8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 26, 2008

DUKE ENERGY CORPORATION

(Exact Name of Registrant as Specified in its Charter)

Delaware	001-32853	20-2777218
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

526 South Church Street, Charlotte, North Carolina  28202-1904

(Address of Principal Executive Offices, including Zip code)

(704) 594-6200

(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240. 13e-4(c))

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Section 409A Compliance

On August 26, 2008, Duke Energy Corporation (the “Company”) amended certain executive compensation arrangements for its named executive officers to make changes in connection with Section 409A of the Internal Revenue Code of 1986, as amended.  These amendments generally are technical in nature and affect the timing, but not the amount, of compensation that could be received by the named executive officers.  The more significant of these amendments are as follows:

·The Executive Savings Plan was amended, with respect to deferrals after 2004, to provide participants, including the Company’s named executive officers, with a transition election to receive a single payment of those deferrals in 2009.

·The Executive Cash Balance Plan was amended and restated, with respect to amounts earned and vested after 2004, to (i) impose a six-month delay on payments upon separation from service, and (ii) allow participants to make or change their payment form elections (i.e., lump sum or installments).

·Mr. James E. Rogers’ employment agreement and Deferred Compensation Agreement, as well as the Change in Control Agreements for Messrs. David L. Hauser, Marc E. Manly and James L. Turner, were amended to (i) impose a six-month delay on payments upon separation from service, (ii) with respect to the Change in Control Agreements and Mr. Rogers’ employment agreement, provide interest on any delayed payments, calculated at the applicable Federal rate, and (iii) with respect to the Change in Control Agreements, require that the amount of the potential severance benefits thereunder be contributed to a rabbi trust immediately prior to the occurrence of a change in control.

·The performance share and phantom share awards previously granted to the Company’s named executive officers were amended to (i) impose a six-month delay on payments upon separation from service, and (ii) with respect to awards that are deferred, provide the Company with the discretion to either require the participant to submit the tax withholding amount or reduce the participant’s deferred compensation account by applicable tax withholdings.

The foregoing description of the amendments is qualified in its entirety by reference to the full text of the plans and agreements, as amended, which are filed herewith as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5, 10.6 and 10.7, and are incorporated herein by reference.

The Directors’ Savings Plan and outstanding phantom shares previously granted to the Company’s non-employee directors were also amended in connection with Section 409A and have been attached hereto as Exhibits 99.1 and 99.2

Termination of Executive Life Insurance Program

Messrs. Turner and Manly previously participated in the Cinergy Corp. Executive Life Insurance Program, which provided each with a benefit of $150,000 in the event of death while employed by the Company, and if either retired after attaining age 50 with five years of service, the benefit would have been paid in ten annual installments, each in the amount of $15,000.  The Company terminated this program with respect to Messrs. Turner and Manly effective August 26, 2008, such that no benefit will be provided to either individual under this program.

Security Program for Mr. Rogers

Due to the risks associated with his position and role with Duke Energy, and in response to a study performed by an independent security consultant, the Company will reimburse Mr. Rogers approximately $41,200 for the cost of certain upgrades to the security system at his personal residence.

Item 9.01.  Financial Statements and Exhibits

(d)            Exhibits.
	10.1	Amendment to Duke Energy Corporation Executive Savings Plan, effective as of August 26, 2008

10.2	Duke Energy Corporation Executive Cash Balance Plan, as Amended and Restated Effective August 26, 2008
10.3	Amendment to Employment Agreement with James E. Rogers, effective as of August 26, 2008
10.4	Form of Amended and Restated Change in Control Agreement, effective as of August 26, 2008
10.5	Amendment to Phantom Stock and Performance Awards with James E. Rogers, effective as of August 26, 2008
10.6	Amendment to Deferred Compensation Agreement with James E. Rogers, effective as of August 26, 2008
10.7	Amendment to Award Agreements pursuant to the Long-Term Incentive Plans (Employees), effective as of August 26, 2008
99.1	Amendment to Award Agreements pursuant to the Long-Term Incentive Plans (Directors), effective as of August 26, 2008
99.2	Amendment to Duke Energy Corporation Directors’ Savings Plan, effective as of August 26, 2008

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SIGNATURE

Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	DUKE ENERGY CORPORATION
Date: September 2, 2008	By:	/s/Steven K. Young
	Name:		Steven K. Young
	Title:		Senior Vice President and Controller

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EXHIBIT INDEX

Exhibit	Description
10.1	Amendment to Duke Energy Corporation Executive Savings Plan, effective as of August 26, 2008
10.2	Duke Energy Corporation Executive Cash Balance Plan, as Amended and Restated Effective August 26, 2008
10.3	Amendment to Employment Agreement with James E. Rogers, effective as of August 26, 2008
10.4	Form of Amended and Restated Change in Control Agreement, effective as of August 26, 2008
10.5	Amendment to Phantom Stock and Performance Awards with James E. Rogers, effective as of August 26, 2008
10.6	Amendment to Deferred Compensation Agreement with James E. Rogers, effective as of August 26, 2008
10.7	Amendment to Award Agreements pursuant to the Long-Term Incentive Plans (Employees), effective as of August 26, 2008
99.1	Amendment to Award Agreements pursuant to the Long-Term Incentive Plans (Directors), effective as of August 26, 2008
99.2	Amendment to Duke Energy Corporation Directors’ Savings Plan, effective as of August 26, 2008

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EX-10.1

Exhibit 10.1

AMENDMENT TO
DUKE ENERGY CORPORATION
EXECUTIVE SAVINGS PLAN
(as Amended and Restated Effective as of January 1, 2008)

The Duke Energy Corporation Executive Savings Plan (as Amended and Restated Effective as of January 1, 2008) (the “Plan”) is amended, effective August 26, 2008, as follows:

1.            Sections 7.10 and 7.11 of the Plan are hereby superseded and replaced in their entirety as set forth below:

“7.10    Transition Relief for Payment Elections – Post-2004 Deferrals.  With respect to Post-2004 Deferrals, a Participant designated by the Committee may, no later than a date specified by the Committee (provided that such date occurs no later than December 31, 2008 or such other date as permitted under Section 409A of the Code) elect on a form provided by the Committee to (a) change the date of payment of his or her Subaccounts to a date otherwise permitted for that Subaccount under the Plan; (b) change the form of payment of his or her Subaccounts to a form of payment otherwise permitted for that Subaccount under the Plan; or (c) receive payment of all or a designated portion of one or more of his or her Subaccounts in a single lump sum on a date in 2009 designated by the Committee.  The Committee may also take any action that it deems necessary, in its sole discretion, to amend prior Deferral Elections or payment elections of a Participant, without the Participant’s consent, to conform such elections to the terms of this Plan.  This Section is intended to comply with Notice 2007-86, any subsequent notice or guidance, and the applicable proposed and final Treasury Regulations issued under Section 409A of the Code and shall be interpreted in a manner consistent with such intent.

7.11         Mandatory Six-Month Delay – Post-2004 Deferrals.  Except as otherwise provided in Sections 7.12(a) and (b), with respect to any Participant who is a Specified Employee as of his or her Separation from Service, the payment of Post-2004 Deferrals that are otherwise payable pursuant to the Participant’s Separation from Service shall commence within 60 days after the first business day of the seventh month following such Separation from Service (or if earlier, upon the Participant’s death).”

2.            Except as explicitly set forth herein, the Plan will remain in full force and effect.

This amendment has been executed by an authorized officer of Duke Energy Corporation on August 29, 2008.

DUKE ENERGY CORPORATION
By:	/s/Marc E. Manly
	Marc E. Manly
	Group Executive & Chief Legal Officer

EX-10.2

Exhibit 10.2

DUKE ENERGY CORPORATION
EXECUTIVE CASH BALANCE PLAN

As Amended and Restated Effective August 26, 2008

ARTICLE I
PURPOSE OF PLAN

The purpose of the Duke Energy Corporation Executive Cash Balance Plan (the “Plan”) is to provide additional retirement benefits for a select group of management or highly compensated employees.  The Plan originally was effective as of January 1, 1997 and was amended thereafter from time to time.  Effective January 1, 1999, the Plan replaced the PanEnergy Corp Key Executive Retirement Benefit Equalization Plan and all benefits provided thereunder were provided in accordance with the terms set forth herein.  The Plan is intended to be a non-qualified, unfunded plan of deferred compensation for a select group of management or highly compensated employees under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and shall be so interpreted and administered.  Effective August 26, 2008, the Plan is hereby amended and restated in its entirety, as set forth herein, in order to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).

The Plan is divided into two separate parts, one of which shall be referred to herein as “Part I” and the other shall be referred to herein as “Part II.”  Any “amounts deferred” in taxable years beginning before January 1, 2005 (within the meaning of Section 409A of the Code) and any earnings thereon shall be governed by the terms of Part I of the Plan, as set forth herein.  It is intended that such amounts and the earnings thereon shall be exempt from the application of Section 409A of the Code.  Nothing contained herein is intended to materially enhance a benefit or right existing under Part I of the Plan as of October 3, 2004, or add a new material benefit or right to Part I of the Plan.  As of January 1, 2005 (“Effective Date”), Part I of the Plan is frozen, and neither the Company, its affiliates nor any individual shall make or permit to be made any additional contributions or deferrals under Part I of the Plan (other than earnings) on or after that date.

Any “amounts deferred” in taxable years beginning on or after January 1, 2005 (within the meaning of Section 409A of the Code) and any earnings thereon shall be governed by the terms and conditions of Part II of the Plan, as set forth herein.  To the extent that any of those amounts were credited under the Plan prior to the Effective Date (the “Transferred Amounts”), then the Committee shall transfer the Transferred Amounts from Part I of the Plan to Part II of the Plan and credit those amounts to the appropriate bookkeeping accounts under Part II of this Plan, as selected by the Committee in its sole discretion.  As a result of such transfer and crediting, all of the Company’s obligations and Participant’s rights with respect to the Transferred Amounts under Part I of the Plan, if any, shall automatically be extinguished and become obligations and rights under Part II of this Plan without further action.

ARTICLE II
DEFINITIONS

Wherever used herein, a pronoun or adjective in the masculine gender includes the feminine gender, the singular includes the plural, and the following terms have the following meanings unless a different meaning is clearly required by the context:

2.1“Affiliated Group” shall mean the Company and all entities with whom the Company would be considered a single employer under Sections 414(b) and 414(c) of the Code, provided that in applying Section 1563(a)(1), (2), and (3) for purposes of determining a controlled group of corporations under Section 414(b) of the Code, the term “at least 45 percent” is used instead of “at least 80 percent” each place it appears in Code Section 1563(a)(1), (2), and (3), and in applying Treasury Regulation Section 1.414(c)-2 for purposes of determining trades or businesses (whether or not incorporated) that are under common control for purposes of Section 414(c), the term “at least 45 percent” is used instead of “at least 80 percent” each place it appears in that regulation.  Such term shall be interpreted in a manner consistent with the definition of “service recipient” contained in Section 409A of the Code.

2.2“Beneficiary” means the person or persons designated by a Participant, or by another person entitled to receive benefits hereunder, to receive benefits following the death of such person.

2.3“Board of Directors” means the Board of Directors of Duke Energy Corporation.

2.4“Change in Control” shall be deemed to have occurred upon:

(a)an acquisition subsequent to the Effective Date hereof by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the then outstanding shares of common stock of Duke Energy Corporation or (B) the combined voting power of the then outstanding voting securities of Duke Energy Corporation entitled to vote generally in the election of directors; excluding, however, the following: (1) any acquisition directly from Duke Energy Corporation, other than an acquisition by virtue of the exercise of a conversion privilege unless the security being so converted was itself acquired directly from Duke Energy Corporation, (2) any acquisition by Duke Energy Corporation and (3) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Duke Energy Corporation or its affiliated companies;

(b)during any period of two (2) consecutive years (not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Board of Directors (and any new directors whose election by the Board of Directors or nomination for election by the Duke Energy Corporation’s shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was so approved) cease for any reason (except for death, disability or voluntary retirement) to constitute a majority thereof;

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(c)the consummation of a merger, consolidation, reorganization or similar corporate transaction, which has been approved by the shareholders of Duke Energy Corporation, whether or not Duke Energy Corporation is the surviving corporation in such transaction, other than a merger, consolidation, or reorganization that would result in the voting securities of Duke Energy Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the combined voting power of the voting securities of Duke Energy Corporation (or such surviving entity) outstanding immediately after such merger, consolidation or reorganization;

(d)the consummation of (A) the sale or other disposition of all or substantially all of the assets of Duke Energy Corporation or (B) a complete liquidation or dissolution of Duke Energy Corporation, which has been approved by the shareholders of Duke Energy Corporation; or

(e)adoption by the Board of Directors of a resolution to the effect that any Person has acquired effective control of the business and affairs of Duke Energy Corporation.

2.5“Code” means the Internal Revenue Code of 1986, as amended.

2.6“Committee” means the Compensation Committee of the Board of Directors or its delegate.

2.7“Company” means Duke Energy Corporation and its affiliated companies.

2.8“Compensation” means “Compensation” as defined in the Retirement Cash Balance Plan but without regard to the limitations of Code Section 401(a)(17) and including Employee deferrals (except for deferrals of long-term incentive awards) under the Duke Energy Corporation Executive Savings Plan.

2.9“Employee” means a person employed by the Affiliated Group.

2.10“Equalization Plan” means the PanEnergy Corp Key Executive Retirement Benefit Equalization Plan as it existed on December 31, 1998.

2.11“Interest Credit” means an amount credited pursuant to Section 4.4 of the Plan.

2.12“Interest Factor” means the interest rate determined by the formula (1 + i), raised to the one-twelfth (1/12^th) power, minus one (1), where “i” equals the yield on 30-year Treasury Bonds as published in the Federal Reserve Statistical Release H.15 for the end of the third full business week of the month prior to the beginning of the calendar quarter for which the monthly accrual is being applied, but not more than an annual percentage rate of nine percent (9%) and not less than an annual percentage rate of four percent (4%).

2.13“Make-Whole Benefit” means the benefit provided pursuant to Section 4.2 of the Plan.

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2.14“Participant” means an Employee who is entitled to receive benefits from the Plan.

2.15“Part I” and “Part II” of the Plan are defined in Article I.

