**Exhibit10-uuuu**

 

AGREEMENT

 

In connection with the anticipated merger (the “Merger”) by and amongCinergy Corp., a Delaware corporation (“Cinergy”), Duke Energy Corporation, aNorth Carolina corporation (“Duke”) and their respective affiliates ascontemplated by the Agreement and Plan of Merger (the “Merger Agreement”) datedas of May 8, 2005, originally by and among Duke, Cinergy, Deer Holding Corp., aDelaware corporation, Deer Acquisition Corp., a North Carolina corporation, andCougar Acquisition Corp., a Delaware corporation, Cinergy and the individuallisted on Exhibit A hereto (the “Executive”) (collectively, the “Parties”)hereby enter into this agreement (this “Agreement”).  The Parties are entering into this Agreementin order to accelerate the payment of certain amounts that are expected tobecome payable following 2005. Capitalized terms used but not otherwise defined in this Agreement shallhave the meaning set forth in the Merger Agreement.

1.             AnnualIncentive Plan.  Notwithstanding anydeferral election to the contrary, the Parties hereby agree that Cinergy shallpay to the Executive, prior to December 31, 2005, in satisfaction of his or herexpected payment under the Cinergy Corp. Annual Incentive Plan (“AIP”) for the2006 performance period, which payment would otherwise be expected to be madeduring the thirty-day period following the Effective Time, the amount (if any)set forth on Exhibit A hereto.

a.             Within thirty days following the Effective Time, Cinergyhereby agrees to provide the Executive with an additional payment equal to theexcess, if any, of (i) the payment to which the Executive would be entitled inaccordance with the terms of the AIP for the 2006 performance period(calculated without regard to this Agreement), over (ii) the amount provided tothe Executive during 2005 pursuant to this Section 1.  The Executive hereby agrees and acknowledgesthat, after such payments are made to him or her, Cinergy and its affiliatesshall have no further payment obligations to the Executive under the AIP forthe 2006 performance period and his or her participation, or right toparticipate, in the AIP with respect to the 2006 performance period shall ceaseimmediately.

b.             For the avoidance ofdoubt, and notwithstanding anything herein to the contrary, the paymentsdescribed in this Section shall not be taken into account in computing anybenefits under any other plan, program or arrangement of Cinergy or itsaffiliates; provided, however, that when determining theExecutive’s “Highest Average Earnings” under the Cinergy Corp. Non-UnionEmployees’ Pension Plan, as amended, and any other plan or arrangement thatreferences such definition (collectively, the “Pension Plan”), the Executiveshall be treated as if he or she had received, at the Effective Time and underthe terms of the AIP, the payment(s) provided under this Section; further,provided, however, that for the avoidance of doubt, the Partiesacknowledge and agree that the Pension Plan has been amended to specify that theamount of the AIP 

 

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payments taken into account in determining theExecutive’s Highest Average Earnings for the 2006 calendar year shall notexceed the greater of (i) the payments made in 2006 under the AIP with respectto the 2005 performance period and (ii) the payments made (or treated hereunderas having been made) in 2006 under the AIP with respect to the 2006 performanceperiod.

2.             LTIPPerformance Shares

a.             Cinergy hereby agrees to pay to theExecutive, prior to December 31, 2005, in connection with the performance shareagreements, if any, that have been granted to him or her under the CinergyCorp. 1996 Long-Term Incentive Compensation Plan (“LTIP”) for performance cycleVIII (covering the 2004-2006 performance period), performance cycle IX(covering the 2005-2007 performance period) and performance cycle X (coveringthe 2006-2008 performance period) (collectively, his or her “Performance Shares”),under which payment would otherwise be expected to be made during thethirty-day period following the Effective Time, the amount (if any) set forthon Exhibit A hereto.  Withinthirty days following the Effective Time, Cinergy hereby agrees to provide theExecutive with an additional payment equal to the excess, if any, of (i) theamount to which the Executive would be entitled in accordance with the terms ofhis or her Performance Shares as a result of the Merger (calculated withoutregard to this Agreement), over (ii) the amount provided to the Executiveduring 2005 pursuant to this Section 2(a).

