PERFORMANCE AWARD AGREEMENT
Exhibit 10 -18.2
This Performance Award Agreement (the “Agreement”) has been made as of November 17, 2003 (the “Date of Award”) between Duke Energy Corporation, a North Carolina corporation, with its principal offices in Charlotte, North Carolina (the “Company”), and Xxxx X. Xxxxxxxx (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 Company (the “Committee”), or its delegatee, has determined the form of this Agreement and selected the Grantee, as an Employee, to receive the Performance Award evidenced by this Agreement and the Performance Shares and tandem Dividend Equivalents that are subject hereto. The applicable terms/provisions of the Plan are incorporated in this Agreement by reference, including the definitions of terms contained in the Plan.
PERFORMANCE AWARD
In accordance with the terms of the Plan, the Company has made this Performance Award, effective as of the Date of Award and upon the following terms and conditions:
Section 1. Number and Nature of Performance Shares and Dividend Equivalents. The number of Performance Shares and the number of tandem Dividend Equivalents subject to this Performance Award are each three hundred sixty thousand (360,000). Each Performance Share represents a right to receive, following the vesting of the Performance Share, payment in the form of one share of Common Stock. Each tandem Dividend Equivalent, until its expiration, represents a right to receive cash payments equivalent in amount to the cash dividends declared and paid on one share of Common Stock. 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 Company by virtue of this Performance Award.
Section 2. Vesting of Performance Shares. Performance Shares subject to this Performance Award shall become vested on the last day of the particular calendar year upon the written determination by the Committee, or its delegatee, in its sole discretion, that the Performance Goal that it has established for the particular calendar year, has been achieved, together with the level of such achievement between threshold and maximum levels. The Committee’s written determination shall be provided no later than the ninetieth (90th) day of the next calendar year. In this regard: (i) one hundred twenty thousand (120,000) Performance Shares shall vest on December 31, 2004, subject to the achievement of the Performance Goal for calendar year 2004; (ii) one hundred
twenty thousand (120,000) Performance Shares shall vest on December 31, 2005, subject to the achievement of the Performance Goal for calendar year 2005; and (iii) one hundred twenty thousand (120,000) Performance Shares shall vest on December 31, 2006, subject to the achievement of the Performance Goal for calendar year 2006.
In the event, and to the extent, that the Committee, or its delegatee, in its sole discretion, determines that the Performance Goal(s) for a particular calendar year have not been achieved, the Performance Shares whose vesting is subject to the Performance Goal(s), and respective tandem Dividend Equivalents, are thereupon forfeited. In the event that the Grantee’s continuous employment by the Company (including Subsidiaries) terminates, any outstanding and unvested Performance Shares subject to this Performance Award, and tandem Dividend Equivalents, are thereupon forfeited, except that if such employment terminates as the result of (i) the Grantee’s death, (ii) the Grantee’s permanent and total disability within the meaning of Internal Revenue Code Section 22(e)(3), or (iii) termination of such employment by the Company, or employing Subsidiary, other than For Cause1, the Committee, or its delegatee, shall immediately vest a portion of each unvested Performance Shares, such portion to be equal to (1) the number of full calendar months elapsed between November 1, 2003, and the time of termination (including November 2003) divided by (2) thirty-eight, irrespective of whether there is a subsequent determination that the Performance Goal(s) have, or have not, been achieved. Notwithstanding the foregoing, in the event that a Change in Control occurs before the Grantee’s continuous employment by the Company (including Subsidiaries) terminates, any outstanding and unvested Performance Shares subject to this Performance Award shall immediately become vested, irrespective of whether there is a subsequent determination that the Performance Goal(s) have, or have not, been achieved.