2.16“Pay Credit” means a credit that is added to a Participant’s Make-Whole Account pursuant to Section 4.2.

2.17“Plan” means the Duke Energy Corporation Executive Cash Balance Plan.

2.18“Retirement Cash Balance Plan” means (i) for purposes of Part I, the Duke Energy Retirement Cash Balance Plan as in effect on October 3, 2004, without giving effect to amendments adopted thereafter, and (ii) for purposes of Part II, the Duke Energy Retirement Cash Balance Plan as in effect from time to time.

2.19“Separation from Service” shall mean a termination of employment with the Affiliated Group in such a manner as to constitute a “separation from service” as defined under Section 409A of the Code.  To the extent permitted by Section 409A of the Code, the Committee retains discretion, in the event of a sale or other disposition of assets, to specify whether a Participant who provides services to the purchaser immediately after the transaction has incurred a Separation from Service.

2.20“Specified Employee” shall mean, as of any date, a “specified employee”, as defined in Section 409A of the Code (as determined under the Company’s policy for identifying specified employees on the relevant date), of the Company or any entity which would be considered to be a single employer with the Company under Section 414(b) or Section 414(c) of the Code.

2.21“Supplemental Credit” means a credit that is added to a Participant’s Supplemental Account pursuant to Section 4.3.

2.22“Supplemental Benefit” means the benefit provided under Section 4.3 of the Plan.

2.23“Supplemental Retirement Plan” means the Supplemental Retirement Plan for Employees of Duke Power Company as it existed on December 31, 1996.

2.24“Supplemental Security Plan” means the Duke Power Company Supplemental Security Plan as it existed on December 31, 1996.

ARTICLE III
ELIGIBILITY

3.1General Rule.  Any Employee designated by the Committee shall be eligible to participate in the Plan and shall remain eligible as long as he continues to be an Employee or until designated ineligible by the Committee.  Notwithstanding the foregoing, an Employee who is not a member of a “select group of management or highly compensated employees” within the meaning of ERISA, may not participate in the Plan.  Participants shall not receive any benefits

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under the terms of the Supplemental Retirement Plan, the Supplemental Security Plan or the Equalization Plan.

3.2Former Employees.  Former Employees, (i) whose Company employment terminated before January 1, 1997, and who had accrued benefits under the Supplemental Retirement Plan or Supplemental Security Plan, or (ii) whose Company employment terminated before January 1, 1999, and who had accrued benefits under the Equalization Plan, will receive payment, or will continue to receive payment, of such benefits under the terms of such plans.  Such former Employees will not participate in this Plan.

ARTICLE IV
BENEFITS

4.1General Rule.  The Plan provides a Make-Whole Benefit and may provide a Supplemental Benefit.  Each Participant shall have a Make-Whole Account, which is a bookkeeping account established under this Plan and shall be eligible for a Make-Whole Benefit.  The Committee will determine whether a Participant is to be eligible for a Supplemental Benefit, in which case a “Supplemental Account,” which is a bookkeeping account, shall be established.

4.2Pay Credits to the Make-Whole Account.  Under the Make-Whole Benefit, for any month that a Participant is eligible to participate in this Plan, the Participant’s Make-Whole Account shall receive a Pay Credit equal to the excess, if any, of (a) the pay credit that would have been provided under the Retirement Cash Balance Plan for the month if the Retirement Cash Balance Plan used the definition of Compensation set forth herein and, to the extent determined by the Committee from time to time, other types of excluded pay were treated as eligible compensation under such Plan; over (b) the pay credit for the month that is actually made to the Participant’s account under the Retirement Cash Balance Plan.  A Participant, while “Disabled” as defined in the Retirement Cash Balance Plan and continuing to receive pay credits to the Participant’s account under the Retirement Cash Balance Plan, shall continue to receive Pay Credits to the Participant’s Make-Whole Account determined on the same basis as his continued pay credits under the Retirement Cash Balance Plan, and based upon his eligible Compensation.  In addition, the Make-Whole Benefit provides a Pay Credit to the Participant’s Make-Whole Account equal to any reduction in a benefit under the Retirement Cash Balance Plan resulting from the limitations imposed by Section 415 of the Code.  Where an opening account balance under the Retirement Cash Balance Plan has been established for a Participant, the Committee, in its sole discretion, may establish an opening balance for the Participant’s Make-Whole Account that is designed to provide a transition benefit comparable to the benefit provided through the Retirement Cash Balance Plan opening account balance, but without regard to the limitations imposed by Sections 401(a)(17) or 415 of the Code.  If the value of the benefit which a vested Participant had accrued under the Supplemental Retirement Plan as of December 31, 1996, is greater than the value of the Participant’s Make-Whole Account on the date the Participant retires, such higher value shall apply.

4.3Supplemental Credits.  A Participant’s Supplemental Account shall receive such Supplemental Credits, in such amounts and at such times, as the Committee, in its sole discretion, may determine.  Supplemental Credits may include, but are not limited to, an opening account balance or a one-time credit in recognition of the December 31, 1998, discontinuance of

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supplemental pay credits.  Notwithstanding Sections 4.3 and 4.4 to the contrary, the Minimum Benefit feature of Section 4.3(e) of the Plan, as in effect prior to January 1, 1999, is preserved herein and incorporated by reference.

4.4Interest Credits.  An Interest Credit will be added to a Participant’s Make-Whole Account and to a Participant’s Supplemental Account as of the end of each calendar month ending prior to the month in which the respective account is fully distributed or forfeited.  The amount of the Interest Credit for a month will equal the balance of the respective account as of the end of the prior month (after adding any Pay Credit, Supplemental Credit and Interest Credit for the prior month and subtracting any payment or forfeiture for the prior month) multiplied by the Interest Factor for the month.  Notwithstanding the foregoing, and for purposes of Part I only, Interest Credits to the Supplemental Account of a Participant whose employment with the Company terminates before attaining the earliest retirement age under the Retirement Cash Balance Plan will be suspended beginning with the month during which employment terminates and will not resume until the month following the month during which payment of the Supplemental Benefit commences.

ARTICLE V
VESTING

5.1General Rule.  Unless the Committee provides otherwise for a particular Participant at the time the Participant initially becomes eligible to participate in the Plan or at the time of an award of a particular Supplemental Credit (and any Interest Credits thereto), a Participant will become fully vested in the Participant’s Make-Whole Account and the Participant’s Supplemental Account, if any, when (i) the Participant becomes vested under the Retirement Cash Balance Plan, or (ii) the Participant’s employment with the Company terminates on account of the Participant’s death or the Participant having become “Disabled”, as defined in the Retirement Cash Balance Plan.  If a Participant’s employment with the Company terminates and the Participant is not fully vested, the unvested portion of the Participant’s Make-Whole Account and of the Participant’s Supplemental Account, if any, shall be immediately forfeited and no benefit under the Plan shall be paid with respect thereto.

5.2Prior Supplemental Credits.  Notwithstanding the foregoing, any one-time Supplemental Credit to a Participant’s Supplemental Account that is made in recognition of the December 31, 1998 discontinuance of supplemental pay credit, and any Interest Credits thereon, shall not vest, and shall be forfeited if the Participant’s employment with the Company terminates before January 1, 2004, unless such employment termination is on account of the Participant’s retirement under the Retirement Cash Balance Plan, death, or the Participant having become “Disabled,” as defined in the Retirement Cash Balance Plan, or unless such employment termination is by the Company other than for “cause”.  The Company shall have “cause” to terminate the Participant’s employment upon (a) the willful and continued failure by the Participant to substantially perform his employment duties (other than any such failure resulting from the Participant’s incapacity due to physical or mental illness) after demand for substantial performance is delivered by the Company, specifically identifying the manner in which the Company believes the Participant has not substantially performed his duties, or (b) the willful engaging by the Participant in misconduct which is materially injurious to the Company, monetarily or otherwise.  For purposes of this Section, no act, or failure to act, on the

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Participant’s part shall be considered “willful” unless done, or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interest of the Company.

5.3Change in Control.  In the event of a Change in Control, all Participant accounts under the Plan shall become fully and immediately vested and non-forfeitable and shall thereafter be maintained and paid in accordance with the terms of this Plan.

ARTICLE VI
PAYMENT OF BENEFITS

6.1(a)Timing of Payments Under Part I.  For purposes of Part I of the Plan, a Participant whose Company employment terminates prior to the Participant’s earliest retirement age under the Retirement Cash Balance Plan will receive, or will begin to receive, payment of his vested Make-Whole Account and his vested Supplemental Account, if any, as soon as administratively feasible following the month in which the Participant attains age 55.  A Participant whose Company employment terminates after the Participant’s earliest retirement age under the Retirement Cash Balance Plan will receive, or will begin to receive, payment of his vested Make-Whole Account and his vested Supplemental Account, if any, as soon as administratively feasible following the month in which the Participant’s employment terminates.  However, a Participant, while “Disabled” (as defined in the Retirement Cash Balance Plan) and continuing to receive pay credits to the Participant’s account under the Retirement Cash Balance Plan, shall not receive payment of benefits during the period the Participant receives such pay credits.  Any other Participant whose Company employment terminates and whose Make-Whole Account and Supplemental Account, if any, have a combined balance, as of the last day of the month during which employment terminated, of less than $25,000, will receive payment of his vested Make-Whole Account and his vested Supplemental Account, if any, in a single sum, as soon as administratively feasible following the month in which the Participant’s employment with the Company terminates.

6.1(b)Timing of Payments Under Part II.  For purposes of Part II of the Plan, and subject to Section 6.5, a Participant whose Company employment terminates on or after December 31, 2006 will receive, or will begin to receive, payment of his vested Make-Whole Account and his vested Supplemental Account, if any, within 60 days after Separation from Service.

6.2(a)(1)Election of Form of Benefit Under Part I.  With respect to Part I of the Plan, each Participant has been provided the opportunity to elect from among the forms of benefit payment specified in Section 6.2(b)(1) the manner in which such Participant’s vested Make-Whole Account and his vested Supplemental Account, if any, shall be paid.  A Participant may change his form of benefit payment election under Part I of the Plan at any time, and from time to time, by completing such form as the Committee provides and filing the completed form with the Committee.  No such change shall become effective unless and until the Participant has continued in employment with the Company for at least one year from the date on which the Committee receives notification of the change.

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6.2(a)(2)Election of Form of Benefit Under Part II.  With respect to Part II of the Plan, no later than December 31, 2008 (or such earlier date set by the Committee), each Participant must elect from among the forms of benefit payment specified in Section 6.2(b)(2) the manner in which such Participant’s vested Make-Whole Account and his vested Supplemental Account, if any, shall be paid.  The election described in this Section 6.2(a)(2) shall be subject to such terms and conditions as the Committee may specify in its sole discretion and shall be consistent with the terms of Notice 2007-86 and the applicable proposed and final Treasury Regulations issued under Section 409A of the Code.  To the extent that a Participant does not designate the manner in which such Participant’s vested Make-Whole Account and his vested Supplemental Account, if any, shall be paid as provided in this Section 6.2(a)(2) (or such designation does not comply with the terms of Part II of the Plan), such accounts shall be paid in a single lump sum.  Notwithstanding anything contained in the Plan to the contrary, except Section 6.2(d), or any other plan, policy, practice or program, contract or agreement with the Company or the Affiliated Group (unless otherwise specifically provided therein in a specific reference to this Plan), a Participant who becomes eligible to participate in the Plan after December 31, 2008 shall have no right to choose a form of payment for his accounts, and, instead, his vested Make-Whole Account and his vested Supplemental Account, if any, shall be paid in a single lump sum.

6.2(b)(1)Forms of Benefit Under Part I.  The forms of benefit payment available under Part I of the Plan are:

(A)single lump sum payment;
(B)monthly payments for three years;
(C)monthly payments for ten years; and
(D)monthly payments for fifteen years.

At such time as benefits under the Plan become payable with respect to a Participant, such benefits shall be paid in accordance with the benefit payment form then in effect unless otherwise expressly provided by the Plan.

6.2(b)(2)Forms of Benefit Under Part II.  The forms of benefit payment available under Part II of the Plan are:

(A)single lump sum payment;
(B)monthly payments for two to ten years; and
(C)monthly payments for fifteen years.

At such time as benefits under the Plan become payable with respect to a Participant, such benefits shall be paid in accordance with the benefit payment form then in effect unless otherwise expressly provided by the Plan.

6.2(c)Calculation of Installment Payments.  In the event of monthly installment payments, the amount of the payment for a particular month shall be calculated as follows:

Monthly amount	=	V
		N

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where

Nrepresents the number of months remaining in the payment term and

Vrepresents the sum of the balance of the Participant’s Make-Whole Account and the balance of the Participant’s Supplemental Account, if any, determined as of the end of the prior month after adding any Pay Credits, Supplemental Credits and Interest Credits for the prior month and subtracting any payment or forfeiture for the prior month.

6.2(d)Forms of Benefit – Supplemental Account.  Notwithstanding any other provision of the Plan, prior to making a Supplemental Credit, the Committee may provide that the portion of the Participant’s vested Supplemental Account that is attributable to such Supplemental Credit shall be distributed in any benefit payment form specified in advance by the Committee.

6.3Payments in Cash.  Any benefit payment due under the Plan shall be paid in cash.

6.4Financial Hardship.  Upon written request by a Participant, the Committee may distribute to a Participant who is receiving a monthly payment form of distribution, such amount of the remaining balance of the Participant’s vested Make-Whole Account and vested Supplemental Account, if any, which the Committee determines is necessary to provide for a financial hardship suffered by the Participant.  For purposes of Part I of the Plan, the term “financial hardship” shall mean a severe financial hardship as determined under federal income tax law, regulations and rulings which are applicable to non-qualified deferred compensation plans.  For purposes of Part II of the Plan, the term “financial hardship” shall mean an “unforeseeable emergency” as defined under Section 409A of the Code.  Payment shall be made within 60 days following the determination that a withdrawal shall be permitted under this Section, or such later date as may be required under Section 6.5.

6.5Mandatory Six-Month Delay Under Part II.  Except as otherwise provided in Sections 6.6(a) and (b), and to the extent required under Section 409A of the Code, with respect to any Participant who is a Specified Employee as of his or her Separation from Service, the payment of benefits from Part II of the Plan that are otherwise payable pursuant to the Participant’s Separation from Service shall commence within 60 days after the first business day of the seventh month following such Separation from Service (or if earlier, upon the Participant’s death).

