IN KIND AND SCOPE THAT TO
WHICH HE WOULD HAVE OTHERWISE BEEN LEGALLY ENTITLED;
C.
PRIOR TO SIGNING THIS WAIVER AND
RELEASE, EXECUTIVE HAD BEEN ADVISED IN WRITING BY THIS WAIVER AND RELEASE AS
WELL AS OTHER WRITINGS TO SEEK COUNSEL FROM, AND HAS IN FACT HAD AN OPPORTUNITY
TO CONSULT WITH, AN ATTORNEY OF HIS CHOICE CONCERNING ITS TERMS AND CONDITIONS;
AND
D.
HE HAS BEEN OFFERED AT LEAST TWENTY-ONE
(21) DAYS WITHIN WHICH TO REVIEW AND CONSIDER THIS WAIVER AND RELEASE.
11
5.
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 EXECUTIVE, WHICHEVER IS LATER.
EXECUTIVE MAY REVOKE THIS WAIVER
AND RELEASE FOR ANY REASON BY PROVIDING WRITTEN NOTICE OF SUCH INTENT TO CINERGY
WITHIN SEVEN (7) DAYS AFTER HE HAS SIGNED THIS WAIVER AND RELEASE, THEREBY
FORFEITING EXECUTIVE'S RIGHT TO RECEIVE ANY SEVERANCE BENEFITS PROVIDED
HEREUNDER AND RENDERING THIS WAIVER AND RELEASE NULL AND VOID IN ITS ENTIRETY.
6.
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
CONFIDENTIAL INFORMATION PROVISIONS OF SECTION 6 OF THE AGREEMENT.
EXECUTIVE
ACKNOWLEDGES THAT THE RESTRICTIONS CONTAINED THEREIN ARE VALID AND REASONABLE IN
EVERY RESPECT, ARE NECESSARY TO PROTECT THE COMPANY'S LEGITIMATE BUSINESS
INTERESTS AND HEREBY AFFIRMATIVELY WAIVES ANY CLAIM OR DEFENSE TO THE CONTRARY.
7.
EXECUTIVE SPECIFICALLY AGREES AND
UNDERSTANDS THAT THE EXISTENCE AND TERMS OF THIS WAIVER AND RELEASE ARE STRICTLY
CONFIDENTIAL AND THAT SUCH CONFIDENTIALITY IS A MATERIAL TERM OF THIS WAIVER AND
RELEASE.
ACCORDINGLY, EXCEPT AS REQUIRED BY LAW OR UNLESS AUTHORIZED TO DO SO
BY CINERGY IN WRITING, EXECUTIVE AGREES THAT HE SHALL NOT COMMUNICATE, DISPLAY
OR OTHERWISE REVEAL ANY OF THE CONTENTS OF THIS WAIVER AND RELEASE TO ANYONE
OTHER THAN HIS SPOUSE, PRIMARY LEGAL COUNSEL OR FINANCIAL ADVISOR, PROVIDED,
HOWEVER, THAT THEY ARE FIRST ADVISED OF THE CONFIDENTIAL NATURE OF THIS WAIVER
AND RELEASE AND EXECUTIVE OBTAINS THEIR AGREEMENT TO BE BOUND BY THE SAME.
CINERGY AGREES THAT EXECUTIVE MAY RESPOND TO LEGITIMATE INQUIRIES REGARDING HIS
EMPLOYMENT WITH CINERGY BY STATING THAT HE VOLUNTARILY RESIGNED TO PURSUE OTHER
OPPORTUNITIES, THAT THE PARTIES TERMINATED THEIR RELATIONSHIP ON AN AMICABLE
BASIS AND THAT THE PARTIES HAVE ENTERED INTO A CONFIDENTIAL WAIVER AND RELEASE
THAT PROHIBITS HIM FROM FURTHER DISCUSSING THE SPECIFICS OF HIS SEPARATION.
NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO PREVENT EXECUTIVE FROM DISCUSSING
OR OTHERWISE ADVISING SUBSEQUENT EMPLOYERS OF THE EXISTENCE OF ANY OBLIGATIONS
AS SET FORTH IN THE AGREEMENT.
FURTHER, NOTHING CONTAINED HEREIN SHALL BE
CONSTRUED TO LIMIT OR OTHERWISE RESTRICT THE COMPANY'S ABILITY TO DISCLOSE THE
TERMS AND CONDITIONS OF THIS WAIVER AND RELEASE AS MAY BE REQUIRED BY BUSINESS
NECESSITY.
8.
IN THE EVENT THAT EXECUTIVE BREACHES OR
THREATENS TO BREACH ANY PROVISION OF THIS WAIVER AND RELEASE, HE AGREES THAT
CINERGY SHALL BE ENTITLED TO SEEK