b.             Cinergy herebyagrees to pay to the Executive, prior to December 31, 2005, the additionalamount set forth on Exhibit A hereto in connection with his or herPerformance Shares for performance cycle X (covering the 2006-2008 performanceperiod), which payment would otherwise be expected to be made only in the eventof the Executive’s qualifying termination of employment during the two-yearperiod following the Effective Time. Notwithstanding the foregoing, however, the Executive shall have acontingent right to an additional payment in the event of his or her qualifyingtermination of employment in accordance with Section 8(a)(iii) of theperformance share agreement, if any, that has been granted to him or her underthe LTIP for performance cycle X (covering the 2006-2008 performance period),the amount of which shall be reduced by the amount, if any, provided in 2005pursuant to this Section 2(b).

c.             The Executivehereby acknowledges and agrees that, after the payments described in thisSection are made to him or her, Cinergy and its affiliates shall have nofurther payment obligations to the Executive or his or her beneficiaries underthe LTIP with respect to his or her Performance Shares, and his or herparticipation, or right to participate, in the LTIP for such cycles shallcease.

3.             MiscellaneousBenefits.  Cinergy hereby agrees topay to the Executive, prior to December 31, 2005, in satisfaction of his or herrights with respect to (a) outplacement benefits, (b) a vehicle allowance, (c)a perk pool allowance, (d) tax and 

 

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financial planning services, (e) continued welfare benefit coverage,(f) executive life insurance coverage, and (g) relocation benefits  (collectively, the “Miscellaneous Benefits”),which payments would otherwise be expected to be made to him or her after 2005,the amounts (if any) set forth on Exhibit A hereto.  The Executive hereby agrees and acknowledgesthat, after such payments are made to him or her, Cinergy and its affiliatesshall have no further payment obligations to the Executive, under his or heremployment agreement or otherwise, and whether in connection with his or hertermination of employment or otherwise, with respect to each of the MiscellaneousBenefits for which an amount is set forth on Exhibit A hereto; provided,however, that Cinergy hereby agrees to provide the Executive with anadditional payment equal to the excess, if any, of (I) the relocation benefitsto which the Executive would be entitled in accordance with the terms of itsapplicable plans and arrangements (calculated without regard to thisAgreement), over (II) the benefits provided to the Executive during 2005 inlieu of relocation benefits pursuant to this Section 3.

4.             Restricted/PhantomStock.  Cinergy hereby agrees towaive any restrictions otherwise applicable to the restricted and/or phantomstock granted to the Executive on the dates set forth on Exhibit Ahereto, under which vesting and/or payment would otherwise be expected to occuron or following the Effective Time, and Cinergy hereby agrees to transferand/or pay to the Executive in connection with the waiver of such restrictionsthe number of shares of Cinergy common stock and/or amount in cash set forth onExhibit A hereto, such that all income from such transfer shall beincluded in the Executive’s taxable income in 2005.  The Executive hereby agrees and acknowledgesthat, after such restrictions are released and/or such payments are made,Cinergy and its affiliates shall have no further payment obligations to theExecutive with respect to such restricted and/or phantom stock grant (or theportion thereof identified on Exhibit A hereto).

