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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): May 4, 2023

 

Commission File Number

 

Registrant, State of Incorporation or Organization,
Address of Principal Executive Offices, Zip Code, and Telephone Number

 

IRS Employer Identification
No.

         
       
         
1-32853   DUKE ENERGY CORPORATION   20-2777218
         
    (a Delaware corporation)    
   

526 South Church Street

 Charlotte, North Carolina 28202-1803

704-382-3853

   

 

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:

 

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

 

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

 

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

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: 

 

Registrant   Title of each class   Trading Symbol(s)   Name of each exchange on
which registered
Duke Energy   Common Stock, $0.001 par value  

DUK

 

New York Stock Exchange LLC

Duke Energy   5.625% Junior Subordinated Debentures due September 15, 2078   DUKB   New York Stock Exchange LLC
Duke Energy   Depositary Shares
each representing a 1/1,000th interest in a share of 5.75% Series A Cumulative Redeemable Perpetual Preferred Stock, par value $0.001 per share
  DUK PR A   New York Stock Exchange LLC
             
Duke Energy   3.10% Senior Notes due 2028   DUK 28A   New York Stock Exchange LLC
             
Duke Energy   3.85% Senior Notes due 2034   DUK34   New York Stock Exchange LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 


 

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

 

The Duke Energy Corporation 2023 Long-Term Incentive Plan

 

At Duke Energy Corporation’s (the “Company” or “Duke Energy”) 2023 Annual Meeting of Shareholders held on May 4, 2023 (the “Annual Meeting”), shareholders of the Company approved the Duke Energy Corporation 2023 Long-Term Incentive Plan (the “2023 Plan”), which replaces the Duke Energy Corporation 2015 Long-Term Incentive Plan (the “2015 Plan”). The Company’s board of directors unanimously approved the 2023 Plan on February 23, 2023, subject to shareholder approval. The results of the shareholder vote on the 2023 Plan are set forth below under Item 5.07 of this Current Report on Form 8-K.

 

A brief description of the 2023 Plan follows and is subject to and qualified in its entirety by reference to the full text of the 2023 Plan, which is set forth in Appendix C to the Company’s Definitive Proxy Statement on Schedule 14A filed with the Securities Exchange Commission (the “Commission”) on March 23, 2023 and incorporated herein by reference.

 

The 2023 Plan authorizes the grant of equity-based compensation to our officers, key employees, and directors in the form of stock options, stock appreciation rights, performance shares, performance units, restricted stock, restricted stock units, stock retainers and dividend equivalents. Duke Energy has reserved 15,000,000 shares of common stock for delivery under the 2023 Plan.

 

The 2023 Plan will be administered by the Compensation and People Development Committee, except that any equity award granted to an independent member of the board of directors must be approved by the board of directors.

 

Upon receipt of shareholder approval of the 2023 Plan at the Annual Meeting, the 2015 Plan was terminated in its entirety and Duke Energy will no longer grant equity awards under the 2015 Plan; however, awards outstanding under the 2015 Plan will continue to remain outstanding in accordance with their terms. None of the shares remaining for issuance under the 2015 Plan will be carried over to the 2023 Plan. The 2023 Plan will remain in effect until May 4, 2033, unless sooner terminated by the board of directors. Termination will not affect awards then outstanding.

 

Copies of the form of restricted stock unit award agreement and performance share award agreement under the 2023 Plan are attached to this Current Report on Form 8-K as Exhibits 10.1 and 10.2, respectively, and are incorporated herein by reference.

 

Item 5.07 Submission of Matters to a Vote of Security Holders.

 

(a)            Duke Energy held its Annual Meeting of Shareholders on May 4, 2023.

 

(b)           At the Annual Meeting, shareholders voted on the following items: (i) election of directors; (ii) ratification of the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for 2023; (iii) an advisory vote to approve the Company’s named executive officer compensation; (iv) an advisory vote on the frequency of the vote on executive compensation; (v) approval of the Duke Energy Corporation 2023 Long-Term Incentive Plan; (vi) a shareholder proposal regarding a simple majority vote; and (vii) a shareholder proposal regarding formation of a committee to evaluate decarbonization risk. For more information on the proposals, see the Company’s Definitive Proxy Statement on Schedule 14A filed with the Commission on March 23, 2023. Set forth are the final voting results for each of the proposals.

 

 


 

• Proposal No. 1 – Election of Director Nominees

 

Director   For   Against   Abstain  

Broker
Non-Votes

 

