Exhibit 5-B
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York, 10017-3954
April 3, 2002
Duke Energy Corporation
526 South Church Street
Charlotte, NC 28202
Ladies and Gentlemen:
We have acted as counsel to Duke Energy Corporation, a North
Carolina corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission (the "Commission") on April 3, 2002 under
the Securities Act of 1933, as amended (the "Act"), relating to (i) shares of
common stock of the Company without par value (the "Common Stock"); (ii) debt
securities which may be either senior (the "Senior Debt Securities") or
subordinated (the "Subordinated Debt Securities") (collectively, the "Debt
Securities"); (iii) contracts for the purchase and sale of Common Stock (the
"Stock Purchase Contracts"); (iv) stock purchase units of the Company, each
consisting of a Stock Purchase Contract and a beneficial interest in either the
Debt Securities, debt securities of the Company's subsidiaries, debt obligations
of third parties (including U.S. Treasury securities), preferred securities (the
"Preferred Securities") issued by Duke Energy Capital Trust III, Duke Energy
Capital Trust IV or Duke Energy Capital Trust V (the "Trusts"), or trust
preferred securities issued by other trusts, each securing the
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holder's obligation to purchase Common Stock under the Stock Purchase Contract
(the "Stock Purchase Units"); (v) guarantees of the Company to be issued in
connection with the issuance of the Preferred Securities by the Trusts (the
"Guarantees"); (vi) first and refunding mortgage bonds of the Company (the
"Bonds"); and (vii) Common Stock which may be issued upon exercise of the Stock
Purchase Contracts. The Common Stock, the Debt Securities, the Stock Purchase
Contracts, the Stock Purchase Units, the Guarantees, and the Bonds are
hereinafter referred to collectively as the "Securities." The Securities may be
issued and sold or delivered from time to time as set forth in the Registration
Statement, any amendment thereto, the prospectus contained therein (the
"Prospectus") and supplements to the Prospectus (the "Prospectus Supplements")
and pursuant to Rule 415 under the Act for an aggregate initial offering price
not to exceed $2 billion or the equivalent thereof in one or more foreign
currencies or composite currencies.
The Senior Debt Securities will be issued under a Senior
Indenture (the "Senior Indenture"), dated as of September 1, 1998, between the
Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
trustee (the "Senior Trustee"), as supplemented from time to time. The
Subordinated Debt Securities will be issued under a Subordinated Indenture (the
"Subordinated Indenture"), dated as of December 1, 1997, between the Company and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as trustee
(the "Subordinated Trustee"), as supplemented from time to time. The Senior
Indenture and the Subordinated Indenture are hereinafter referred to
collectively as the "Indentures."
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The Stock Purchase Contracts will be issued pursuant to a
Purchase Contract Agreement (the "Purchase Contract Agreement"), between the
Company and JPMorgan Chase Bank, as Purchase Contract Agent (the "Purchase
Contract Agent").
Each Guarantee will be made pursuant to a Guarantee Agreement
(the "Guarantee Agreement"), between the Company, as guarantor, and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as trustee (the
"Guarantee Trustee").
The Bonds will be issued under a First and Refunding Mortgage
(the "Mortgage") dated as of December 1, 1927, from the Company to JPMorgan
Chase Bank, as trustee (the "Bond Trustee"), as supplemented from time to time.
We have examined the Registration Statement, a form of the
share certificate for the Common Stock, and the Indentures, the form of Purchase
Contract Agreement, the form of Guarantee Agreement and the Mortgage, which have
been filed with the Commission as exhibits to the Registration Statement. We
also have examined the originals, or duplicates or certified or conformed
copies, of such records, agreements, instruments and other documents and have
made such other and further investigations as we have deemed relevant and
necessary in connection with the opinions expressed herein. As to questions of
fact material to this opinion, we have relied upon certificates of public
officials and of officers and representatives of the Company.
In rendering the opinion set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents.