6.6Discretionary Acceleration of Payment.  To the extent permitted by Section 409A of the Code, the Committee may, in its sole discretion, accelerate the time or schedule of a payment of benefits under Part II of the Plan as provided in this Section.  The provisions of this Section are intended to comply with the exception to accelerated payments under Treasury Regulation Section 1.409A-3(j) and shall be interpreted and administered accordingly.  Except as otherwise specifically provided in Part II of this Plan, the Committee may not accelerate the time or schedule of any payment or amount scheduled to be paid under the Plan within the meaning of Section 409A of the Code.

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(a)Domestic Relations Order.  The Committee may, in its sole discretion, accelerate the time or schedule of a payment under Part II of the Plan to an individual other than the Participant as may be necessary to fulfill a domestic relations order (as defined in Section 414(p)(1)(B) of the Code).

(b)Employment Taxes.  The Committee may, in its sole discretion, provide for the acceleration of the time or schedule of a payment under Part II of the Plan to pay the Federal Insurance Contributions Act (FICA) tax imposed under Sections 3101, 3121(a), and 3121(v)(2) of the Code, or the Railroad Retirement Act (RRTA) tax imposed under Sections 3201, 3211, 3231(e)(1), and 3231(e)(8) of the Code, where applicable, on compensation deferred under the Plan (the FICA or RRTA amount).  Additionally, the Committee may, in its sole discretion, provide for the acceleration of the time or schedule of a payment, to pay the income tax at source on wages imposed under Section 3401 of the Code or the corresponding withholding provisions of applicable state, local, or foreign tax laws as a result of the payment of the FICA or RRTA amount, and to pay the additional income tax at source on wages attributable to the pyramiding Section 3401 of the Code wages and taxes.  However, the total payment under this acceleration provision must not exceed the aggregate of the FICA or RRTA amount, and the income tax withholding related to such FICA or RRTA amount.

(c)Payment Upon Income Inclusion Under Section 409A.  Subject to Section 6.5 hereof, the Committee may, in its sole discretion, provide for the acceleration of the time or schedule of a payment under Part II of the Plan at any time the Plan fails to meet the requirements of Section 409A of the Code.  The payment may not exceed the amount required to be included in income as a result of the failure to comply with the requirements of Section 409A of the Code.

(d)Payment of State, Local, or Foreign Taxes.  Subject to Section 6.5 hereof, the Committee may, in its sole discretion, provide for the acceleration of the time or schedule of a payment under Part II of the Plan to reflect payment of state, local, or foreign tax obligations arising from participation in the Plan that apply to an amount deferred under Part II of the Plan before the amount is paid or made available to the Participant (the state, local, or foreign tax amount).  Such payment may not exceed the amount of such taxes due as a result of participation in the Plan.  The payment may be made in the form of withholding pursuant to provisions of applicable state, local, or foreign law or by payment directly to the participant.  Additionally, the Committee may, in its sole discretion, provide for the acceleration of the time or schedule of a payment under Part II of the Plan to pay the income tax at source on wages imposed under Section 3401 of the Code as a result of such payment and to pay the additional income tax at source on wages imposed under Section 3401 of the Code attributable to such additional wages and taxes.  However, the total payment under this acceleration provision must not exceed the aggregate of the state, local, and foreign tax amount, and the income tax withholding related to such state, local, and foreign tax amount.

(e)Certain Offsets.  Subject to Section 6.5 hereof, the Committee may, in its sole discretion, provide for the acceleration of the time or schedule of a payment under Part II of the Plan as satisfaction of a debt of the Participant to the Company (or any entity which would be considered to be a single employer with the Company under Section 414(b) or Section 414(c) of the Code), where such debt is incurred in the ordinary course of the service relationship between

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the Company (or any entity which would be considered to be a single employer with the Company under Section 414(b) or Section 414(c) of the Code) and the Participant, the entire amount of reduction in any of the taxable years of the Company (or any entity which would be considered to be a single employer with the Company under Section 414(b) or Section 414(c) of the Code) does not exceed $5,000, and the reduction is made at the same time and in the same amount as the debt otherwise would have been due and collected from the Participant.

(f)Bona Fide Disputes as to a Right to a Payment.  Subject to Section 6.5 hereof, the Committee may, in its sole discretion, provide for the acceleration of the time or schedule of a payment under Part II of the Plan where such payments occur as part of a settlement between the Participant and the Company (or any entity which would be considered to be a single employer with the Company under Section 414(b) or Section 414(c) of the Code) of an arm’s length, bona fide dispute as to the Participant’s right to the deferred amount.

(g)Other Events and Conditions.  Subject to Section 6.5 hereof, a payment may be accelerated upon such other events and conditions as the Internal Revenue Service may prescribe in generally applicable guidance published in the Internal Revenue Bulletin.

6.7Delay of Payments.  To the extent permitted under Section 409A of the Code, the Committee may, in its sole discretion, delay payment of benefits under Part II of the Plan under any of the following circumstances, provided that the Committee treats all payments to similarly situated Participants on a reasonably consistent basis:

(a)Payments Subject to Section 162(m).  A payment may be delayed to the extent that the Committee reasonably anticipates that if the payment were made as scheduled, the Company’s deduction with respect to such payment would not be permitted due to the application of Section 162(m) of the Code.  If a payment is delayed pursuant to this Section, then the payment must be made either (i) during the Company’s first taxable year in which the Committee reasonably anticipates, or should reasonably anticipate, that if the payment is made during such year, the deduction of such payment will not be barred by application of Section 162(m) of the Code, or (ii) during the period beginning with the first business day of the seventh month following the Participant’s Separation from Service (the “six month anniversary”) and ending on the later of (x) the last day of the taxable year of the Company in which the six month anniversary occurs or (y) the 15th day of the third month following the six month anniversary.  Where any scheduled payment to a specific Participant in a Company’s taxable year is delayed in accordance with this paragraph, all scheduled payments to that Participant that could be delayed in accordance with this paragraph must also be delayed.  The Committee may not provide the Participant an election with respect to the timing of the payment under this Section.  For purposes of this Section, the term Company includes any entity which would be considered to be a single employer with the Company under Section 414(b) or Section 414(c) of the Code.

(b)Federal Securities Laws or Other Applicable Laws.  A payment may be delayed where the Committee reasonably anticipates that the making of the payment will violate federal securities laws or other applicable law; provided that the delayed payment is made at the earliest date at which the Committee reasonably anticipates that the making of the payment will not cause such violation.  For purposes of the preceding sentence, the making of a payment that

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would cause inclusion in gross income or the application of any penalty provision or other provision of the Code is not treated as a violation of applicable law.

(c)Other Events and Conditions.  A payment may be delayed upon such other events and conditions as the Internal Revenue Service may prescribe in generally applicable guidance published in the Internal Revenue Bulletin.

6.8Actual Date of Payment.  If calculation of the amount of the payment under Part II of the Plan is not administratively practicable due to events beyond the control of the Participant (or Beneficiary), the payment will be treated as made upon the date specified under Part II of the Plan if the payment is made during the first calendar year in which the calculation of the amount of the payment is administratively practicable.  Notwithstanding the foregoing, payment must be made no later than the latest possible date permitted under Section 409A of the Code.  Moreover, notwithstanding any other provision of this Plan to the contrary except Section 6.5, and to the extent permitted by Section 409A of the Code, a payment will be treated as made upon the date specified under Part II of the Plan if the payment is made as close as administratively practicable to the relevant payment date specified herein, and in any event within the same calendar year.

ARTICLE VII
DEATH BENEFITS

7.1Designation of Beneficiary.  Upon a Participant’s death, any remaining balance of a Participant’s vested Make-Whole Account and vested Supplemental Account shall be paid to the Participant’s Beneficiary as a death benefit.  The Committee will provide each Participant with a form to be completed and filed with the Committee whereby the Participant may designate a Beneficiary.

7.2Failure to Designate a Beneficiary.  If the Participant does not designate a Beneficiary, or if the Beneficiary who is designated should predecease the Participant, the death benefit for a deceased Participant shall be paid to the estate of the Participant, as the Participant’s Beneficiary.

7.3Death Prior to Commencement of Payment.  If a Participant should die while still employed by the Company or otherwise before payment of any Plan benefits has commenced, payments of any death benefit shall be made to the Participant’s Beneficiary in the same benefit payment form elected by the Participant, or otherwise required, under Section 6.2.  Notwithstanding the foregoing, with respect to Part I of the Plan only:  (i) if the Beneficiary is the estate, then the death benefit shall be paid in a single lump sum, and (ii) if the death benefit is less than $25,000, the death benefit shall be paid to the Participant’s Beneficiary in a single lump sum.

7.4Death After Commencement of Payment.  If a Participant should die after payment of Plan benefits has commenced, payment of any death benefit will be made to the Participant’s Beneficiary as a continuation of the benefit payment form that had been in effect for the Participant.  Notwithstanding the foregoing, with respect to Part I of the Plan only, if the Beneficiary is the estate, then the death benefit shall be paid in a single lump sum.

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7.5Death Benefit for Certain Participants.  If an Employee who was an active participant in the Supplemental Security Plan on December 31, 1996, should die while still employed by the Company, the portion of the death benefit attributable to the Employee’s Supplemental Account, determined after taking into account other death benefits attributable to the elimination of the Supplemental Security Plan, shall not be less than the amount determined by multiplying two point five (2.5) times the annualized base rate of pay of the Employee on the date of death.

ARTICLE VIII
AMENDMENT AND TERMINATION

The Committee retains the sole and unilateral right to terminate, amend, modify or supplement this Plan, in whole or in part, at anytime.  The Committee may delegate the right to amend the Plan, subject to any limitations it may impose, to an officer of the Company.  No such action shall adversely affect a Participant’s right to receive amounts then credited to a Participant’s account with respect to events occurring prior to the date of such amendment.  With respect to Part II of the Plan, subject to Section 6.5 hereof, the Committee may, in its sole discretion to the extent permitted in Section 409A of the Code, provide for the acceleration of the time or schedule of a payment under the Plan upon the termination of the Plan.  In the event of a Change in Control, the Plan shall become irrevocable and may not be amended or terminated without the written consent of each Plan Participant who may be affected in any way by such amendment or termination either at the time of such action or at any time thereafter.  This restriction in the event of a Change in Control shall be determined by reference to the date any amendment or resolution terminating the Plan is actually signed by an authorized party rather than the date such action purports to be effective.

ARTICLE IX
ADMINISTRATION

9.1Top Hat Plan.  The Company intends for the Plan to be an unfunded “top-hat” plan for a select group of management or highly compensated employees which is exempt from substantially all of the requirements of Title I of ERISA pursuant to Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA.  The Company is the Plan sponsor under Section 3(16)(B) of ERISA.

9.2Plan Administrator.  The Committee shall have the authority to control and manage the operation and administration of the Plan except as otherwise expressly provided in this Plan document.  The Committee may designate other persons to carry out fiduciary responsibilities under the Plan.  The Committee is the administrator of the Plan within the meaning Section 3(16)(A) of ERISA.  As administrator, the Committee has the authority (without limitation as to other authority) to delegate its duties to agents and to make rules and regulations that it believes are necessary or appropriate to carry out the Plan.  The Committee has the discretion (i) to interpret and construe the terms and provisions of the Plan (including any rules or regulations adopted under the Plan), (ii) to determine questions of eligibility to participate in the Plan and (iii) to make factual determinations in connection with any of the foregoing.  A decision of the Committee with respect to any matter pertaining to the Plan including without limitation the Employees determined to be Participants, the benefits payable, and the construction or interpretation of any provision thereof, shall be conclusive and binding

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upon all interested persons.  Benefits under the Plan shall be paid only if the Committee decides in its discretion that the applicant is entitled to benefits under the Plan.

ARTICLE X
CLAIMS PROCEDURE

10.1Claim.  A person with an interest in the Plan shall have the right to file a claim for benefits under the Plan and to appeal any denial of a claim for benefits.  Any request or application for a Plan benefit or to clarify the claimant’s rights to future benefits under the terms of the Plan shall be considered to be a claim.

10.2Written Claim.  A claim for benefits will be considered as having been made when submitted in writing by the claimant (or by such claimant’s authorized representative) to the Committee.  No particular form is required for the claim, but the written claim must identify the name of the claimant and describe generally the benefit to which the claimant believes he is entitled.  The claim may be delivered personally during normal business hours or mailed to the Committee.

10.3Committee Determination.  The Committee will determine whether, or to what extent, the claim may be allowed or denied under the terms of the Plan.  If the claim is wholly or partially denied, the claimant shall be so informed by written notice within 90 days after the day the claim is submitted unless special circumstances require an extension of time for processing the claim.  If such an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial 90-day period.  Such extension may not exceed an additional 90 days from the end of the initial 90-day period.  The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan expects to render the final decision.  If notice of denial of a claim (in whole or in part) is not furnished within the initial 90-day period after the claim is submitted (or, if applicable, the extended 90-day period), the claimant shall consider that his claim has been denied just as if he had received actual notice of denial.

10.4Notice of Determination.  The notice informing the claimant that his claim has been wholly or partially denied shall be written in a manner calculated to be understood by the claimant and shall include:

(1)The specific reason(s) for the denial.

(2)Specific reference to pertinent Plan provisions on which the denial is based.

(3)A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary.

(4)Appropriate information as to the steps to be taken if the claimant wishes to submit his claim for review.

10.5Appeal.  If the claim is wholly or partially denied, the claimant (or his authorized representative) may file an appeal of the denied claim with the Committee requesting that the claim be reviewed.  The Committee shall conduct a full and fair review of each appealed claim

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and its denial.  Unless the Committee notifies the claimant that due to the nature of the benefit and other attendant circumstances he is entitled to a greater period of time within which to submit his request for review of a denied claim, the claimant shall have 60 days after he (or his authorized representative) receives written notice of denial of his claim within which such request must be submitted to the Committee.

10.6Request for Review.  The request for review of a denied claim must be made in writing.  In connection with making such request, the claimant or his authorized representative may:

(1)Review pertinent documents.

(2)Submit issues and comments in writing.