Votes Cast FOR
Votes Cast FOR
+ AGAINST

Derrick Burks   496,476,061   7,206,844   2,066,114   146,449,000   98.57%
Annette K. Clayton   493,933,628   9,849,252   1,966,139   146,449,000   98.04%
Theodore F. Craver, Jr.   486,483,153   17,251,351   2,014,515   146,449,000   96.58%
Robert M. Davis   495,467,833   8,264,044   2,017,142   146,449,000   98.36%
Caroline Dorsa   462,428,613   41,332,587   1,987,819   146,449,000   91.80%
W. Roy Dunbar   490,205,278   13,491,607   2,052,134   146,449,000   97.32%
Nicholas C. Fanandakis   494,877,591   8,789,330   2,082,098   146,449,000   98.25%
Lynn J. Good   483,290,615   17,348,041   5,110,363   146,449,000   96.53%
John T. Herron   487,141,915   16,599,139   2,007,965   146,449,000   96.70%
Idalene F. Kesner   495,599,452   8,184,170   1,965,397   146,449,000   98.38%
E. Marie McKee   480,498,031   23,307,148   1,943,840   146,449,000   95.37%
Michael J. Pacilio   496,966,679   6,724,499   2,057,841   146,449,000   98.66%
Thomas E. Skains   490,052,335   13,658,225   2,038,459   146,449,000   97.29%
William E. Webster, Jr.   495,332,915   8,382,479   2,033,625   146,449,000   98.34%

 

Each director nominee was elected to the Board of Directors with the support of a majority of the votes cast.

 

• Proposal No. 2 – Ratification of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for 2023

 

For   Against   Abstain   Broker
Non-Votes
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
+ ABSTAIN
626,354,551   23,254,150   2,589,318   N/A   96.42%   96.04%

 

The ratification of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for 2023 received the support of a majority of the shares represented.

 

• Proposal No. 3 – Advisory vote to approve the Company’s named executive officer compensation

 

For   Against   Abstain   Broker
Non-Votes
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
+ ABSTAIN
465,266,297   36,111,421   4,371,301   146,449,000   92.80%   92.00%

 

The advisory vote to approve the Company’s named executive officer compensation received the support of a majority of the shares represented.

 

 


 

• Proposal No. 4 – Advisory vote on the frequency of the vote on executive compensation

 

1 Year   2 Years   3 Years   Abstain   Votes Cast For 1
YEAR
Votes Cast For 1
YEAR + 2 YEARS
+ 3 YEARS
  Votes Cast For 1
YEAR
Votes Cast For 1
YEAR + 2 YEARS
+ 3 YEARS
+ ABSTAIN
488,124,736   2,738,380   11,045,932   3,839,971   97.25%   96.52%

 

The majority of the shares represented selected that the vote on executive compensation should occur every year. In light of the results of the advisory vote on the frequency of say on pay votes, the Company will continue to hold an advisory say on pay vote annually until the next shareholder vote on the frequency of future say on pay advisory votes.

 

• Proposal No. 5 – Approval of the Duke Energy Corporation 2023 Long-Term Incentive Plan

 

For   Against   Abstain   Broker
Non-Votes
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
+ ABSTAIN
462,146,284   39,345,742   4,256,993   146,449,000   92.15%   91.38%

 

The proposal regarding approval of the Duke Energy Corporation 2023 Long-Term Incentive Plan received the support of a majority of the shares represented.

 

• Proposal No. 6 – Shareholder proposal regarding a simple majority vote

 

For   Against   Abstain   Broker
Non-Votes
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
+ ABSTAIN
371,235,824   98,483,736   36,026,911   146,451,547   79.03%   73.40%

 

The shareholder proposal regarding a simple majority vote received the support of a majority of the shares represented.

 

• Proposal No. 7 – Shareholder proposal regarding formation of a committee to evaluate decarbonization risk

 

For   Against   Abstain   Broker
Non-Votes
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
  Votes Cast FOR
Votes Cast FOR
+ AGAINST
+ ABSTAIN
14,287,004   484,505,880   6,956,135   146,449,000   2.86%   2.82%

 

The shareholder proposal regarding formation of a committee to evaluate decarbonization risk failed to receive the support of a majority of the shares represented.

 

(c)  Not applicable.

 

 


 

(d)  Not applicable

 

Item 8.01. Other Events.

 

Duke Energy has appointed Broadridge Corporate Issuer Solutions, LLC (“Broadridge”) as its new transfer agent and registrar for the shares of the Company’s common stock, $0.001 par value (the “Common Stock”), as well as the administrator of the Company’s InvestorDirect Choice Plan, effective as of May 8, 2023. All of the Company’s registered shares of Common Stock and related records have been transferred from the Company to Broadridge.

 

A form of the Company’s letter to shareholders sent on or about May 8, 2023, is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)  Exhibits.

 

10.1 Form of Restricted Stock Unit Award Agreement under the Duke Energy Corporation 2023 Long-Term Incentive Plan
10.2 Form of Performance Share Award Agreement under the Duke Energy Corporation 2023 Long-Term Incentive Plan
99.1 Form of Letter to Shareholders dated May 8, 2023
104 Cover Page Interactive Data File (the cover page XBRL tags are embedded in the Inline XBRL document)

 

 


 

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
   
  /s/ DAVID S. MALTZ
  David S. Maltz
  Vice President, Legal, Chief Governance Officer and Assistant Corporate Secretary
Dated: May 9, 2023  

 

 

 

EX-10.1 2 tm2314709d1_ex10-1.htm EXHIBIT 10.1

 

Exhibit 10.1

 

RESTRICTED STOCK UNIT AWARD AGREEMENT

 

