-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UamSz5D1ppyQoOGjzcrJXE/3iRTiQBGf7erDvP33D69MocIu/d1b7i5sZWfyegSa tc5/Eh0EEx141d0LP4NSsg== 0001169232-05-002783.txt : 20050517 0001169232-05-002783.hdr.sgml : 20050517 20050517162436 ACCESSION NUMBER: 0001169232-05-002783 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20050517 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050517 DATE AS OF CHANGE: 20050517 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DUKE ENERGY CORP CENTRAL INDEX KEY: 0000030371 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 560205520 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-04928 FILM NUMBER: 05839066 BUSINESS ADDRESS: STREET 1: 526 SOUTH CHURCH STREET CITY: CHARLOTTE STATE: NC ZIP: 28202 BUSINESS PHONE: 7045940887 MAIL ADDRESS: STREET 1: 526 S. CHURCH ST. CITY: CHARLOTTE STATE: NC ZIP: 28202 FORMER COMPANY: FORMER CONFORMED NAME: DUKE POWER CO /NC/ DATE OF NAME CHANGE: 19920703 8-K 1 d63953_8k.htm CURRENT REPORT Duke Energy Corporation

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of report: May 17, 2005
(Date of earliest event reported: May 11, 2005)

DUKE ENERGY CORPORATION
(Exact name of registrant as specified in charter)

NORTH CAROLINA
(State or other jurisdiction
of incorporation) 		1-4928
(Commission File No.) 		56-0205520
(IRS Employer
Identification No.)

526 South Church Street
Charlotte, North Carolina
(Address of principal executive offices) 		28202-1904
(Zip Code)

Registrant’s telephone number, including area code: 704-594-6200

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 (see General Instruction A.2. below):

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))

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ITEM 1.01 Entry Into a Material Definitive Agreement

1. Changes to Director Compensation

On May 12, 2005, the Board of Directors approved changes to retainer and attendance fees for non-employee directors of the registrant, as follows:

• Nuclear Oversight Committee meeting fee: $3,000 (from $1,500) for in-person meetings held in conjunction with Board meetings, including bifurcated meetings (e.g., meeting on day 1, with second meeting on day 2, both around Board meeting); $1,500 (no change) for telephonic meetings and telephonic participation in meetings held in conjunction with Board meetings. Retroactive to May 1, 2005.

• Annual Board retainer (stock): $65,000 value (from $50,000)(equity vehicle may vary). Effective May 12, 2005.

2. Award of Phantom Stock to Non-employee Directors

On May 12, 2005, the Board of Directors granted an additional 2005 phantom stock units to all non-employee directors under the Duke Energy Corporation 1998 Long-Term Incentive Plan, to reflect the increase in the annual director stock retainer. The number of units in each award (540) was calculated by dividing $15,000, the difference in the new annual director stock retainer value and the value granted on February 22, 2005, by the closing price of Duke Energy Common Stock on the business day immediately preceding the date of the grant. The units will vest ratably over five years, or, if earlier, upon (1) termination of service after attaining age 70, (2) termination of service after attaining age 62 with at least 10 years of service, (3) termination of service due to death or disability, or (4) upon a Change in Control (as defined in the Duke Energy Corporation 1998 Long-Term Incentive Plan) while serving as director. The phantom stock units are payable upon vesting in Duke Energy common stock. The form of phantom stock award agreement for directors is attached hereto as Exhibit 10.1.

3. Award of Phantom Stock Grant to Named Executive Officer

On May 11, 2005, the Compensation Committee of the Board of Directors approved an award of 35,000 phantom stock units to Mr. Jimmy W. Mogg, the registrant’s Group Vice President and Chief Development Officer, effective as of May 11, 2005. The units vest on June 1, 2006, provided Mr. Mogg’s employment has not been terminated before that date, or earlier if, prior to June 1, 2006, Mr. Mogg’s employment terminates due to death, disability, or a Change in Control (as defined in the Duke Energy Corporation 1998 Long-Term Incentive Plan) and Mr. Mogg’s employment is terminated by the registrant without cause. The phantom stock units are payable upon vesting in Duke Energy common stock.

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ITEM 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers

At the May 12, 2005, annual meeting of the registrant’s shareholders, Robert J. Brown and Leo E. Linbeck, Jr., retired as directors from the registrant’s Board of Directors pursuant to the registrant’s Board of Directors retirement policy.