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We have also assumed that: (1) the Senior Indenture is the valid and legally
binding obligation of the Senior Trustee; (2) the Subordinated Indenture is the
valid and legally binding obligation of the Subordinated Trustee; (3) at the
time of the execution, issuance and delivery of the Stock Purchase Contract, the
Purchase Contract Agreement will be the valid and legally binding obligation of
the Purchase Contract Agent; (4) at the time of the execution, issuance and
delivery of (i) the Stock Purchase Units that include debt securities of the
Company's subsidiaries, such debt securities of the Company's subsidiaries will
be the valid and legally binding obligation of such subsidiaries, and the
indenture relating to such debt securities will be the valid and legally binding
obligation of such subsidiaries and each trustee party to such indenture, (ii)
the Stock Purchase Units that include debt obligations of third parties
(including U.S. Treasury securities), such debt obligations of third parties
will be the valid and legally binding obligation of such third parties, and the
indenture relating to such debt obligations will be the valid and legally
binding obligation of such third parties and each trustee party to such
indenture and (iii) the Stock Purchase Units that include Preferred Securities
or other trust preferred securities, such Preferred Securities or other trust
preferred securities will be validly issued, fully paid and nonassessable; (5)
at the time of the making of the Guarantee, the Guarantee Agreement will be the
valid and legally binding obligation of the Guarantee Trustee; and (6) the
Mortgage is the valid and legally binding obligation of the Bond Trustee.
We have assumed further that (1) (a) the Company has duly
authorized, executed and delivered the Indentures and (b) the execution,
delivery and performance by the Company of the Indentures and the Debt
Securities do not and will not violate the laws of the State of North
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Carolina or any other applicable laws (excepting the laws of the State of New
York and the Federal laws of the United States); (2) (a) at the time of
execution, issuance and delivery of the Stock Purchase Contracts, the Purchase
Contract Agreement will have been duly authorized, executed and delivered by the
Company and (b) the execution, delivery and performance by the Company of the
Purchase Contract Agreement and the Stock Purchase Contracts will not violate
the laws of the State of North Carolina or any other applicable laws (excepting
the laws of the State of New York and the Federal laws of the United States);
(3) (a) at the time of the execution, issuance and delivery of the Stock
Purchase Units that include debt securities of the Company's subsidiaries, the
indenture under which such debt securities are issued will have been duly
authorized, executed and delivered by such subsidiaries and (b) the execution,
delivery and performance of such indenture and such debt securities will not
violate the laws of the State of North Carolina or any other applicable laws;
(4) (a) at the time of the execution, issuance and delivery of the Stock
Purchase Units that include debt securities of third parties, the indenture, if
any, under which such debt securities are issued will have been duly authorized,
executed and delivered by such third parties and (b) the execution, delivery and
performance of any such indenture and such debt securities will not violate the
laws of the State of North Carolina or any other applicable laws; (5) (a) at the
time of the execution, issuance and delivery of the Stock Purchase Units that
include Preferred Securities or other trust preferred securities, the
Certificate of Designations with respect to the Preferred Securities or
equivalent instrument with respect to the other trust preferred securities will
have been duly filed by each Trust or other trust and (b) such Certificate of
Designations and Preferred Securities of such Trust, or
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equivalent instrument and other preferred securities of such other trust, will
not violate the laws of the State of North Carolina or any other applicable
laws; (6) (a) at the time of execution, issuance and delivery of the Guarantees,
the Guarantee Agreement will have been duly authorized, executed and delivered
by the Company and (b) the execution, delivery and performance by the Company of
the Guarantee Agreement and the Guarantees will not violate the laws of the
State of North Carolina or any other applicable laws (excepting the laws of the
State of New York and the Federal laws of the United States); and (7) (a) the
Company has duly authorized, executed and delivered the Mortgage and (b) the
execution, delivery and performance by the Company of the Mortgage and the Bonds
do not and will not violate the laws of the State of North Carolina or any other
applicable laws (excepting the laws of the State of New York and the Federal
laws of the United States).
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion that:
1. With respect to the Common Stock, assuming (a) the taking
by the Board of Directors of the Company of all necessary corporate
action to authorize and approve the issuance of the Common Stock and
(b) due issuance and delivery of the Common Stock, upon payment
therefor in accordance with the applicable definitive underwriting
agreement approved by the Board of Directors of the Company and upon
compliance with the applicable regulatory requirements, the Common
Stock will be validly issued, fully paid and nonassessable.
2. With respect to the Debt Securities, assuming (a) the
taking of all necessary corporate action to approve the issuance and
terms of any Debt Securities, the terms of the offering thereof and
related matters by the Board of Directors of the Company, a duly
constituted and acting committee of such Board or duly authorized
officers of the Company (such Board of Directors, committee or
authorized officers being referred to herein as the "Board") and (b)
the due execution, issuance and delivery of such Debt Securities, upon
payment of the consideration therefor provided for in the applicable
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definitive purchase, underwriting or similar agreement approved by the
Board and otherwise in accordance with the provisions of the applicable
Indenture and such agreement, such Debt Securities will constitute
valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms.