10.7Determination of Appeal.  The decision of the Committee regarding the appeal shall be promptly given to the claimant in writing and shall normally be given no later than 60 days following the receipt of the request for review.  However, if special circumstances (for example, if the Committee decides to hold a hearing on the appeal) require a further extension of time for processing, the decision shall be rendered as soon as possible, but no later than 120 days after receipt of the request for review.  However, if the Committee holds regularly scheduled meetings at least quarterly, a decision on review shall be made by no later than the date of the meeting which immediately follows the Plan’s receipt of a request for review, unless the request is filed within 30 days preceding the date of such meeting.  In such case, a decision may be made by no later than the date of the second meeting following the Plan’s receipt of the request for review.  If special circumstances (for example, if the Committee decides to hold a hearing on the appeal) require a further extension of time for processing, the decision shall be rendered as soon as possible, but no later than the third meeting following the Plan’s receipt of the request for review. If special circumstances require that the decision will be made beyond the initial time for furnishing the decision, written notice of the extension shall be furnished to the claimant (or his authorized representative) prior to the commencement of the extension.  The decision on review shall be in writing and shall be furnished to the claimant or to his authorized representative within the appropriate time for the decision.

10.8Hearing.  The Committee may, in its sole discretion, decide to hold a hearing if it determines that a hearing is necessary or appropriate in order to make a full and fair review of the appealed claim.

10.9Decision.  The decision on review shall include specific reasons for the decision, written in a manner calculated to be understood by the claimant, as well as specific references to the pertinent Plan provisions on which the decision is based.

10.10Exhaustion of Appeals.  A person must exhaust his rights to file a claim and to request a review of the denial of his claim before bringing any civil action to recover benefits due to him under the terms of the Plan, to enforce his rights under the terms of the Plan, or to clarify his rights to future benefits under the terms of the Plan.

10.11Committee’s Authority.  The Committee shall exercise its responsibility and authority under this claims procedure as a fiduciary and, in such capacity, shall have the

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discretionary authority and responsibility (1) to interpret and construe the Plan and any rules or regulations under the Plan, (2) to determine the eligibility of Employees to participate in the Plan, and the rights of Participants to receive benefits under the Plan, and (3) to make factual determinations in connection with any of the foregoing.  Benefits under the Plan shall be paid only if the Committee decides in its discretion that the applicant is entitled to benefits under the Plan.

10.12Civil Action.  Any civil action brought with respect to a decision of the Committee on review shall be brought within one year of the mailing of the written decision to the claimant.

ARTICLE XI
NATURE OF COMPANY’S OBLIGATION

11.1Nature of Obligation.  The Company’s obligation to the Participant under this Plan shall be an unfunded and unsecured promise to pay.  The rights of a Participant or Beneficiary under this Plan shall be solely those of an unsecured general creditor of the Company.  The Company shall not be obligated under any circumstances to set aside or hold assets to fund its financial obligations under this Plan.

11.2Financing.  Notwithstanding the foregoing, the Company may, in its sole discretion establish such accounts, trusts, insurance policies or arrangements, or any other mechanisms it deems necessary or appropriate to account for or fund its obligations under the Plan.  Any assets which the Company may set aside, acquire or hold to help cover its financial liabilities under this Plan are and remain general assets of the Company subject to the claims of its creditors.  The Company does not give, and the Plan does not give, any beneficial ownership interest in any assets of the Company to a Participant or Beneficiary.  All rights of ownership in any assets are and remain in the Company.  Any general asset used or acquired by the Company in connection with the liabilities it has assumed under this Plan shall not be deemed to be held under any trust for the benefit of the Participant or any Beneficiary, and no general asset shall be considered security for the performance of the obligations of the Company.  Any asset shall remain a general, unpledged, and unrestricted asset of the Company.  The Company’s liability for payment of benefits shall be determined only under the provisions of this Plan, as it may be amended from time to time.

ARTICLE XII
GENERAL PROVISIONS

12.1No Right to Employment.  Nothing in this Plan shall be deemed to give any person the right to remain in the employ of the Company or affect the right of the Company to terminate any Participant’s employment with or without cause.

12.2No Assignment.  No right or benefit under the Plan shall be subject to anticipation, alienation, sale, assignment, pledge, encumbrance or charge.  Any attempt to anticipate, alienate, sell, assign, pledge, encumber or charge these benefits shall be void.  No right or benefit under this Plan shall in any manner be liable for or subject to the debts, contracts, liabilities, or torts of the person entitled to the benefit.  If any Participant or Beneficiary under

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the Plan should become bankrupt or attempt to anticipate, alienate, sell, assign, pledge, encumber or charge any right to a benefit hereunder, then the right or benefit, in the discretion of the Committee, shall cease.  In these circumstances, the Committee may hold or apply the benefit payment or payments, or any part of it, for the benefit of the Participant or his Beneficiary, the Participant’s spouse, children, or other dependents, or any of them, in any manner and in any portion that the Committee may deem proper.  Notwithstanding the foregoing, to the extent permitted by Section 409A of the Code and subject to Section 6.6, the Committee shall honor a judgment, order or decree from a state domestic relations court which requires the payment of part or all of a Participant’s or Beneficiary’s interest under this Plan to an “alternate payee” as defined in Section 414(p) of the Code.

12.3Withholding.  Any amount required to be withheld under applicable Federal, state and local tax laws (including any amounts required to be withheld under Section 3121(v) of the Code) will be withheld in such manner as the Committee will determine and any payment under the Plan will be reduced by the amount so withheld, as well as by any other lawful withholding.

12.4Governing Law.  This Plan shall be construed and administered in accordance with the laws of the State of North Carolina to the extent that such laws are not preempted by Federal law.

12.5Transfer of Accounts.  The Make-Whole Account and Supplemental Account, if any, of each Spectra Energy Participant maintained under the Plan immediately prior to the Distribution Date shall be transferred to the Spectra Energy Corp Executive Cash Balance Plan and assumed by Spectra Energy Corp as of the Distribution Date.  Each such Spectra Energy Participant shall have no further rights under the Plan immediately after his Make-Whole Account and Supplemental Account, if any, are transferred to the Spectra Energy Corp Executive Cash Balance Plan and assumed by Spectra Energy Corp in accordance with the terms and conditions of the Employee Matters Agreement by and between Duke Energy Corporation and Spectra Energy Corp (the “Employee Matters Agreement”).  Capitalized terms used in this Section 12.5 that are not defined in this Plan shall have the meaning set forth in the Employee Matters Agreement.

12.6Compliance with Section 409A of the Code.  It is intended that Part II of the Plan comply with the provisions of Section 409A of the Code, so as to prevent the inclusion in gross income of any amounts deferred hereunder in a taxable year that is prior to the taxable year or years in which such amounts would otherwise actually be paid or made available to Participants or Beneficiaries.  This Plan shall be construed, administered, and governed in a manner that effects such intent, and the Company shall not take any action that would be inconsistent with such intent.  Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of deferrals under this Plan is not warranted or guaranteed.  Neither the Company, the other members of the Affiliated Group, their respective directors, officers, employees and advisors, the Board, nor any committee shall be held liable for any taxes, interest, penalties or other monetary amounts owed by any Participant, Beneficiary or other taxpayer as a result of the Plan.  Any reference in this Plan to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section 409A of the Code by the U.S. Department of Treasury or the Internal Revenue Service.  For purposes of the Plan, the phrase

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“permitted by Section 409A of the Code,” or words or phrases of similar import, shall mean that the event or circumstance shall only be permitted to the extent it would not cause an amount deferred or payable under the Plan to be includible in the gross income of a Participant or Beneficiary under Section 409A(a)(1) of the Code.

12.7Electronic or Other Media.  Notwithstanding any other provision of the Plan to the contrary, including any provision that requires the use of a written instrument, the Committee may establish procedures for the use of electronic or other media in communications and transactions between the Plan or the Committee and Participants and Beneficiaries.  Electronic or other media may include, but are not limited to, e-mail, the Internet, intranet systems and automated telephonic response systems.

IN WITNESS WHEREOF, this amendment and restatement of the Plan is executed on behalf of Duke Energy Corporation this 29th day of August, 2008.

DUKE ENERGY CORPORATION
By:	/s/Marc E. Manly
	Marc E. Manly
	Group Executive & Chief Legal Officer

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EX-10.3

Exhibit 10.3

AMENDMENT TO

EMPLOYMENT AGREEMENT

The Employment Agreement dated April 4, 2006 between Duke Energy Corporation and James E. Rogers (the “Agreement”) is amended, effective August 26, 2008, as follows:

1.Section 22 of the Agreement is replaced and superseded in its entirety as follows:

“22.Compliance with Section 409A.  It is intended that the payments and benefits provided under this Agreement shall either be exempt from the application of, or comply with, the requirements of Section 409A of the Code.  This Agreement shall be construed, administered, and governed in a manner that effects such intent.  Notwithstanding anything contained in this Agreement to the contrary, the following provisions shall apply:

(a)The severance benefits described in Section 12(b) shall only be payable if the termination of employment described therein constitutes a “separation from service” within the meaning of Section 409A of the Code, and the date on which such separation from service takes place shall be the “date of termination.”  To the extent that the Employee is required to execute a release of claims to receive severance benefits, the release must be executed by the Employee and returned to Duke Energy no later than 50 days following termination of employment.

(b)To the extent that the continued benefits described in Sections 5(a)(ii)(3) of the Cinergy Employment Agreement and Sections 6, 7, 8 or 9 of the Agreement are subject to Section 409A of the Code, then they shall be subject to the following additional rules: (i) any reimbursement of eligible expenses shall be paid within 30 days following the Employee’s written request for reimbursement; provided that the Employee provides written notice no later than 60 days prior to the last day of the calendar year following the calendar year in which the expense was incurred; (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.  The first sentence of Section 5(a)(ii)(3)(B) of the Cinergy Employment Agreement is deleted in its entirety.

(c)Any tax gross-up payments (or related payments) due under the Cinergy Employment Agreement or the Agreement will be paid or reimbursed on the earlier of (i) the date specified for payment therein, or (ii) December 31st of the year following the year in which the applicable

taxes are remitted or, in the case of reimbursement of expenses incurred due to a tax audit or litigation to which there is no remittance of taxes, the end of the calendar year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation in accordance with Section 409A of the Code.

(d)Any reimbursement of legal fees and expenses described in Section 12(d) or Section 19 of the Agreement shall be subject to the following requirements:  (i) the fees and expenses must be incurred at any time from the Effective Time through the Employee’s remaining lifetime; (ii) the fees and expenses shall be paid within 10 days following Duke Energy’s receipt of an invoice from the Employee, provided that he submits the invoice at least 15 days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred; (iii) the amount of such legal fees and expenses that Duke Energy is obligated to pay in any given calendar year shall not affect the legal fees and expenses that Duke Energy is obligated to pay in any other calendar year; and (iv) the Employee’s right to have Duke Energy pay such legal fees and expenses may not be liquidated or exchanged for any other benefit.  To the extent the reimbursement is contingent on the Employee being named the prevailing party or otherwise being successful in the dispute, then the legal fess shall nonetheless be reimbursed as provided herein, but the Employee shall be required to return (within 10 days following receipt of demand therefore) all reimbursements of the fees and expenses if the Employee does not so prevail in respect of at least one material claim (whether the Employee is prosecuting or defending such claim) in the dispute.

(e)Notwithstanding anything contained in this Agreement to the contrary, if the Employee is a “specified employee,” as determined under Duke Energy’s policy for determining specified employees on the date of termination, then to the extent required in order to comply with Section 409A of the Code, all payments, benefits or reimbursements paid or provided under this Agreement that constitute a “deferral of compensation” within the meaning of Section 409A of the Code, that are provided as a result of a “separation from service” within the meaning of Section 409A of the Code and that would otherwise be paid or provided during the first six months following such date of termination shall be accumulated through and paid or provided (together with interest at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the date of termination), within 30 days after the first business day that is more than six months after the date of his separation from service (or, if the Employee dies during such six-month period, within 30 days after the Employee’s death).

(f)Although Duke Energy shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the

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Code, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed.  Neither Duke Energy, its affiliates, nor their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by the Employee or other taxpayer as a result of the Agreement.”

2.Except as explicitly set forth herein, the Agreement will remain in full force and effect.

IN WITNESS WHEREOF, the parties hereto have executed this amendment to the Agreement as of the day and year first above written.

DUKE ENERGY CORPORATION
/s/Ann Maynard Gray
By:	Ann Maynard Gray
Title:		Lead Director
/s/James E. Rogers
James E. Rogers

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EX-10.4

Exhibit 10.4

AMENDED AND RESTATED
CHANGE IN CONTROL AGREEMENT

THIS AGREEMENT, dated as of August 26, 2008, is made by and between Duke Energy Corporation, a Delaware corporation (the “Company”), and                                (the “Executive”).

WHEREAS, the Company considers it essential to the best interests of its shareholders to foster the continued employment of key management personnel; and

WHEREAS, the Board recognizes that, as is the case with many publicly held corporations, the possibility of a Change in Control exists and that such possibility, and the uncertainty and questions which it may raise among management, may result in the departure or distraction of management personnel to the detriment of the Company and its shareholders; and

WHEREAS, the Board has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of the Company’s management, including the Executive, to their assigned duties without distraction in the face of potentially disturbing circumstances arising from the possibility of a Change in Control; and

WHEREAS, the Company and the Executive are parties to a Change in Control Agreement dated as of                  (the “Effective Date”), which agreement is hereby amended, restated and replaced in its entirety with this Agreement in order to comply with Section 409A of the Code.

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Company and the Executive, intending to be legally bound, do hereby agree as follows:

1.Definitions.  For purposes of this Agreement, the following terms shall have the meanings indicated below:

(A)“Accrued Rights” shall have the meaning set forth in Section 3 hereof.

(B)“Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Exchange Act.

(C)“Auditor” shall have the meaning set forth in Section 4.2 hereof.

(D)“Base Amount” shall have the meaning set forth in Section 280G(b)(3) of the Code.

(E)“Beneficial Ownership” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.

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(F)“Board” shall mean the Board of Directors of the Company.