Duke Energy Corporation (the "Corporation") grants to the individual named below ("Grantee"), in accordance with the terms of the Duke Energy Corporation 2023 Long-Term Incentive Plan, as it may be amended from time to time (the "Plan") and this Restricted Stock Unit Award Agreement (the "Agreement"), the following number of Restricted Stock Units (the "Award"), on the Date of Grant set forth below:

 

Name of Grantee:  
   
Number of Restricted Stock Units:  
   
Date of Grant:  
   
Vesting Dates:  

 

Section 1.        Nature of Restricted Stock Units.   Each Restricted Stock Unit, upon becoming vested, represents a right to receive payment in the form of one (1) share of Common Stock (a "Share"). Restricted Stock Units are used solely as units of measurement and are not Shares, and Grantee is not, and has no rights as, a shareholder of the Corporation by virtue of this Award.

 

Section 2.        Vesting of Restricted Stock Units.  Subject to Section 3 and 6 below, the Restricted Stock Units shall vest as follows:

 

(a)            The Restricted Stock Units shall vest in equal installments on each vesting date set forth above (each a "Vesting Date") (subject to rounding conventions adopted by the Corporation from time to time; provided that in no event will the total Shares issued exceed the total units granted under the Award), provided that Grantee shall have remained in the continuous employ of the Corporation or a Subsidiary through the applicable Vesting Date.

 

(b)            Notwithstanding Section 2(a), the Restricted Stock Units that have not yet vested under this Section 2 shall immediately vest if, prior to the applicable Vesting Date: (i) Grantee ceases to be employed with the Corporation and its Subsidiaries by reason of death or Disability (defined by reference Section 22(e)(3) of the Code), or (ii) a Change in Control occurs and the Corporation and its Subsidiaries terminate Grantee's employment other than for cause (as determined by the Corporation in its sole discretion), or Grantee's employment terminates under circumstances that entitle Grantee to severance benefits under an employment or change in control agreement with the Corporation or a Subsidiary, or a severance plan maintained by the Corporation or a Subsidiary, as applicable, in each case within the two-year period commencing on the Change in Control.

 

 


 

(c)            Notwithstanding Sections 2(a) or 2(b), a pro-rated portion of the Restricted Stock Units that has not yet vested under this Section 2 shall immediately vest if, prior to the applicable Vesting Date (and other than as provided in Section 2(b)(ii) above): (i) the Corporation and its Subsidiaries terminate Grantee's employment other than for cause, death or Disability, including as a result of the divestiture of assets, a business or a company by the Corporation or a Subsidiary, or (ii) Grantee voluntarily terminates employment with the Corporation and its Subsidiaries after having attained age 55 and completed 10 years of consecutive service from Grantee's most recent date of hire or re-hire, as applicable (as determined under such rules as may be established by the Corporation from time-to-time) ("Retirement"). The pro-rated portion of the Restricted Stock Units that becomes vested under this Section 2(c), if any, shall be determined by the Committee or its delegate, in its sole discretion, based upon Grantee's continuous employment with the Corporation and its Subsidiaries from the Date of Grant through the date of termination of employment (including additional service credit provided to Grantee, if any, under an employment agreement with the Corporation or a Subsidiary, or a severance plan maintained by the Corporation or a Subsidiary, as applicable). Notwithstanding the foregoing provisions, if Grantee is a member of the Senior Management Committee on the Date of Grant, Grantee shall be entitled to all (rather than a pro-rated portion) of the Restricted Stock Units in the event that, prior to the applicable Vesting Date, Grantee voluntarily terminates employment with the Corporation and its Subsidiaries after having attained age 60 and completed five years of consecutive service from Grantee’s most recent date of hire or re-hire, as applicable (as determined under such rules as may be established by the Corporation from time-to-time), but only if such voluntary termination occurs following the completion of one year of service after the Date of Grant.

 

(d)            For purposes of Section 2 of this Agreement, the continuous employment of Grantee with the Corporation and its Subsidiaries shall not be deemed to have been interrupted, and Grantee shall not be deemed to have ceased to be an employee, by reason of the transfer of his or her employment among the Corporation and its Subsidiaries or a leave of absence approved by the Corporation or a Subsidiary; provided that, to the extent permitted under applicable law, the Corporation shall pro-rate the vesting of Restricted Share Units in the event Grantee is on an approved but unpaid leave of absence, based upon the portion of the applicable vesting period during which Grantee received payment of salary (as determined under such rules as may be established by the Corporation from time-to-time).

 

Section 3.         Forfeiture. The Restricted Stock Units that have not yet vested pursuant to Section 2 (including without limitation any right to Dividend Equivalents described in Section 5 hereof relating to dividends payable on or after the date of forfeiture) shall be forfeited automatically without further action or notice if (a) Grantee ceases to be employed by the Corporation or a Subsidiary other than as provided in Sections 2(b) or 2(c), or (b) the Committee or its delegate, in its sole discretion, determines that Grantee is in violation of any obligation identified in Section 6.

 

2


 

Section 4.         Payment of Restricted Stock Units.

