EXHIBIT 10.1


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement (the “Agreement”) is entered into as of the
19th day of February, 2009 (the “Effective Date”),
by and between James E. Rogers (the “Employee”) and Duke Energy Corporation, a
Delaware corporation (“Duke Energy”).


 


Recitals


 


WHEREAS, the Employee presently serves as President and Chief Executive
Officer of Duke Energy pursuant to an employment agreement with Duke Energy
effective as of April 4, 2006, as amended (the “Existing Employment
Agreement”);


 


WHEREAS, the Employee presently serves as the Chairman of the Board of
Directors of Duke Energy (the “Board”);


 


WHEREAS, the term of the Existing Employment Agreement expires
effective April 4, 2009;


 


WHEREAS, the Employee and Duke Energy wish to provide for the continued
employment of the Employee on the terms and conditions set forth herein; and


 


WHEREAS, effective as of the date hereof, the Employee and Duke Energy
intend that the Existing Employment Agreement shall cease to be of any force or
effect, except to the extent otherwise expressly provided herein.


 


Agreement


 


NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:


 


1. Employment. Duke
Energy hereby continues to employ the Employee, and the Employee hereby agrees
to continue such employment, effective as of the Effective Date, upon the terms
and conditions set forth herein. Except as otherwise expressly provided herein,
this Agreement sets forth the terms and conditions of the Employee’s employment
by Duke Energy, represents the entire agreement of the parties with respect to
that subject, and supersedes all prior understandings and agreements with
respect to that subject. Without limiting the foregoing sentence, effective as
of the Effective Date, this Agreement supersedes in its entirety the Existing
Employment Agreement, again except as otherwise expressly provided herein.


 

















 


2. Position and Duties.


 


(a) Duties. Subject to Section 2(e) below,
the Employee shall be employed by Duke Energy as President and Chief Executive
Officer in accordance with Sections 4.04 and 4.05 of the by-laws of Duke Energy
as in effect at the Effective Date, as amended, and subject to Section 2(e) below
the Employee shall continue to serve as Chairman of the Board. The Employee
shall be responsible for the general management of the affairs of Duke Energy
and shall perform all duties incidental to such positions which may be required
by law and all such other duties as are properly required by the Board. The
Employee shall report directly to the Board. For administrative purposes, Duke
Energy may designate the Employee as being employed by one or more of its
subsidiaries.


 


(b) Engaging in Other Employment.
While employed by Duke Energy, the Employee shall devote his full time and
attention to Duke Energy and its subsidiaries and shall not be employed by any
other person or entity. Subject to Section 9, the Employee may reasonably
participate as a member in community, civic, or similar organizations and may
pursue personal investments, so long as such activities do not interfere with
the performance of the Employee’s responsibilities as an employee in accordance
with this Agreement, provided that the Employee may serve on corporate boards
(other than the Board) with the approval of the Board, which approval shall not
be unreasonably withheld, and provided further that the Employee’s service
described on Exhibit A hereto is hereby approved as of the Effective Date.


 


(c) Loyal and Conscientious Performance.
The Employee shall act at all times in compliance with the policies, rules and
decisions adopted from time to time by Duke Energy, its Board and any employing
subsidiaries and perform all the duties and obligations required of him by this
Agreement in a loyal and conscientious manner.


 


(d) Location. The
Employee’s principal office shall be at the principal executive offices of Duke
Energy in Charlotte, North Carolina. Except for required business travel to an
extent substantially consistent with the business travel obligations of other
senior Duke Energy executives, the Employee will not be required to relocate to
a new principal place of business that is more than fifty (50) miles from
such location.


 


(e) Chairman and President Roles. 
The Employee shall continue to serve as President of Duke Energy during the
term of this Agreement (as set forth in Section 3 hereof) unless, at any
time during such term, Duke Energy either eliminates such position or appoints
another individual to serve in such position, in which case the Employee shall
cease to serve as President upon the effective date of such action by Duke
Energy.  During the term of this
Agreement, Duke Energy shall use its best efforts to cause the Employee to be
reelected as Chairman of the Board, unless, at any time during such term, Duke
Energy adopts a policy that its Chief Executive Officer should not serve as
Chairman of the Board, in which case the Employee shall cease to serve as Chairman
of the Board upon the effective date of such action by Duke Energy.


 


3. Term of Employment.
The term of the Employee’s employment pursuant to this Agreement shall commence
on the Effective Date and end on December 31, 2013, unless terminated
earlier pursuant to the provisions of this Agreement.


 


4. Salary; Bonus; Existing Compensation Awards.
The Employee shall not be paid a base salary, nor shall the Employee
participate in the Duke Energy Corporation Executive Short-Term 


 


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Incentive Plan
(as it may be amended, or any successor thereto) or any other annual cash bonus
program. The Employee’s compensation will be primarily through the equity
awards specified in Section 5 below. Notwithstanding the foregoing, the
equity incentive compensation grants awarded under the Existing Employment
Agreement, together with any outstanding awards that survived the adoption of
the Existing Employment Agreement, shall remain outstanding (and be paid, as
the case may be) in accordance with their existing terms.


 


5. Equity Awards.
Subject to the following sentence, for 2009 and each other calendar year
commencing during the term of this Agreement (an “Award Year”), Duke Energy
will cause equity awards (the “LTIP Awards”) to be made to the Employee as
provided in this Section 5, to be evidenced by award agreements (each, an “Award
Agreement”) with additional customary terms not otherwise inconsistent with the
terms of this Section 5, unless otherwise required to comply with Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code” and such Section 409A,
together with the applicable Treasury Regulations thereunder, “Section 409A),
or an applicable exception thereto. The LTIP Awards with respect to each Award
Year shall be made effective as of the date equity incentive compensation
awards are generally granted to other senior employees of Duke Energy under its
long-term incentive program but in any event on or before March 31 of such
year (the “Grant Date”), provided that no LTIP Awards shall be made for any
Award Year if the Employee’s employment has terminated on or before the Grant
Date.


