Exhibit 10.1
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), which is effective as of this
day of March 2006, is entered into by and between Michael J. Cyrus
(the "Executive") and Cinergy Corp. and its subsidiaries and affiliates
(collectively, "Cinergy"), with the mutual exchange of promises as consideration
(collectively, the "Parties").
Recitals
A.
WHEREAS, THE PARTIES HAVE AGREED TO THE
TERMINATION OF THE EXECUTIVE'S EMPLOYMENT FOLLOWING THE CONSUMMATION OF THE
MERGER CONTEMPLATED BY THE AGREEMENT AND PLAN OF MERGER BY AND AMONG DUKE ENERGY
CORPORATION, CINERGY CORP., DEER HOLDING CORP., DEER ACQUISITION CORP. AND
COUGAR ACQUISITION CORP., DATED AS OF MAY 8, 2005, AS AMENDED; AND
B.
WHEREAS, CINERGY WOULD LIKE TO ENGAGE THE
EXECUTIVE TO PROVIDE CERTAIN CONSULTING SERVICES TO THE PUBLICLY TRADED ENTITY
SURVIVING THE MERGER AND/OR ITS SUBSIDIARIES AND AFFILIATES AS WELL AS ANY
SUCCESSORS THERETO (COLLECTIVELY, "DUKE").
C.
NOW, THEREFORE, CINERGY AND THE EXECUTIVE
ENTER INTO THE FOLLOWING AGREEMENT:
Agreement
1.
CONSULTING ARRANGEMENT.
THE EXECUTIVE
AGREES TO SERVE AS A CONSULTANT TO DUKE FOR THE PERIOD BEGINNING ON THE DATE THE
EXECUTIVE'S EMPLOYMENT IS TERMINATED AND ENDING ON DECEMBER 31, 2006 (THE
"CONSULTING PERIOD").
THE CONSULTING SERVICES TO BE PROVIDED BY THE EXECUTIVE
DURING THE CONSULTING PERIOD WILL CONSIST OF CONSULTATION WITH, AND ADVICE TO,
THE OFFICERS AND MANAGERIAL EMPLOYEES OF DUKE, AS REQUESTED BY PAUL H. BARRY (OR
HIS/HER SUCCESSOR), ON MATTERS RELATING TO CINERGY'S BUSINESS AFFAIRS ABOUT
WHICH THE EXECUTIVE HAS HISTORICAL KNOWLEDGE AND EXPERIENCE.
WHEN REQUESTED BY
DUKE, THE EXECUTIVE WILL PERFORM THE CONSULTING SERVICES AT REASONABLE TIMES, AS
DETERMINED BY MUTUAL AGREEMENT BETWEEN DUKE AND THE EXECUTIVE; PROVIDED,
HOWEVER, THAT IN NO EVENT WILL THE EXECUTIVE BE REQUIRED, PURSUANT TO THIS
AGREEMENT, TO PROVIDE MORE THAN 80 HOURS OF CONSULTING SERVICES TO DUKE IN ANY
CALENDAR MONTH WITHOUT HIS/HER CONSENT.
WITH RESPECT TO THE CONSULTING PERIOD,
THE EXECUTIVE WILL RECEIVE (I) A $151,000 RETAINER FOR CONSULTING SERVICES IN A
LUMP SUM AS SOON AS REASONABLY PRACTICABLE AFTER THE LATER OF THE DATE THE
EXECUTIVE'S EMPLOYMENT IS TERMINATED OR THE DATE THIS AGREEMENT BECOMES
EFFECTIVE PURSUANT TO SECTION 4 HEREOF, AND (II) A MONTHLY CONSULTING FEE OF
$27,775 FOR CONSULTING SERVICES PERFORMED DURING SUCH PERIOD.
IF THE EXECUTIVE
DEVOTES MORE THAN 640 HOURS DURING THE CONSULTING PERIOD TO THE PERFORMANCE OF
CONSULTING SERVICES PURSUANT TO THIS AGREEMENT, THEN THE COMPANY SHALL PAY TO
THE EXECUTIVE AN ADDITIONAL CONSULTING FEE AT A RATE OF $320 PER HOUR FOR EACH
HOUR OF CONSULTING SERVICES IN EXCESS OF 640 HOURS.
ALL OF THE CONSULTING
SERVICES TO BE PROVIDED BY THE EXECUTIVE WILL BE PERFORMED AS AN INDEPENDENT
CONTRACTOR, AND THE
1
EXECUTIVE WILL NOT HAVE ANY AUTHORITY TO ACT AS AN AGENT OR REPRESENTATIVE OF
DUKE, EXCEPT TO THE EXTENT EXPRESSLY AUTHORIZED IN WRITING BY DUKE.
THE
EXECUTIVE WILL PERFORM HIS/HER CONSULTING SERVICES TO THE BEST OF HIS/HER
ABILITIES.
THE EXECUTIVE WILL BE REIMBURSED FOR ALL REASONABLE EXPENSES
AUTHORIZED BY DUKE AND INCURRED BY THE EXECUTIVE IN CONNECTION WITH THE
PROVISION OF CONSULTING SERVICES PURSUANT