Exhibit
10-uuuu


 


AGREEMENT


 


In connection with the anticipated merger (the “Merger”) by and among
Cinergy Corp., a Delaware corporation (“Cinergy”), Duke Energy Corporation, a
North Carolina corporation (“Duke”) and their respective affiliates as
contemplated by the Agreement and Plan of Merger (the “Merger Agreement”) dated
as of May 8, 2005, originally by and among Duke, Cinergy, Deer Holding Corp., a
Delaware corporation, Deer Acquisition Corp., a North Carolina corporation, and
Cougar Acquisition Corp., a Delaware corporation, Cinergy and the individual
listed on Exhibit A hereto (the “Executive”) (collectively, the “Parties”)
hereby enter into this agreement (this “Agreement”).  The Parties are entering into this Agreement
in order to accelerate the payment of certain amounts that are expected to
become payable following 2005. 
Capitalized terms used but not otherwise defined in this Agreement shall
have the meaning set forth in the Merger Agreement.


1.             Annual
Incentive Plan.  Notwithstanding any
deferral election to the contrary, the Parties hereby agree that Cinergy shall
pay to the Executive, prior to December 31, 2005, in satisfaction of his or her
expected payment under the Cinergy Corp. Annual Incentive Plan (“AIP”) for the
2006 performance period, which payment would otherwise be expected to be made
during 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, Cinergy
hereby agrees to provide the Executive with an additional payment equal to the
excess, if any, of (i) the payment to which the Executive would be entitled in
accordance with the terms of the AIP for the 2006 performance period
(calculated without regard to this Agreement), over (ii) the amount provided to
the Executive during 2005 pursuant to this Section 1.  The Executive hereby agrees and acknowledges
that, after such payments are made to him or her, Cinergy and its affiliates
shall have no further payment obligations to the Executive under the AIP for
the 2006 performance period and his or her participation, or right to
participate, in the AIP with respect to the 2006 performance period shall cease
immediately.


b.             For the avoidance of
doubt, and notwithstanding anything herein to the contrary, the payments
described in this Section shall not be taken into account in computing any
benefits under any other plan, program or arrangement of Cinergy or its
affiliates; provided, however, that when determining the
Executive’s “Highest Average Earnings” under the Cinergy Corp. Non-Union
Employees’ Pension Plan, as amended, and any other plan or arrangement that
references such definition (collectively, the “Pension Plan”), the Executive
shall be treated as if he or she had received, at the Effective Time and under
the terms of the AIP, the payment(s) provided under this Section; further,
provided, however, that for the avoidance of doubt, the Parties
acknowledge and agree that the Pension Plan has been amended to specify that the
amount of the AIP 


 


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payments taken into account in determining the
Executive’s Highest Average Earnings for the 2006 calendar year shall not
exceed the greater of (i) the payments made in 2006 under the AIP with respect
to the 2005 performance period and (ii) the payments made (or treated hereunder
as having been made) in 2006 under the AIP with respect to the 2006 performance
period.


2.             LTIP
Performance Shares


a.             Cinergy hereby agrees to pay to the
Executive, prior to December 31, 2005, in connection with the performance share
agreements, if any, that have been granted to him or her under the Cinergy
Corp. 1996 Long-Term Incentive Compensation Plan (“LTIP”) for performance cycle
VIII (covering the 2004-2006 performance period), performance cycle IX
(covering the 2005-2007 performance period) and performance cycle X (covering
the 2006-2008 performance period) (collectively, his or her “Performance Shares”),
under which payment would otherwise be expected to be made during the
thirty-day period following the Effective Time, the amount (if any) set forth
on Exhibit A hereto.  Within
thirty days following the Effective Time, Cinergy hereby agrees to provide the
Executive with an additional payment equal to the excess, if any, of (i) the
amount to which the Executive would be entitled in accordance with the terms of
his or her Performance Shares as a result of the Merger (calculated without
regard to this Agreement), over (ii) the amount provided to the Executive
during 2005 pursuant to this Section 2(a).


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


c.             The Executive
hereby acknowledges and agrees that, after the payments described in this
Section are made to him or her, Cinergy and its affiliates shall have no
further payment obligations to the Executive or his or her beneficiaries under
the LTIP with respect to his or her Performance Shares, and his or her
participation, or right to participate, in the LTIP for such cycles shall
cease.


