EXHIBIT 10.2
PHANTOM STOCK AWARD
AGREEMENT
This Phantom Stock Award
Agreement (the “Agreement”) has been made as of
,
(the “Date of Grant”) between Duke Energy
Corporation , a Delaware corporation, with its principal
offices in Charlotte, North Carolina (the
“Corporation”), and James E. Rogers (the
“Grantee”).
RECITALS
The Corporation has entered into an
employment agreement with the Grantee dated February 19, 2009
(the “Employment Agreement”), pursuant to which it has
agreed to make certain equity-based awards to the Grantee,
including the award memorialized by this Agreement (the
“Award”). The Award memorialized by this
Agreement is made pursuant to the Duke Energy Corporation 2006
Long-Term Incentive Plan, as it may, from time to time, be further
amended (the “Plan”). The applicable provisions
of the Plan are incorporated in this Agreement by reference,
including the definitions of terms contained in the Plan (unless
such terms are otherwise defined herein).
AWARD
In accordance with the Plan and the
Employment Agreement, the Corporation has made this Award,
effective as of the Date of Grant and upon the following terms and
conditions:
Section 1
. Number and Nature of
Phantom Stock Units and Tandem Dividend Equivalents
. The number of Phantom Stock units and the number of
tandem Dividend Equivalents subject to this Award are each
.
Each Phantom Stock unit, 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 represents a right to receive cash payments equivalent
to the amount of cash dividends declared and paid on one
(1) share of Common Stock after the Date of Grant and before
the Dividend Equivalent expires. Phantom Stock units 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 Phantom
Stock Units . The specified percentage of the
Phantom Stock units subject to this Award, and not previously
forfeited, shall vest, with such percentage considered satisfied to
the extent such Phantom Stock units have previously vested, as
follows:
(a)
Upon Grantee remaining continuously employed by the Corporation,
including Subsidiaries, from the Date of Grant through the Vesting
Date,
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Vesting Date
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(i)
For purposes of vesting under this Section 2(a), if such
employment terminates as a result of termination of such employment
(1) by the Corporation without “Cause” (as defined
in the Employment Agreement) or (2) by the Grantee with
“Good Reason” (as defined in the Employment Agreement)
or (3) by reason of retirement of the Grantee with approval of
the Board of Directors of the Corporation (the
“Board”), subject to the timely execution and
non-revocation of a release of claims as described in the
Employment Agreement, each Phantom Stock unit subject to this
Award, which unit has not previously been forfeited or vested,
shall continue to vest under this Section 2(a) as if
Grantee’s employment had not been terminated
(ii)
If such employment terminates (1) as the result of
Grantee’s death or (2) as the result of Grantee’s
disability (meaning any physical or mental illness or injury that
precludes Grantee from performing any job for which he is qualified
and able to perform based upon his education, training or
experience), subject to the timely execution and non-revocation of
a release of claims as further described in the Employment
Agreement, each Phantom Stock unit subject to this Award, which
unit has not previously been forfeited or vested, immediately shall
become fully vested.
(iii)
If such employment terminates as a result of termination of such
employment (1) by the Employee other than with “Good
Reason” (as defined in the Employment Agreement) and other
than by reason of retirement with the approval of the Board or
(2) by the Corporation for “Cause” (as defined in
the Employment Agreement), each Phantom Stock unit subject to this
Award, which unit has not previously been forfeited or vested,
shall expire and be forfeited immediately.
(iv)
In the event that at a time when vesting would otherwise occur
under this Section 2(a), Grantee is on an employer-approved,
personal leave of absence, 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 January 15 of
the calendar year immediately following the calendar year in which
occurs the Date of Grant. In the event Grantee does not
return to active service from such leave of absence prior to such
January 15, any Phantom Stock units covered by this Award that
were not vested as of the commencement of such leave shall be
immediately forfeited (as if Grantee terminated employment for
purposes of Section 4 hereof).
(b)
If, following the occurrence of a Change in Control (as defined in
the Plan as in effect on the effective date of the Employment
Agreement) and before vesting or forfeiture, such employment is
terminated (1) by the Corporation without “Cause”
(as defined in the Employment Agreement), (2) by the Grantee
with “Good Reason” (as defined in the Employment
Agreement) or (3) by reason of retirement of the Grantee with
the approval of the Board, each Phantom Stock unit subject to this
Award, which unit has not previously been forfeited or vested,
immediately shall become fully vested.
2
Section 3
. Grantee Obligation
under Employment Agreement . Grantee acknowledges
that this Award is subject to Grantee’s obligations under the
confidentiality, noncompetition and nonsolicitation provisions set
forth in Section 9 of the Employment Agreement.
Section 4
.
Forfeiture/Expiration . Any Phantom Stock unit
subject to this Award shall be forfeited and expire upon the
termination of Grantee’s continuous employment by the
Corporation, including Subsidiaries, from the Date of Grant, except
to the extent otherwise provided in Section 2. Any
Dividend Equivalent subject to this Award shall expire at the time
the unit of Phantom Stock with respect to which the Dividend
Equivalent is in tandem (i)&nbs
