Exhibit 10.1
PERFORMANCE AWARD AGREEMENT
This Performance Award Agreement (the "Agreement") has been made as of
_____________, 2005 (the "Date of Award") between Duke Energy Corporation, a
North Carolina corporation, with its principal offices in Charlotte, North
Carolina (the "Corporation"), and __________ (the "Grantee").
RECITALS
Under the Duke Energy Corporation 1998 Long-Term Incentive Plan as
amended, and as it may, from time to time, be further amended (the "Plan"), the
Compensation Committee of the Board of Directors of the Corporation (the
"Committee"), or its delegatee, has determined the form of this Agreement and
selected the Grantee, as an Employee, to receive the award evidenced by this
Agreement (the "Award") and the Performance Shares and tandem Dividend
Equivalents that are subject hereto. The applicable provisions of the Plan are
incorporated in this Agreement by reference, including the definitions of terms
contained in the Plan.
AWARD
In accordance with the Plan, the Corporation has made this Award,
effective as of the Date of Award and upon the following terms and conditions:
Section 1. Number and Nature of Performance Shares and Tandem Dividend
Equivalents. The number of Performance Shares and the number of tandem Dividend
Equivalents subject to this Award are each __________ (______). The number of
such Performance Shares that may become vested upon determination of achievement
of the Performance Goal at Target, as provided in Section 2(a), is __________
(__). Each Performance Share, upon becoming vested before its expiration,
represents a right to receive payment in the form of one (1) share of Common
Stock. Each tandem Dividend Equivalent, after its tandem Performance Share
vests, represents a right to receive a cash payment equivalent in amount to the
aggregate cash dividends declared and paid on one (1) share of Common Stock for
the period beginning on the Date of the Award and ending on the date the vested,
tandem Performance Share is paid or deferred. Performance Shares and Dividend
Equivalents are used solely as units of measurement, and are not shares of
Common Stock and the Grantee is not, and has no rights as, a shareholder of the
Corporation by virtue of this Award.
Section 2. Vesting of Performance Shares. (a) Provided Grantee's
continuous employment by the Corporation, including Subsidiaries, has not
terminated, or as otherwise provided in Sections 2(b) or 2(c), Performance
Shares subject to this Award shall become vested upon the written determination
by the Committee, or its delegatee, in
its sole discretion, of the achievement of the Performance Goal, which is the
Corporation's Total Shareholder Return ("TSR") percentile ranking among Standard
& Poor's 500 companies, with higher percentile ranking from more positive/less
negative TSR, for the period beginning January 1, 2005 and ending December 31,
2007 ("Performance Period"), above the 40th percentile, in accordance with the
applicable vesting percentage specified for such percentile ranking in the
following schedule:
Percentile Ranking Vesting Percentage
------------------ ------------------
40th or lower 0%
* *
55th 40%
* *
70th - Target 80%
* *
80th or higher 100%
* When such determination is of a percentile ranking between those
specified, the Committee, or its delegatee, in its sole discretion, shall
interpolate to determine the applicable vesting percentage.
and such Performance Shares that do not so become vested shall be forfeited. For
purposes of this Agreement, TSR means the change in fair market value over a
specified period of time, expressed as a percentage, of an initial investment in
specified common stock, with dividends reinvested, all as determined utilizing
such methodology as the Committee, or its delegate, shall approve, with the
average TSR for the final 30 business days of the period considered the TSR at
the end of the period and with Common Stock valued for the beginning of the
period as of the last preceding business day.
