(I) THE EXECUTIVE AGREES TO IMMEDIATELY REIMBURSE THE
COMPANY FOR ALL AMOUNTS RECEIVED BY THE EXECUTIVE PURSUANT TO THIS AGREEMENT TO
THE FULLEST EXTENT PERMITTED BY LAW, AND (II) THE COMPANY WILL BE RELIEVED OF
ANY AND ALL OBLIGATIONS TO MAKE FUTURE PAYMENTS TO THE EXECUTIVE PURSUANT TO
THIS AGREEMENT.
11.
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 TO DO SO BY
CINERGY'S REPRESENTATIVE.
12.
CONTINUING OBLIGATIONS.
THE EXECUTIVE
HEREBY AFFIRMS AND ACKNOWLEDGES THE EXECUTIVE'S CONTINUING OBLIGATIONS TO COMPLY
WITH THE POST-TERMINATION COVENANTS CONTAINED IN THIS AGREEMENT, INCLUDING, BUT
NOT LIMITED TO, THE PROVISIONS OF SECTIONS 7, 8, 9, 10 AND 11 OF THIS AGREEMENT
AND THE WAIVER AND RELEASE.
THE EXECUTIVE ACKNOWLEDGES THAT THE RESTRICTIONS
CONTAINED THEREIN ARE VALID AND REASONABLE IN EVERY RESPECT, ARE NECESSARY TO
PROTECT CINERGY'S LEGITIMATE BUSINESS INTERESTS AND HEREBY AFFIRMATIVELY WAIVES
ANY CLAIM OR DEFENSE TO THE CONTRARY.
13.
NO ADMISSION OF LIABILITY.
THE PARTIES
ACKNOWLEDGE THAT THIS AGREEMENT 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 ANY PARTY AND THAT EACH PARTY
EXPRESSLY DENIES ANY SUCH LIABILITY OR WRONGDOING.
14.
NO RELIANCE.
THE
EXECUTIVE 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 AGREEMENT OTHER THAN THOSE SPECIFICALLY CONTAINED HEREIN.
THE
EXECUTIVE EXPRESSLY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CINERGY AND
ITS DIRECTORS, OFFICERS, EMPLOYEES,
6
AGENTS, REPRESENTATIVES AND INSURERS FROM AND AGAINST ANY AND ALL TAX
ASSESSMENTS, TAX LIENS, PENALTIES OR INTEREST ASSESSED BY THE INTERNAL REVENUE
SERVICE, OR ANY OTHER FEDERAL, STATE OR LOCAL TAXING AUTHORITY ON ACCOUNT OF,
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
NOTWITHSTANDING THE
FOREGOING, 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 ("PAYMENTS") WOULD BE SUBJECT TO ANY EXCISE TAX PURSUANT
TO SECTION 4999 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THEN THE
EXECUTIVE WILL BE ENTITLED TO RECEIVE AN ADDITIONAL PAYMENT (A "GROSS-UP
PAYMENT") IN AN AMOUNT SUCH THAT AFTER PAYMENT BY THE EXECUTIVE OF ALL TAXES
(INCLUDING ANY INTEREST, PENALTIES, ADDITIONAL TAX, OR SIMILAR ITEMS IMPOSED
WITH RESPECT THERETO AND THE EXCISE TAX), INCLUDING ANY EXCISE TAX IMPOSED UPON
THE GROSS-UP PAYMENT, THE EXECUTIVE RETAINS AN AMOUNT OF THE GROSS-UP PAYMENT
EQUAL TO THE EXCISE TAX IMPOSED UPON OR ASSESSABLE AGAINST THE EXECUTIVE DUE TO
THE PAYMENTS.