5.             Severance.  Cinergy hereby agrees to pay to theExecutive, prior to December 31, 2005, in satisfaction of all (or a portion) ofthe severance benefits to which he or she otherwise might become entitled, theamount (if any) set forth on Exhibit A hereto.  Within thirty days following a qualifyingtermination of employment pursuant to which the Executive otherwise would beentitled to severance benefits, Cinergy hereby agrees to provide the Executivewith an additional payment equal to the excess, if any, of (i) the severancebenefits to which the Executive would be entitled in connection with his or herqualifying termination of employment (calculated without regard to thisAgreement), over (ii) the amount provided to the Executive during 2005 pursuantto this Section 5.  The Executive herebyagrees and acknowledges that, after such payments are made to him or her,Cinergy and its affiliates shall have no further payment obligations to theExecutive, under his or her employment agreement or otherwise, with respect toseverance benefits.  For purposes of clarity, the Parties acknowledgeand agree that the term “severance benefits” where used herein shall mean anycash payment otherwise provided under the terms of the Executive’semployment agreement, as amended and as currently effective, or any severanceplan sponsored by Cinergy or its affiliates, where the amount of such paymentis based on a multiple of the Executive’s salary and/or bonus or bonusopportunity.

 

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6.             NonqualifiedPension Plan.  To the extent that theExecutive is or may become entitled to benefits under the Cinergy Corp. ExcessPension Plan, Cinergy Corp. Supplemental Executive Retirement Plan and/or asupplemental retirement benefit under his or her employment agreement(collectively, the “Nonqualified Pension Plan”), the Parties agree that theNonqualified Pension Plan is hereby amended (but only with respect to theExecutive) to provide for the payment by Cinergy to the Executive, prior toDecember 31, 2005, of the amount specified on Exhibit A hereto and isfurther amended to reduce the actuarial equivalent (determined using theapplicable actuarial factors contained in the Nonqualified Pension Plan) of theExecutive’s accrued benefits thereunder (or right to additional benefitsthereunder) by such amount.  In all otherrespects the Nonqualified Pension Plan shall remain in full force and effect.

7.             NonqualifiedAccount Plan.  To the extent that theExecutive is entitled to benefits under the Cinergy Corp. 401(k) Excess Plan,Cinergy Corp. Nonqualified Deferred Incentive Compensation Plan and/or theCinergy Corp. Excess Profit Sharing Plan (collectively, the “NonqualifiedAccount Plan”), the Parties agree that the Nonqualified Account Plan is herebyamended (but only with respect to the Executive) to provide for the payment byCinergy to the Executive, prior to December 31, 2005, of the amount specifiedon Exhibit A hereto and is further amended to reduce the Executive’sbenefits thereunder by such amount.  In all otherrespects the Nonqualified Account Plan shall remain in full force and effect.

8.             Tax Matters.  Cinergy shall withhold and deposit allfederal, state and local income and employment taxes that are owed with respectto all amounts paid or benefits provided pursuant to this Agreement.  The Parties agree that none of the paymentsand benefits payable or provided hereunder and in connection with the Mergerare expected to constitute “excess parachute payments” within the meaning ofSection 280G of the Code.  In the eventthat any amounts payable or benefits provided hereunder become subject to theexcise tax under Section 4999 of the Code, the Executive shall continue to havethe rights, if any, that are provided to him or her under his or her employmentagreement with respect to excise tax gross-up payments.  In the event that the highest marginal Ohioincome tax rate is higher in 2005 than in 2006, Cinergy shall provide theExecutive with an additional payment in 2006 equal to the incremental taxobligation resulting from such higher 2005 rate so that the Executive is in thesame position, for Ohio income tax purposes, as if he or she had received thepayments made under this Agreement in 2006 rather than in 2005.

                9.             Assignment; Governing Law.  Neither this Agreement nor any of the rights,obligations or interests arising hereunder may be assigned by the Executive,otherwise than by will or the laws of descent and distribution.  This Agreement shall be binding upon theCompany and its successors and assigns. This Agreement shall be interpreted, enforced and governed under thelaws of the State of Ohio without regard to any applicable state’s choice oflaw provisions.  Any dispute between theParties under this Agreement shall be resolved through informal arbitration byan arbitrator selected under the rules of the American Arbitration Associationand the arbitration shall be conducted in Cincinnati, Ohio.

