EXHIBIT 10.62
SEPARATION AND SETTLEMENT AGREEMENT
This Separation and Settlement Agreement (this "Agreement") is entered into as
of December 31, 2012 by and between Jeffrey J. Lyash (the "Executive"), and Duke
Energy Corporation, a Delaware corporation ("Duke Energy").
The Executive and
Duke Energy are referred to as the "Parties," and each as a "Party," in this
Agreement.
WHEREAS, the Executive has been employed by Duke Energy and its affiliates as
Executive Vice President of Energy Supply;
WHEREAS, the Executive is a participant in the Progress Energy, Inc. Management
Change-in-Control Plan (the "CIC Plan") and party to an employment agreement
with Progress Energy, Inc. (the "Employment Agreement") signed as of May 30,
2007; and
WHEREAS, the Executive has provided notice of his intent to resign, and the
Executive and Duke Energy wish to set forth their mutual agreement as to the
terms and conditions of such resignation;
NOW, THEREFORE, Duke Energy and the Executive hereby agree as follows:
1.
RESIGNATION.
EFFECTIVE AS OF DECEMBER 31, 2012 (THE
"RESIGNATION DATE"), THE EXECUTIVE HEREBY RESIGNS FROM HIS EMPLOYMENT WITH DUKE
ENERGY AND FROM ALL OTHER POSITIONS THE EXECUTIVE THEN HOLDS WITH RESPECT TO
DUKE ENERGY AND ITS SUBSIDIARIES OR AFFILIATES (DUKE ENERGY AND ALL OF ITS
SUBSIDIARIES AND AFFILIATES, INCLUDING PROGRESS ENERGY, INC. AND ANY OTHER
PREDECESSOR ENTITIES, ARE HEREINAFTER REFERRED TO AS THE "AFFILIATED ENTITIES"),
INCLUDING AS AN OFFICER OR MEMBER OF THE BOARD OF DIRECTORS OF ANY AFFILIATED
ENTITY.
WITHIN 15 BUSINESS DAYS FOLLOWING THE RESIGNATION DATE OR SUCH EARLIER
TIME AS REQUIRED BY APPLICABLE LAW, THE EXECUTIVE WILL BE PAID ALL OF HIS SALARY
AND UNUSED VACATION EARNED OR ACCRUED THROUGH THE RESIGNATION DATE.
2.
SEPARATION PAYMENTS AND BENEFITS.
A.
SUBJECT TO THE EXECUTIVE'S COMPLIANCE WITH THE TERMS OF THIS
AGREEMENT AND THE NON-REVOCATION OF THE RELEASE SET FORTH IN PARAGRAPH 5 OF THIS
AGREEMENT, FOLLOWING THE REVOCATION DATE (AS DEFINED IN PARAGRAPH 15 OF THIS
AGREEMENT), DUKE ENERGY SHALL PAY OR PROVIDE TO THE EXECUTIVE THE PAYMENTS AND
BENEFITS CONTEMPLATED BY SECTION 6.1, SECTION 6.2 AND SECTION 7 OF THE CIC PLAN
TO WHICH THE EXECUTIVE WOULD HAVE BEEN ENTITLED UPON A RESIGNATION BY THE
EXECUTIVE FOR "GOOD REASON" (AS SET FORTH ON EXHIBIT A HERETO).
B.
CONSISTENT WITH SECTION 5.08 OF THE AGREEMENT AND PLAN OF MERGER, BY
AND AMONG DUKE ENERGY, DIAMOND ACQUISITION CORPORATION AND PROGRESS ENERGY,
INC., DATED AS OF JANUARY 8, 2011 (THE "MERGER AGREEMENT"), FOLLOWING THE
RESIGNATION DATE, (I) DUKE ENERGY SHALL PROVIDE OR CAUSE TO BE PROVIDED TO THE
EXECUTIVE COVERAGE UNDER DUKE ENERGY'S DIRECTORS' AND OFFICERS' INSURANCE
POLICIES FOR EVENTS THAT OCCURRED WHILE THE EXECUTIVE WAS A DIRECTOR OR OFFICER
OF ANY OF THE AFFILIATED ENTITIES ON THE SAME TERMS AND CONDITIONS APPLICABLE TO
OTHER FORMER SENIOR EXECUTIVES AND DIRECTORS OF DUKE ENERGY GENERALLY AND (II)
DUKE ENERGY SHALL CAUSE PROGRESS ENERGY, INC. TO INDEMNIFY AND HOLD HARMLESS THE
EXECUTIVE AS PROVIDED IN SECTION 5.08(C) OF THE MERGER AGREEMENT.
C.
DUKE ENERGY SHALL REIMBURSE THE EXECUTIVE FOR ANY REASONABLE AND
NECESSARY BUSINESS