(G)“Cause” for termination by the Company of the Executive’s employment shall mean (i) a material failure by the Executive to carry out, or malfeasance or gross insubordination in carrying out, reasonably assigned duties or instructions consistent with the Executive’s position, (ii) the final conviction of the Executive of a felony or crime involving moral turpitude, (iii) an egregious act of dishonesty by the Executive (including, without limitation, theft or embezzlement) in connection with employment, or a malicious action by the Executive toward the customers or employees of the Company or any Affiliate, (iv) a material breach by the Executive of the Company’s Code of Business Ethics, or (v) the failure of the Executive to cooperate fully with governmental investigations involving the Company or its Affiliates; provided, however, that the Company shall not have reason to terminate the Executive’s employment for Cause pursuant to this Agreement unless the Executive receives written notice from the Company identifying the acts or omissions constituting Cause and gives the Executive a 30-day opportunity to cure, if such acts or omissions are capable of cure.

(H)A “Change in Control” shall be deemed to have occurred if the event set forth in any one of the following paragraphs shall have occurred:

(a)an acquisition subsequent to the Effective Date by any Person of Beneficial Ownership of thirty percent (30%) or more of either (A) the then outstanding shares of common stock of the Company or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors; excluding, however, the following: (1) any acquisition directly from the Company, other than an acquisition by virtue of the exercise of a conversion privilege unless the security being so converted was itself acquired directly from the Company, (2) any acquisition by the Company and (3) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any Subsidiary;

(b)during any period of two (2) consecutive years (not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Board (and any new directors whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was so approved) cease for any reason (except for death, disability or voluntary retirement) to constitute a majority thereof;

(c)the consummation of a merger, consolidation, reorganization or similar corporate transaction which has been approved by the shareholders of the Company, whether or not the Company is the surviving corporation in such transaction, other than a merger, consolidation, or reorganization that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into

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voting securities of the surviving entity) at least fifty percent (50%) of the combined voting power of the voting securities of the Company (or such surviving entity) outstanding immediately after such merger, consolidation, or reorganization;

(d)the consummation of (A) the sale or other disposition of all or substantially all of the assets of the Company or (B) a complete liquidation or dissolution of the Company, which has been approved by the shareholders of the Company (in each case, exclusive of any transactions or events resulting from the separation of the Company’s gas and electric businesses); or

(e)adoption by the Board of a resolution to the effect that any person has acquired effective control of the business and affairs of the Company.

(I)“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

(J)“Company” shall mean Duke Energy Corporation, a Delaware corporation, and, except in determining under Section 1.H hereof whether or not any Change in Control of the Company has occurred, shall include any successor to its business and/or assets which assumes and agrees to perform this Agreement by operation of law, or otherwise.

(K)“Confidential Information” shall have the meaning set forth in Section 8 hereof.

(L)“DB Pension Plan” shall mean any tax-qualified, supplemental or excess defined benefit pension plan maintained by the Company (or a Subsidiary) and any other defined benefit plan or agreement entered into between the Executive and the Company (or a Subsidiary) which is designed to provide the Executive with supplemental retirement benefits.

(M)“DC Pension Plan” shall mean any tax-qualified, supplemental or excess defined contribution plan maintained by the Company (or a Subsidiary) and any other defined contribution plan or agreement entered into between the Executive and the Company (or a Subsidiary) which is designed to provide the executive with supplemental retirement benefits.

(N)“Date of Termination” with respect to any purported termination of the Executive’s employment after a Change in Control and during the Term, shall mean (i) if the Executive’s employment is terminated for Disability, thirty (30) days after Notice of Termination is given (provided that the Executive shall not have returned to the full-time performance of the Executive’s duties during such thirty (30) day period), and (ii) if the Executive’s employment is terminated for any other reason, the date specified in the Notice of Termination (which, in the case of a termination by the Company, shall not be less than thirty (30) days (except in the case of a termination for Cause) and, in the case of a termination by the Executive, shall not be less than fifteen (15) days nor (without the consent of the Company) more than sixty (60) days, respectively, from the date such Notice of Termination is given).

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(O)“Disability” shall be deemed the reason for the termination by the Company of the Executive’s employment, if, as a result of the Executive’s incapacity due to physical or mental illness, the Executive shall have been absent from the full-time performance of the Executive’s duties with the Company for a period of six (6) consecutive months, the Company shall have given the Executive a Notice of Termination for Disability, and, within thirty (30) days after such Notice of Termination is given, the Executive shall not have returned to the full-time performance of the Executive’s duties.

(P)“Effective Date” shall have the meaning given to such term in the Preamble to this Agreement.

(Q)“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

(R)“Excise Tax” shall mean any excise tax imposed under Section 4999 of the Code.

(S)“Executive” shall mean the individual named in the first paragraph of this Agreement.

(T)“Good Reason” for termination by the Executive of the Executive’s employment shall mean the occurrence (without the Executive’s express written consent which specifically references this Agreement) after any Change in Control of any one of the following acts by the Company, or failures by the Company to act, unless such act or failure to act is corrected prior to the Date of Termination specified in the Notice of Termination given in respect thereof: (i) a reduction in the Executive’s annual base salary as in effect immediately prior to the Change in Control (exclusive of any across the board reduction similarly affecting all or substantially all similarly situated employees determined without regard to whether or not an otherwise similarly situated employee’s employment was with the Company prior to the Change in Control), (ii) a reduction in the Executive’s target annual bonus as in effect immediately prior to the Change in Control (exclusive of any across the board reduction similarly affecting all or substantially all similarly situated employees determined without regard to whether or not an otherwise similarly situated employee’s employment was with the Company prior to the Change in Control), or (iii) the assignment to the Executive of a job position with a total point value under the Hay Point Factor Job Evaluation System that is less than seventy percent (70%) of the total point value of the job position held by the Executive immediately before the Change in Control; provided, however, that in the event there is a claim by the Executive that there has been such an assignment and the Company disputes such claim, whether there has been such an assignment shall be conclusively determined by the HayGroup (or any successor thereto) or if such entity (or any successor) is no longer in existence or will not serve, a consulting firm mutually selected by the Company and the Executive or, if none, a consulting firm drawn by lot from two nationally recognized consulting firms that agree to serve and that are nominated by the Company and the Executive, respectively (such consulting firm, the “Consulting Firm”) under such procedures as the Consulting Firm shall in its sole

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discretion establish; provided further that such procedures shall afford both the Company and the Executive an opportunity to be heard; and further provided, however, that the Company and the Executive shall use their best efforts to enable and cause the Consulting Firm to make such determination within thirty (30) days of the Executive’s claim of such an assignment.  The Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any act or failure to act constituting Good Reason hereunder.

(U)“Notice of Termination” shall have the meaning set forth in Section 5 hereof.

(V)“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company.

(W)“Release Deadline” shall mean the 55th day immediately following the date that the Executive incurs a “separation from service” within the meaning of Section 409A of the Code.

(X)“Repayment Amount” shall have the meaning set forth in Section 7.3 hereof.

(Y)“Restricted Period” shall have the meaning set forth in Section 7.2 hereof.

(Z)“Severance Payments” shall have the meaning set forth in Section 4.1 hereof.

(AA)“Severance Period” shall have the meaning set forth in Section 4.1(C) hereof.

(BB)“Subsidiary” means an entity that is wholly owned, directly or indirectly, by the Company, or any other affiliate of the Company that is so designated from time to time by the Company.

(CC)“Term” shall mean the period of time described in Section 2 hereof (including any extension, continuation or termination described therein).

(DD)“Total Payments” shall mean those payments so described in Section 4.2 hereof.

2.Term of Agreement. The Term of this Agreement shall commence on the Effective Date and shall continue in effect through the second anniversary of the

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Effective Date; provided, however, that commencing on the date that is twenty-four (24) months following the Effective Date and each subsequent monthly anniversary, the Term shall automatically be extended for one additional month; further provided, however, the Company or the Executive may terminate this Agreement effective at any time following the second anniversary of the Effective Date only with six (6) months advance written notice (which such notice may be given before such second anniversary); and further provided, however, that, notwithstanding the above, if a Change in Control shall have occurred during the Term, the Term shall in no case expire earlier than twenty-four (24) months beyond the month in which such Change in Control occurred.

3.Compensation Other Than Severance Payments. If the Executive’s employment shall be terminated for any reason following a Change in Control and during the Term, the Company shall pay the Executive (A) the salary amounts payable in the normal course for service through the Date of Termination within 30 days after the Date of Termination, and (B) and any rights or payments that have become vested or that are otherwise due in accordance with the terms of any employee benefit, incentive, or compensation plan or arrangement maintained by the Company that the Executive participated in at the time of his or her termination of employment (together, the “Accrued Rights”).

4.Severance Payments.

4.1Subject to Section 4.2 hereof, and further subject to the Executive executing a release of claims substantially in the form set forth as Exhibit A to this Agreement and the release becoming effective and irrevocable in accordance with its terms by the Release Deadline, if the Executive’s employment is terminated following a Change in Control and during the Term (but in any event not later than twenty-four (24) months following a Change in Control), other than (A) by the Company for Cause, (B) by reason of death or Disability, or (C) by the Executive without Good Reason, then, in either such case, in addition to the payments and benefits representing the Executive’s Accrued Rights, the Company shall pay the Executive the amounts, and provide the Executive the benefits, described in this Section 4.1 (“Severance Payments”).

(A)A lump-sum payment equal to (i) the Executive’s annual bonus payment earned for any completed bonus year prior to termination of employment, if not previously paid, plus (ii) a pro-rata amount of the Executive’s target bonus under any performance-based bonus plan, program, or arrangement in which the Executive participates for the year in which the termination occurs, determined as if all program goals had been met, pro-rated based on the number of days of service during the bonus year occurring prior to termination of employment.  The amount described in clause (i) shall be paid pursuant to the terms of the applicable short-term incentive plan and shall not be conditioned on signing a release described in Section 4.1.  The amounts described in clause (ii) shall be paid within 30 calendar days after the Release Deadline, or such later date as may be required under Section 13.1.

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(B)In lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (or, if less, the number of years (including partial years) until the Executive reaches the Company’s mandatory retirement age, provided that the Company adopts a mandatory retirement age pursuant to 29 USC §631(c)) times the sum of (i) the Executive’s base salary as in effect immediately prior to the Date of Termination or, if higher, in effect immediately prior to the first occurrence of an event or circumstance constituting Good Reason, and (ii) the Executive’s target short-term incentive bonus opportunity for the fiscal year in which the Date of Termination occurs or, if higher, the fiscal year in which the first event or circumstance constituting Good Reason occurs.  The amount described in this Section 4.1(B) shall be paid within 30 calendar days after the Release Deadline, or such later date as may be required under Section 13.1.

(C)For a period of two years immediately following the Date of Termination (or, if less, the period until the Executive reaches the Company’s mandatory retirement age, provided that the Company adopts a mandatory retirement age pursuant to 29 USC §631(c)) (the “Severance Period”), the Company shall arrange to provide the Executive and his or her dependents medical and dental insurance benefits substantially similar to those provided to the Executive and his or her dependents immediately prior to the Date of Termination or, if more favorable to the Executive, those provided to the Executive and his or her dependents immediately prior to the first occurrence of an event or circumstance constituting Good Reason, at no greater after tax cost to the Executive than the after tax cost to the Executive immediately prior to such date or occurrence.  Benefits otherwise receivable by the Executive pursuant to this Section 4.1(C) shall be reduced to the extent benefits of the same type are received by or made available to the Executive during the Severance Period as a result of subsequent employment (and any such benefits received by or made available to the Executive shall be reported to the Company by the Executive).  In addition, the Company shall make a lump sum cash payment, payable within 30 calendar days after the Release Deadline or such later date as may be required under Section 13.1, in an amount equal to the anticipated cost of basic life insurance coverage for the Severance Period, based on the Company’s assumed cost for such coverage for internal accounting purposes at the Date of Termination.  The continued benefits described in this paragraph 4.1(C) that are taxable benefits (and that are not disability pay or death benefit plans within the meaning of Section 409A of the Code) are intended to comply, to the maximum extent possible, with the exception to Section 409A of the Code set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations.  To the extent that any of those benefits either do not qualify for that exception, or are provided beyond the applicable time periods set forth in Section 1.409A-1(b)(9)(v) of the Treasury Regulations, then they shall be subject to the following additional rules: (1) any reimbursement of eligible expenses shall be paid within 10 calendar days following Executive’s written request for reimbursement, or such later date as may be required under Section 13.1;  provided that the Executive provides written notice no later than 15 calendar days prior to the last day of the calendar year following the calendar year in which the expense was incurred; (2) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect

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the amount of expenses eligible for reimbursement, or in-kind benefits to be provided, during any other calendar year; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

(D)Executive’s benefits accrued or credited through the Date of Termination under the DC Pension Plan that are not vested as of the Date of Termination but that would have vested had Executive remained employed by the Company for the remainder of the Term shall be fully vested as of the Date of Termination and paid in accordance with the terms of the applicable plan.  In addition to the benefits to which the Executive is entitled under the DC Pension Plan, the Company shall pay the Executive a lump sum amount, in cash, equal to the amount that would have been contributed thereto by the Company on the Executive’s behalf during the Severance Period, determined (x) as if the Executive made the maximum permissible contributions thereto during such period, (y) as if the Executive earned compensation during such period equal to the sum of the Executive’s base salary and target bonus as in effect immediately prior to the Date of Termination, or, if higher, as in effect immediately prior to the occurrence of the first event or circumstance constituting Good Reason, and (z) without regard to any amendment to the DC Pension Plan made subsequent to a Change in Control and on or prior to the Date of Termination, which amendment adversely affects in any manner the computation of benefits thereunder.  The amount described in the immediately preceding sentence shall be paid within 30 calendar days after the Release Deadline, or such later date as may be required under Section 13.1.

(E)Executive’s benefits accrued or credited through the Date of Termination of employment under the DB Pension Plan that are not vested as of the Date of Termination but that would have vested had Executive remained employed by the Company for the remainder of the Term shall be fully vested as of the Date of Termination and paid in accordance with the terms of the applicable plan. In addition to the benefits to which the Executive is entitled under the DB Pension Plan, the Company shall pay the Executive a lump sum amount, in cash, equal to the amount that would have been allocated thereunder by the Company in respect of the Executive (or accrued by the Executive, which accrual shall be calculated based on the actuarial assumptions contained in the DB Pension Plan) during the Severance Period, determined (x) as if the Executive earned compensation during such period equal to the sum of the Executive’s base salary and target bonus as in effect immediately prior to the Date of Termination, or, if higher, as in effect immediately prior to the occurrence of the first event or circumstance constituting Good Reason, and (y) without regard to any amendment to the DB Pension Plan made subsequent to a Change in Control and on or prior to the Date of Termination, which amendment adversely affects in any manner the computation of benefits thereunder.  The amount described in the immediately preceding sentence shall be paid within 30 calendar days after the Release Deadline, or such later date as may be required under Section 13.1.