(b) In the event that, prior to the date that the determination of the
achievement of the Performance Goal is made, the Grantee's continuous employment
by the Corporation, including Subsidiaries, terminates, the Performance Shares
subject to this Award are thereupon forfeited, except that if such employment
terminates (i) at a time when Grantee is eligible for an immediately payable
early or normal retirement benefit under the Duke Energy Retirement Cash Balance
Plan, or under another retirement plan of the Corporation or a Subsidiary which
plan the Committee, or its delegatee, in its sole discretion, determines to be
the functional equivalent of the Duke Energy Retirement Cash Balance Plan
("Functional Equivalent Plan"), unless the Corporation, in its sole discretion,
determines that Grantee is in violation of any obligation identified in Section
3, (ii) as the result of the Grantee's death, (iii) as the result of the
Grantee's permanent and total disability within the meaning of Code Section
22(e)(3), (iv) as the result of the termination of such employment by the
Corporation, or employing Subsidiary, other than for cause, as determined by the
Corporation or employing Subsidiary, in its sole discretion, or (v) as the
direct and sole result, as determined by the Corporation, or employing
Subsidiary, in its sole discretion, of the divestiture of assets, a business, or
a
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company, by the Corporation or a Subsidiary, the Performance Shares subject to
this Award shall vest upon such determination of the achievement of the
Performance Goal, at such vesting percentage determined by the Committee, or its
delegatee, in its sole discretion, by prorating on the basis of the portion of
the Performance Period that such employment continued while Grantee was entitled
to payment of salary.
In the event that Grantee is on an employer-approved, personal leave of absence
on the date that the determination of the achievement of the Performance Goal is
made, then, unless prohibited by law, vesting shall be postponed and shall not
occur unless and until Grantee returns to active service in accordance with the
terms of the approved personal leave of absence and before the tenth anniversary
of the Date of Award. Further, in the event that such determination is made and
during any portion of the Performance Period the Grantee was on
employer-approved, personal leave of absence, the applicable vesting percentage
shall be determined by the Committee, or its delegatee, in its sole discretion,
to reflect only that portion of the Performance Period during which such
employment continued while the Grantee was entitled to payment of salary.
(c) In the event that a Change in Control occurs before the Performance Period
has ended and (i) before the Grantee's continuous employment by the Corporation,
including Subsidiaries, terminates, or (ii) after such employment terminates
during the Performance Period, (A) at a time when Grantee is eligible for an
immediately payable, early or normal retirement benefit under the Duke Energy
Retirement Cash Balance Plan, or Functional Equivalent Plan, unless the
Corporation, in its sole discretion, determines that Grantee is in violation of
any obligation identified in Section 3, or (B) as the result of an event listed
in items (ii) - (v) of the first sentence of Section 2(b), the Performance
Shares subject to this Award shall vest upon such occurrence, at such vesting
percentage determined by the Committee, or its delegatee, in its sole
discretion, by prorating down from a maximum vesting percentage of 80% on the
basis of the portion of the Performance Period that has elapsed prior to the
time of such occurrence (or such earlier termination of employment), and the
remaining Performance Shares shall be forfeited, irrespective of any subsequent
determination of the achievement of the Performance Goal.
Section 3. Violation of Grantee Obligation. In consideration of the
continued vesting opportunity provided under Section 2 following the termination
of Grantee's continuous employment by the Corporation, including Subsidiaries,
if, at any time of such termination of employment, Grantee is eligible for an
immediately payable early or normal retirement benefit under the Duke Energy
Retirement Cash Balance Plan or Functional Equivalent Plan, Grantee agrees that
during the period beginning with such termination of employment and ending with
the third anniversary of the Date of Award ("Restricted Period"), Grantee shall
not (i) without the prior written consent of the Corporation, or its delegatee,
become employed by, serve as a principal, partner, or member of the board of
directors of, or in any similar capacity with, or otherwise provide service to,
a competitor, to the detriment, of the Corporation or any Subsidiary, or (ii)
violate any of Grantee's other noncompetition obligations, or any of Grantee's
nonsolicitation or nondisclosure obligations, to the Corporation or any
Subsidiary. The
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noncompetition obligations of clause (i) of the preceding sentence shall be