 

(a)            Except as provided in Section 4(b) below, payment of vested Restricted Stock Units shall be made to Grantee within 60 days following the date the units become vested in accordance with Section 2, except to the extent deferred by Grantee in accordance with procedures as the Committee, or its delegate, may prescribe from time to time.

 

(b)            To the extent Grantee's right to receive payment of the Restricted Stock Units constitutes a "deferral of compensation" within the meaning of Section 409A of the Code (because, for example, Grantee is Retirement eligible (or could become Retirement eligible during the term of this Agreement) or is a party to a Change in Control Agreement with the Corporation), then notwithstanding Section 4(a) hereof, payment of vested Restricted Stock Units shall be made to Grantee within 60 days following the earlier of: (i) Grantee's "separation from service" within the meaning of Section 409A of the Code; provided, however, that if Grantee is a "specified employee" within the meaning of Section 409A of the Code (as determined pursuant to the Company's policy for identifying specified employees) on the date of the Grantee's separation from service, then to the extent required to comply with Section 409A of the Code, payment shall be delayed until the first business day that is more than six months after the date of his or her separation from service; or (ii) the applicable Vesting Date(s) as provided in Section 2(a).

 

(c)            Payment of vested Restricted Stock Units shall be in the form of one (1) Share for each full Restricted Stock Unit; provided that if payment would be less than ten (10) Shares, or if payment would result in fractional shares, then, if so determined by the Committee or its delegate, in its sole discretion, payment may be made in cash in lieu of Shares.

 

Section 5.         Dividend Equivalent Payments.  With respect to each Restricted Stock Unit, Grantee shall be entitled to a cash payment (without interest) equal to the cash dividends declared and payable with respect to one (1) Share for each record date that occurs during the period beginning on the Date of Grant and ending on the date the Restricted Stock Unit is paid (the "Dividend Equivalent"). The right to any Dividend Equivalents shall be forfeited to the extent that the underlying Restricted Stock Unit is forfeited. Dividend Equivalents shall be paid to Grantee at the same time that the related cash dividend is paid to shareholders of the Corporation. Dividend Equivalents will be subject to any required withholding for federal, state, local, foreign or other taxes.

 

Section 6.         Restrictive Covenants.

 

(a)            In consideration of the Award, Grantee will not engage in any of the following activities for any reason, directly or indirectly, without the prior written consent of the Corporation or its delegate:

 

3


 

(i)            Non-Competition. For the period beginning on the Date of Grant and ending _______________ (or, if earlier, the __-month anniversary of the date the Grantee’s employment with the Corporation and its Subsidiaries ends (regardless of the reason for the end of Grantee’s employment)) (“Restricted Period”), Grantee shall not, for any reason, directly or indirectly, (1) become employed, engaged or involved with a Competitor (defined below) of the Corporation and/or its Subsidiaries in a position that involves providing services that relate to or are similar in nature or purpose to the services performed by Grantee for the Corporation and/or its Subsidiaries during the ___-year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries; or (2) supervise, manage, direct, or advise regarding such services either as principal, agent, manager, employee, partner, shareholder (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), director, officer or consultant. Notwithstanding anything in this Agreement to the contrary, if Grantee is a permanent resident of California or a tax resident of California who is assigned to perform services for the Corporation and/or its Subsidiaries from an office located in California, the restriction on competition described in this Section 6(a)(i) will not apply to the Award; additionally, the restriction on competition described in this Section 6(a)(i) will not apply to this Award in any state that would levy a fine or penalty against the Corporation and/or its Subsidiaries in connection with the inclusion of such restriction on competition in this Agreement.  If Grantee lives and/or works in certain jurisdictions, Grantee will be provided additional information and/or notice regarding the restriction outlined in this Section 6(a)(i).

 

(ii)           Customer, Client, and Supplier Non-Solicitation. During the Restricted Period, Grantee shall not, whether on Grantee’s own behalf or on behalf of or in conjunction with any other person, company or entity whatsoever, directly or indirectly induce or attempt to induce any actual or prospective customer, client, or supplier of the Corporation and/or its Subsidiaries to reduce, terminate, restrict or otherwise alter (to the Corporation's detriment) its business relationship with the Corporation and/or its Subsidiaries. The application of the solicitation restriction described in this Section 6(a)(ii) is limited to any actual or prospective customer, client, or supplier of the Corporation and/or its Subsidiaries (1) to or from whom Grantee sold or purchased or assisted in the selling or purchasing of products or services on behalf of the Corporation and/or its Subsidiaries during the ___ (_) year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries, and about whom Grantee acquired Confidential Information (as defined below) or with whom Grantee had personal contact in connection with Grantee’s employment with the Corporation and/or its Subsidiaries; or (2) to whom Grantee proposed or materially assisted in proposing the purchase or sale of any products or services on behalf of the Corporation and/or its Subsidiaries during the ___ (_) year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries. Notwithstanding anything in this Agreement to the contrary, if Grantee is a permanent resident of California or a tax resident of California who is assigned to perform services for the Corporation and/or its Subsidiaries from an office located in California, the solicitation restriction described in this Section 6(a)(ii) will not apply to the Award; additionally, the solicitation restriction described in this Section 6(a)(ii) will not apply to this Award in any state that would levy a fine or penalty against the Corporation and/or its Subsidiaries in connection with the inclusion of such solicitation restriction in this Agreement.  If Grantee lives and/or works in certain jurisdictions, Grantee will be provided additional information and/or notice regarding the restriction outlined in this Section 6(a)(ii).