 


(a) Options. Duke Energy
will grant to the Employee a nonqualified stock option to purchase Duke Energy
common stock in respect of each Award Year (each an “Option”), which Option
shall have a value (as determined pursuant to the final sentence of this Section 5(a))
equal to $1,200,000 for 2009 and $1,600,000 for each other Award Year. The
exercise price of each Option will be the closing price of Duke Energy common
stock on the Grant Date. The normal expiration date of each Option will be the
tenth anniversary of the Grant Date. The Options will not be vested at the
respective Grant Date, but, except as otherwise provided herein, the Options
will become ratably vested and exercisable on the three successive
anniversaries of the commencement of the Award Year in respect of which it is
granted and otherwise shall be granted on terms and conditions reasonably
determined by the Compensation Committee. Except as otherwise provided herein
or as may be permitted in an award agreement memorializing an Option, the
Employee may not dispose of any shares of Duke Energy common stock acquired
upon the exercise of an Option until the earlier of January 1, 2014, or
the termination of the Employee’s employment with Duke Energy. Any required tax
withholdings in respect of Options shall be satisfied by withholding from
delivery upon exercise a number of shares of Duke Energy common stock with a fair
market value as of the date of required withholding equal to the minimum tax
withholding obligation unless Duke Energy in its discretion permits the
Employee to satisfy such tax obligation by other payment to Duke Energy. 
The number of shares of Duke Energy common stock subject to each Option shall
be determined pursuant to a Black-Scholes option pricing model incorporating
the same assumptions used for determining the number of stock options granted
as of the Grant Date to other senior executives of Duke Energy (or, if there
are no such grants, as reasonably determined by the Compensation Committee in
its discretion).


 


(b) Phantom Stock.
Effective as of the Grant Date for each Award Year, Duke Energy will grant to
the Employee an award of phantom stock units in respect of the Award Year (each
a “Phantom Stock Unit”) with respect to a number of shares of Duke Energy
common stock with a 


 


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value
(determined pursuant to the same methodology used for such purpose in respect
of stock incentive grants made as of the Grant Date to other senior executives
of Duke Energy or, if there are no such grants, as reasonably determined by the
Compensation Committee in its discretion) equal to $1,500,000 for 2009 and $2,000,000
for each other Award Year.


 


(i) Except as otherwise provided herein, twenty-five percent (25%)
of the Phantom Stock Units will vest quarterly commencing with the end of the
first quarter of the applicable Award Year.


 


(ii) Vested Phantom Stock Units will be paid to the Employee in
the form of shares of Duke Energy common stock (with each Phantom Stock Unit
corresponding to one share of Duke Energy common stock).  Subject to
paragraph (iv) below, payment in respect of vested Phantom Stock Units
shall be made after the Phantom Stock Unit vests, as provided in the agreement
memorializing the Phantom Stock Units, all in accordance with Section 409A.


 


(iii) Duke Energy shall pay to the Employee, within 60 days after
each date on which a cash dividend is paid in respect of Duke Energy Common
Stock, an amount equal to the dividend that would have been paid to the
Employee in respect of each then outstanding unvested Phantom Stock Unit as if
such Phantom Stock Unit constituted an actual outstanding share of Duke Energy
common stock.


 


(iv) The Employee at his election may defer, under the Duke Energy
Corporation Executive Savings Plan (“ESP”), delivery of shares of Duke Energy
common stock in respect of vested Phantom Stock Units by making an election in
accordance with procedures established by Duke Energy from time to time under
the ESP.


 


(v) Any required income tax withholdings in respect of dividend
equivalents attributable to Phantom Stock Units shall be satisfied by reducing
the cash payment in respect of the required withholding amount and, in the case
of Phantom Stock Units, by withholding from delivery a number of shares of Duke
Energy common stock with a fair market value as of the date of required
withholding equal to the minimum tax withholding obligation, in each case
unless Duke Energy in its discretion requires the Employee to satisfy such tax
obligation by other payment to Duke Energy.  The employee portion of any
local income tax or employment tax (i.e., FICA) withholding required upon
vesting of Phantom Stock Units shall be satisfied by withholding from delivery
a number of shares of Duke Energy common stock with a fair market value as of
the date of required withholding equal to the minimum tax withholding
obligation or, in the case of shares whose delivery is deferred under the terms
of the ESP, by crediting under the ESP a number of shares of Duke Energy common
stock that is reduced by such number of shares, in each case unless Duke Energy
in its discretion requires the Employee to satisfy such employment tax
obligation by other payment to Duke Energy.


 


(c) Performance Shares.
Effective as of the Grant Date for each Award Year, Duke Energy will grant to
the Employee two performance share awards in respect of the Award Year (each a “Performance
Share Award”) with respect to a number of shares of Duke Energy common stock as
described below.  Each performance share represents the right to receive,
conditioned upon vesting, one share of Duke Energy common stock.  The
Performance Share Awards shall consist of an “Annual PSA” as described in
paragraph (i) below and a “Long-Term 


 


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PSA” described
in paragraph (ii) below.  Except as otherwise provided in Section 10
hereof, vesting of the Performance Share Awards is contingent upon the Employee’s
continued employment with Duke Energy through the end of the applicable
performance period described below.


 


(i) Duke Energy will grant to the Employee an Annual PSA in
respect of each Award Year with respect to a number of shares of Duke Energy
common stock with a value (determined pursuant to the same methodology used for
such purpose in respect of stock incentive grants made as of the Grant Date to
other senior executives of Duke Energy or, if there are no such grants, as
reasonably determined by the Compensation Committee in its discretion) equal,
at target, to $1,500,000 for 2009 and $2,000,000 for each other Award Year and
equal, at maximum, to $2,850,000 for 2009 and $3,800,000 for each other Award
Year.  The Compensation Committee and/or other appropriate committee of
the Board shall establish performance goals (which shall be consistent with the
short-term incentive performance goals established for other senior executive
officers of Duke Energy in respect of such Award Year) for the Employee in
respect of the Annual PSA based upon performance in respect of the Award Year,
and, subject to the provisions of Section 10 hereof, the Annual PSA will
vest only if and to the extent such goals are achieved (provided that vesting
can occur at less than the target levels (but at not more than the maximum
levels, except that such maximum levels may be increased by safety goals that
are applicable generally to other executive officers) described in the
preceding sentence as determined by the Compensation Committee and vesting
shall be interpolated for performance above the threshold vesting level and
below the maximum level described in the preceding sentence).