limited in scope and shall be effective only to competition with the Corporation
or any Subsidiary in the businesses of: production, transmission, distribution,
or retail or wholesale marketing or selling of electricity; gathering,
processing or transmission of natural gas, resale or arranging for the purchase
or for the resale, brokering, marketing, or trading of natural gas, electricity
or derivatives thereof; energy management and the provision of energy solutions;
gathering, compression, treating, processing, fractionation, transportation,
trading, marketing of natural gas components, including natural gas liquids;
management of land holdings and development of commercial, residential and
multi-family real estate projects; development and management of fiber optic
communications systems; development and operation of power generation
facilities, and sales and marketing of electric power and natural gas,
domestically and abroad; and any other business in which the Corporation,
including Subsidiaries, is engaged at the termination of Grantee's continuous
employment by the Corporation, including Subsidiaries; and within the following
geographical areas (i) any country in the world where the Corporation, including
Subsidiaries, has at least US$25 million in capital deployed as of termination
of Grantee's continuous employment by Corporation, including Subsidiaries; (ii)
the continent of North America; (iii) the United States of America and Canada;
(iv) the United States of America; (v) the states of North Carolina, South
Carolina, Virginia, Georgia, Florida, Texas, California, Massachusetts,
Illinois, Michigan, New York, Colorado, Oklahoma and Louisiana: (vi) the states
of North Carolina, South Carolina, Texas and Colorado; and (vii) any state or
states with respect to which was conducted a business of the Corporation,
including Subsidiaries, which business constituted a substantial portion of
Grantee's employment. The Corporation and Grantee intend the above restrictions
on competition in geographical areas to be entirely severable and independent,
and any invalidity or enforceability of this provision with respect to any one
or more of such restrictions, including areas, shall not render this provision
unenforceable as applied to any one or more of the other restrictions, including
areas. If any part of this provision is held to be unenforceable because of the
duration, scope or area covered, the Corporation and Grantee agree to modify
such part, or that the court making such holding shall have the power to modify
such part, to reduce its duration, scope or area, including deletion of specific
words and phrases, i.e.,"blue penciling", and in its modified, reduced or blue
pencil form, such part shall become enforceable and shall be enforced. Nothing
in Section 3 shall be construed to prohibit Grantee being retained during the
Restricted Period in a capacity as an attorney licensed to practice law, or to
restrict Grantee providing advice and counsel in such capacity, in any
jurisdiction where such prohibition or restriction is contrary to law.
Section 4. Forfeiture/Expiration. Any Performance Share subject to this
Award shall be forfeited upon the termination of the Grantee's continuous
employment by the Corporation, including Subsidiaries, from the Date of Award,
except to the extent otherwise provided in Section 2, and, if not previously
vested and paid, or deferred, or forfeited, shall expire immediately before the
tenth (10th) anniversary of the Date of Award. Any Dividend Equivalent subject
to this Award shall expire at the time its
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tandem Performance Share (i) is vested and paid, or deferred, (ii) is forfeited,
or (iii) expires.
Section 5. Dividend Equivalent Payment. Payment with respect to any
Dividend Equivalent subject to this Award that is in tandem with a Performance
Share that is vested and paid shall be paid in cash to the Grantee as soon as
practicable following the vesting and payment of the Performance Share, or, if
the vested Performance Share is deferred by Grantee as provided in Section 6,
payment with respect to the tandem Dividend Equivalent shall likewise be
deferred. The Dividend Equivalent payment amount shall equal the aggregate cash
dividends declared and paid with respect to one (1) share of Common Stock for
the period beginning on the Date of the Award and ending on the date the vested,
tandem Performance Share is paid or deferred and before the Dividend Equivalent
expires. However, should the timing of a particular payment under Section 6 to
the Grantee in shares of Common Stock in conjunction with the timing of a
particular cash dividend declared and paid on Common Stock be such that the
Grantee receives such shares without the right to receive such dividend and the
Grantee would not otherwise be entitled to payment under the expiring Dividend
Equivalent with respect to such dividend, the Grantee, nevertheless, shall be
entitled to such payment. Dividend Equivalent payments shall be subject to
withholding for taxes.