 

4


 

(iii)            Employee and/or Contractor Non-Solicitation. During the Restricted Period, Grantee shall not, whether on Grantee’s own behalf or on behalf of or in conjunction with any other person, company or entity whatsoever, directly or indirectly induce or attempt to induce any employee, agent, and/or independent contractor working for or rendering services to the Corporation and/or its Subsidiaries to terminate their employment or business relationship with the Corporation and/or its Subsidiaries and/or reduce or otherwise alter (to the detriment of the Corporation and/or its Subsidiaries) the scope of services to be rendered to the Corporation and/or its Subsidiaries. The application of the solicitation restriction described in this Section 6(a)(iii) is limited to those employees, agents and/or independent contractors of the Corporation and/or its Subsidiaries (1) with whom Grantee had material business-related contact in the ___ (_) year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries; or (2) with or from whom Grantee shared, exchanged, or received Confidential Information (as defined below) in the ___ (_) year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries.

 

(iv)          Definition of “Competitor”. The term “Competitor” means any person or entity in competition with the Corporation or any Subsidiary, and more particularly those persons and entities (1) engaged in any business in which the Corporation and/or its Subsidiaries is engaged at the time the Grantee's continuous employment with the Corporation and/or its Subsidiaries ends, and (2) within the following geographical areas: (A) any country (other than the United States) where the Corporation and/or its Subsidiaries, has at least $25 million in capital deployed as of the termination of Grantee's employment; (B) the states of Florida, Indiana, Kentucky, North Carolina, Ohio, South Carolina and Tennessee, and (C) any other state in the United States where the Corporation, including its Subsidiaries, has at least $25 million in capital deployed as of the termination of Grantee's employment. The Corporation and Grantee intend the above restrictions on competition in geographical areas to be entirely severable and independent, and any invalidity or unenforceability of this provision with respect to any one or more of such restrictions, including geographical areas, shall not render this provision unenforceable as applied to any one or more of the other restrictions, including geographical areas.

 

5


 

(v)          Non-Disclosure of Confidential Information.

 

(A)            Grantee shall not, whether on Grantee’s own behalf or on behalf of or in conjunction with any other person, company or entity whatsoever, directly or indirectly use or disclose the Confidential Information (as defined below) of the Corporation and/or its Subsidiaries (on behalf of himself or any other person or entity) for any purpose other than in furtherance of Grantee’s bona fide job duties as an employee of the Corporation and/or its Subsidiaries. “Confidential Information” means any information, documentation, or electronic data of the Corporation and/or its Subsidiaries that is non-public and pertains to the business of the Corporation and/or its Subsidiaries, including business and marketing strategies, non-public client and/or customer data, pricing strategies and other non-public financial information, and all other non-public information in which the Corporation and/or its Subsidiaries have a proprietary interest and through which the Corporation and/or its Subsidiaries derive(s) economic value by virtue of its confidentiality. “Confidential Information” also includes all information pertaining to legal advice directed to the Corporation and/or its Subsidiaries, operational and financial compliance and risk management information, and all non-public communications pertaining to such topics. Grantee also may be entitled to immunity and protection from retaliation under the Defend Trade Secrets Act of 2016 for disclosing a trade secret under limited circumstances, as set forth in the Corporation’s Innovations – Inventions, Patents and Intellectual Properties Policy, which is expressly incorporated herein by reference.  All other legal and contractual protections governing the Confidential Information of the Corporation and/or its Subsidiaries remain in full force and effect and are not altered or in any manner reduced by the terms of this subsection (v).

 

(B)            Grantee further agrees not to publish or provide any oral or written statements about the Corporation or any Subsidiary, any of the Corporation's or any Subsidiary's current or former officers, executives, directors, employees, agents or representatives that are false, disparaging or defamatory, or that disclose private or confidential information about their business or personal affairs.   The obligations of this paragraph are in addition to, and do not replace, eliminate, or reduce in any way, all other contractual, statutory, or common law obligations Grantee may have to protect the Corporation's confidential information and trade secrets and to avoid defamation or business disparagement.

 

(b)            Nothing contained in this Agreement shall prohibit, restrict or otherwise discourage Grantee from reporting possible violations of federal, state or local laws or regulations to any federal, state or local governmental agency or commission (a "Government Agency"), from making other disclosures that are protected under the whistleblower provisions of federal, state or local laws or regulations, or from participating in "protected activity" as defined in 10 CFR 50.7 and Section 211 of the Energy Reorganization Act of 1974, including, without limitation, reporting any suspected instance of illegal activity of any nature, any nuclear safety concern, any workplace safety concern, any public safety concern, or any other matter within the United States Nuclear Regulatory Commission's ("NRC") regulatory responsibilities to the NRC or any other Government Agency. Grantee does not need prior authorization of any kind to engage in such activity or make any such reports or disclosures to any Government Agency and Grantee is not required to notify the Corporation that Grantee has made such reports or disclosures. Nothing in this Agreement limits any right Grantee may have to receive a whistleblower award or bounty for information provided to any Government Agency.

