THEN EXISTING, THE PARTIES HERETO AGREE
THAT THE MAXIMUM PERIOD OR SCOPE REASONABLE UNDER SUCH CIRCUMSTANCES WILL BE
SUBSTITUTED FOR THE STATED PERIOD OR SCOPE AND THAT THE COURT WILL BE ALLOWED TO
REVISE THE RESTRICTIONS CONTAINED HEREIN TO COVER THE MAXIMUM PERIOD OR SCOPE
PERMITTED BY LAW.
THE PARTIES ACKNOWLEDGE THAT ANY ALLEGED BREACH OF THIS
SECTION COULD RESULT IN A CLAIM FOR LEGAL AND/OR EQUITABLE DAMAGES BY THE
AGGRIEVED PARTY.
9.
COOPERATION WITH LITIGATION.
UPON THE
COMPANY'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 EXECUTIVE IS REASONABLY COMPENSATED FOR HIS TIME AND
REIMBURSED FOR REASONABLE EXPENSES, INCLUDING ATTORNEY'S FEES, INCURRED IN
CONNECTION WITH RENDERING SUCH ASSISTANCE, AND SUCH ASSISTANCE DOES NOT IMPOSE
AN UNREASONABLE BURDEN ON THE EXECUTIVE OR INTERFERE IN ANY SIGNIFICANT RESPECT
WITH EXECUTIVE'S EMPLOYMENT OR OTHER BUSINESS PURSUITS FOLLOWING THE TERMINATION
DATE.
SUCH ASSISTANCE SHALL INCLUDE, BUT NOT BE LIMITED TO, PROVIDING TRUTHFUL
INFORMATION, ATTENDING MEETINGS, ASSISTING WITH INTERROGATORIES, GIVING
DEPOSITIONS AND MAKING COURT APPEARANCES.
THE EXECUTIVE AGREES TO PROMPTLY
NOTIFY THE CHIEF LEGAL OFFICER OF CINERGY CORP. OF ANY
5
REQUESTS FOR INFORMATION OR TESTIMONY THAT THE EXECUTIVE RECEIVES IN CONNECTION
WITH ANY LITIGATION OR INVESTIGATION RELATING TO CINERGY'S BUSINESS.
CINERGY
ACKNOWLEDGES THAT THE EXECUTIVE IS ENTITLED TO THOSE RIGHTS OF INDEMNIFICATION
THAT ARE PROVIDED TO SIMILARLY-SITUATED FORMER OFFICERS AND EMPLOYEES PURSUANT
TO ITS BYLAWS.
10.
BREACH OF THIS AGREEMENT.
BECAUSE THE
EXECUTIVE'S SERVICES ARE UNIQUE AND BECAUSE THE EXECUTIVE HAS ACCESS TO
CONFIDENTIAL INFORMATION, THE PARTIES AGREE THAT CINERGY WOULD BE DAMAGED
IRREPARABLY IN THE EVENT ANY OF THE PROVISIONS OF SECTIONS 7, 8, 9 AND 11 WERE
NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE BREACHED
AND THAT MONEY DAMAGES WOULD BE AN INADEQUATE REMEDY FOR ANY SUCH
NON-PERFORMANCE OR BREACH.
IN THE EVENT THAT EITHER PARTY BREACHES OR THREATENS
TO BREACH ANY SUCH PROVISION OF THIS AGREEMENT OR THE WAIVER AND RELEASE, THE
PARTIES AGREE THAT EACH SHALL BE ENTITLED TO SEEK ANY AND ALL EQUITABLE AND
LEGAL RELIEF PROVIDED BY LAW, SPECIFICALLY INCLUDING IMMEDIATE AND PERMANENT
INJUNCTIVE RELIEF TO PREVENT ANY BREACH OR THREATENED BREACH OF ANY OF SUCH
PROVISIONS AND TO ENFORCE SUCH PROVISIONS SPECIFICALLY (WITHOUT POSTING A BOND
OR OTHER SECURITY).
EACH PARTY HEREBY WAIVES ANY CLAIM THAT THE OTHER PARTY HAS
AN ADEQUATE REMEDY AT LAW.
IN ADDITION, AND TO THE EXTENT NOT PROHIBITED BY
LAW, THE PARTIES AGREE THAT EITHER PARTY SHALL BE ENTITLED TO AN AWARD OF ALL
COSTS AND ATTORNEYS' FEES REASONABLY INCURRED BY IT IN ANY SUCCESSFUL EFFORT TO
ENFORCE THE TERMS OF THIS AGREEMENT.
THE PARTIES AGREE THAT THE FOREGOING
RELIEF SHALL NOT BE CONSTRUED TO LIMIT OR OTHERWISE RESTRICT EITHER PARTY'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 THAT HE HAS WAIVED IN THE WAIVER AND RELEASE OR OTHERWISE
BREACHES THIS AGREEMENT,