GRANTED TO THE EXECUTIVE PRIOR TO THE CHANGE IN
CONTROL.
E.
BENEFIT PLANS IN GENERAL.
UPON THE
EXECUTIVE'S TERMINATION OF EMPLOYMENT FOR ANY REASON, THE EXECUTIVE'S
ENTITLEMENTS, IF ANY, UNDER ALL BENEFIT PLANS OF CINERGY, INCLUDING BUT NOT
LIMITED TO THE DEFERRED COMPENSATION PLAN, 401(K) EXCESS PLAN, CINERGY CORP.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AND ANY VACATION POLICY, SHALL BE
DETERMINED UNDER THE TERMS OF SUCH PLANS, POLICIES AND ANY APPLICABLE
ADMINISTRATIVE GUIDELINES AND WRITTEN AGREEMENTS, PROVIDED, HOWEVER, THAT
FOLLOWING THE OCCURRENCE OF A CHANGE IN CONTROL THE TERMS OF SUCH PLANS AND
POLICIES AND ANY APPLICABLE ADMINISTRATIVE GUIDELINES AND WRITTEN AGREEMENTS
SHALL NOT BE AMENDED IN A MANNER THAT WOULD ADVERSELY AFFECT THE EXECUTIVE WITH
RESPECT TO BENEFITS EARNED BY THE EXECUTIVE PRIOR TO THE CHANGE IN CONTROL.
F.
OTHER FEES AND EXPENSES.
CINERGY
WILL ALSO REIMBURSE THE EXECUTIVE FOR ALL REASONABLE LEGAL FEES AND EXPENSES
INCURRED BY THE EXECUTIVE (I) IN SUCCESSFULLY DISPUTING A QUALIFYING TERMINATION
THAT ENTITLES THE EXECUTIVE TO SEVERANCE BENEFITS OR (II) IN REASONABLY
DISPUTING WHETHER OR NOT CINERGY HAS TERMINATED HIS EMPLOYMENT FOR CAUSE.
PAYMENT WILL BE MADE WITHIN FIVE (5) BUSINESS DAYS AFTER DELIVERY OF THE
EXECUTIVE'S WRITTEN REQUEST FOR PAYMENT ACCOMPANIED BY SUCH EVIDENCE OF FEES AND
EXPENSES INCURRED AS CINERGY REASONABLY MAY REQUIRE.
6.
NON-EXCLUSIVITY OF RIGHTS.
NOTHING IN
THIS AGREEMENT WILL PREVENT OR LIMIT THE EXECUTIVE'S CONTINUING OR FUTURE
PARTICIPATION IN ANY BENEFIT, PLAN, PROGRAM, POLICY, OR PRACTICE PROVIDED BY
CINERGY AND FOR WHICH THE EXECUTIVE MAY QUALIFY, EXCEPT WITH RESPECT TO ANY
BENEFIT TO WHICH THE EXECUTIVE HAS WAIVED HIS RIGHTS IN WRITING OR ANY PLAN,
PROGRAM, POLICY, OR PRACTICE THAT EXPRESSLY EXCLUDES THE EXECUTIVE FROM
PARTICIPATION.
IN ADDITION, NOTHING IN THIS AGREEMENT WILL LIMIT OR OTHERWISE
AFFECT THE RIGHTS THE EXECUTIVE MAY HAVE UNDER ANY OTHER CONTRACT OR AGREEMENT
WITH CINERGY ENTERED INTO AFTER THE EFFECTIVE DATE.
AMOUNTS THAT ARE VESTED
BENEFITS OR THAT THE EXECUTIVE IS OTHERWISE ENTITLED TO RECEIVE UNDER ANY
BENEFIT, PLAN, PROGRAM, POLICY, OR PRACTICE OF, OR ANY CONTRACT OR AGREEMENT
ENTERED INTO AFTER THE EFFECTIVE DATE WITH CINERGY, AT OR SUBSEQUENT TO THE DATE
OF TERMINATION, WILL BE PAYABLE IN ACCORDANCE WITH THAT BENEFIT, PLAN, PROGRAM,
POLICY OR PRACTICE, OR THAT CONTRACT OR AGREEMENT, EXCEPT AS EXPLICITLY MODIFIED
BY THIS
18
AGREEMENT.
NOTWITHSTANDING THE ABOVE, IN THE EVENT THAT THE EXECUTIVE RECEIVES
SEVERANCE BENEFITS UNDER SECTION 5A(II) OR 5A(III), (A) THE EXECUTIVE SHALL NOT
BE ENTITLED TO ANY BENEFITS UNDER ANY SEVERANCE PLAN OF CINERGY, INCLUDING BUT
NOT LIMITED TO THE SEVERANCE OPPORTUNITY PLAN FOR NON-UNION EMPLOYEES OF CINERGY
CORP. AND (B) IF THE EXECUTIVE RECEIVES SUCH SEVERANCE BENEFITS AS A RESULT OF
HIS TERMINATION FOR GOOD REASON, AS THAT TERM IS DEFINED IN SECTION 4D(IV),
CINERGY'S OBLIGATIONS UNDER SECTIONS 5A(II) AND 5A(III) SHALL BE REDUCED BY THE
AMOUNT OF ANY BENEFITS PAYABLE TO THE EXECUTIVE UNDER ANY SHORT-TERM OR
LONG-TERM DISABILITY PLAN OF CINERGY, THE AMOUNT OF WHICH SHALL BE DETERMINED BY
CINERGY IN GOOD FAITH.
7.
FULL SETTLEMENT:
MITIGATION.
EXCEPT AS