 

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(c)            If any part of this Section 6 is held to be unenforceable because of the duration, scope or geographical area covered, the Corporation and Grantee agree to modify such part, or that the court or arbitrator making such holding shall have the power to modify such part, to reduce its duration, scope or geographical area.

 

(d)            Nothing in Section 6 shall be construed to prohibit Grantee from being retained during the Restricted Period in a capacity as an attorney licensed to practice law, or to restrict Grantee from providing advice and counsel in such capacity, in any jurisdiction where such prohibition or restriction is contrary to law.

 

(e)            Grantee's agreement to the restrictions provided for in this Agreement and the Corporation's agreement to provide the Award are mutually dependent consideration. Therefore, notwithstanding any other provision to the contrary in this Agreement, if Grantee materially breaches any provision of this Section 6 or if the enforceability of any material restriction on Grantee provided for in this Agreement is challenged and found unenforceable by a court of law, then the Corporation shall, at its election, have the right to (i) cancel the Award, (ii) recover from Grantee any Shares or Dividend Equivalents or other cash paid under Award, or (iii) with respect to any Shares paid under the Award that have been disposed of, require Grantee to repay to the Corporation the fair market value of such Shares on the date such shares were sold, transferred, or otherwise disposed of by Grantee.   This provision shall be construed as a return of consideration or ill-gotten gains due to the failure of Grantee's promises under the Agreement, and not as a liquidated damages clause.  Nothing herein shall (x) reduce or eliminate the Corporation's right to assert that the restrictions provided for in this agreement are fully enforceable as written, or as modified by a court pursuant to Section 6, or (y) eliminate, reduce, or compromise the application of temporary or permanent injunctive relief as a fully appropriate and applicable remedy to enforce the restrictions provided for in Section 6 (inclusive of its subparts), in addition to recovery of damages or other remedies otherwise allowed by law.

 

(f)            Notwithstanding any other provision of this Agreement to the contrary, if the Corporation determines at any time that the Grantee engaged in Detrimental Activity (defined below) while employed by the Corporation or a Subsidiary, then, to the extent permitted by applicable law, such Grantee: (a) shall not be entitled to any further Shares, Dividend Equivalents or other amounts hereunder (and, if it is determined that a participant may have engaged in Detrimental Activity, payment of any Shares, Dividend Equivalents or other amounts otherwise due to the Grantee shall be suspended pending resolution to the Corporation’s satisfaction of any investigation of the matter), and (b) shall be required to promptly return to the Corporation, upon notice from the Corporation, any Shares, Dividend Equivalents or other amounts received under this Agreement by the Grantee during the three-year period preceding the date of the determination by the Corporation. To the extent that Shares, Dividend Equivalents or other amounts are not immediately returned or paid to the Corporation as provided in this paragraph, the Corporation may, to the extent permitted by applicable law, seek other remedies, including a set off of the Shares, Dividend Equivalents or other amounts so payable to it against any amounts that may be owing from time to time by the Corporation or an affiliate to the Grantee. For purposes of this paragraph, “Detrimental Activity” means: (i) the engaging by the Grantee in misconduct that is detrimental to the financial condition or business reputation of the Corporation or its affiliates, including due to any adverse publicity, or (ii) the Grantee’s breach or violation of any material written policy of the Corporation, including without limitation the Corporation’s Code of Business Ethics or any written policy or regulation dealing with workplace harassment, including sexual harassment and other forms of harassment prohibited by the Corporation’s Harassment-Free Workplace Policy Section 7.         Change in Control.

 

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Vesting of the Restricted Stock Units shall not accelerate solely as a result of a Change in Control. In the event of a Change in Control, the surviving, continuing, successor, or purchasing entity, as the case may be, may, without Grantee's consent, either assume or continue the Corporation's rights and obligations under this Agreement or provide a substantially equivalent award or other consideration in substitution for the Restricted Stock Units subject to this Agreement.

 

Section 8.         Withholding. To the extent the Corporation or any Subsidiary is required to withhold any federal, state, local, foreign or other taxes in connection with the delivery of Shares under this Agreement, then the Corporation or Subsidiary (as applicable) shall retain a number of Shares otherwise deliverable hereunder with a value equal to the required withholding (based on the Fair Market Value of the Shares on the date of delivery); provided that in no event shall the value of the Shares retained exceed the minimum amount of taxes required to be withheld or such other amount permitted under the Plan.

 

Section 9.         Conflicts with Plan, Correction of Errors, Section 409A and Grantee's Consent.  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. Capitalized terms used herein without definition shall have the meanings assigned to them in the Plan. In the event that, due to administrative error, this Agreement does not accurately reflect an 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.

