ADVISORS OR SPOUSE (OR DOMESTIC PARTNER) UNDER AN OBLIGATION FOR SUCH
PARTIES TO MAINTAIN CONFIDENTIALITY, OR (II) AS REQUIRED BY A VALID COURT ORDER,
SUBPOENA OR LEGAL, REGULATORY, OR LEGISLATIVE PROCESS (AND IN SUCH EVENT WILL
USE HIS BEST EFFORTS TO OBTAIN A PROTECTIVE ORDER REQUIRING THAT ALL DISCLOSURES
BE KEPT UNDER COURT SEAL) AND WILL NOTIFY DUKE ENERGY PROMPTLY UPON RECEIPT OF
SUCH ORDER OR SUBPOENA.
B.
FORFEITURE AND REPAYMENTS. THE EXECUTIVE AGREES THAT, IN THE EVENT HE
VIOLATES THE PROVISIONS OF PARAGRAPH 6 OR PARAGRAPH 7 OF THIS AGREEMENT, IN ANY
MATERIAL RESPECT, ON OR FOLLOWING THE RESIGNATION DATE, HE WILL FORFEIT AND NOT
BE ENTITLED TO ANY FURTHER PAYMENTS IN ACCORDANCE WITH PARAGRAPH 2 OR PARAGRAPH
4 OF THIS AGREEMENT OR SETTLEMENT IN ACCORDANCE WITH PARAGRAPH 3 AND HE WILL BE
OBLIGATED TO REPAY TO DUKE ENERGY ANY AMOUNTS PAID (DETERMINED AS OF THE DATE OF
PAYMENT) AFTER THE TERMINATION OF EMPLOYMENT PURSUANT TO THE APPLICABLE
PROVISIONS OF PARAGRAPH 2, PARAGRAPH 3 AND PARAGRAPH 4 OF THIS AGREEMENT (OTHER
THAN ANY AMOUNTS PAID PURSUANT TO PARAGRAPH 2(C) AND PARAGRAPH 2(E) OF THIS
AGREEMENT).
SUCH AMOUNT SHALL BE PAID TO DUKE ENERGY IN CASH IN A SINGLE LUMP
SUM WITHIN TEN 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%.
C.
SCOPE OF RESTRICTIONS; CONSIDERATION.
THE EXECUTIVE ACKNOWLEDGES THAT
THE RESTRICTIONS SET FORTH IN THIS PARAGRAPH 7 ARE REASONABLE AND NECESSARY TO
PROTECT DUKE ENERGY'S BUSINESS AND GOODWILL. THE EXECUTIVE 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.
THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE COMPENSATION AND
BENEFITS PROVIDED IN THIS AGREEMENT CONSTITUTE ADEQUATE AND SUFFICIENT
CONSIDERATION FOR THE COVENANTS MADE BY THE EXECUTIVE IN THIS PARAGRAPH 7.
AS
FURTHER CONSIDERATION FOR THE COVENANTS MADE BY THE EXECUTIVE IN THIS PARAGRAPH
7, THE AFFILIATED ENTITIES HAVE PROVIDED THE EXECUTIVE 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.
D.
RETURN OF PROPERTY.
THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT ALL
"COMPANY MATERIALS", WHICH INCLUDE, BUT ARE NOT LIMITED TO, COMPUTERS,
BLACKBERRY, 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,