(F)Notwithstanding the terms of any award agreement or plan document to the contrary, the Executive shall be entitled to receive continued vesting of any long term incentive awards, including awards of stock options but excluding awards

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of restricted stock, held by the Executive at the time of his or her termination of employment that are not vested or exercisable on such date, in accordance with their terms as if the Executive’s employment had not terminated, for the duration of the Severance Period, with any options or similar rights to remain exercisable (to the extent exercisable at the end of the Severance Period) for a period of 90 days following the close of the Severance Period, but not beyond the maximum original term of such options or rights.

4.2(A)Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive (including any payment or benefit received in connection with a Change in Control or the termination of the Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the Severance Payments, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the Excise Tax, then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the Severance Payments shall be reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).  If a reduction in Severance Payments is necessary pursuant to this Section 4.2(A), then the reduction shall occur in the following order:  (i) cash payments under Section 4.1(A)(ii), 4.2(B), 4.2(D) and 4.2(E); (ii) cancellation of accelerated vesting of performance-based equity awards (based on the reverse order of the date of grant); (iii) cancellation of accelerated vesting of other equity awards (based on the reverse order of the date of grant); and (iv) reduction of welfare benefits.

(B)For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”) who is reasonably acceptable to the Executive and selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in Control, the Company’s independent auditor, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) 

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of the Code, in excess of the Base Amount allocable to such reasonable compensation, and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

(C)At the time that payments are made under this Agreement, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

5.Notice of Termination. After a Change in Control and during the Term, any purported termination of the Executive’s employment (other than by reason of death) shall be communicated by written Notice of Termination from one party hereto to the other party hereto in accordance with Section 12 hereof. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon.

6.No Mitigation. The Company agrees that, if the Executive’s employment with the Company terminates during the Term, the Executive is not required to seek other employment or to attempt in any way to reduce any amounts payable to the Executive by the Company pursuant to Section 4 hereof. Further, except as specifically provided in Section 4.1(C) hereof, no payment or benefit provided for in this Agreement shall be reduced by any compensation earned by the Executive as the result of employment by another employer, by retirement benefits or otherwise.  The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall be absolute and unconditional and shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company or any of its Subsidiaries may have against the Executive or others.

7.Restrictive Covenants.

7.1Noncompetition and Nonsolicitation. During the Restricted Period (as defined below), the Executive agrees that he or she shall not, without the Company’s prior written consent, for any reason, directly or indirectly, either as principal, agent, manager, employee, partner, shareholder, director, officer, consultant or otherwise (A) become engaged or involved, in a manner that relates to or is similar in nature to those duties performed by Executive at any time during his or her employment with the Company, in any business (other than as a less-than three percent (3%) equity owner of any corporation traded on any national, international or regional stock exchange or in the over-the-counter market) that competes with the Company or any of its Affiliates in the business of production, transmission, distribution, or retail or wholesale marketing or selling of electricity; resale or arranging for the purchase or for the resale, brokering, marketing, or trading of electricity or derivatives thereof; energy management and the provision of energy solutions; development and management of fiber optic communications systems; development and operation of power generation

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facilities, domestically and abroad; and any other business in which the Company, including Affiliates, is engaged at the termination of the Executive’s continuous employment with the Company, including Affiliates; or (B) induce or attempt to induce any customer, client, supplier, employee, agent or independent contractor of the Company or any of its Affiliates to reduce, terminate, restrict or otherwise alter its business relationship with the Company or its Affiliates. The provisions of this Section 7.1 shall be limited in scope and effective only within one or more of the following geographical areas: (i) The States of North Carolina, South Carolina, Ohio, Kentucky, and Indiana, or (ii) any other state in the United States where the Company including Affiliates, has at least U.S. $25 million in capital deployed as of the termination of the Executive’s continuous employment with the Company, including Affiliates; or (iii) any state or country with respect to which was conducted a business of the Company, including Affiliates, which business, or oversight of which business, constituted any part of the Executive’s employment.  The parties intend the above geographical areas to be completely severable and independent, and any invalidity or unenforceability of this Agreement with respect to any one area shall not render this Agreement unenforceable as applied to any one or more of the other areas. Nothing in Section 7.1 shall be construed to prohibit the Executive being retained during the Restricted Period in a capacity as an attorney licensed to practice law, or to restrict the Executive from providing advice and counsel in such capacity, in any jurisdiction where such prohibition or restriction is contrary to law.

7.2Restricted Period. For purposes of this Agreement, “Restricted Period” shall mean the period of the Executive’s employment during the Term and, in the event of a termination of the Executive’s employment following a Change in Control that entitles Executive to Severance Payments covered by Section 4 hereof, the twelve (12) month period following such termination of employment, commencing from the Date of Termination.

7.3Forfeiture and Repayments. The Executive agrees that, in the event he or she violates the provisions of Section 7 hereof during the Restricted Period, he or she will forfeit and not be entitled to any Severance Payments or any non-cash benefits or rights under this Agreement (including, without limitation, stock option rights), other than the payments provided under Section 3 hereof. The Executive further agrees that, in the event he or she violates the provisions of Section 7 hereof following the payment or commencement of any Severance Payments, (A) he or she will forfeit and not be entitled to any further Severance Payments, and (B) he or she will be obligated to repay to the Company an amount in respect of the Severance Payments previously made to him or her under Section 4 hereof (the “Repayment Amount”). The Repayment Amount shall be determined by aggregating the cash Severance Payments made to the Executive and multiplying the resulting amount by a fraction, the numerator of which is the number of full and partial calendar months remaining in the Severance Period at the time of the violation (rounded to the nearest quarter of a month), and the denominator of which is twenty-four (24). The Repayment Amount shall be paid to the Company in cash in a single sum within ten (10) business days after the first date of the violation, whether or not the Company has knowledge of the violation or has made a demand for payment. Any such payment made following such date shall bear interest at a rate equal to the

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prime lending rate of Citibank, N.A. (as periodically set) plus 1%. Furthermore, in the event the Executive violates the provisions of Section 7 hereof, and notwithstanding the terms of any award agreement or plan document to the contrary (which shall be considered to be amended to the extent necessary to reflect the terms hereof), the Executive shall immediately forfeit the right to exercise any stock option or similar rights that are outstanding at the time of the violation, and the Repayment Amount, calculated as provided above, shall be increased by the amount of any gains (measured, if applicable, by the difference between the aggregate fair market value on the date of exercise of shares underlying the stock option or similar right and the aggregate exercise price of such stock option or similar right) realized by the Executive upon the exercise of stock options or similar rights or vesting of restricted stock or other equity compensation within the one-year period prior to the first date of the violation.

7.4Permissive Release. The Executive may request that the Company release him or her from the restrictive covenants of Section 7.1 hereof upon the condition that the Executive forfeit and repay all termination benefits and rights provided for in Section 4.1 hereof. The Company may, in its sole discretion, grant such a release in whole or in part or may reject such request and continue to enforce its rights under this Section 7.

7.5Consideration; Survival. The Executive acknowledges and agrees that the compensation and benefits provided in this Agreement constitute adequate and sufficient consideration for the covenants made by the Executive in this Section 7 and in the remainder of this Agreement. As further consideration for the covenants made by the Executive in this Section 7 and in the remainder of this Agreement, the Company has provided and will provide the Executive certain proprietary and other confidential information about the Company, including, but not limited to, business plans and strategies, budgets and budgetary projections, income and earnings projections and statements, cost analyses and assessments, and/or business assessments of legal and regulatory issues. The Executive’s obligations under this Section 7 shall survive any termination of his or her employment as specified herein.

8.Confidentiality. The Executive acknowledges that during the Executive’s employment with the Company or any of its Affiliates, the Executive will acquire, be exposed to and have access to, non-public material, data and information of the Company and its Affiliates and/or their customers or clients that is confidential, proprietary, and/or a trade secret (“Confidential Information”). At all times, both during and after the Term, the Executive shall keep and retain in confidence and shall not disclose, except as required and authorized in the course of the Executive’s employment with the Company or any its Affiliates, to any person, firm or corporation, or use for his or her own purposes, any Confidential Information. For purposes of this Agreement, such Confidential Information shall include, but shall not be limited to: sales methods, information concerning principals or customers, advertising methods, financial affairs or methods of procurement, marketing and business plans, strategies (including risk strategies), projections, business opportunities, inventions, designs, drawings, research and development plans, client lists, sales and cost information and financial results and performance. Notwithstanding the foregoing, “Confidential Information” shall

12

not include any information known generally to the public (other than as a result of unauthorized disclosure by the Executive or by the Company or its Affiliates). The Executive acknowledges that the obligations pertaining to the confidentiality and non-disclosure of Confidential Information shall remain in effect for a period of five (5) years after termination of employment, or until the Company or its Affiliates has released any such information into the public domain, in which case the Executive’s obligation hereunder shall cease with respect only to such information so released into the public domain. The Executive’s obligations under this Section 8 shall survive any termination of his or her employment. If the Executive receives a subpoena or other judicial process requiring that he or she produce, provide or testify about Confidential Information, the Executive shall notify the Company and cooperate fully with the Company in resisting disclosure of the Confidential Information. The Executive acknowledges that the Company has the right either in the name of the Executive or in its own name to oppose or move to quash any subpoena or other legal process directed to the Executive regarding Confidential Information. Notwithstanding any other provision of this Agreement, the Executive remains free to report or otherwise communicate any nuclear safety concern, any workplace safety concern, or any public safety concern to the Nuclear Regulatory Commission, United States Department of Labor, or any other appropriate federal or state governmental agency, and the Executive remains free to participate in any federal or state administrative, judicial, or legislative proceeding or investigation with respect to any claims and matters not resolved and terminated pursuant to this Agreement. With respect to any claims and matters resolved and terminated pursuant to this Agreement, the Executive is free to participate in any federal or state administrative, judicial, or legislative proceeding or investigation if subpoenaed. The Executive shall give the Company, through its legal counsel, notice, including a copy of the subpoena, within twenty-four (24) hours of receipt thereof.

9.Return of Company Property. All records, files, lists, including, computer generated lists, drawings, documents, equipment and similar items relating to the business of the Company and its Affiliates which the Executive shall prepare or receive from the Company or its Affiliates shall remain the sole and exclusive property of Company and its Affiliates. Upon termination of the Executive’s employment for any reason, the Executive shall promptly return all property of the Company or any of its Affiliates in his or her possession. The Executive further represents that he or she will not copy or cause to be copied, print out or cause to be printed out any software, documents or other materials originating with or belonging to the Company or any of its Affiliates.

10.Acknowledgement and Enforcement. The Executive acknowledges that the restrictions contained in this Agreement with regards to the Executive’s use of Confidential Information and his or her future business activities are fair, reasonable and necessary to protect the Company’s legitimate protectable interests, particularly given the competitive nature and broad scope of the Company’s business and that of its Affiliates, as well as the Executive’s position with the Company. The Executive further acknowledges that the Company may have no adequate means to protect its rights under this Agreement other than by securing an injunction (a court order prohibiting the Executive from violating this Agreement). The Executive therefore agrees that the

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Company, in addition to any other right or remedy it may have, shall be entitled to enforce this Agreement by obtaining a preliminary and permanent injunction and any other appropriate equitable relief in any court of competent jurisdiction. The Executive acknowledges that the recovery of damages will not be an adequate means to redress a breach of this Agreement, but nothing in this Section 10 shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages and/or any forfeiture or repayment obligations provided for herein.

11.Successors; Binding Agreement.

11.1In addition to any obligations imposed by law upon any successor to the Company, the Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.

11.2This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Executive shall die while any amount would still be payable to the Executive hereunder (other than amounts which, by their terms, terminate upon the death of the Executive) if the Executive had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the executors, personal representatives or administrators of the Executive’s estate; provided, however, such amounts shall be offset by any amounts owed by the Executive to the Company.

12.Notices. All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) upon confirmation of receipt when such notice or other communication is sent by facsimile, (c) one day after timely delivery to an overnight delivery courier, or (d) when delivered or mailed by United States registered mail, return receipt requested, postage prepaid. The addresses for such notices shall be as follows:

To the Company:

Duke Energy Corporation

Post Office Box 1006, EC3XB

Charlotte, North Carolina 28201-1006

Attention: Mr. James E. Rogers

Chief Executive Officer

With a Copy to:

Duke Energy Corporation

Post Office Box 1244, PB04M

Charlotte, North Carolina 28201-1244

Attention: Mr. Marc E. Manly

Group Executive and Chief Legal Officer

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To the Executive:

At the most recent address on file in the records of the Company

Either party hereto may, by notice to the other, change its address for receipt of notices hereunder.

13.Section 409A.

13.1Notwithstanding anything contained in this Agreement to the contrary, if the Executive is a “specified employee” on the Date of Termination, as determined under the Company’s policy for identifying specified employees, then to the extent required in order to comply with Section 409A of the Code, all payments, benefits or reimbursements paid or provided under this Agreement that constitute a “deferral of compensation” within the meaning of Section 409A of the Code, that are provided as a result of a “separation from service” within the meaning of Section 409A of the Code and that would otherwise be paid or provided during the first six months following the Date of Termination shall be accumulated through and paid or provided (together with interest at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the Date of Termination) within 30 calendar days after the first business day that is more than six months following the Date of Termination (or, if the Executive dies during such six-month period, within 30 calendar days after the Executive’s death).

13.2It is intended that the payments and benefits provided under this Agreement shall either be exempt from the application of, or comply with, the requirements of Section 409A of the Code.  This Agreement shall be construed, administered, and governed in a manner that effects such intent, and the Company shall not take any action that would be inconsistent with such intent.  Without limiting the foregoing, the payments and benefits provided under this Agreement may not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code upon Executive.

