EXHIBIT 10.2
AMENDMENT TO EMPLOYMENT AGREEMENT
The Employment Agreement between Cinergy Corp., its subsidiaries
and/or its affiliates ("Cinergy") and _________________ (the "Executive") dated
as of ___________________ (the "Agreement") is hereby amended pursuant to this
amendment (the "Amendment") effective as of the completion of the Merger (as
defined in the Agreement and Plan of Merger, dated as of May 9, 2005, by and
among Duke Energy Corporation, Cinergy Corp., Duke Holding Corp., Duke
Acquisition Corp., and Cinergy Acquisition Corp.). In the event that the Merger
does not occur, this Amendment shall be void AB INITIO and of no further force
and effect.
AMENDMENT
1. Section 4(d)(i) of the Agreement is hereby amended by substituting the word
"Cinergy" with the words "Duke Holding Corp."
2. Section 4(d)(ii) of the Agreement is hereby superseded and replaced in its
entirety as set forth below:
"(ii) (1) The material reduction without his/her consent of the
Executive's authority, duties or responsibilities from those in effect
on May 9, 2005 unless such reduction is not a material reduction in
authority, duties or responsibilities from those in effect at any time
within the 12 months prior to May 9, 2005 or (2) a material adverse
change in the Executive's reporting responsibilities from those in
effect on May 9, 2005 unless such change is not a material adverse
change in reporting responsibilities from those in effect at any time
within the 12 months prior to May 9, 2005, PROVIDED that if the
Executive fails to provide a Notice of Termination asserting Good
Reason within thirty (30) days of the commencement of new authorities,
duties or responsibilities or a new reporting relationship, the
Executive shall be deemed to have irrevocably waived the right to claim
Good Reason in respect of such new authority, duties or
responsibilities or reporting relationship."
3. Section 4(d)(iii) of the Agreement is hereby superseded and replaced in its
entirety as set forth below:
"(iii) Any breach by Cinergy or Duke Holding Corp. of any other
material provision of this Agreement; PROVIDED, HOWEVER, that if the
place of performance is changed to Charlotte, North Carolina [or
Houston, Texas], no breach of Section 2b hereof shall be deemed to have
occurred to the extent relating to the place of performance."
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4. Section 4(d) of the Agreement is hereby amended by adding the following new
subsection (vi) after Section 4(d)(v):
"(vi) The failure of Xxxxx X. Xxxxxx to continue to serve as Chief
Executive Officer of Duke Holding Corp. (other than as a result of the
death, disability or termination for cause of Xxxxx X. Xxxxxx or his
voluntary resignation without good reason under his employment
agreement)."
5. Section 8 of the Agreement is hereby amended by adding the following new
sentence as the penultimate sentence of Section 8:
"Notwithstanding the foregoing provisions of this Section 8, any
dispute that would otherwise be submitted to arbitration under this
Section 8 arising in connection with Section 4(d)(ii) shall be
arbitrated under this Section 8 by an independent nationally-recognized
human resources consulting firm mutually selected by the Company and
the Executive within 30 days following the Company's receipt of a
Notice of Termination from the Executive; PROVIDED that if the Company
and the Executive do not agree on a consulting firm to arbitrate within
such 30-day period, the American Arbitration Association shall select a
human resources consulting firm to arbitrate and any issue submitted
for arbitration pursuant to this Section 8 shall be adjudicated in the
state in which the Executive is employed by the Company or was employed
by the Company immediately preceding such claim, as the case may be."
6. Except as explicitly set forth herein, the Agreement will remain in full
force and effect.
IN WITNESS WHEREOF, the Executive and Cinergy have caused this
Amendment to the Agreement to be executed as of the date first specified above.
CINERGY SERVICES, INC.
By: _______________________________
Xxxxx X. Xxxxxx
Chairman and
Chief Executive Officer
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EXECUTIVE
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