DUK » Topics » MISCELLANEOUS

These excerpts taken from the DUK 8-K filed Sep 2, 2008.
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.

 


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.

 


This excerpt taken from the DUK DEF 14A filed Mar 20, 2008.

ARTICLE III – Miscellaneous

            SECTION 3.1    No Rights to Awards or Continued Employment.    No employee shall have any claim or right to receive Awards under the Plan. Neither the Plan nor any action taken hereunder shall be construed as giving an employee any right to be retained by the Corporation or any of its subsidiaries. For purposes of the Plan, the transfer of employment of a Participant

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between the Corporation and any one of its subsidiaries (or between subsidiaries) shall not be deemed a termination of the Participant's employment.

            SECTION 3.2    Restriction on Transfer, Beneficiary.    Awards (or interests therein) to a Participant or amounts payable with respect to a Participant under the Plan are not subject to assignment or alienation, whether voluntary or involuntary. Notwithstanding the foregoing, a Participant may designate a beneficiary or beneficiaries to receive, in the event of the Participant's death, any amounts remaining to be paid with respect to the Participant under the Plan. The Participant shall have the right to revoke any such designation and to redesignate a beneficiary or beneficiaries. To be effective, any such designation, revocation, or redesignation must be in such written form as the Corporation may prescribe and must be received by the Corporation prior to the Participant's death. If a Participant dies without effectively designating a beneficiary or if all designated beneficiaries predecease the Participant, any amounts remaining to be paid with respect to the Participant under the Plan shall be paid to the Participant's estate.

            SECTION 3.3    Tax Withholding.    The Corporation or a subsidiary thereof, as appropriate, shall have the right to deduct from all payments made under the Plan to a Participant or to a Participant's beneficiary or beneficiaries any federal, state, local or other taxes required by law to be withheld with respect to such payments.

            SECTION 3.4    No Restriction on Right of Corporation to Effect Changes.    The Plan shall not affect in any way the right or power of the Corporation or its stockholders to make or authorize any recapitalization, reorganization, merger, acquisition, divestiture, consolidation, spin off, combination, liquidation, dissolution, sale of assets, or other similar corporate transaction or event involving the Corporation or a subsidiary or division thereof or any other event or series of events, whether of a similar character or otherwise.

            SECTION 3.5    Source of Payments.    The Corporation shall not have any obligation to establish any separate fund or trust or other segregation of assets to provide for payments under the Plan. To the extent any person acquires any rights to receive payments hereunder from the Corporation, such rights shall be no greater than those of an unsecured creditor.

            SECTION 3.6    Termination and Amendment.    The Plan shall continue in effect until terminated by the Board. The Committee may at any time amend or otherwise modify the Plan in such respects as it deems advisable; provided, however, no such amendment or modification may be effective without Board approval or Corporation stockholder approval if such approval is necessary to comply with the requirements for qualified performance-based compensation under Section 162(m) of the Code.

            SECTION 3.7    Governmental Regulations.    The Plan, and all Awards hereunder, shall be subject to all applicable rules and regulations of governmental or other authorities.

            SECTION 3.8    Headings.    The headings of sections and subsections herein are included solely for convenience of reference and shall not affect the meaning of any of the provisions of the Plan.

            SECTION 3.9    Governing Law.    The Plan and all rights and Awards hereunder shall be construed in accordance with and governed by the laws of the state of North Carolina.

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            SECTION 3.10    Effective Date.    The Plan is an amendment and restatement of the Plan by the Board that is effective as of February 26, 2008; provided, however, subject to the approval of the stockholders of the Corporation. Such approval shall meet the requirements of Section 162(m) of the Code and the regulations thereunder. At the sole discretion of the Board, in order to comply with the requirements of Section 162(m) of the Code, the business measures set forth in Section 2.2 above that may be used for Performance Targets for Awards that are intended to qualify as performance-based compensation under Section 162(m) of the Code shall be reapproved by the stockholders of the Corporation no later than the first meeting of such stockholders that occurs in the fifth calendar year following the calendar year in which such stockholders previously approved such business measures for such purpose.

            SECTION 3.11    Successors.    All obligations of the Corporation under the Plan shall be binding on any successor to the Corporation, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business or assets of the Corporation.