 


(ii) Duke Energy will grant to the Employee a Long-Term PSA in
respect of each Award Year with respect to a number of shares of Duke Energy
common stock with a value (determined pursuant to the same methodology used for
such purpose in respect of stock incentive grants made as of the Grant Date to
other senior executives of Duke Energy or, if there are no such grants, as
reasonably determined by the Compensation Committee in its discretion) equal,
at target, to $1,800,000 for 2009 and $2,400,000 for each other Award Year and
equal, at maximum, to $2,700,000 for 2009 and $3,600,000 for each other Award
Year.  The Compensation Committee and/or other appropriate committee of
the Board shall establish performance goals (which shall be consistent with the
long-term incentive corporate performance goals established for other senior
executive officers of Duke Energy in respect of such Award Year) for the
Employee in respect of the Long-Term PSA based upon performance in respect of
the three-year period beginning with the commencement of the respective Award
Year, and, subject to the provisions of Section 10 hereof, the Long-Term
PSA will vest only if and to the extent such goals are achieved (provided that
vesting can occur at less than the target levels (but at not more than the
maximum levels) described in the preceding sentence as determined by the
Compensation Committee and vesting shall be interpolated for performance above
the threshold vesting level and below the maximum level described in the
preceding sentence).


 


(iii) Vesting of Performance Share Awards will occur only once the
Compensation Committee determines that the performance goals for the respective
performance period have been met (provided that the determination of whether
the performance goals in respect of any performance period have been met shall
be made not later than the first March 15 


 


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following the
end of the performance period). To the extent the performance goals are not
met, the Performance Share Award will be forfeited and will cease to be
outstanding.


 


(iv) Vested Performance Share Awards will be paid to the Employee
in the form of shares of Duke Energy common stock (with each Performance Share
Award corresponding to one share of Duke Energy common stock) after the
Performance Share Awards vest, as provided in the agreement memorializing the
Performance Share Awards, all in accordance with Section 409A.


 


(v) Subject to paragraph (vi) below, Duke Energy shall pay to
the Employee, as of the date of payment of each respective vested Performance
Share Award, an amount equal to the dividends that would have been payable in
respect of such vested Performance Share Award during the performance period
applicable to such Performance Share Award as if such vested Performance Share
Award constituted an actual outstanding share of Duke Energy Common Stock
during such performance period.


 


(vi) The Employee at his election may defer, under the ESP,
delivery of shares of Duke Energy common stock in respect of vested Performance
Share Awards by making an election in accordance with procedures established by
Duke Energy from time to time under the ESP.


 


(vii) Any required income tax withholdings shall be satisfied, in
the case of dividend equivalents attributable to Performance Share Awards, by
reducing the payment in respect of the required withholding amount and, in the
case of Performance Share Awards, by withholding from delivery a number of
shares of Duke Energy common stock with a fair market value as of the date of
required withholding equal to the minimum tax withholding obligation, in each
case unless Duke Energy in its discretion requires the Employee to satisfy such
tax obligation by other payment to Duke Energy.  The employee portion of
any local income tax or employment tax (i.e., FICA) withholding required upon vesting
of Performance Share Awards shall be satisfied by withholding from delivery a
number of shares of Duke Energy common stock with a fair market value as of the
date of required withholding equal to the minimum tax withholding obligation
or, in the case of shares whose delivery is deferred under the terms of the
ESP, by crediting under the ESP a number of shares of Duke Energy common stock
that is reduced by such number of shares, in each case unless Duke Energy in
its discretion requires the Employee to satisfy such employment tax obligation
by other payment to Duke Energy.


 


(d) Shareholder Approved Share Limits. The
number of shares of Duke Energy common stock to be granted or delivered under
the LTIP Awards shall not exceed those that may be granted in accordance with
the individual share award limits applicable under the Duke Energy Corporation
2006 Long-Term Incentive Plan or any other applicable plan.  If the number of shares of Duke Energy common
stock to be granted or delivered under LTIP Awards otherwise would exceed such
limits for any reason, the number of shares to be granted or delivered shall be
adjusted by the Compensation Committee in its discretion to reflect appropriate
compensation in light of such decline.


 


6. Fringe Benefits. The
Employee and his eligible dependents shall also be entitled to participate in
Duke Energy’s or its affiliates’ medical and dental health care plans to the
extent 


 


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such plans are
available generally to other similarly situated senior executives of Duke
Energy and their eligible dependents (provided that the employee-paid portion
of any premium contributions required of the Employee shall be made in any
event on a post-tax rather than a pre-tax basis). The Employee shall also be
entitled to, at the Employee’s election on an annual basis, either
participation in Duke Energy’s Executive Physicals Program or an annual
physical to be performed at the Mayo Clinic by a physician of the Employee’s
choosing. Except for the foregoing, and except as expressly set forth elsewhere
in this Agreement, the Employee will not be entitled to any other retirement,
health, or welfare benefits, or to participation in, or the accrual of benefits
under, any other retirement, health, or welfare benefit plan, practice, policy,
or program of Duke Energy or any of its affiliates. Except as specifically set
forth in this Agreement and except for participation in Duke Energy’s
charitable matching gifts program, the Employee shall not be entitled to any
perquisite or fringe benefit, such as company automobiles, automobile
allowances, and club memberships. The Employee shall be reimbursed for ordinary
and reasonable expenses specifically including but not limited to those
associated with entertainment and travel in accordance with Duke Energy
policies and procedures. To the extent the Employee incurs ordinary and
reasonable expenses associated with his spouse accompanying him on business
travel, and/or to the extent such travel is treated by the taxing authorities
as a taxable personal benefit to the Employee or his spouse, Duke Energy will
reimburse the Employee for those expenses and will also pay to the Employee a
tax gross-up payment in an amount sufficient to hold him harmless from any
federal, state and local income and employment taxes due in respect of such
taxable personal benefit and related gross-up payment. Notwithstanding anything
in this Section 6 to the contrary, Duke Energy acknowledges that the
Employee has previously been employed by Cinergy Corp. or its predecessor or
affiliated entities, and by virtue of such previous employment he is entitled
to benefits under various plans and agreements of Cinergy or its affiliates.
Duke Energy and the Employee agree that the Employee’s rights to such benefits
will be unaffected — neither enhanced nor diminished — as a result of his
employment by Duke Energy or its affiliates pursuant to this Agreement.