 

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To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Code and that this Award not result in unfavorable tax consequences to Grantee under Section 409A of the Code. This Agreement will be administered and interpreted in a manner consistent with this intent, and any provision that would cause this Agreement to fail to satisfy Section 409A of the Code will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by Section 409A of the Code and made without the consent of Grantee). For purposes of this Agreement, each amount to be paid to Grantee pursuant to this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code.

 

Notwithstanding the foregoing, this Award is subject to cancellation by the Corporation in its sole discretion unless Grantee has signed a duplicate of this Agreement, in the space provided below, and returned the signed duplicate to the Executive Compensation and Benefits Department – Restricted Stock Units, _____________________, which, if, and to the extent, permitted by the Executive Compensation and Benefits Department, may be accomplished by electronic means.

 

IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed effective as of the Date of Grant.

 

  DUKE ENERGY CORPORATION
   
  By:           
  Its:  

 

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Acceptance of Restricted Stock Unit 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 on _____________________.

 

 

   
  Grantee's Signature
   
   
  (print name)

 

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EX-10.2 3 tm2314709d1_ex10-2.htm EXHIBIT 10.2

 

Exhibit 10.2

 

PERFORMANCE AWARD AGREEMENT

 

Duke Energy Corporation (the "Corporation") grants to the individual named below ("Grantee"), in accordance with the terms of the Duke Energy Corporation 2023 Long-Term Incentive Plan, as it may be amended from time to time (the "Plan") and this Performance Award Agreement (the "Agreement"), the following number of Performance Shares (the "Award"), on the Date of Grant set forth below:

 

Name of Grantee:  
   
Target # of Performance Shares:  
   
Date of Grant:  
   
Performance Period: The three-year period commencing on January 1 of the year in which the Date of Grant occurs

 

Section 1.         Nature of Performance Shares. Each Performance Share, upon becoming vested, represents a right to receive payment in the form of one (1) share of Common Stock (a "Share"). Performance Shares are used solely as units of measurement and are not Shares, and Grantee is not, and has no rights as, a shareholder of the Corporation by virtue of this Award.

 

Section 2.         Vesting of Performance Shares. Subject to Section 3 and 6 below, the Performance Shares shall vest as follows:

 

(a)            The Performance Shares shall vest only if and to the extent the Committee determines that the Performance Goals (as defined in Exhibit A) have been met for the Performance Period set forth above.

 

(b)            In general, Grantee must be employed by the Corporation or a Subsidiary on the last day of the Performance Period to be entitled to payment of any Performance Shares earned under Section 2(a) above. However, Grantee shall be entitled to a pro-rated portion of the Performance Shares earned under Section 2(a) above in the event that, during the Performance Period (i) Grantee ceases to be employed with the Corporation and its Subsidiaries by reason of death or Disability (defined by reference Section 22(e)(3) of the Code), (ii) the Corporation and its Subsidiaries terminate Grantee's employment other than for cause (as determined by the Corporation in its sole discretion), or (iii) Grantee voluntarily terminates employment with the Corporation and its Subsidiaries after having attained age 55 and completed 10 years of consecutive service from Grantee’s most recent date of hire or re-hire, as applicable (as determined under such rules as may be established by the Corporation from time-to-time). The pro-rated portion of the Performance Shares that becomes payable under this Section 2(b), if any, shall be determined by the Committee or its delegate, in its sole discretion, based upon Grantee's continuous employment with the Corporation and its Subsidiaries during the Performance Period (including additional service credit provided to Grantee, if any, under an employment or change in control agreement with the Corporation or a Subsidiary, or a severance plan maintained by the Corporation or a Subsidiary, as applicable). Notwithstanding the foregoing provisions, if Grantee is a member of the Senior Management Committee on the Date of Grant, Grantee shall be entitled to all (rather than a pro-rated portion) of the Performance Shares earned under Section 2(a) above in the event that, during the Performance Period, Grantee ceases to be employed with the Corporation and its Subsidiaries by reason of death or voluntary termination of employment after having attained age 60 and completed five years of consecutive service from Grantee’s most recent date of hire or re-hire, as applicable (as determined under such rules as may be established by the Corporation from time-to-time), but only if such death or voluntary termination occurs following the completion of the first year of the Performance Period.

 

 


 

(c)            For purposes of Section 2 of this Agreement, the continuous employment of Grantee with the Corporation and its Subsidiaries shall not be deemed to have been interrupted, and Grantee shall not be deemed to have ceased to be an employee, by reason of the transfer of his or her employment among the Corporation and its Subsidiaries or a leave of absence approved by the Corporation or a Subsidiary; provided that, to the extent permitted under applicable law, the Corporation shall pro-rate the payout of any Performance Shares earned in the event Grantee is on an approved but unpaid leave of absence during the Performance Period, based upon the portion of the Performance Period during which Grantee received payment of salary (as determined under such rules as may be established by the Corporation from time-to-time).