Section 3. Forfeiture/Expiration. Except as otherwise expressly provided herein, any Performance Share subject to this Performance Award shall be forfeited upon the termination of the Grantee’s continuous employment by the Company (including Subsidiaries) from the Date of Award, to the extent not then or previously vested. Any Dividend Equivalent subject to this Performance Award shall expire at the time the
| 1 | “For Cause”, which is defined as the occurrence of: (A) gross neglect, malfeasance or gross insubordination by the Grantee in performing his duties under his Employment Agreement; (B) the Grantee’s conviction for a felony, excluding convictions associated with traffic violations; (C) an egregious act of dishonesty (including without limitation theft or embezzlement) or a malicious action by Grantee toward Duke Energy’s customers or employees; (D) a willful and material violation of any provision of Section 11 of the Grantee’s Employment Agreement; (E) intentional reckless conduct by the Grantee that is materially detrimental to the business or reputation of Duke Energy; or (F) material failure of the Grantee to carry out reasonably assigned duties or instructions consistent with the titles of Chairman and Chief Executive Officer (provided that material failure to carry out reasonably assigned duties shall be deemed to constitute cause only after a finding by Duke Energy’s Board of Directors, or a duly constituted committee thereof, of material failure on the part of Grantee and the failure to remedy such performance to the Board’s or the Committee’s, satisfaction within 30 days after delivery of written notice to Grantee of such finding). |
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Performance Share with respect to which the Dividend Equivalent is in tandem is either paid or forfeited.
Section 4. Dividend Equivalent Payments. Payments with respect to any Dividend Equivalent subject to this Performance Award shall be paid in cash to the Grantee (or, if the Grantee is dead, the Grantee’s beneficiary) as soon as practicable whenever cash dividends are declared and paid with respect to the Common Stock after the Date of Award and before the Dividend Equivalent expires. However, should the timing of a particular payment under Section 5 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 (or the Grantee’s beneficiary) receives such shares without the right to receive such dividend and the Grantee (or the Grantee’s beneficiary) would not otherwise be entitled to payment under the expiring tandem Dividend Equivalents with respect to such dividend, the Grantee (or the Grantee’s beneficiary), nevertheless, shall be entitled to such payment. Dividend Equivalent payments shall be subject to withholding for taxes.
Section 5. Payment of Performance Shares Payment under all vested Performance Shares subject to this Performance Award shall be made to the Grantee (or, if the Grantee is dead, the Grantee’s beneficiary) as soon as practicable following the termination of the Grantee’s continuous employment by the Company (including Subsidiaries). Payment shall be subject to withholding for taxes and shall not occur until the Grantee (or the Grantee’s beneficiary) has arranged to meet this obligation to the satisfaction of the Executive Compensation and Benefits Department. Notwithstanding the foregoing, to the extent that Grantee fails to timely tender to the Corporation sufficient cash to satisfy withholding for tax requirements, such withholding shall be applied to reduce the number of shares of Common Stock that would otherwise be paid. Payment shall be in the form of one (1) share of Common Stock for each full Performance Share so vested, and any fractional Performance Share so vested shall not be paid unless and until subsequent vesting results in the full Performance Share becoming vested.
Section 6. No Employment Right. Nothing in this Agreement or in the Plan shall affect the right of the Company or any Subsidiary to terminate the employment of service of the Grantee at any time for any, or no, reason, or confer upon the Grantee the right to continued employment with the Company (including Subsidiaries).
Section 7. Restrictions on Transfer, Beneficiary. Performance Shares and Dividend Equivalents subject to this Performance Award may not be sold, transferred, exchanged, assigned, pledged, hypothecated, alienated or otherwise encumbered. The Grantee may designate a beneficiary or beneficiaries to receive any payments that are due under Section 4 or 5 following Grantee’s death. To be effective, such designation must be made in accordance with such rules and on such form as prescribed by the Company’s Executive Compensation and Benefits Department for such purpose which completed
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form must be received by the Company’s Executive Compensation and Benefits Department before Grantee’s death. If the Grantee fails to designate a beneficiary, or if no designated beneficiary survives Grantee’s death, Grantee’s estate shall be deemed Grantee’s beneficiary.
Section 8. 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 9. 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 10. Conflicts with Plan and Correction of Errors. 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 a Performance Award properly granted to the Grantee pursuant to the Plan, the Company, 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.
Notwithstanding the foregoing, this Performance Award is subject to cancellation by the Company in its sole discretion unless the Grantee, by not later than January 30, 2004, 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. Xxx 0000, Xxxxxxxxx, XX 00000-0000.
IN WITNESS WHEREOF, the Company 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: |
/s/ XXXXXX X. XXXXXX | By: |
/s/ XXX X. XXXXXXX, XX. | |||||
| Corporate Secretary | Xxx X. Xxxxxxx, Xx. | |||||||
| Its: |
Chairman, Compensation Committee | |||||||
Acceptance of Performance Award
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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 30th day of December, 2003.
| /s/ XXXX X. XXXXXXXX |
| Grantee’s Signature |
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