 


7. Use of Duke Energy Aircraft.
Duke Energy desires to provide for the security of the Employee during his
travels, and accordingly, whenever feasible, Duke Energy will require the
Employee to use Duke Energy aircraft for his business travel. The Employee will
also be permitted to use Duke Energy aircraft for his personal travel within
North America pursuant to Duke Energy’s standard policies as in effect from
time to time and subject to availability in light of the use of Duke Energy
aircraft for other Duke Energy business. The Employee shall reimburse Duke
Energy for the cost of any such personal travel in accordance with Duke Energy’s
standard rates and reimbursement policies as in effect from time to time,
provided that no reimbursement shall be required in respect of (i) travel
within the contiguous 48 United States to an annual physical as provided in Section 6
hereof or (ii) travel to meetings of the board of directors of other
companies on whose board the Employee serves (further provided that, to the
extent any such other company does or would reimburse the Employee for the cost
of such travel, the Employee shall pay to Duke Energy within thirty (30) days
of the date the reimbursement is (or would be) made the greater of the amount
that is (or would be) reimbursed).  To the extent that the provision of
aircraft usage is treated by the taxing authorities as a taxable personal
benefit to the Employee, the Employee will be responsible for the payment of
any taxes on such income, including making payments to Duke Energy to fund
withholding obligations as described in Section 8 hereof.


 


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8. Withholding. Duke
Energy may effect withholdings, from the payments due to the Employee, for the
payment of taxes and other lawful withholdings or required employee
contributions, in accordance with applicable law. If circumstances arise in
which such withholding or contributions are required on account of any
compensation or benefits (including, without limitation, upon the payment or
provision of any compensation or benefits pursuant to Sections 6 and 7), at a time
when there are not cash payments being made to the Employee from which such
withholding obligations can be satisfied, the Employee will deliver to Duke
Energy amounts sufficient to fund such withholding or contribution obligations.


 


9. Confidentiality and Privileged Information;
Noncompete/Nonsolicit.


 


(a) Confidentiality.


 


(i) The Employee shall not, at any time, use (other than in the
ordinary course of and for the purpose of fulfilling his duties as an employee
of Duke Energy), divulge or otherwise disclose, directly or indirectly, any
confidential and proprietary information (including without limitation any
customer or prospect list, supplier list, acquisition or merger target,
business plan or strategy, data, records, financial information or other trade
secrets) concerning the business, policies or operations of Duke Energy or its
affiliates that the Employee may have learned or become aware of at any time on
or prior to the date hereof or during the term of the Employee’s employment by
Duke Energy.


 


(ii) The Employee further acknowledges and agrees that all “Company
Materials,” which include, but are not limited to, computers, computer
software, computer disks, tapes, printouts, source, HTML and other code,
flowcharts, schematics, designs, graphics, drawings, photographs, charts,
graphs, notebooks, customer lists, sound recordings, other tangible or
intangible manifestation of content, and all other documents whether printed,
typewritten, handwritten, electronic, or stored on computer disks, tapes, hard
drives, or any other tangible medium, as well as samples, prototypes, models,
products and the like, shall be the exclusive property of Duke Energy and, upon
termination of the Employee’s employment with Duke Energy (or, in the event
that the Employee continues as a director of Duke Energy, upon his ceasing to
be a director of Duke Energy), or upon the request of Duke Energy, all Company
Materials, including all copies thereof, as well as all other property of Duke
Energy then in the Employee’s possession or control, shall be returned to Duke
Energy. For purposes of this Section 9(a), “Company Materials” shall
include all such materials of Duke Energy’s subsidiaries.


 


(iii) The Employee acknowledges that the Company Materials may
contain information that is confidential and subject to the attorney-client
privilege of Duke Energy or its subsidiaries or otherwise protected by attorney
work product immunity. Except as required by law, the Employee agrees not to
disclose to any person (other than in-house or outside counsel for Duke Energy
and its subsidiaries) the content or substance of any conversations or
discussions that the Employee may have or may have had at any time, whether
during his employment hereunder or otherwise. In addition, the Employee agrees
that he will, if and to the extent directed by the general counsel of Duke
Energy, cooperate fully with in-house or outside counsel for Duke Energy and
its subsidiaries in connection with any investigation, litigation or other
matter in which such counsel represents Duke Energy or its subsidiaries and
acknowledges 


 


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that his
communications with such counsel will be subject to Duke Energy’s or its
subsidiaries’ attorney-client privilege.


 


(b) Noncompete/Nonsolicit.


 


(i) During the Restricted Period (as defined below), the Employee
agrees that he shall not, without Duke Energy’s prior written consent, for any
reason, directly or indirectly, either as principal, agent, manager, employee,
partner, shareholder, director, officer, consultant or otherwise (A) become
engaged or involved, in a manner that relates to or is similar in nature to
those duties performed by the Employee at any time during his employment with
Duke Energy, in any business (other than as a less-than three percent (3%)
equity owner of any corporation traded on any national, international or
regional stock exchange or in the over-the-counter market) that competes with
Duke Energy or any of its affiliates in the business of production, transmission,
distribution, or retail or wholesale marketing or selling of electricity;
resale or arranging for the purchase or for the resale, brokering, marketing,
or trading of electricity or derivatives thereof; energy management and the
provision of energy solutions; development and management of fiber optic
communications systems; development and operation of power generation
facilities, domestically and abroad; and any other business in which Duke
Energy, including affiliates, is engaged at the termination of the Employee’s
continuous employment with Duke Energy, including affiliates; or (B) induce
or attempt to induce any customer, client, supplier, employee, agent or
independent contractor of Duke Energy or any of its affiliates to reduce,
terminate, restrict or otherwise alter its business relationship with Duke
Energy or its affiliates. The provisions of this Section 9(b)(i) shall
be effective only within any state or country with respect to which was
conducted a business of Duke Energy during any part of the Employee’s
employment.  The parties intend the above geographical areas to be
completely severable and independent, and any invalidity or unenforceability of
this Agreement with respect to any one area shall not render this Agreement
unenforceable as applied to any one or more of the other areas.


 


(ii) For purposes of this Section 9(b), “Restricted Period”
shall mean the period of the Employee’s employment during the term of this
Agreement and, in the case of Section 9(b)(i)(A), the twelve (12) month
period following termination of employment and, in the case of Section 9(b)(i)(B),
the twenty-four (24) month period following termination of employment.


 


(c) Forfeiture and Repayments.
The Employee agrees that, in the event he violates the provisions of this Section 9,
(i) he will forfeit and not be entitled to any further payments in
accordance with Section 10(b)(i) hereof, (ii) any Options then
outstanding shall expire immediately (provided that any then outstanding
options to purchase Duke Energy common stock granted before the Effective Date
shall remain in effect in accordance with their terms) and (iii) if such
violation is after the termination of his employment, he will be obligated to
repay to Duke Energy the sum of (x) any amounts, other than pursuant to
Options, paid (determined as of the date of payment) after the termination of
employment pursuant to Section 10(b), (d) or (e) hereof and (y) the
amount of any gains realized by the Employee upon the exercise of Options
(measured by the difference between the aggregate fair market value on the date
of exercise of shares underlying the Option and the aggregate exercise price of
the Option) within the one-year period prior to the first date of the
violation, with such sum reduced by any amount previously repaid pursuant to
this Section 9(c).  Such amount shall be paid to Duke Energy in cash
in a 


 


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single sum
within ten (10) business days after the first date of the violation,
whether or not Duke Energy has knowledge of the violation or has made a demand
for payment. Any such payment made following such date shall bear interest at a
rate equal to the prime lending rate of Citibank, N.A. (as periodically set)
plus 1%.