 

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                10.           Entire Agreement.  This Agreement shall supersede any and allprior oral or written representations, understandings and agreements of theParties with respect to the matters contained herein, and it contains theentire agreement of the Parties with respect to those matters.  Once signed by the Parties hereto, noprovision of this Agreement may be modified or amended unless agreed to in awriting signed by the Parties.  Anynotice required by this Agreement shall be sent in writing and delivered byfirst class mail to the last known address of the Party to whom it issent.  This Agreement may be executed bythe Parties hereto in counterparts, and each of which shall be considered anoriginal for all purposes.

                11.           Miscellaneous

a.             The Executiveacknowledges and agrees that Cinergy (and/or any of its authorized officersand/or employees) is authorized to act for each of its subsidiaries andaffiliates, including Duke and its subsidiaries and affiliates following theMerger, with respect to all aspects of the administration and interpretation ofthis Agreement, and that with respect to employment matters references hereinto Cinergy shall include Cinergy Services, Inc. or such other affiliate thatemploys the Executive.

b.             Notwithstandingany other provision of this Agreement, this Agreement shall be administered ina manner that complies with the provisions of Section 409A of the Code, so asto prevent the inclusion in gross income of any amount in a taxable year thatis prior to the taxable year or years in which such amount would otherwiseactually be distributed or made available to or on behalf of the Executive.

c.             The Executive acknowledges and agreesthat no action taken in connection with this Agreement shall give him the rightto terminate his or her employment for “Good Reason” or shall otherwise providehim or her with rights under his or her employment agreement or any othercompensation agreement or arrangement.

d.             The Executiveacknowledges and agrees that, within 45 days following his or her terminationof employment with Cinergy and its affiliates, he or she shall be required toexecute (and not timely revoke) a waiver and release of all claims that he orshe might assert against Cinergy and its affiliates and successors, on a formprovided by Cinergy (which form shall be substantially in the form of thewaiver and release attached to the Executive’s employment agreement, ifapplicable).

                12.           Repayment Obligation.  This Section shall apply with respect to the Executive onlyto the extent it is not unlawful under the Sarbanes-Oxley Act of 2002 or anyrelated rule, regulation or interpretation.

a.             In the event thatthe Executive voluntarily terminates employment with Cinergy and its affiliatesprior to the Effective Time, the Executive shall be 

 

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required to repay 100% of any benefits or payments provided hereunderwithin ten days following his or her termination of employment.

b.             The Partiesacknowledge and agree that (i) payments provided hereunder in 2005 might nototherwise be payable in the event that the Merger does not occur, (ii) the receiptof such amounts will be includible in the Executive’s taxable income in 2005and (iii) the Executive’s ability to recover the taxes paid in connection withsuch amounts is limited under current tax laws. Accordingly, in the event that the Effective Time does not occur priorto December 15, 2006, the Executive shall be required to repay 50% of anybenefits or payments provided hereunder no later than December 31, 2006.

c.             Notwithstandinganything herein to the contrary, (i) the Executive shall not be required torepay any amount which, without regard to this Agreement, Cinergy determines ingood faith the Executive has earned prior to the date on which repayment wouldotherwise be required, (ii) in the event of repayment, the Executive shall notbe treated as having waived his or her rights to earn, after the date ofrepayment, the repaid amounts as a result of satisfying the eligibilitycriteria for such amounts in accordance with the terms of Cinergy’s applicableplans and arrangements, (iii) no repayment shall be required with respect toany amount provided pursuant to Section 7, and (iv) this Section 12 shall be administeredin a manner that complies with the provisions of Section 409A of the Code, soas to prevent the inclusion in gross income of any amount in a taxable yearthat is prior to the taxable year or years in which such amount would otherwiseactually be distributed or made available to or on behalf of the Executive.

                13.           Affect on Other Arrangements.  Except as otherwise provided in Section 1, for the avoidance of doubt, and notwithstandinganything herein to the contrary, the Parties acknowledge and agree thatpayments made under this Agreement shall not be taken into account in computingany benefits under any plan, program or arrangement of Cinergy or itsaffiliates.