Section 6. Payment of Performance Shares. Payment of Performance Shares
subject to this Award shall be made to the Grantee as soon as practicable
following the time such Performance Shares become vested in accordance with
Section 2 prior to their expiration, except to the extent deferred by the
Grantee in accordance with such procedure as the Committee, or its designee, may
prescribe. Payment shall be subject to withholding for taxes. Payment shall be
in the form of one (1) share of Common Stock for each full vested Performance
Share, and any fractional vested Performance Share shall be rounded up to the
next whole share for purposes of both vesting under Section 2 and payment under
Section 6. Notwithstanding the foregoing, to the extent Grantee fails to timely
tender to the Corporation sufficient cash to satisfy withholding for tax
requirements, such unsatisfied withholding shall be applied to reduce the number
of shares of Common Stock that would otherwise be paid (valued at Fair Market
Value on the date the respective Performance Shares became vested). In the event
that payment, after any such reduction in the number of shares of Common Stock
to satisfy withholding for tax requirements, would be for less than ten (10)
shares of Common Stock, then, if so determined by the Committee, or its
delegate, in its sole discretion, payment, instead of being made in shares of
Common Stock, shall be made in a cash amount equal in value to the shares of
Common Stock that would otherwise be paid, valued at Fair Market Value on the
date the respective Performance Shares became vested.
Section 7. No Employment Right. Nothing in this Agreement or in the Plan
shall confer upon the Grantee the right to continued employment with the
Corporation or any Subsidiary, or affect the right of the Corporation or any
Subsidiary to terminate the employment or service of the Grantee at any time for
any reason.
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Section 8. Nonalienation. The Performance Shares and Dividend Equivalents
subject to this Award are not assignable or transferable by Grantee. Upon any
attempt to transfer, assign, pledge, hypothecate, sell or otherwise dispose of
any such Performance Share or Dividend Equivalent, or of any right or privilege
conferred hereby, or upon the levy of any attachment or similar process upon
such Performance Share or Dividend Equivalent, or upon such right or privilege,
such Performance Share or Dividend Equivalent, or such right or privilege, shall
immediately become null and void.
Section 9. Determinations. Determinations by the Committee, or its
delegatee, shall be final and conclusive with respect to the interpretation of
the Plan and this Agreement.
Section 10. Governing Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of North Carolina applicable
to transactions that take place entirely within that state.
Section 11. Conflicts with Plan, Correction of Errors, and Grantee's
Consent. In the event that any provision of this Agreement conflicts in any way
with a provision of the Plan, such Plan provision shall be controlling and the
applicable provision of this Agreement shall be without force and effect to the
extent necessary to cause such Plan provision to be controlling. In the event
that, due to administrative error, this Agreement does not accurately reflect an
Award properly granted to the Grantee pursuant to the Plan, the Corporation,
acting through its Executive Compensation and Benefits Department, reserves the
right to cancel any erroneous document and, if appropriate, to replace the
cancelled document with a corrected document. It is the intention of the
Corporation and the Grantee that this Award not result in unfavorable tax
consequences to Grantee under Code Section 409A. Accordingly, Grantee consents
to such amendment of this Agreement as the Corporation may reasonably make in
furtherance of such intention, and the Corporation shall promptly provide, or
make available to, Grantee a copy of any such amendment.
Notwithstanding the foregoing, this Award is subject to cancellation by
the Corporation in its sole discretion unless the Grantee, by not later than
_________ __, 2005, has signed a duplicate of this Agreement, in the space
provided below, and returned the signed duplicate to the Executive Compensation
and Benefits Department - Performance Award (PB04A), Duke Energy Corporation,
P.O. Box 1244, Charlotte, NC 28201-1244, which, if, and to the extent, permitted
by the Executive Compensation and Benefits Department, may be accomplished by
electronic means.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed and granted in Charlotte, North Carolina, to be effective as of the
Date of Award.
ATTEST DUKE ENERGY CORPORATION
By: By:
------------------------------- ---------------------------------------
Corporate Secretary Its: Chairman and Chief Executive Officer
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Acceptance of Performance Award
IN WITNESS OF Grantee's acceptance of this Performance Award and Grantee's
agreement to be bound by the provisions of this Agreement and the Plan, Grantee
has signed this Agreement this _____ day of _____________________, 2005.
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Grantee's Signature
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(print name)
--------------------------------
(social security number)
--------------------------------
(address)
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