            IN WITNESS WHEREOF, the Plan, as amended effective February 26, 2008, is executed on behalf of the Corporation this     day of                          , 2008.

    DUKE ENERGY CORPORATION

 

 

By:

 

 

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Appendix B

This excerpt taken from the DUK 8-K filed Jun 30, 2006.

ARTICLE XI
MISCELLANEOUS

                11.1        Notices. (a) Unless this Agreement specifically requires otherwise, any notice, demand or request provided for in this Agreement, or served, given or made in connection with it, shall be in writing and shall be deemed properly served, given or made if delivered in person or sent by facsimile or sent by registered or certified mail, postage prepaid, or by a nationally recognized overnight courier service that provides a receipt of delivery, in each case, to the Parties at the addresses specified below:

If to Buyer, to:

Fortis Bank S.A./N.V.
c/o Fortis Capital Corporation
153 East 53rd Street, 27th floor
New York, New York 10022

Facsimile No.:  (212) 340-6170
Attn:  Executive Vice President/General Counsel

If to Seller, to:

Cinergy Capital & Trading, Inc.,
c/o Duke Energy Americas
5400 Westheimer Court
Houston, Texas 77056-5310
Attn:  Chief Financial Officer
Facsimile No.:  (713)627-6012

with a copy to:

Duke Energy Corporation
400 South Tryon Street, Suite 1800
Charlotte, NC  28202
Facsimile No.:
Attn: Vice President and General Counsel - Corporate Legal Group

(b)           Notice given by personal delivery, mail or overnight courier pursuant to this Section 11.1 shall be effective upon physical receipt. Notice given by facsimile pursuant to this Section 11.1 shall be effective as of  the date of confirmed delivery if delivered before 5:00 p.m. on any Business Day at the place of receipt or the next succeeding Business Day if confirmed delivery is after 5:00 p.m. on any Business Day at the place of receipt or during any non-Business Day at the place of receipt.

                11.2        Entire Agreement.

These excerpts taken from the DUK 10-Q filed May 10, 2006.

MISCELLANEOUS

2.1 Effect on PSA. This amendment shall be deemed to be an amendment to the PSA, and the PSA, as amended hereby, is hereby ratified, approved and confirmed in each and every respect. All references to the PSA therein or in any other document instrument or agreement shall hereafter be deemed to be references to the PSA as amended hereby. In the event of a conflict between the terms of the PSA and the terms of this Amendment, the terms of this Amendment shall control.

2.2 Construction and Other Provisions. The rules of construction in Section 1.2 of the PSA and the provisions of Articles X and Article XI of the PSA are incorporated herein by reference.

2.3 Headings. The headings used in this Amendment have been inserted for convenience of reference only and do not define or limit the provisions hereof.

2.4 Counterparts; Facsimile. This Amendment may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Any facsimile copies hereof or signature hereon shall, for all purposes, be deemed originals.

2.5 Governing Law. This Amendment shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to any conflict or choice of law provision that would result in the imposition of another state’s Law.

 

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MISCELLANEOUS

11.1 Notices. (a) Unless this Agreement specifically requires otherwise, any notice, demand or request provided for in this Agreement, or served, given or made in connection with it, shall be in writing and shall be deemed properly served, given or made if delivered in person or sent by facsimile or sent by registered or certified mail, postage prepaid, or by a nationally recognized overnight courier service that provides a receipt of delivery, in each case, to the Parties at the addresses specified below:

If to Buyer, to:

LSP BAY II HARBOR HOLDING, LLC

c/o LS Power Development LLC

Two Tower Center, 11th Floor

East Brunswick, NJ 08816

Facsimile No.: (732) 249-7290

Attn: Corporate Counsel

If to Seller, to:

Duke Energy Americas, LLC

c/o Duke Energy Corporation

5400 Westheimer Court

Houston, Texas 77056-5310

Facsimile No.: (713) 386-4087

Attn: General Counsel - Acquisitions & Divestitures

(b) Notice given by personal delivery, mail or overnight courier pursuant to this Section 11.1 shall be effective upon physical receipt. Notice given by facsimile pursuant to this Section 11.1 shall be effective as of the date of confirmed delivery if delivered before 5:00

 

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p.m. Central Time on any Business Day or the next succeeding Business Day if confirmed delivery is after 5:00 p.m. Central Time on any Business Day or during any non-Business Day.