 


(d) Scope of Restrictions. 
The Employee acknowledges that the restrictions set forth in this Section 9
are reasonable and necessary to protect Duke Energy’s business and goodwill,
and that the obligations under this Section 9 shall survive any
termination of his employment. The Employee acknowledges that if any of these
restrictions or obligations are found by a court having jurisdiction to be
unreasonable or overly broad or otherwise unenforceable, he and Duke Energy
agree that the restrictions or obligations shall be modified by the court so as
to be reasonable and enforceable and if so modified shall be fully enforced.


 


(e) Consideration; Survival.
The Employee acknowledges and agrees that the compensation and benefits
provided in this Agreement constitute adequate and sufficient consideration for
the covenants made by the Employee in this Section 9. As further
consideration for the covenants made by the Employee in this Section 9,
Duke Energy has provided and will provide the Employee certain proprietary and
other confidential information about Duke Energy, including, but not limited
to, business plans and strategies, budgets and budgetary projections, income
and earnings projections and statements, cost analyses and assessments, and/or
business assessments of legal and regulatory issues.


 


10. Termination.


 


(a) In General.
Notwithstanding anything to the contrary contained herein, the Employee’s
employment may be terminated prior to the end of the term specified in Section 3
as follows:


 


(i) by the Employee, by resigning, with 90 days’ notice;


 


(ii) automatically, upon the death of the Employee;


 


(iii) by Duke Energy upon 90 days’ notice.


 


Upon any
termination, the Employee will be entitled to compensation, if any, accrued or
payable as of the date of termination.


 


(b) Certain Terminations. 
Subject to Section 10(c) hereof:


 


(i) If the Employee’s employment is terminated by Duke Energy
without “Cause” or by the Employee with “Good Reason” (as those terms are
defined in Exhibit B hereto) or by reason of the retirement of the
Employee with the approval of the Board, the Employee shall be entitled to
certain special severance payments and benefits (in addition to the provision
made in Section 10(a), as applicable), as follows:


 


(A) Each Option and Phantom Stock Unit outstanding at the time of
termination (to the extent then not already vested) shall continue to vest as
if the Employee’s employment had not terminated, and all vested Options
(including those that vest pursuant to the 


 


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operation of
this subsection (b)(i)(A)) will remain exercisable for the full duration of
their ten-year term.


 


(B) Each Performance Share Award outstanding at the time of
termination shall remain outstanding and shall be payable (if at all) as
determined in accordance with its terms without regard to the termination of
employment under this subsection (b)(i).


 


(ii) If the Employee’s employment is terminated for death or
disability due to physical or mental illness or injury that precludes the
Employee from performing any job for which he is qualified and able to perform
based upon his education, training or experience, (A) all outstanding and
unvested Options and Phantom Stock Units will vest immediately, (B) all
outstanding and vested Options (including those that vest pursuant to the
operation of this subsection (b)(ii)) will remain exercisable for the full
duration of their ten-year term, and (C) each Performance Share Award
outstanding at the time of termination shall remain outstanding and shall be
payable (if at all) as determined in accordance with its terms without regard
to the termination of employment under this subsection (b)(ii), provided that
the amount payable shall be such proportion of the amount otherwise payable
that the number of days elapsed at the time of termination (inclusive) in the
vesting period not yet concluded at the time of termination bears to the total
number of days in the vesting period.


 


(iii) If the Employee’s employment is terminated by the Employee
other than with Good Reason and other than by reason of retirement with the
approval of the Board, all unvested LTIP Awards shall expire immediately, and
all outstanding Options that are then vested will remain exercisable for a
period of 90 days following termination, at which time they will expire.


 


(iv) If the Employee’s employment is terminated by Duke Energy for
Cause, all unvested LTIP Awards shall expire immediately and all vested Options
shall expire immediately, provided that any then outstanding options to
purchase Duke Energy common stock granted before the Effective Date shall
remain in effect in accordance with their terms.


 


(c) Release Requirement.
The compensation and benefits to be provided under Sections 10(b)(i) and
10(b)(ii) hereof shall be provided only if the Employee (or, in the case
of Section 10(b)(ii), the Employee’s beneficiary or personal
representative, as the case may be) timely executes and does not timely revoke
a release of claims substantially in the form attached hereto as Exhibit C.  Such release must be signed by the
Employee, and become effective and irrevocable in accordance with its terms,
within 52 days after the date of the Employee’s termination of employment (the “Release
Deadline”).  The compensation and benefits to be provided under
Sections 10(b)(i) and 10(b)(ii) hereof shall be paid or provided (as
applicable) in a single lump sum within 30 days after the Release Deadline.


 


(d) Termination following Change in Control.
If the Employee’s employment is terminated within two years following a Change
in Control of Duke Energy (as defined in the Duke Energy Corporation 2006
Long-Term Incentive Plan as in effect on the date hereof) by Duke Energy
without Cause, by the Employee with Good Reason or by reason of the retirement
of the Employee with the approval of the Board, then notwithstanding the
provisions of Section 10(b)(i) hereof, (i) all outstanding and
unvested LTIP Awards will immediately vest and be paid (in the case of
Performance Share Awards, based on the target level of performance), provided 


 


11

















 


that
Performance Shares Awards shall be payable (based on the target level of
performance) at the time payment otherwise would have been made if the Change
in Control does not constitute a change in the ownership or effective control
of Duke Energy or a change in the ownership of a substantial portion of the
assets of Duke Energy within the meaning of Section 409A, and (ii) all
vested Options (including those that vest pursuant to the operation of this
subsection (d)) will remain exercisable for the full duration of their ten-year
term.


 


(e) Termination after 2013.
If the Employee’s employment terminates after the term of this Agreement but
before vesting of the Options awarded for 2012 and 2013 or settlement of the
Long-Term PSAs awarded for 2012 and 2013, each such Option and Long-Term PSA
shall be subject to treatment in accordance with the foregoing provisions of
this Section 10 as if such termination had occurred during the term of
this Agreement, provided that any termination by the Employee (other than a
termination in anticipation of a termination by Duke Energy for Cause) shall be
deemed to be a termination for Good Reason.


