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 PARAGRAPH 9 TO THE CONTRARY, IF THE EXECUTIVE
PREVAILS WITH RESPECT TO ANY DISPUTE SUBMITTED TO ARBITRATION UNDER THIS
PARAGRAPH 9, OR SUCH DISPUTE IS SETTLED, DUKE ENERGY WILL REIMBURSE OR PAY ALL
LEGAL FEES AND EXPENSES THAT THE EXECUTIVE MAY REASONABLY INCUR AS A RESULT OF
THE DISPUTE.
11.
APPLICABLE LAW.
EXCEPT TO THE EXTENT THAT FEDERAL LAW GOVERNS,
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO ANY APPLICABLE
STATE'S CHOICE OF LAW PROVISIONS.
12.
INTEGRATED AGREEMENT; AMENDMENTS.
EXCEPT WITH RESPECT TO THE
PROVISIONS OF THE CIC PLAN AND THE EMPLOYMENT AGREEMENT EXPRESSLY REFERENCED
HEREIN, THIS AGREEMENT SETS FORTH THE ENTIRE AGREEMENT OF DUKE ENERGY AND THE
EXECUTIVE WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL OTHER
AGREEMENTS BETWEEN ANY OF THE AFFILIATED ENTITIES AND THE EXECUTIVE AND ANY
EMPLOYMENT OR SEVERANCE PLAN, POLICY, AGREEMENT OR ARRANGEMENT OF ANY OF THE
AFFILIATED ENTITIES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE
EXECUTIVE EXPRESSLY ACKNOWLEDGES AND AGREES THAT EXCEPT AS SPECIFICALLY SET
FORTH IN THIS AGREEMENT, HE IS NOT ENTITLED TO RECEIVE ANY SEVERANCE PAY,
SEVERANCE BENEFITS, COMPENSATION OR EMPLOYEE BENEFITS OF ANY KIND WHATSOEVER
FROM DUKE ENERGY OR ANY OF ITS AFFILIATES.
THIS AGREEMENT MAY NOT BE AMENDED
UNLESS THE AMENDMENTS ARE IN WRITING AND SIGNED BY THE EXECUTIVE AND AN
AUTHORIZED REPRESENTATIVE OF DUKE ENERGY.
THIS AGREEMENT MAY BE EXECUTED IN
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
13.
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.
14.
TAXES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT,
DUKE ENERGY MAY WITHHOLD FROM ANY AMOUNTS PAYABLE UNDER THIS AGREEMENT, OR ANY
OTHER BENEFITS RECEIVED PURSUANT HERETO, SUCH FEDERAL, STATE AND/OR LOCAL TAXES
AS SHALL BE REQUIRED TO BE WITHHELD UNDER ANY APPLICABLE LAW OR REGULATION.
THE
OBLIGATIONS UNDER THIS AGREEMENT ARE INTENDED TO COMPLY WITH THE REQUIREMENTS OF
SECTION 409A OF THE CODE, OR AN EXEMPTION OR EXCLUSION THEREFROM, PROVIDED THAT
THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE SHALL BE SOLELY RESPONSIBLE FOR
ANY TAXES AND/OR PENALTIES IMPOSED UNDER SECTION 409A OF THE CODE.
EACH PAYMENT
UNDER THIS AGREEMENT SHALL BE TREATED AS A SEPARATE PAYMENT FOR PURPOSES OF
SECTION 409A OF THE CODE.
IN NO EVENT MAY THE EXECUTIVE, DIRECTLY OR
INDIRECTLY, DESIGNATE THE CALENDAR YEAR OF ANY PAYMENT TO BE MADE