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.
17.
SEVERABILITY.
THE PARTIES AGREE THAT EACH AND EVERY PARAGRAPH,
SENTENCE, CLAUSE, TERM AND PROVISION OF THIS AGREEMENT IS SEVERABLE AND THAT, IF
ANY PORTION OF THIS AGREEMENT 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.
18.
CONSULTATION WITH ATTORNEY ADVISED.
THE EXECUTIVE IS ADVISED TO
CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT.
THE EXECUTIVE
ACKNOWLEDGES BEING GIVEN THAT ADVICE.
THE EXECUTIVE REPRESENTS THAT HE HAS READ
AND FULLY UNDERSTANDS ALL OF THE PROVISIONS OF THIS AGREEMENT.
THE EXECUTIVE
REPRESENTS THAT HE IS VOLUNTARILY SIGNING THIS AGREEMENT.
19.
BINDING EFFECT OF AGREEMENT.
THIS AGREEMENT, ONCE SIGNED BY EACH
OF THE EXECUTIVE AND THE CHIEF EXECUTIVE OFFICER OF CINERGY CORP., WILL BE
BINDING UPON AND WILL OPERATE FOR THE BENEFIT OF THE HEIRS, EXECUTORS,
ADMINISTRATORS, ASSIGNS, AND SUCCESSORS IN INTEREST OF THE EXECUTIVE AND
CINERGY.
CINERGY AGREES THAT IN THE EVENT OF A SALE, MERGER, ACQUISITION, OR
OTHER CHANGE IN STRUCTURE (INCLUDING THE CESSATION OR RESTRUCTURING OF ANY PART
OF CINERGY'S BUSINESS) AND/OR OWNERSHIP, CINERGY WILL ENSURE THAT THE CONTRACT
LANGUAGE PERTAINING TO THE TRANSACTION CONFIRMS THE CONTINUING LIABILITY OF
CINERGY (AND ITS ASSIGNS AND SUCCESSORS IN INTEREST) TO THE EXECUTIVE UNDER THIS
AGREEMENT.
THE EXECUTIVE AGREES THAT CINERGY SERVICES, INC. (AND/OR ANY OF ITS
AUTHORIZED EMPLOYEES) IS AUTHORIZED TO ACT FOR CINERGY WITH RESPECT TO ALL
ASPECTS PERTAINING TO THIS AGREEMENT, INCLUDING THE ADMINISTRATION AND
INTERPRETATION OF THIS AGREEMENT.
20.
COMPLETE AGREEMENT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS AGREEMENT, THE TERMS OF THIS AGREEMENT CONSTITUTE THE ENTIRE AGREEMENT
BETWEEN THE PARTIES AND SUPERSEDE ALL PREVIOUS COMMUNICATIONS, REPRESENTATIONS,
AND AGREEMENTS, ORAL OR WRITTEN, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT.
NO AGREEMENT OR UNDERSTANDING MODIFYING THIS
AGREEMENT WILL BE BINDING ON EITHER PARTY UNLESS IT IS IN WRITING AND SIGNED BY
AN AUTHORIZED REPRESENTATIVE OF THE PARTY SOUGHT TO BE BOUND.
IF ANY PART OF
THIS AGREEMENT IS ADJUDGED BY A COURT OF COMPETENT JURISDICTION (OR THE
ARBITRATOR(S) PURSUANT TO SECTION 21) TO BE CONTRARY TO LAW, THEN THIS AGREEMENT
WILL, IN ALL OTHER RESPECTS, REMAIN EFFECTIVE AND BINDING TO THE FULL EXTENT
PERMITTED BY LAW.
8
21.
ARBITRATION.
a.
Any dispute between the parties under this Agreement, the breach
thereof, the Executive's employment with Cinergy, or the termination thereof,
shall be resolved (except as provided