3.             Miscellaneous
Benefits.  Cinergy hereby agrees to
pay to the Executive, prior to December 31, 2005, in satisfaction of his or her
rights 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 acknowledges
that, after such payments are made to him or her, Cinergy and its affiliates
shall have no further payment obligations to the Executive, under his or her
employment agreement or otherwise, and whether in connection with his or her
termination of employment or otherwise, with respect to each of the Miscellaneous
Benefits for which an amount is set forth on Exhibit A hereto; provided,
however, that Cinergy hereby agrees to provide the Executive with an
additional payment equal to the excess, if any, of (I) the relocation benefits
to which the Executive would be entitled in accordance with the terms of its
applicable plans and arrangements (calculated without regard to this
Agreement), over (II) the benefits provided to the Executive during 2005 in
lieu of relocation benefits pursuant to this Section 3.


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


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


 


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


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


8.             Tax Matters.  Cinergy shall withhold and deposit all
federal, state and local income and employment taxes that are owed with respect
to all amounts paid or benefits provided pursuant to this Agreement.  The Parties agree that none of the payments
and benefits payable or provided hereunder and in connection with the Merger
are expected to constitute “excess parachute payments” within the meaning of
Section 280G of the Code.  In the event
that any amounts payable or benefits provided hereunder become subject to the
excise tax under Section 4999 of the Code, the Executive shall continue to have
the rights, if any, that are provided to him or her under his or her employment
agreement with respect to excise tax gross-up payments.  In the event that the highest marginal Ohio
income tax rate is higher in 2005 than in 2006, Cinergy shall provide the
Executive with an additional payment in 2006 equal to the incremental tax
obligation resulting from such higher 2005 rate so that the Executive is in the
same position, for Ohio income tax purposes, as if he or she had received the
payments 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 the
Company and its successors and assigns. 
This Agreement shall be interpreted, enforced and governed under the
laws of the State of Ohio without regard to any applicable state’s choice of
law provisions.  Any dispute between the
Parties under this Agreement shall be resolved through informal arbitration by
an arbitrator selected under the rules of the American Arbitration Association
and the arbitration shall be conducted in Cincinnati, Ohio.


 


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                10.           Entire Agreement.  This Agreement shall supersede any and all
prior oral or written representations, understandings and agreements of the
Parties with respect to the matters contained herein, and it contains the
entire agreement of the Parties with respect to those matters.  Once signed by the Parties hereto, no
provision of this Agreement may be modified or amended unless agreed to in a
writing signed by the Parties.  Any
notice required by this Agreement shall be sent in writing and delivered by
first class mail to the last known address of the Party to whom it is
sent.  This Agreement may be executed by
the Parties hereto in counterparts, and each of which shall be considered an
original for all purposes.


                11.           Miscellaneous


a.             The Executive
acknowledges and agrees that Cinergy (and/or any of its authorized officers
and/or employees) is authorized to act for each of its subsidiaries and
affiliates, including Duke and its subsidiaries and affiliates following the
Merger, with respect to all aspects of the administration and interpretation of
this Agreement, and that with respect to employment matters references herein
to Cinergy shall include Cinergy Services, Inc. or such other affiliate that
employs the Executive.


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


c.             The Executive acknowledges and agrees
that no action taken in connection with this Agreement shall give him the right
to terminate his or her employment for “Good Reason” or shall otherwise provide
him or her with rights under his or her employment agreement or any other
compensation agreement or arrangement.


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


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


a.             In the event that
the Executive voluntarily terminates employment with Cinergy and its affiliates
prior to the Effective Time, the Executive shall be 


 


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


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


c.             Notwithstanding
anything herein to the contrary, (i) the Executive shall not be required to
repay any amount which, without regard to this Agreement, Cinergy determines in
good faith the Executive has earned prior to the date on which repayment would
otherwise be required, (ii) in the event of repayment, the Executive shall not
be treated as having waived his or her rights to earn, after the date of
repayment, the repaid amounts as a result of satisfying the eligibility
criteria for such amounts in accordance with the terms of Cinergy’s applicable
plans and arrangements, (iii) no repayment shall be required with respect to
any amount provided pursuant to Section 7, and (iv) this Section 12 shall be administered
in a manner that complies with the provisions of Section 409A of the Code, so
as to prevent the inclusion in gross income of any amount in a taxable year
that is prior to the taxable year or years in which such amount would otherwise
actually 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 notwithstanding
anything herein to the contrary, the Parties acknowledge and agree that
payments made under this Agreement shall not be taken into account in computing
any benefits under any plan, program or arrangement of Cinergy or its
affiliates.


 


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


 


	
  EXECUTIVE

  	
   

  	
  CINERGY CORP.

  
	
   

  	
   

  	
   

  
	
  Signed: 

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Printed:

  	
   

  	
   

  	
  Printed: 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  



 


 


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EXHIBIT
A


 


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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