 


(f) Certain Payment Disputes.
Duke Energy will reimburse the Employee for all reasonable legal fees and
expenses incurred by the Employee during his lifetime (i) in successfully
disputing pursuant to Section 17 a termination which is ultimately
determined to constitute a termination of employment entitling him to benefits
pursuant to this Section 10 or (ii) in reasonably disputing pursuant
to Section 17 whether or not Duke Energy has terminated his employment for
Cause. Payment will be made within twenty (20) business days after
delivery of the Employee’s written request for payment accompanied by such
evidence of fees and expenses incurred as Duke Energy reasonably may require,
provided that the Employee shall request reimbursement not later than eleven
(11) months after which the underlying expense is incurred and any such payment
shall be made not later than the last day of the year following the year in
which the underlying expense was incurred.


 


11. Certain Legacy Compensation and Benefits. Nothing herein shall be construed as adversely
affecting the Employee’s right to receive compensation and benefits which have
been awarded to him prior to the date hereof, and such compensation and
benefits shall not be taken into account by Duke Energy in determining the
Employee’s right to compensation and benefits awarded by Duke Energy hereunder.
For the avoidance of doubt, Exhibit D hereto sets forth a list of key
legacy benefits to which Employee is entitled (and such list of benefits shall
be deemed to include any successors thereto).


 


12. Administration.


 


(a) Designation of Beneficiary.
The Employee shall designate a person or persons (“Beneficiary”) to receive
benefits hereunder following the death of the Employee by submitting to the
Compensation Committee a designation of Beneficiary in the form required by the
Compensation Committee. In the absence of a valid designation form, all such
benefits shall be paid to the legal representative of the Employee’s estate. If
Duke Energy has any doubt as to the proper Beneficiary to receive payments
hereunder, Duke Energy shall have the right to withhold such payments until the
matter is finally determined.


 


12
















 


(b) No Assignment. No
right or benefit under this Agreement shall be subject to anticipation,
alienation, sale, assignment, pledge, encumbrance or charge, and any attempt to
anticipate, alienate, sell, assign, pledge, encumber or charge such rights or
benefits shall be void.


 


13. Notice. Any notice
to be given hereunder by either party to the other must be in writing and be
effectuated either by personal delivery in writing or by mail, registered or
certified, postage prepaid, with return receipt requested. Mailed notices shall
be addressed to the parties at the following addresses:


 


If to Duke Energy or any Duke Energy affiliate:


 


Chairman, Compensation Committee


Duke Energy Corporation


526 South Church Street


Charlotte, North Carolina 28202


 


cc:                                 Mr. Marc E. Manly


Group Executive and Chief Legal Officer


Duke Energy Corporation


526 South Church Street


Charlotte, North Carolina 28202


 


If to the Employee:


 


At the most recent contact information on file in the payroll records
of Duke Energy


 


14. Waiver of Breach.
The waiver by any party to a breach of any provision in this Agreement cannot
operate or be construed as a waiver of any subsequent breach by a party.


 


15. Severability. The
invalidity or unenforceability of any particular provision in this Agreement shall
not affect the other provisions hereof, and this Agreement shall be construed
in all respects as if the invalid or unenforceable provision were omitted.


 


16. Amendment. No
modifications or amendments of the terms and conditions herein shall be
effective unless in writing and signed by the parties or their respective duly
authorized agents.


 


17. Governing Law and Forum Selection.
The parties agree that any dispute, claim, or controversy based on common law,
equity, or any federal, state, or local statute, ordinance, or regulation
(other than workers’ compensation claims) arising out of or relating in any way
to the Employee’s employment, the terms, benefits, and conditions of
employment, or concerning this Agreement or its termination and any resulting
termination of employment, including whether such a dispute is arbitrable,
shall be settled by arbitration. This agreement to arbitrate includes but is
not limited to all claims for any form of illegal discrimination, improper or
unfair treatment or dismissal, and all tort claims. The Employee will still
have a right to file a discrimination charge with a federal or state agency,
but the final resolution of any discrimination claim will be submitted to
arbitration instead of a court or jury. The arbitration 


 


13

















 


proceeding
will be conducted under the employment dispute resolution arbitration rules of
the American Arbitration Association in effect at the time a demand for
arbitration under the rules is made, and such proceeding will be
adjudicated in Charlotte, North Carolina in accordance with the laws of the
state of North Carolina, without regard to any applicable state’s choice of law
provisions. The decision of the arbitrator(s), including determination of the
amount of any damages suffered, will be exclusive, final, and binding on all
parties, their heirs, executors, administrators, successors and assigns. Each
party will bear its own expenses in the arbitration for arbitrators’ fees and
attorneys’ fees, for its witnesses, and for other expenses of presenting its
case. Other arbitration costs, including administrative fees and fees for
records or transcripts, will be borne equally by the parties. Notwithstanding
anything in this Section 17 to the contrary, if the Employee prevails with
respect to any dispute submitted to arbitration under this Section 17,
Duke Energy will reimburse or pay all legal fees and expenses that the Employee
may reasonably incur as a result of the dispute.


 


18. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their permitted successors, assigns, legal representatives and
heirs, but neither this Agreement nor any rights hereunder shall be assignable
by the Employee. Duke Energy will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Duke Energy to assume
expressly and agree in writing to perform this Agreement in the same manner and
to the same extent that Duke Energy would be required to perform it if no
succession had taken place. Upon the Employee’s termination of employment
within ninety (90) days following Duke Energy’s failure to obtain such an
assumption and agreement prior to the effective date of a succession, the
Employee shall be entitled to compensation from Duke Energy in the same amount
and on the same terms as if the Employee’s employment were to terminate
pursuant to Section 10(b)(i) hereof.


 


19. Full Settlement; Mitigation.
Except as otherwise provided in this Agreement, Duke Energy’s obligation to
make the payments provided for in this Agreement and otherwise to perform its
obligations under this Agreement will not be affected by any set-off, counterclaim,
recoupment, defense, or other claim, right, or action that Duke Energy may have
against the Employee or others. In no event will the Employee be obligated to
seek other employment or take any other action by way of mitigation of the
amounts (including amounts for damages for breach) payable to the Employee
under any of the provisions of this Agreement and those amounts will not be
reduced simply because the Employee obtains other employment.


