UNDER THIS
AGREEMENT.
IF THE EXECUTIVE IS A "SPECIFIED EMPLOYEE" (WITHIN THE MEANING OF
SECTION 409A OF THE CODE) THEN ANY PAYMENTS THAT ARE REQUIRED TO BE MADE TO THE
EXECUTIVE PURSUANT TO THIS AGREEMENT THAT CONSTITUTE THE DEFERRAL OF
COMPENSATION (WITHIN THE MEANING OF TREASURY REGULATIONS SECTION 1.409A-1(B) AND
THAT WOULD IN THE ABSENCE OF THIS PARAGRAPH 13 HAVE BEEN PAID TO THE EXECUTIVE
WITHIN SIX MONTHS AND ONE DAY OF THE RESIGNATION DATE SHALL NOT BE PAID TO THE
EXECUTIVE DURING SUCH PERIOD, BUT SHALL INSTEAD BE ACCUMULATED AND PAID TO THE
EXECUTIVE IN A LUMP SUM ON THE EARLIER OF (I) THE DAY AFTER THE DATE THAT IS SIX
MONTHS FROM THE RESIGNATION DATE AND (II) IF THE EXECUTIVE SHALL DIE PRIOR TO
THE EXPIRATION OF SUCH SIX-MONTH PERIOD, AS SOON AS PRACTICABLE FOLLOWING THE
DATE OF THE EXECUTIVE'S DEATH.
ALL REIMBURSEMENTS AND IN-KIND BENEFITS THAT
CONSTITUTE DEFERRED COMPENSATION WITHIN THE MEANING OF SECTION 409A OF THE CODE
PROVIDED UNDER THIS AGREEMENT SHALL BE MADE OR PROVIDED IN ACCORDANCE WITH THE
REQUIREMENTS OF SECTION 409A OF THE CODE, INCLUDING, WITHOUT LIMITATION, THAT
(I) IN NO EVENT SHALL REIMBURSEMENTS BY DUKE ENERGY UNDER THIS AGREEMENT BE MADE
LATER THAN THE END OF THE CALENDAR YEAR NEXT FOLLOWING THE CALENDAR YEAR IN
WHICH THE APPLICABLE FEES AND EXPENSES WERE INCURRED; (II) THE AMOUNT OF IN-KIND
BENEFITS THAT DUKE ENERGY IS OBLIGATED TO PAY OR PROVIDE IN ANY GIVEN CALENDAR
YEAR SHALL NOT AFFECT THE IN-KIND BENEFITS THAT DUKE ENERGY IS OBLIGATED TO PAY
OR PROVIDE IN ANY OTHER CALENDAR YEAR; AND (III) THE EXECUTIVE'S RIGHT TO HAVE
DUKE ENERGY PAY OR PROVIDE SUCH REIMBURSEMENTS AND IN-KIND BENEFITS MAY NOT BE
LIQUIDATED OR EXCHANGED FOR ANY OTHER BENEFIT.
15.
SUCCESSORS.
THIS AGREEMENT IS PERSONAL TO THE EXECUTIVE AND
WITHOUT THE PRIOR WRITTEN CONSENT OF DUKE ENERGY SHALL NOT BE ASSIGNABLE BY THE
EXECUTIVE OTHER THAN BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION.
THIS
AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE EXECUTIVE'S
LEGAL REPRESENTATIVES AND THE LEGAL REPRESENTATIVES OF HIS ESTATE TO THE EXTENT
APPLICABLE.
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON
DUKE ENERGY AND ITS SUCCESSORS AND ASSIGNS.
16.
REPRESENTATIONS AND WARRANTIES.
BY SIGNING THIS AGREEMENT,
THE EXECUTIVE WARRANTS THAT HE OR SHE:
A.
HAS CAREFULLY READ AND REVIEWED THIS AGREEMENT;
B.
FULLY UNDERSTANDS ALL OF ITS TERMS AND CONDITIONS;
C.
FULLY UNDERSTANDS THAT THIS AGREEMENT IS LEGALLY BINDING AND THAT BY
SIGNING IT HE IS GIVING UP CERTAIN RIGHTS;
D.
HAS NOT RELIED ON ANY OTHER REPRESENTATIONS BY DUKE ENERGY OR ITS
EMPLOYEES OR AGENTS, WHETHER WRITTEN OR ORAL, CONCERNING THE TERMS OF THIS
AGREEMENT;
E.
HAS BEEN ADVISED OF HIS OPPORTUNITY TO CONSIDER FOR UP TO 21 DAYS
WHETHER TO ACCEPT THE RELEASE;
F.
WILL HAVE SEVEN DAYS TO REVOKE THE RELEASE (BUT NOT THE REMAINDER OF
THIS AGREEMENT) AFTER SIGNING IT, WITH THE EIGHTH DAY FOLLOWING THE EXECUTION OF
THIS AGREEMENT BEING REFERRED TO AS