ANY RIGHT TO ASSERT ANY CLAIM OR DEMAND FOR
REEMPLOYMENT WITH CINERGY.
4.
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 THE EXECUTIVE,
WHICHEVER IS LATER.
THE EXECUTIVE MAY REVOKE THIS WAIVER AND RELEASE FOR ANY
REASON BY PROVIDING WRITTEN NOTICE OF SUCH INTENT TO THE COMPANY WITHIN SEVEN
(7) DAYS AFTER HE HAS SIGNED THIS WAIVER AND RELEASE, THEREBY FORFEITING THE
EXECUTIVE'S RIGHT TO RECEIVE ANY BENEFITS AND RENDERING THIS WAIVER AND RELEASE
NULL AND VOID IN ITS ENTIRETY.
5.
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 PROVISIONS OF SECTIONS 8, 9, 10,
11, 12 AND 13 OF THE AGREEMENT.
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.
6.
IN THE EVENT THAT THE 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.
THE EXECUTIVE
HEREBY WAIVES ANY CLAIM THAT CINERGY HAS AN ADEQUATE REMEDY AT LAW.
IN
ADDITION, AND TO THE EXTENT NOT PROHIBITED BY LAW, THE 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.
THE 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 THE EXECUTIVE PURSUES ANY CLAIMS AGAINST THE COMPANY
SUBJECT TO THE FOREGOING WAIVER AND RELEASE, THE EXECUTIVE AGREES TO IMMEDIATELY
REIMBURSE THE COMPANY FOR THE VALUE OF ALL BENEFITS RECEIVED TO THE FULLEST
EXTENT PERMITTED BY LAW.
7.
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 THE COMPANY PROVIDED SUCH ACT OR OMISSION WAS COMMITTED IN GOOD FAITH AND
OCCURRED WITHIN THE SCOPE OF HIS NORMAL DUTIES AND RESPONSIBILITIES.
8.
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 THE EXECUTIVE HAVE
EXPRESSLY DENIED ANY SUCH LIABILITY OR WRONGDOING.
9.
EACH OF THE PROMISES AND OBLIGATIONS SHALL BE BINDING UPON AND
SHALL INURE TO THE BENEFIT