11.2 Entire Agreement. Except for the Confidentiality Agreement, this Agreement supersedes all prior discussions and agreements between the Parties with respect to the subject matter hereof and contains the sole and entire agreement between the Parties hereto with respect to the subject matter hereof.

11.3 Expenses. Except as otherwise expressly provided in this Agreement, whether or not the transactions contemplated hereby are consummated, each Party will pay its own costs and expenses incurred in anticipation of, relating to and in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby.

11.4 Disclosure. Seller may, at its option, include in the Schedules items that are not material in order to avoid any misunderstanding, and any such inclusion, or any references to dollar amounts, shall not be deemed to be an acknowledgment or representation that such items are material, to establish any standard of materiality or to define further the meaning of such terms for purposes of this Agreement. Information disclosed in any Schedule shall constitute a disclosure for purposes of all other Schedules notwithstanding the lack of specific cross-reference thereto, to the extent the applicability of such disclosure to such other Schedule is reasonably apparent on its face. The Parties shall promptly notify each other of (a) the occurrence, or failure to occur, of any event, which occurrence or failure has caused any representation or warranty of such Party contained in this Agreement or in any exhibit, schedule, certificate, document or written instrument attached hereto to be untrue or inaccurate, (b) any failure of such Party to comply with, perform or satisfy, in any respect, any covenant, condition or agreement to be complied with, performed by or satisfied by it under this Agreement or any exhibit, schedule, certificate, document or written instrument attached hereto and (c) any notice or other communication from any Governmental Authority in connection with this Agreement, the Assignment and Assumption Agreement, the Company Assignment Agreement or the transactions contemplated herein and therein; provided that such disclosure, except as set forth in Section 10.2(e), shall not be deemed to cure, or to relieve any Party of any liability or obligation with respect to, any breach of or failure to satisfy any representation, warranty, covenant or agreement or any condition hereunder, and, except as set forth in Section 10.2(e), shall not affect any Party’s right with respect to indemnification hereunder.

11.5 Waiver. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative and not alternative.

11.6 Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party.

 

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11.7 No Third Party Beneficiary. Except for the provisions of Section 6.2(b), 6.5(e)(ii) and (h), the third sentence of Section 6.7(b), 10.1 (a) and (b) and 10.3 (which are intended for the benefit of the Persons identified therein), the terms and provisions of this Agreement are intended solely for the benefit of the Parties and their respective successors or permitted assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other Person, including, without limitation, any Continued Employee, any beneficiary or dependents thereof, or any collective bargaining representative thereof.

11.8 Assignment; Binding Effect. Buyer may assign its rights and obligations hereunder to any Affiliate or Affiliates, or to Buyer’s lenders for collateral security purposes, but such assignment shall not release Buyer from its obligations hereunder. Except as provided in the preceding sentence, neither this Agreement nor any right, interest or obligation hereunder may be assigned by any Party without the prior written consent of the other Party, and any attempt to do so will be void, except for assignments and transfers by operation of Law. Subject to this Section 11.8, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and permitted assigns.

11.9 Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.

11.10 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future Law, and if the rights or obligations of any Party under this Agreement will not be materially and adversely affected thereby, such provision will be fully severable, this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom and in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible.

11.11 Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Any facsimile copies hereof or signature hereon shall, for all purposes, be deemed originals.

11.12 Governing Law; Venue; and Jurisdiction. (a) This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to any conflict or choice of law provision that would result in the imposition of another state’s Law.

(b) WITH RESPECT TO THE ENFORCEMENT OF ANY ARBITRATION AWARD PURSUANT TO SECTION 10.6, THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK, NEW YORK.

 

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(c) WITH RESPECT TO THE ENFORCEMENT OF ANY ARBITRATION AWARD PURSUANT TO SECTION 10.6, EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY.

11.13 Attorneys’ Fees. If either of the Parties shall bring an action to enforce the provisions of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and expenses incurred in such action from the unsuccessful Party.

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