On May 12, 2005, following the registrant’s annual meeting at which the registrant’s shareholders approved an amendment to the registrant’s Restated Articles of Incorporation to eliminate classification of the Board of Directors, all members of the Board of Directors continuing in office tendered a letter of resignation effective as of the 2006 annual meeting, so that the terms of all directors shall end, and all directors shall thereafter be elected annually, at the 2006 annual meeting.

ITEM 9.01 Financial Statements And Exhibits.

(c) Exhibits.

                    10.1 Form of Phantom Stock Award Agreement pursuant to Duke Energy Corporation 1998 Long-Term Incentive Plan by and between Duke Energy Corporation and nonemployee directors.

SIGNATURE

          Pursuant to the requirements of the Securities 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
 
 
By: /s/ Edward M. Marsh, Jr.                  
Edward M. Marsh, Jr.
Deputy General Counsel and Assistant
Secretary

Date: May 17, 2005

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EX-10.1 2 d63953_ex10-1.htm STOCK AWARD AGREEMENT

                                                                                                

 

Exhibit 10.1

 

2005 INDEPENDENT DIRECTOR AWARD

 

PHANTOM STOCK AWARD AGREEMENT

 

This Phantom Stock Award Agreement (the “Agreement”) has been made as of __, 2005, (the “Date of Award”) between Duke Energy Corporation, a North Carolina corporation, with its principal offices in Charlotte, North Carolina (the “Corporation”), and «name” (the “Grantee”).

 

RECITALS

 

Under the Duke Energy Corporation 1998 Long-Term Incentive Plan as amended, and as it may, from time to time, be further amended (the “Plan”), the Board of Directors of the Corporation (the “Board”), succeeding, in accordance with Section 4.5. of the Plan, to the authority of the Compensation Committee of the Board of Directors (the “Committee”), for an award under the Plan to an Independent Director, has determined the form of this Agreement and selected the Grantee, as an Independent Director, to receive the award evidenced by this Agreement (the “Award”) and the Phantom Stock units and tandem Dividend Equivalents that are subject hereto. The applicable provisions of the Plan are incorporated in this Agreement by reference, including the definitions of terms contained in the Plan.

 

AWARD

 

In accordance with the Plan, the Corporation has made this Award, effective as of the Date of Award and upon the following terms and conditions:

 

Section 1.       Number and Nature of Phantom Stock Units and Tandem Dividend Equivalents.  The number of Phantom Stock units and the number of tandem Dividend Equivalents subject to this Award are each (number) (x,xxx). Each Phantom Stock unit, upon becoming vested, before its expiration, represents a right to receive payment in the form of one (1) share of Common Stock. Each tandem Dividend Equivalent represents a right to receive cash payments equivalent to the amount of cash dividends declared and paid on one (1) share of Common Stock after the Date of Award and before the Dividend Equivalent expires. Phantom Stock units and Dividend Equivalents are used solely as units of measurement, and are not shares of Common Stock and the Grantee is not, and has no rights as, a shareholder of the Corporation by virtue of this Award.

 

Section 2.      Vesting of Phantom Stock Units.  The specified percentage of the Phantom Stock units subject to this Award, and not previously forfeited, shall vest, with such percentage considered satisfied to the extent such Phantom Stock units have previously vested, as follows:

 

 


 

 

a.

Upon Grantee continuously remaining an Independent Director through the date specified,

 

Vesting Percentage

Date

 

 

20%

__________ ___, 2006

 

40%

__________ ___, 2007

 

60%

__________ ___, 2008

 

80%

__________ ___, 2009

100%

__________ ___, 2010

 

b.

100%, upon Grantee ceasing to continuously remain an Independent Director, provided such cessation constitutes a “separation from service” within the meaning of Code Section 409A(a)(2)(A)(i), (i) after Grantee has attained age sixty-two (62) and has completed at least ten (10) years of continuous service as an Independent Director, (ii) on or after the date of the annual meeting of the shareholders of the Corporation coinciding with, or next following, Grantee’s attainment of age seventy (70), (iii) by reason of Grantee’s total and permanent disability within the meaning of Code Section 22 (e)(3), or (iv) by reason of Grantee’s death.

 

c.

100%, upon the occurrence of a Change in Control, provided such occurrence would satisfy the distribution requirements of Code Section 409A(a)(2)(A)(v).

 

Section 3.          Forfeiture/Expiration. Any Phantom Stock unit subject to this Award shall be forfeited upon Grantee ceasing to continuously remain an Independent Director from the Date of Award, except to the extent otherwise provided in Section 2, and, if not previously vested and paid, or deferred, or forfeited, shall expire immediately before the tenth anniversary of the Date of Award. Any Dividend Equivalent subject to this Award shall expire at the time the unit of Phantom Stock with respect to which the Dividend Equivalent is in tandem (i) is vested and paid, or deferred, (ii) is forfeited, or (iii) expires.