3. With respect to the Stock Purchase Contracts, assuming (a)
the taking of all necessary corporate action by the Board to approve
the execution and delivery of the Purchase Contract Agreement in the
form filed as an exhibit to the Registration Statement and (b) the due
execution, issuance and delivery of the Stock Purchase Contracts, upon
payment of the consideration for such Stock Purchase Contracts provided
for in the applicable definitive purchase, underwriting or similar
agreement approved by the Board and otherwise in accordance with the
provisions of the applicable Purchase Contract Agreement and such
agreement, the Stock Purchase Contracts will constitute valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms.
4. With respect to the Stock Purchase Units, (a) assuming
the taking of all necessary corporate action by the Board to authorize
and approve (1) the issuance and terms of the Stock Purchase Units, (2)
the execution and delivery of the Purchase Contract Agreement with
respect to the Stock Purchase Contracts which are a component of the
Stock Purchase Units in the form filed as an exhibit to the
Registration Statement, (3) (i) the issuance and terms of the Debt
Securities, the debt securities of the Company's subsidiaries or the
debt obligations of third parties, which may each be a component of the
Stock Purchase Units, the terms of the offering thereof and related
matters and (ii) the issuance of the Preferred Securities or other
trust preferred securities, which may each be a component of the Stock
Purchase Units, (b) assuming the due filing of the Certificate of
Designations with respect to such Preferred Securities or equivalent
instrument with respect to such other trust preferred securities and
(c) assuming the due execution, authentication (in the case of such
Debt Securities, debt securities of the Company's subsidiaries or debt
obligations of third parties), issuance and delivery of (1) the Stock
Purchase Units, (2) such Stock Purchase Contracts, (3) such Debt
Securities, debt securities of the Company's subsidiaries, or debt
obligations of third parties, or (4) such Preferred Securities or other
trust preferred securities, in each case upon the payment of the
consideration therefor provided for in the applicable definitive
purchase, underwriting or similar agreement approved by the Board, and
in accordance with the provisions of the applicable Purchase Contract
Agreement (in the case of such Stock Purchase Contracts), applicable
Indenture (in the case of such Debt Securities), other indenture (in
the case of such debt securities of the Company's subsidiaries or debt
obligations of third parties), such Stock Purchase Units will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms.
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5. With respect to the Guarantees, assuming (a) the taking of
all necessary corporate action to approve the issuance and terms of
the Guarantees and related matters by the Board of Directors of the
Company, a duly constituted and acting committee of such Board of
duly authorized officers of the Company, (b) the due execution,
authentication, issuance and delivery of the trust preferred
securities secured by the Trusts, upon payment of the consideration
therefor provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Board and otherwise
in accordance with the provisions of the applicable Trust Agreement
and such agreement and (c) the due issuance of such Guarantees, such
Guarantees will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their
terms.
6. With respect to the Bonds, assuming (a) the taking of all
necessary corporate action by the Board to approve the execution and
delivery of the Mortgage in the form filed as an exhibit to the
Registration Statement and (b) the due execution, issuance and
delivery of the Bonds, upon payment of the consideration for such
Bonds provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Board and otherwise
in accordance with the provisions of the applicable Mortgage and such
agreement, the Bonds will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms.
Our opinions set forth in paragraphs 2 through 6 above are
subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law), and (iii) an implied covenant
of good faith and fair dealing.
Insofar as the opinions expressed herein relate to or are
dependent upon matters governed by the laws of the State of North Carolina, we
have relied upon the opinion of Edward M. Marsh, Jr., Esq., Deputy General
Counsel of the Company, dated the date hereof.
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We are members of the Bar of the State of New York and we do
not express any opinion herein concerning any law other than the law of the
State of New York, the Federal law of the United States and, to the extent set
forth herein, the laws of the State of North Carolina.
We hereby consent to the filing of this opinion letter as
Exhibit 5 to the Registration Statement and to the use of our name under the
caption "Validity of the Securities" in the Prospectus included in the
Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
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SIMPSON THACHER & BARTLETT