 


20. Document Preparation Fees. 
Duke Energy shall promptly reimburse the Employee for reasonable attorney’s and
compensation consultant’s fees incurred by the Employee in the negotiation and
documentation of this Agreement upon receipt of supporting documentation
reasonably satisfactory to Duke Energy. Payment will be made within five (5) business
days after delivery of the Employee’s written request for payment accompanied
by such evidence of fees and expenses incurred as Duke Energy reasonably may
require, provided that the Employee shall request reimbursement not later than
eleven (11) months after which the underlying expense is incurred and any such
payment shall be made not later than the last day of the year following the
year in which the underlying expense was incurred.


 


14

















 


21. Code § 409A. It is
the intention of Duke Energy and the Employee that this Agreement not result in
unfavorable tax consequences to the Employee under Section 409A. To the
extent applicable, it is intended that the Agreement comply with the provisions
of Section 409A.  The Agreement will be administered and interpreted
in a manner consistent with this intent, and any provision that would cause the
Agreement to fail to satisfy Section 409A will have no force and effect
until amended to comply therewith (which amendment may be retroactive to the
extent permitted by Section 409A).  Duke Energy and the Employee
agree to work together in good faith in an effort to comply with Section 409A
including, if necessary, amending this Agreement based on further guidance
issued by the Internal Revenue Service from time to time, provided that Duke
Energy shall not be required to assume any increased economic burden. 
Notwithstanding anything contained herein to the contrary, to the extent
required in order to avoid accelerated taxation and/or tax penalties under Section 409A,
the Employee shall not be considered to have terminated employment with
Employer for purposes of the Agreement and no payments shall be due to him
under the Agreement which are payable upon his termination of employment until
he would be considered to have incurred a “separation from service” from Duke
Energy within the meaning of Section 409A.  To the extent required in
order to avoid accelerated taxation and/or tax penalties under Section 409A,
amounts that would otherwise be payable and benefits that would otherwise be
provided pursuant to the Agreement during the six-month period immediately
following the Employee’s termination of employment shall instead be paid within
30 days following the first business day after the date that is six months
following his termination of employment (or upon his death, if earlier). 
In addition, for purposes of the Agreement, each amount to be paid or benefit
to be provided to the Employee pursuant to the Agreement shall be construed as
a separate identified payment for purposes of Section 409A.  With
respect to expenses eligible for reimbursement or in-kind benefits provided
under the terms of the Agreement, (i) the amount of such expenses eligible
for reimbursement or in-kind benefits provided in any taxable year shall not
affect the expenses eligible for reimbursement or in-kind benefits provided in
another taxable year, (ii) any reimbursements of such expenses and the
provision of any in-kind benefits shall be made no later than the end of the
calendar year following the calendar year in which the related expenses were
incurred, except, in each case, to the extent that the right to reimbursement
does not provide for a “deferral of compensation” within the meaning of Section 409A,
provided that with respect to any reimbursements for any taxes to which the
Employee becomes entitled under the terms of the Agreement, the payment of such
reimbursements shall be made by Duke Energy no later than the end of the
calendar year following the calendar year in which the Employee remits the
related taxes, and (iii) the right to reimbursement or in-kind benefit
shall not be subject to liquidation or exchange for another benefit.


 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.


 


	
   

  	
  DUKE ENERGY
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ James H.
  Hance, Jr.

  
	
   

  	
  By: James
  H. Hance, Jr.

  
	
   

  	
  Title: Chairman,
  Compensation Committee

  



 


15

















 


	
   

  	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ James E.
  Rogers

  
	
   

  	
  James E.
  Rogers

  



 


16

















 


EXHIBIT A


 


Pursuant to Section 2(b),
the following service of the Employee is hereby approved as of the Effective
Date:


 


Service on the board of directors of Applied Materials, Inc.,
Fifth Third Bancorp and CIGNA Corporation


 


17

















 


EXHIBIT B


 


For purposes
of Section 10, “Cause” and “Good Reason” shall have the respective
meanings set forth below:


 


“Cause” means:


 


(a) The willful and continued failure by
the Employee to substantially perform the Employee’s duties with Duke Energy or
any of its subsidiaries or to comply with the policies, rules and
decisions adopted from time to time by Duke Energy, its Board and any employing
subsidiaries of which the Employee is made aware or reasonably should be aware
(other than any such failure resulting from the Employee’s incapacity due to
physical or mental illness) that, if curable, has not been cured within 30 days
after the Board has delivered to the Employee a written demand for substantial
performance, which demand specifically identifies the manner in which the
Employee has not substantially performed his duties. This event will constitute
Cause even if the Employee issues a Notice of Termination (as described below)
for Good Reason after the Board delivers a written demand for substantial
performance.


 


(b) The breach by the Employee of the
provisions set forth in Section 9.


 


(c) The conviction of the Employee for
the commission of a felony, including the entry of a guilty or nolo contendere
plea, or any willful or grossly negligent action or inaction by the Employee
that has a materially adverse effect on Duke Energy. For purposes of this
definition of Cause, no act, or failure to act, on the Employee’s part will be
deemed “willful” unless it is done, or omitted to be done, by the Employee in
bad faith and without reasonable belief that the Employee’s act, or failure to
act, was in the best interest of Duke Energy.


 


“Good Reason” means:


 


(a) The material reduction without his
consent of the Employee’s title, authority, duties, or responsibilities from
those in effect immediately prior to the reduction, the failure by Duke Energy
without the consent of the Employee to nominate the Employee for re-election to
the Board, or a material adverse change in the Employee’s reporting
responsibilities, in each case except to the extent as a result of the Employee
ceasing to be Chairman of the Board or President of Duke Energy in accordance
with Section 2(e) hereof provided that the Employee continues to
serve as Chief Executive Officer of Duke Energy without material reduction in
his authority, duties, or responsibilities as such, or material adverse change
in his reporting responsibilities as such, from those in effect immediately
prior to his ceasing to serve as Chairman of the Board or President, as the
case may be.


 


(b) Any breach by Duke Energy of any
other material provision of this Agreement (including but not limited to the
place of performance as specified in Section 2(d)).


 


18

















 


Any
termination of the Employee’s employment by Duke Energy for Cause or by the
Employee for Good Reason will be communicated by a written Notice of
Termination to the other party to this Agreement in accordance with the
following requirements:


 


(a) The notice indicates the specific
termination provision in this Agreement relied upon as the basis for
termination.