 

Section 4.          Dividend Equivalent Payments.  Payments with respect to any Dividend Equivalent subject to this Award shall be paid in cash to the Grantee as soon as practicable following any time cash dividends are declared and paid with respect to the Common Stock on or after the Date of Award and before the Dividend Equivalent expires. However, should the timing of a particular payment under Section 5 to the Grantee in shares of Common Stock in conjunction with the timing of a particular cash dividend declared and paid on Common Stock be such that the Grantee receives such shares without the right to receive such dividend and the Grantee would not otherwise be entitled to payment under the expiring Dividend Equivalent with respect to such dividend, the Grantee, nevertheless, shall be entitled to such payment.

 

Section 5.          Payment of Phantom Stock Units.  Payment of Phantom Stock units subject to this Award shall be made to the Grantee as soon as practicable following the time such units become vested in accordance with Section 2, prior to their expiration, except to the extent deferred by Grantee in accordance with the provisions of the Duke Energy Corporation Directors’ Savings Plan II. Payment shall be in the form of one (1) share of Common Stock for each full vested unit of Phantom Stock and any partial vested Phantom Stock unit shall be valued on the basis of the corresponding part of the Fair Market Value of a share of Common Stock on the date the respective partial Phantom Stock unit become vested and shall be paid in cash.

 

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Section 6.          No Right to Continue to Be an Independent Director. Nothing in this Agreement or in the Plan shall confer upon the Grantee the right to continue as an Independent Director or to be nominated as a candidate for re-election as an Independent Director.

 

Section 7.          Nonalienation.  The Phantom Stock units and Dividend Equivalents subject to this Award are not assignable or transferable by the Grantee. Upon any attempt to transfer, assign, pledge, hypothecate, sell or otherwise dispose of any such Phantom Stock unit or Dividend Equivalent, or of any right or privilege conferred hereby, or upon the levy of any attachment or similar process upon such Phantom Stock unit or Dividend Equivalent, or upon such right or privilege, such Phantom Stock unit or Dividend Equivalent or right or privilege, shall immediately become null and void.

 

Section 8.          Determinations.  Determinations by the Board, or its delegatee, shall be final and conclusive with respect to the interpretation of the Plan and this Agreement.

 

Section 9.          Governing Law.  The validity and construction of this Agreement shall be governed by the laws of the state of North Carolina applicable to transactions taking place entirely within that state.

 

Section 10.        Conflicts with Plan and Correction of Errors.  In the event that any provision of this Agreement conflicts in any way with a provision of the Plan, such Plan provision shall be controlling and the applicable provision of this Agreement shall be without force and effect to the extent necessary to cause such Plan provision to be controlling. In the event that, due to administrative error, this Agreement does not accurately reflect a Phantom Stock Award properly granted to Grantee pursuant to the Plan, the Corporation, acting through its Executive Compensation and Benefits Department, reserves the right to cancel any erroneous document and, if appropriate, to replace the cancelled document with a corrected document. It is the intention of the Corporation and the Grantee that this Award not result in unfavorable tax consequences to Grantee under Code Section 409A. Accordingly, Grantee consents to such amendment of this Agreement as the Corporation may reasonably make in furtherance of such intention, and the Corporation shall promptly provide, or make available to, Grantee a copy of any such amendment.

 

NOTWITHSTANDING THE FOREGOING, this Award is subject to cancellation by the Corporation in its sole discretion unless the Grantee, by not later than __________

 

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__, 2005, has signed a duplicate of this Agreement, in the space provided below, and returned the signed duplicate to the Executive Compensation and Benefits Department - Phantom Stock (PB04A), Duke Energy Corporation, P. O. Box 1244, Charlotte, NC 28201-1244.

 

IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed and granted in Charlotte, North Carolina, to be effective as of the Date of Award.

 

ATTEST: DUKE ENERGY CORPORATION
 
 
By: ________________________________
Corporate Secretary		 By:
Its:		 ________________________________
Chairman and Chief Executive Officer

 

 

 

Acceptance of Phantom Stock Award

 

IN WITNESS OF Grantee’s acceptance of this Award and Grantee’s agreement to be bound by the provisions of this Agreement and the Plan, Grantee has signed this Agreement this _____ day of _____________________, 2005.

 

 

 
_______________________________
Grantee’s Signature

_______________________________
(print name)

_______________________________
(social security number)

_______________________________
(address)

_______________________________

 

 

 

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