13.3It is the intention of the Company and the Executive that this Agreement not result in unfavorable tax consequences to the Executive under Section 409A of the Code. Accordingly, the Executive consents to any amendment of this Agreement as the Company may reasonably make in furtherance of such intention, and the Company shall promptly provide, or make available to, the Executive a copy of such amendment.  Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed.  Neither the Company, its affiliates, nor their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by the Executive or other taxpayer as a result of the Agreement.

14.Miscellaneous. Except as otherwise provided in Section 13 hereof, no provision of this Agreement may be modified, waived or discharged unless such waiver,

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modification or discharge is agreed to in writing and signed by the Executive and the Chief Executive Officer (or such officer as may be specifically designated by the Chief Executive Officer). No waiver by either party hereto at any time of any breach by the other party hereto of, or of any lack of compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. This Agreement supersedes any other agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof which have been made by either party; provided, however, that this Agreement shall supersede any agreement setting forth the terms and conditions of the Executive’s employment with the Company only in the event that the Executive’s employment with the Company is terminated during the Term and on or within two years following a Change in Control, by the Company other than for Cause or by the Executive for Good Reason. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of North Carolina. All references to sections of the Exchange Act or the Code shall be deemed also to refer to any successor provisions to such sections. Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state or local law and any additional withholding to which the Executive has agreed and no such payments shall be treated as creditable compensation under any other employee benefit plan, program, arrangement or agreement of or with the Company or its affiliates. The obligations of the Company and the Executive under this Agreement which by their nature may require either partial or total performance after the expiration of the Term (including, without limitation, those under Section 4 hereof) shall survive such expiration.

15.Certain Legal Fees. To provide the Executive with reasonable assurance that the purposes of this Agreement will not be frustrated by the cost of enforcement, the Company shall reimburse the Executive for reasonable attorneys’ fees and expenses incurred by the Executive during the two-year period immediately following the Executive’s Date of Termination as a result of a claim that the Company has breached or otherwise failed to perform its obligations under this Agreement or any provision hereof, regardless of which party, if any, prevails in the contest; provided, however, that Company shall not be responsible for such fees and expenses to the extent incurred in connection with a claim made by the Executive that the trier of fact in any such contest finds to be frivolous or if the Executive is determined to have breached his or her obligations under Sections 7, 8, 9, 16, or 17 of this Agreement; and provided further, however, the Company shall not be responsible for such fees or expenses in excess of $50,000 in the aggregate.  The reimbursement, if any, shall be paid to the Executive within 10 calendar days following the expiration of the two-year period described above, provided that the Executive shall have submitted an invoice for such fees and expenses at least 30 calendar days prior to the expiration of that period.  The amount of such legal fees and expenses that the Company is obligated to pay in any given calendar year shall not affect the legal fees and expenses that the Company is obligated to pay in any other calendar year, and the Executive’s right to have the Company pay such legal fees and expenses may not be liquidated or exchanged for any other benefit.

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16.Cooperation. The Executive agrees that he or she will fully cooperate in any litigation, proceeding, investigation or inquiry in which the Company or its Affiliates may be or become involved. The Executive also agrees to cooperate fully with any internal investigation or inquiry conducted by or on behalf of the Company. Such cooperation shall include the Executive making himself or herself available, upon the request of the Company or its counsel, for depositions, court appearances and interviews by Company’s counsel. The Company shall reimburse the Executive for all reasonable and documented out-of-pocket expenses incurred by him or her in connection with such cooperation. To the maximum extent permitted by law, the Executive agrees that he or she will notify the Board if he or she is contacted by any government agency or any other person contemplating or maintaining any claim or legal action against the Company or its Affiliates or by any agent or attorney of such person. Nothing contained in this Section 16 shall preclude the Executive from providing truthful testimony in response to a valid subpoena, court order, regulatory request or as may be required by law.  To the extent required to comply with Section 409A of the Code, any payment or reimbursement of expenses pursuant to this Section 16 that will not be excluded from the Executive’s income when received is subject to the following requirements: (i) the expenses to be reimbursed must be incurred during the Executive’s lifetime; (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided in any other calendar year; (iii) any reimbursement of eligible expenses shall be paid within 10 calendar days following Executive’s written request for reimbursement, or such later date as may be required under Section 13.1;  provided that the Executive provides written notice no later than 15 calendar days prior to the last day of the calendar year following the calendar year in which the expense was incurred; and (iv) the right to reimbursement is not subject to liquidation or exchange for another benefit.

17.Non-Disparagement. The Executive agrees that he or she will not make or publish, or cause to be made or published, any statement which is, or may reasonably be considered to be, disparaging of the Company or its Affiliates, or directors, officers or employees of the businesses of the Company or its Affiliates. Nothing contained in this Section 17 shall preclude the Executive from providing truthful testimony in response to a valid subpoena, court order, regulatory request or as may be required by law.

18.Validity; Severability. The invalidity or unenforceability of any provision of any Section or sub-Section of this Agreement, including, but not limited to, any provision contained in Section 7 hereof, shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. If any provision of this Agreement is held to be unenforceable because of the scope, activity or duration of such provision, or the area covered thereby, the parties hereto agree to modify such provision, or that the court making such determination shall have the power to modify such provision, to reduce the scope, activity, duration and/or area of such provision, or to delete specific words or phrases therefrom, and in its reduced or modified form, such provision shall then be enforceable and shall be enforced to the maximum extent permitted by applicable law.

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19.Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

20.Settlement of Disputes. All claims by the Executive for benefits under this Agreement shall be directed to and determined by the Chief Executive Officer and shall be in writing. Any denial by the Chief Executive Officer of a claim for benefits under this Agreement shall be delivered to the Executive in writing and shall set forth the specific provisions of this Agreement relied upon.

21.Trust.  The Company shall establish a trust with an independent trustee prior to the occurrence of a Change in Control for the purpose of paying benefits under this Agreement and other similar agreements maintained by the Company.  The trust shall be a grantor trust subject to the claims of the Company’s creditors and shall, immediately prior to a Change in Control, be funded in cash or such other assets as the Company deems appropriate with an amount equal to 100 percent of the estimated benefits payable under this Agreement (including without limitation the potential legal fees described in Section 15 hereof), which amount shall be determined after assuming that the Executive incurred a termination of employment entitling him to Severance Payments immediately following the Change in Control; provided, that, in the event that such funding would result in the imposition of taxes or penalties under Section 409A of the Code with respect to the Executive, then this Section 21 shall cease to apply.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

DUKE ENERGY CORPORATION

By:

Name:

Title:

EXECUTIVE

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EXHIBIT A

RELEASE OF CLAIMS

This RELEASE OF CLAIMS (the “Release”) is executed and delivered by                            (the “Employee”) to DUKE ENERGY CORPORATION (together with its Affiliates and any successors thereto, the “Company”). The term “Company” in this Release also includes any employee benefit plan established or maintained by Duke Energy Corporation or any of its Affiliates, and any administrator, trustee, fiduciary or service provider of any such plan).

In consideration of the agreement by the Company to provide the Employee with the rights, payments and benefits under the Change in Control Agreement between the Employee and the Company dated                                (the “Severance Agreement”), which the Employee acknowledges is consideration to which he or she would not otherwise be entitled, the Employee hereby agrees as follows:

Section 1.  Release and Covenant.  The Employee, of his or her own free will, voluntarily and unconditionally releases and forever discharges the Company, its subsidiaries, parents, affiliates, their directors, officers, employees, agents, stockholders, successors and assigns (both individually and in their official capacities with the Company) (the “Company Releasees”) from any and all past or present causes of action, suits, agreements or other claims which the Employee, his or her dependents, relatives, heirs, executors, administrators, successors and assigns has or may hereafter have from the beginning of time to the date hereof against the Company or the Company Releasees upon or by reason of any matter, cause or thing whatsoever, including, but not limited to, any matters arising out of his or her employment by the Company and the cessation of said employment, and including, but not limited to, any alleged violation of the Civil Rights Acts of 1964 and 1991, the Equal Pay Act of 1963, the Employee Retirement Income Security Act of 1974, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the Older Workers Benefit Protection Act of 1990, the Americans with Disabilities Act of 1990 and any other federal, state or local law, regulation or ordinance, or public policy, contract or tort law having any bearing whatsoever on the terms and conditions of employment or termination of employment.  This Release shall not, however, constitute a waiver of any of the Employee’s rights under the Severance Agreement nor a waiver of any claims that might arise after the date the Release is signed.

Section 2.  Due Care.  The Employee acknowledges that he or she has received a copy of this Release prior to its execution and has been advised hereby of his or her opportunity to review and consider this Release for 21 days prior to its execution.  The Employee further acknowledges that he or she has been advised hereby to consult with an attorney prior to executing this Release.  The Employee enters into this Release having freely and knowingly elected, after due consideration, to execute this Release and to fulfill the promises set forth herein.  This Release shall be revocable by the Employee during the 7-day period following its execution, and shall not become effective or enforceable until the expiration of such 7-day period.  In the event of such a

19

revocation, the Employee shall not be entitled to the consideration for this Release set forth above.

Section 3.  Nonassignment of Claims; Proceedings.  The Employee represents and warrants that there has been no assignment or other transfer of any interest in any claim which the Employee may have against the Company or any of the Company Releasees.   The Employee represents that he or she has not commenced or joined in any claim, charge, action or proceeding whatsoever against the Company or any of the Company Releasees arising out of or relating to any of the matters set forth in this Release. The Employee further agrees that he or she will not seek or be entitled to any personal recovery in any claim, charge, action or proceeding whatsoever against the Company or any of the Company Releasees for any of the matters set forth in this Release.

Section 4.  Reliance by Employee.  The Employee acknowledges that, in his or her decision to enter into this Release, he or she has not relied on any representations, promises or agreements of any kind, including oral statements by representatives of the Company or any of the Company Releasees, except as set forth in this Release and the Severance Agreement.

Section 5.  Nonadmission.   Nothing contained in this Release will be deemed or construed as an admission of wrongdoing or liability on the part of the Company or any of the Company Releasees.

Section 6.  Communication of Safety Concerns.  Notwithstanding any other provision of this Release and the Severance Agreement, the Employee remains free to report any suspected instance of illegal activity of any nature, any nuclear safety concern, any workplace safety concern, or any public safety concern to the United States Nuclear Regulatory Commission, the United States Department of Labor, or any other federal or state governmental agency. Further, nothing in this Release or the Agreement prohibits the Employee from participating in any way in any state or federal administrative, judicial or legislative proceeding or investigation or filing a charge of discrimination with an administrative agency, provided, however, that should an agency pursue any claims on the Employee’s behalf, by signing and not revoking this Release the Employee has waived his or her right to any recovery, monetary or otherwise.  Should the Employee receive a subpoena in connection with any federal or state administrative, judicial, or legislative proceeding involving the Company, the Employee shall, if permitted by law, provide the Company with notice of the subpoena, including a copy of the subpoena, with twenty-four (24) hours of receipt of the subpoena.  The notice shall be provided to the Company’s Chief Legal Officer.

Section 7.  Cash Balance Litigation.  Employee may or may not know that a class action lawsuit was commenced on February 6, 2006.  Here is the caption of that case:  Kenneth Walton George, Dennis Reed Bowen, Clyde Freeman, George Moyers, Jim Matthews, and Henry Miller, on their own behalf and on behalf of a class of persons similarly situated v. Duke Energy Retirement Cash Balance Plan and Duke Energy

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Corporation, Case No. 8:06-CV-00373-RBH, pending in the United States District Court for the District of South Carolina.  This paragraph deals with that lawsuit, and any lawsuit asserting similar claims (the “Cash Balance Plan Litigation”).  The Cash Balance Plan Litigation seeks additional benefits under the Duke Energy Retirement Cash Balance Plan (the “Cash Balance Plan”), and other relief.  The Company and the Cash Balance Plan intend to defend themselves vigorously in the Cash Balance Plan Litigation and take the position that no damages should result from the litigation.  Employee should consider the Cash Balance Plan Litigation in connection with this Release, because the Company and the Cash Balance Plan will take the position that this Release completely releases Employee’s rights in the Cash Balance Plan Litigation.  In the event that a court in the Cash Balance Plan Litigation should rule that despite this Release Employee is entitled to some recovery of benefits under the terms of the Cash Balance Plan, Employee agrees that he or she will get only the difference, if any, between what the Employee has been paid under the Severance Agreement and what he or she would get under that ruling.  In the event that a court in the Cash Balance Plan Litigation should rule that despite this Release the Company or the Cash Balance Plan must pay damages other than benefits under the Cash Balance Plan, Employee agrees that he or she will get only the difference, if any, between what Employee has been paid under the Severance Agreement and what he or she would get under that ruling.  Employee is free to consult with counsel representing the plaintiff class in the Cash Balance Plan Litigation, whose names and addresses are attached.  Employee may, of course, contact any other lawyer.  Employee is encouraged to discuss this matter with the lawyer of his or her own choosing.

Section 8.  Governing Law.  This Release shall be interpreted, construed and governed according to the laws of the State of North Carolina, without reference to conflicts of law principles thereof.

Section 9.  Severability.  It is understood by Employee and the Company that if any part of this Release of Claims is held by a court to be invalid, the remaining portions shall not be affected.

This RELEASE OF CLAIMS is executed by the Employee and delivered to the Company on                                           .

EMPLOYEE

[not to be signed upon execution of Change in Control Agreement]

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EX-10.5

Exhibit 10.5

AMENDMENT TO
PHANTOM STOCK AND PERFORMANCE AWARDS

The Phantom Stock Agreement between Duke Energy Corporation and James E. Rogers dated April 4, 2006, and the Performance Award Agreement between Duke Energy Corporation and James E. Rogers dated April 4, 2006 (the “Agreements”) are amended, effective August 26, 2008, as follows:

1.A new Section 11 is added to the Agreements as follows:

“Section 11.  Compliance with Section 409A.  Notwithstanding anything contained in this Agreement to the contrary:

(a)Payment of the award shall occur no later than 30 days after the payment date or event specified in Section 5, or such later date as provided in Section 11(c).

(b)Payment of Dividend Equivalents described in Section 4 shall occur no later than the end of the calendar year in which they are paid with respect to the Common Stock.

