and provision of
this Waiver and Release is severable and that, if any portion of this Waiver
and Release should be deemed not enforceable for any reason, such portion shall
be stricken and the remaining portion or portions thereof should continue to be
enforced to the fullest extent permitted by applicable law.


 


13.                                 This Waiver and
Release shall be governed by and interpreted in accordance with the laws of the
State of Ohio without regard to any applicable state’s choice of law
provisions.


 


14.                                 Executive
represents and acknowledges that in signing this Waiver and Release he does not
rely, and has not relied, upon any representation or statement made by Cinergy
or by any of Cinergy’s employees, officers, agents, stockholders, directors or
attorneys with regard to the subject matter, basis or effect of this Waiver and
Release other than those specifically contained herein.


 


15.                                 This Waiver and
Release represents the entire agreement between the Parties concerning the
subject matter hereof, shall supercede any and all prior agreements which may
otherwise exist between them concerning the subject matter hereof (specifically
excluding, however, the post-termination obligations contained in the Agreement
or any other legally-binding document), and shall not be altered, amended,
modified or otherwise changed except by a writing executed by both Parties.


 


16.                                 Cinergy Corp.
and the Executive agree that Cinergy Services, Inc. will be authorized to act
for Cinergy Corp. with respect to all aspects pertaining to the administration
and interpretation of this Waiver and Release.


 


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PLEASE READ CAREFULLY.  WITH RESPECT TO THE EXECUTIVE, THIS


 


WAIVER AND RELEASE INCLUDES A
COMPLETE RELEASE OF ALL KNOWN


 


AND UNKNOWN CLAIMS.


 


IN WITNESS WHEREOF, the Parties have themselves signed, or caused a
duly authorized agent thereof to sign, this Waiver and Release on their behalf
and thereby acknowledge their intent to be bound by its terms and conditions.


 


	
  EXECUTIVE

  	
   

  	
  CINERGY SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signed:

  	
  /s/ Donald B. Ingle, Jr.

  	
   

  	
  By:

  	
  /s/ James E. Rogers

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Printed:

  	
  Donald B. Ingle, Jr.

  	
   

  	
  Title:

  	
  Chairman and Chief
  Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


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