 


(b) To the extent applicable, the notice
sets forth in reasonable detail the facts and circumstances claimed to provide
a basis for termination of the Employee’s employment for Good Reason or Cause
(as the case may be).


 


(c) If the date of termination of
employment is other than the date of receipt of the notice, the notice
specifies the date of termination, which will be no more than 30 days after the
date the notice was given. The failure by the Employee or Duke Energy to set
forth in the Notice of Termination any fact or circumstances that contributes
to a showing of Good Reason or Cause will not waive any right of the Employee
or Duke Energy under this Agreement or preclude the Employee or Duke Energy
from asserting that fact or circumstance in enforcing rights under this
Agreement.


 


(d) If for Cause, the notice must
include a copy of a resolution duly adopted by the affirmative vote of not less
three quarters (3/4) of the entire membership of the Board (excluding the
Employee, if he is a member of the Board) at a meeting of the Board called and
held for the purpose of considering the termination. The resolution must
include a finding that, in the good faith opinion of the Board (excluding the
Employee, if he is a member of the Board), the Employee was guilty of conduct
set forth in the definition of Cause, and it must specify the particulars of
the conduct in detail.


 


19

















 


EXHIBIT C


 


RELEASE OF CLAIMS


 


This RELEASE OF CLAIMS (the “Release”) is executed and delivered by
James E. Rogers (the “Employee”) to DUKE ENERGY CORPORATION (together with its
successors, “Duke”).


 


In consideration of the agreement by Duke to provide the Employee with
the rights, payments and benefits under the Employment Agreement between the
Employee and Duke dated                     
(the “Employment Agreement”), the Employee hereby agrees as follows:


 


Section 1. Release and Covenant. The Employee, of his own free
will, voluntarily and unconditionally releases and forever discharges Duke, its
subsidiaries, parents, affiliates, their directors, officers, employees,
agents, stockholders, successors and assigns (both individually and in their
official capacities with Duke) (the “Duke Releasees”) from, any and all past or
present causes of action, suits, agreements or other claims which the Employee,
his dependents, relatives, heirs, executors, administrators, successors and
assigns has or may hereafter have from the beginning of time to the date hereof
against Duke or the Duke Releasees upon or by reason of any matter, cause or
thing whatsoever, including, but not limited to, any matters arising out of his
employment by Duke and the cessation of said employment or any claim for
compensation, and including, but not limited to, any alleged violation of the
Civil Rights Acts of 1964 and 1991, the Equal Pay Act of 1963, the Age
Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the
Employee Retirement Income Security Act of 1974, the Older Workers Benefit
Protection Act of 1990, the Americans with Disabilities Act of 1990, the North
Carolina Equal Employment Protection Act and any other federal, state or local
law, regulation or ordinance, or public policy, contract or tort law having any
bearing whatsoever on the terms and conditions of employment or termination of
employment. This Release shall not, however, constitute a waiver of any of the
Employee’s rights under the Employment Agreement.


 


Section 2. Due Care. The Employee acknowledges that he has
received a copy of this Release prior to its execution and has been advised
hereby of his opportunity to review and consider this Release for 21 days prior
to its execution. The Employee further acknowledges that he has been advised
hereby to consult with an attorney prior to executing this Release. The
Employee enters into this Release having freely and knowingly elected, after
due consideration, to execute this Release and to fulfill the promises set
forth herein. This Release shall be revocable by the Employee during the 7-day
period following its execution, and shall not become effective or enforceable
until the expiration of such 7-day period. In the event of such a revocation,
the Employee shall not be entitled to the consideration for this Release set
forth above.


 


Section 3. Nonassignment of Claims; Proceedings. The Employee
represents and warrants that there has been no assignment or other transfer of
any interest in any claim which the Employee may have against Duke or any of
the Duke Releasees. The Employee represents that he has not commenced or joined
in any claim, charge, action or proceeding whatsoever against Duke or any of
the Duke Releasees arising out of or relating to any of the matters set 


 


20

















 


forth in this
Release. The Employee further agrees that he will not seek or be entitled to
any personal recovery in any claim, charge, action or proceeding whatsoever
against Duke or any of the Duke Releasees for any of the matters set forth in
this Release.


 


Section 4. Reliance by Employee. The Employee acknowledges that,
in his decision to enter into this Release, he has not relied on any
representations, promises or agreements of any kind, including oral statements
by representatives of Duke or any of the Duke Releasees, except as set forth in
this Release and the Employment Agreement.


 


Section 5. Nonadmission. Nothing contained in this Release will be
deemed or construed as an admission of wrongdoing or liability on the part of
Duke or any of the Duke Releasees.


 


Section 6. Communication of Safety Concerns. Notwithstanding any
other provision of this Agreement, the Employee remains free to report or
otherwise communicate any nuclear safety concern, any workplace safety concern,
or any public safety concern to the Nuclear Regulatory Commission, United
States Department of Labor, or any other appropriate federal or state
governmental agency, and the Employee remains free to participate in any
federal or state administrative, judicial, or legislative proceeding or
investigation with respect to any claims and matters not resolved and
terminated pursuant to this Agreement. With respect to any claims and matters
resolved and terminated pursuant to this Agreement, the Employee is free to
participate in any federal or state administrative, judicial, or legislative
proceeding or investigation if subpoenaed. The Employee shall give Duke,
through its legal counsel, notice, including a copy of the subpoena, within
twenty-four (24) hours of receipt thereof.


 


Section 7. Governing Law. This Release shall be interpreted,
construed and governed according to the laws of the State of North Carolina,
without reference to conflicts of law principles thereof.


 


This RELEASE OF CLAIMS is executed by the Employee and delivered to
Duke
on                                                        .


 


 


	
   

  	
   

  	
   

  
	
   

  	
  EMPLOYEE

  



 


21

















 


EXHIBIT D


 


(Legacy Benefits)


 


1. Outstanding equity awards granted
under the Cinergy Corp. 1996 Long-Term Incentive Compensation Plan and the
Cinergy Corp. Stock Option Plan


 


2. Accrued benefit under the Cinergy
Corp. Non-Union Employees’ Pension Plan and Duke Energy Retirement Savings Plan
(previously known as the Cinergy Corp. Non-Union Employees’ 401(k) Plan)


 


3. Grandfathered retiree medical
benefits under the Cinergy Corp. Welfare Benefit Program


 


4. Deferred Compensation Agreement,
dated December 16, 1992, as amended (PSI annuities)


 


5. Duke Energy Corporation Executive Savings
Plan


 


6. Legacy Cinergy Banked Vacation


 


22