CINERGY SHALL BE ENTITLED TO AN AWARD OF ALL
COSTS AND ATTORNEYS' FEES REASONABLY INCURRED BY CINERGY IN ANY SUCCESSFUL
EFFORT TO ENFORCE THE TERMS OF THIS AGREEMENT.
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 THAT HE HAS WAIVED IN THE WAIVER AND RELEASE OR OTHERWISE
BREACHES THIS AGREEMENT, (I) THE EXECUTIVE AGREES TO IMMEDIATELY REIMBURSE THE
COMPANY FOR ALL AMOUNTS RECEIVED BY THE EXECUTIVE PURSUANT TO THIS AGREEMENT TO
THE FULLEST EXTENT PERMITTED BY LAW, AND (II) THE COMPANY WILL BE RELIEVED OF
ANY AND ALL OBLIGATIONS TO MAKE FUTURE PAYMENTS TO THE EXECUTIVE PURSUANT TO
THIS AGREEMENT.
13.
RETURN OF CORPORATE PROPERTY.
EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT, THE EXECUTIVE AGREES TO RETURN TO CINERGY ALL KEYS,
IDENTIFICATION BADGES, ELECTRONIC PASSES, CREDIT CARDS, COMPUTER PROGRAMS, AND
OTHER PROPERTY BELONGING TO CINERGY WHEN REQUESTED AND TO DO SO BY CINERGY'S
REPRESENTATIVE.
14.
CONTINUING OBLIGATIONS.
THE EXECUTIVE HEREBY AFFIRMS AND
ACKNOWLEDGES THE EXECUTIVE'S CONTINUING OBLIGATIONS TO COMPLY WITH THE
POST-TERMINATION COVENANTS CONTAINED IN THIS AGREEMENT, INCLUDING, BUT NOT
LIMITED TO, THE PROVISIONS OF SECTIONS 7, 8, 9, 10, 11, 12 AND 13 OF THIS
AGREEMENT AND THE WAIVER AND RELEASE.
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.
15.
NO ADMISSION OF LIABILITY.
THE PARTIES ACKNOWLEDGE THAT THIS
AGREEMENT 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 ANY PARTY AND THAT EACH PARTY EXPRESSLY DENIES ANY
SUCH LIABILITY OR WRONGDOING.
16.
NO RELIANCE.
THE EXECUTIVE DOES NOT RELY, AND HAS NOT
RELIED, UPON ANY REPRESENTATION OR STATEMENT MADE BY CINERGY OR BY ANY OF
CINERGY'S EMPLOYEES, OFFICERS, AGENTS, STOCKHOLDERS, DIRECTORS OR ATTORNEYS WITH
REGARD TO THE SUBJECT MATTER, BASIS OR EFFECT OF THIS AGREEMENT OTHER THAN THOSE
SPECIFICALLY CONTAINED HEREIN.
THE EXECUTIVE EXPRESSLY AGREES TO DEFEND,
INDEMNIFY AND HOLD HARMLESS CINERGY AND ITS DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, REPRESENTATIVES AND INSURERS FROM AND AGAINST ANY AND ALL TAX
ASSESSMENTS, TAX LIENS, PENALTIES OR INTEREST ASSESSED BY THE INTERNAL REVENUE
SERVICE, OR ANY OTHER FEDERAL, STATE OR
7
LOCAL TAXING AUTHORITY AGAINST THE EXECUTIVE ON ACCOUNT OF, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, IN THE
EVENT THAT ANY BENEFITS PAID OR PAYABLE TO THE EXECUTIVE OR FOR HIS BENEFIT
PURSUANT TO THE TERMS OF THIS AGREEMENT OR ANY OTHER PLAN OR ARRANGEMENT IN
CONNECTION WITH, OR ARISING OUT OF, HIS EMPLOYMENT WITH CINERGY OR A CHANGE IN
OWNERSHIP OR EFFECTIVE CONTROL OF CINERGY OR OF A SUBSTANTIAL PORTION OF ITS
ASSETS ("PAYMENTS") WOULD BE SUBJECT TO ANY EXCISE TAX