(c)This Section 11(c) applies in the event that the award is paid as a result of the termination of Grantee’s continuous employment by the Company (including Subsidiaries):

(i)The phrase “termination of Grantee’s continuous employment” or words or phrases of similar import shall mean the Grantee’s “separation from service” with the Company and its Subsidiaries within the meaning of Section 409A of the Code.  In this regard, the Company and the Grantee shall take all steps necessary (including with regard to any post-termination services by the Grantee) to ensure that any termination of employment under this Agreement constitutes a “separation from service”.

(ii)If the Grantee is a “specified employee” on his separation from service, as determined under the Company’s policy for identifying specified employees, then to the extent required in order to comply with Section 409A of the Code, any amount payable under this Agreement that constitutes a “deferral of compensation” within the meaning of Section 409A of the Code and that is payable as a result of a separation from service shall be paid within 30 days after the first business day that is more than six months after the date of his separation from service (or, if the Grantee dies during such six-month period, within 30 days after the Grantee’s death).

(d)It is intended that the Agreement comply with the requirements of Section 409A of the Code.  This Agreement shall be construed, administered, and governed in a manner that effects such intent, and the Company shall not take any action that would be inconsistent with such intent.  The Grantee consents to any amendment of this Agreement as the Company may reasonably make in furtherance of such intention, and the Company shall promptly provide, or make available to, the Grantee a copy of such amendment.  Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed.  Neither the Company, its affiliates, nor their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by the Grantee or other taxpayer as a result of the Agreement.”

2.Except as explicitly set forth herein, the Agreements will remain in full force and effect.

IN WITNESS WHEREOF, the parties hereto have executed this amendment to the Agreements as of the day and year first above written.

DUKE ENERGY CORPORATION
/s/Ann Maynard Gray
By:	Ann Maynard Gray
Title:		Lead Director
/s/James E. Rogers
James E. Rogers

2

EX-10.6

Exhibit 10.6

AMENDMENT TO
DEFERRED COMPENSATION AGREEMENT

The Deferred Compensation Agreement dated December 16, 1992 between PSI Energy Inc., a predecessor to Duke Energy Corporation (the “Company”) and James E. Rogers (the “Agreement”) is amended, effective August 26, 2008, as follows:

1.A new Section 17 is added to the Agreement as follows:

“Section 17
Compliance with Section 409A

This Section 17 shall apply to any “amounts deferred” under this Agreement in taxable years beginning after December 31, 2004 (within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)).  By way of example, this Section 17 will apply to the portion of earnings attributable to post-2004 services that exceeds a reasonable rate of interest as defined under Section 409A of the Code.  Any “amounts deferred” in taxable years beginning before January 1, 2005 under the Agreement (within the meaning of Section 409A of the Code) shall be governed by the terms of the Agreement as in effect on October 3, 2004, and it is intended that such amounts be exempt from the application of Section 409A of the Code.  Nothing contained herein is intended to materially enhance a benefit or right existing under the Agreement as of October 3, 2004 or add a new material benefit or right to such Agreement.

a.The benefits payable under Section 2.b. and Section 3.b. shall commence on the first to occur of (i) January of the year following Rogers’ “separation from service” with Duke Energy Corporation and its affiliates (the “Company”) within the meaning of Section 409A of the Code, or such later date as provided in Section 17(c), or (ii) January, 2010.

b.Reference to a “fifteen (15)-year certain period” means that the annual benefit shall be paid on the designated payment commencement date and on each anniversary thereof through the end of the 14th anniversary of the payment date.

c.If Rogers is a “specified employee” on his “separation from service”, as determined under the Company’s policy for identifying specified employees, then to the extent required in order to comply with Section 409A of the Code, any amount payable under this Agreement that constitutes a “deferral of compensation” within the meaning of Section 409A of the Code, that is provided as a result of a “separation from service” within the meaning of Section 409A of the Code and that would otherwise be paid or provided during the

first six months following such separation from service shall instead be accumulated through and paid, together with interest at the applicable federal rate under Section 7872(f)(2)(A) of the Code in effect on the separation from service, within 30 days after the first business day that is more than six months after the date of his separation from service (or, if Rogers dies during such six-month period, within 30 days after his death).

d.It is intended that this Amendment comply with the requirements of Section 409A of the Code.  This Amendment shall be construed, administered, and governed in a manner that effects such intent, and the Company shall not take any action that would be inconsistent with such intent.  Rogers consents to any revision to this Amendment as the Company may reasonably make in furtherance of such intention, and the Company shall promptly provide, or make available to, Rogers a copy of such revision.  Although the Company shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under this Amendment is not warranted or guaranteed.  Neither the Company, its affiliates, nor their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by Rogers or other taxpayer as a result of the Amendment.”

2.Except as explicitly set forth herein, the Agreement will remain in full force and effect.

IN WITNESS WHEREOF, the parties hereto have executed this amendment to the Agreement as of the day and year first above written.

DUKE ENERGY CORPORATION
/s/Ann Maynard Gray
By:	Ann Maynard Gray
Title:		Lead Director
/s/James E. Rogers
James E. Rogers

2

EX-10.7

Exhibit 10.7

(Current and Former Employees)

Amendment to Award Agreements

Duke Energy Corporation Long-Term Incentive Plans

Effective as of December 31, 2008, except as provided below, each outstanding award (each an “Award”) previously granted under the Duke Energy Corporation 1998 Long-Term Incentive Plan, Duke Energy Corporation 2006 Long-Term Incentive Plan and Cinergy Corp. 1996 Long-Term Incentive Compensation Plan is hereby amended as described below.

1.Performance Shares – Timing of Payments

Each performance share award is amended to specify that performance shares and dividend equivalents will be paid within 60 days after the date that the performance results are certified, but in no event after the end of the calendar year following the calendar year in which the performance period ends.  Each performance share award also is amended to provide that in the event of a change in control, any resulting performance shares and dividend equivalents will be paid within 60 days after the change in control.  Prior to this amendment, the Awards generally provided that payments would be made “as soon as practicable” following the date an amount became payable.

2.Phantom Shares – Timing of Payments

Each phantom share award is amended to specify that phantom shares will be paid within 60 days after the date such shares become vested, but in no event after the end of the calendar year in which such vesting occurs.  Each phantom share award also is amended to specify that dividend equivalents will be paid within 60 days after actual dividends are paid to Duke Energy’s shareholders, but in no event after the end of the calendar year in which such dividends are paid to the shareholders.  Prior to this amendment, the Awards generally provided that payments would be made “as soon as practicable” following the vesting date or the date that actual dividends were paid to shareholders.

3.Tax Withholding on Deferred LTIP Awards

Each phantom and performance share award is amended to provide that the Award holder no longer has the right to choose whether to write a check to satisfy the tax withholding obligation or to reduce his or her vested Award by using shares to satisfy the tax withholdings.  With respect to Awards that have been deferred beyond the vesting date, the Company will now have the discretion to decide whether the required tax withholding obligation (i.e., FICA taxes and local taxes in some jurisdictions) will be satisfied by either requiring the Award holder to write a check to Duke Energy or reducing the Award holder’s deferred shares by the amount of the required taxes.

4.Phantom Shares Granted in 2005

Retirement eligible individuals continue to vest in their phantom shares following retirement.  However, each phantom share award provided to retirement eligible individuals is amended to provide that the payment of the Award will no longer be accelerated in the event that the Award holder separates from service within two years following a change in control.  Each phantom share also is amended to remove the six-month delay of payment that could otherwise apply to an individual who is considered a

“specified employee” under Section 409A of the tax code (i.e., generally one of the 50 highest paid officers).

5.Leave of Absence Provisions

Each performance share award is amended to provide that if an employee is on an approved leave of absence (“LOA”) at the end of the performance period, in order to receive payment he or she must return to active service before November 1 of the calendar year immediately following the calendar year in which the performance period ends.  Each performance share award is amended to provide that if an employee is on an LOA on the date of a change in control, in order to receive payment he or she must return to active service before January 15 of the calendar year following the calendar year in which the change in control occurs.  Each phantom share award is amended to provide that an employee who commences an LOA will not vest in any additional shares unless he or she returns to active service before January 15 of the calendar year following the calendar year in which the LOA commenced.  Prior to this amendment, the phantom share and performance share awards provided that in order to receive payment the employee must return to active service in accordance with the terms of the LOA and, generally, before either the second or tenth anniversary of the date of the Award.  For this purpose, periods of short-term or long-term disability are not treated as an LOA.

6.Miscellaneous

If an Award holder is notified separately that an Award contains unique terms and is therefore not subject to this Amendment, that Award shall be amended as provided in such separate notice.  This amendment has been written in a manner that is intended to apply to a variety of Awards that contain similar, but not necessarily identical, terms; accordingly, to the extent any provision contained in this Amendment otherwise would amend an Award to add a provision that is already contained in the Award and that complies with Section 409A of the tax code, such portion of the Amendment shall be disregarded with respect to such Award.  It is intended that the payments provided under the Award shall either be exempt from the application of, or comply with, Section 409A of the tax code.  The Awards shall be construed, administered, and governed in a manner that effects such intent, and Duke Energy shall not take any action that would be inconsistent with such intent.  The Award holder consents to any amendment that Duke Energy may reasonably make in furtherance of such intention, and Duke Energy shall promptly provide, or make available to, the Award holder a copy of such amendment.  Without limiting the foregoing, the payments provided under the Awards may not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A of the tax code.  Although Duke Energy will use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the tax code, the tax treatment of the benefits provided under the Awards is not warranted or guaranteed.  Neither Duke Energy, its affiliates, nor their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by the Award holder or other taxpayer as a result of the Awards.  This Amendment also applies to any Awards relating to Spectra Energy common stock that were provided to the Award holder in connection with the spin-off of Spectra Energy in January, 2007.

EX-99.1

Exhibit 99.1

(Current and Former Non-Employee Directors

Who Hold Phantom Share Awards Granted in 2004/2005)

Amendment to Award Agreements

Duke Energy Corporation Long-Term Incentive Plans

Effective as of December 31, 2008, each phantom share award previously granted in 2004 or 2005 under the Duke Energy Corporation 1998 Long-Term Incentive Plan (each an “Award”) is hereby amended as described below.

1.Timing of Payments

Each phantom share award is amended to specify that phantom shares will be paid within 60 days after the date such shares become vested, but in no event after the end of the calendar year in which such vesting occurs.  Each phantom share award also is amended to specify that dividend equivalents will be paid within 60 days after actual dividends are paid to Duke Energy’s shareholders, but in no event after the end of the calendar year in which such dividends are paid to the shareholders.  Prior to this amendment, the awards generally provided that payments would be made “as soon as practicable” following the vesting date or the date that actual dividends were paid to shareholders.

2.Definition of “Separation from Service”

The phantom share awards previously provided that vesting accelerates upon termination of service after certain age and service requirements have been satisfied or as a result of disability.  The Awards are amended to provide that the term “termination of service” where used in the Awards shall mean a “separation from service” within the meaning of Section 409A of the tax code.

3.Definition of “Change in Control”

The phantom share awards previously provided for accelerated vesting upon a change in control of Duke Energy Corporation.  The Awards are amended to provide that vesting will accelerate upon the occurrence of an event that constitutes a “change in control” as defined in the original Award agreement, but only if such event also constitutes a “change in control event” within the meaning of Section 409A of the tax code.

4.Six-Month Delay for Certain Payments

The phantom share awards are amended to provide that if the Award holder is a “specified employee” on the date of his or her separation from service, as determined pursuant to procedures established by the Company, then to the extent required by Section 409A, any amounts that constitute a “deferral of compensation” within the meaning of Section 409A and that would otherwise be paid during the first six months following separation from service will instead be accumulated through and paid within 60 days after the six month anniversary of the separation from service (or, if earlier, within 60 days after the Award holder’s death).

5.Miscellaneous

It is intended that the payments provided under the Award shall either be exempt from the application of, or comply with, Section 409A of the tax code.  The Awards shall be

construed, administered, and governed in a manner that effects such intent, and Duke Energy shall not take any action that would be inconsistent with such intent.  The Award holder consents to any amendment that Duke Energy may reasonably make in furtherance of such intention, and Duke Energy shall promptly provide, or make available to, the Award holder a copy of such amendment.  Without limiting the foregoing, the payments provided under the Awards may not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A of the tax code.  Although Duke Energy will use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the tax code, the tax treatment of the benefits provided under the Awards is not warranted or guaranteed.  Neither Duke Energy, its affiliates, nor their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by the Award holder or other taxpayer as a result of the Awards.  This Amendment also applies to any Awards relating to Spectra Energy common stock that were provided to the Award holder in connection with the spin-off of Spectra Energy in January, 2007.

EX-99.2

Exhibit 99.2

AMENDMENT TO
DUKE ENERGY CORPORATION
DIRECTORS’ SAVINGS PLAN
(as Amended and Restated Effective as of January 1, 2008)

The Duke Energy Corporation Directors’ Savings Plan (as Amended and Restated Effective as of January 1, 2008) (the “Plan”) is amended, effective August 26, 2008, as follows:

1.             Section 6.6 of the Plan is hereby superseded and replaced in its entirety as set forth below:

“6.6         Transition Relief for Payment Elections – Post-2004 Deferrals.  With respect to Post-2004 Deferrals, a Participant designated by the Committee may, no later than a date specified by the Committee (provided that such date occurs no later than December 31, 2008 or such other date as permitted under Section 409A of the Code) elect on a form provided by the Committee to (a) change the date of payment of his or her Subaccounts to a date otherwise permitted for that Subaccount under the Plan; (b) change the form of payment of his or her Subaccounts to a form of payment otherwise permitted for that Subaccount under the Plan; or (c) receive payment of all or a designated portion of one or more of his or her Subaccounts in a single lump sum on a date in 2009 designated by the Committee.  The Committee may also take any action that it deems necessary, in its sole discretion, to amend prior deferral elections or payment elections of a Participant, without the Participant’s consent, to conform such elections to the terms of this Plan.  This Section is intended to comply with Notice 2007-86, any subsequent notice or guidance, and the applicable proposed and final Treasury Regulations issued under Section 409A of the Code and shall be interpreted in a manner consistent with such intent.”

2.             Except as explicitly set forth herein, the Plan will remain in full force and effect.

This amendment has been executed by an authorized officer of Duke Energy Corporation on August 29, 2008.

DUKE ENERGY CORPORATION
By:	/s/Marc E. Manly
	Marc E. Manly
	Group Executive & Chief Legal Officer