 

IN WITNESS WHEREOF, the Parties have signed, or caused a dulyauthorized agent thereof to sign, this Agreement on their behalf and therebyacknowledge their intent to be bound by its terms and conditions.

 
| EXECUTIVE |   | CINERGY CORP. |
|-----------|--------|---------------|
|      |   |          |
| Signed:   |   |          | Signed: |   |
|      |   |          |   |   |
| Printed:  |   |          | Printed: |   |
|      |   |          |   |   |
| Date:     |   |          | Date: |   |

 

 

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EXHIBITA

 

Executive:  _____________________

 

 
| 1.     | Annual Incentive Plan (§  1)                     |                                                   |   |   | $                             |   |
|--------|-------------------------------------------------------|--------------------------------------------------------|--------|--------|-------------------------------|--------|
|   |                                                  |                                                   |   |   |                          |   |   |
| 2.     | LTIP Performance Shares (§  2)                   |                                                   |   |   |                          |   |
|   | a.                                                    | Cycle VIII (2004-2006)                                 |   |   |                          | $      |   |
|   | b.                                                    | Cycle IX (2005-2007)                                   |   |   |                          | $      |   |
|   | c.                                                    | Cycle X (2006-2008 (§ 2(a))                       |   |   |                          | $      |   |
|   | d.                                                    | Cycle X (2006-2008 (§ 2(b))                       |   |   |                          | $      |   |
|   |                                                  |                                                   |   |   |                          |   |   |
| 3.     | Miscellaneous Benefits (§  3)                    |                                                   |   |   |                          |   |
|   | a.                                                    | Outplacement Benefits                                  |   |   |                          | $      |   |
|   | b.                                                    | Vehicle Allowance                                      |   |   |                          | $      |   |
|   | c.                                                    | Perk Pool Allowance                                    |   |   |                          | $      |   |
|   | d.                                                    | Tax and Financial Planning                             |   |   |                          | $      |   |
|   | e.                                                    | Continued Welfare Benefits                             |   |   |                          | $      |   |
|   | f.                                                    | Executive Life Insurance                               |   |   |                          | $      |   |
|   | g.                                                    | Relocation Benefits                                    |   |   |                          |   |   |
|   |                                                  |                                                   |   |   |                          |   |   |
| 4.     | Restricted and/or Phantom Stock (§ 4)            |                                                   |   |   |                          |   |
|   | a.                                                    | Date of Grant:                                         |   |   | Payment or number of  shares: |   |   |   |
|   | b.                                                    | Date of Grant:                                         |   |   | Payment or number of  shares: |   |   |   |
|   |                                                  |                                                   |   |   |                          |   |   |
| 5.     | Severance Benefits  (Employment Agreement) (§ 5) |                                                   |   |   | $                             |   |
|   |                                                  |                                                   |   |   |                          |   |   |
| 6.     | Nonqualified Pension Plan  (§ 6)                 |                                                   |   |   |                          |   |
|   | a.                                                    | Excess Pension Plan                                    |   |   |                          | $      |   |
|   | b.                                                    | Supplemental Executive Retirement Plan                 |   |   |                          | $      |   |
|   | c.                                                    | Supplemental Retirement Benefit (Employment Agreement) |   |   |                          | $      |   |
|   |                                                  |                                                   |   |   |                          |   |   |
| 7.     | Nonqualified Account Plan  (§ 7)                 |                                                   |   |   |                          |   |
|   | a.                                                    | 401(k) Excess Plan                                     |   |   |                          | $      |   |
|   | b.                                                    | Nonqualified Deferred Incentive Compensation Plan      |   |   |                          | $      |   |
|   | c.                                                    | Excess Profit Sharing Plan                             |   |   |                          | $      |   |
|        |                                                       |                                                        |        |        |                               |        |  |  |  |  |  |  |  |

 

 

 

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