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.
12
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,