 

Section 3.         Forfeiture. The Performance Shares (including without limitation any right to accumulated Dividend Equivalents described in Section 5 hereof) shall be forfeited automatically without further action or notice if (a) Grantee ceases to be employed by the Corporation or a Subsidiary prior to the last day of the Performance Period other than as provided in Section 2(b), or (b) the Committee or its delegate, in its sole discretion, determines that Grantee is in violation of any obligation identified in Section 6. Grantee acknowledges and agrees that payments made under this Agreement are subject to the Corporation's requirement that the Grantee reimburse the portion of any payment where such portion of the payment was (i) inadvertently paid based on an incorrect calculation, or (ii) predicated upon the achievement of financial results that are subsequently the subject of a restatement caused or partially caused by Grantee's fraud or misconduct.

 

Section 4.         Payment of Performance Shares. Payment of the Performance Shares earned under Section 2 above shall be made to Grantee by March 15 of the calendar year immediately following the end of the Performance Period, except to the extent deferred by Grantee in accordance with procedures as the Committee, or its delegate, may prescribe from time to time. Payment of vested Performance Shares shall be in the form of one (1) Share for each full Performance Share earned, and any fractional Share shall be rounded to the nearest whole number of Shares; provided that if payment would be less than ten (10) Shares, then, if so determined by the Committee or its delegate, in its sole discretion, payment may be made in cash in lieu of Shares.

 

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Section 5.         Dividend Equivalents. Upon payment of a Performance Share, Grantee shall be entitled to a cash payment (without interest) equal to the aggregate cash dividends declared and payable with respect to one (1) Share for each record date that occurs during the period beginning on the Date of Grant and ending on the date the Performance Share is paid (the "Dividend Equivalent"). The Dividend Equivalents shall be forfeited to the extent that the underlying Performance Share is forfeited and shall be paid to Grantee, if at all, at the same time that the related Performance Share is paid in accordance with Section 4 above. Dividend Equivalents will be subject to any required withholding for federal, state, local, foreign or other taxes.

 

Section 6.         Restrictive Covenants.

 

(a)            In consideration of the Award, Grantee will not engage in any of the following activities for any reason, directly or indirectly, without the prior written consent of the Corporation or its delegate:

 

(i)            Non-Competition. For the period beginning on the Date of Grant and ending ___________________ (or, if earlier, the __-month anniversary of the date the Grantee’s employment with the Corporation and its Subsidiaries ends (regardless of the reason for the end of Grantee’s employment)) (“Restricted Period”), Grantee shall not, for any reason, directly or indirectly, (1) become employed, engaged or involved with a Competitor (defined below) of the Corporation and/or its Subsidiaries in a position that involves providing services that relate to or are similar in nature or purpose to the services performed by Grantee for the Corporation and/or its Subsidiaries during the ___-year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries; or (2) supervise, manage, direct, or advise regarding such services either as principal, agent, manager, employee, partner, shareholder (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), director, officer or consultant. Notwithstanding anything in this Agreement to the contrary, if Grantee is a permanent resident of California or a tax resident of California who is assigned to perform services for the Corporation and/or its Subsidiaries from an office located in California, the restriction on competition described in this Section 6(a)(i) will not apply to the Award; additionally, the restriction on competition described in this Section 6(a)(i) will not apply to this Award in any state that would levy a fine or penalty against the Corporation and/or its Subsidiaries in connection with the inclusion of such restriction on competition in this Agreement.  If Grantee lives and/or works in certain jurisdictions, Grantee will be provided additional information and/or notice regarding the restriction outlined in this Section 6(a)(i).

 

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(ii)           Customer, Client, and Supplier Non-Solicitation. During the Restricted Period, Grantee shall not, whether on Grantee’s own behalf or on behalf of or in conjunction with any other person, company or entity whatsoever, directly or indirectly induce or attempt to induce any actual or prospective customer, client, or supplier of the Corporation and/or its Subsidiaries to reduce, terminate, restrict or otherwise alter (to the Corporation's detriment) its business relationship with the Corporation and/or its Subsidiaries. The application of the solicitation restriction described in this Section 6(a)(ii) is limited to any actual or prospective customer, client, or supplier of the Corporation and/or its Subsidiaries (1) to or from whom Grantee sold or purchased or assisted in the selling or purchasing of products or services on behalf of the Corporation and/or its Subsidiaries during the ___ (_) year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries, and about whom Grantee acquired Confidential Information (as defined below) or with whom Grantee had personal contact in connection with Grantee’s employment with the Corporation and/or its Subsidiaries; or (2) to whom Grantee proposed or materially assisted in proposing the purchase or sale of any products or services on behalf of the Corporation and/or its Subsidiaries during the ___ (_) year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries. Notwithstanding anything in this Agreement to the contrary, if Grantee is a permanent resident of California or a tax resident of California who is assigned to perform services for the Corporation and/or its Subsidiaries from an office located in California, the solicitation restriction described in this Section 6(a)(ii)  will not apply to the Award; additionally, the solicitation restriction described in this Section 6(a)(ii)  will not apply to this Award in any state that would levy a fine or penalty against the Corporation and/or its Subsidiaries in connection with the inclusion of such solicitation restriction in this Agreement.  If Grantee lives and/or works in certain jurisdictions, Grantee will be provided additional information and/or notice regarding the restriction outlined in this Section 6(a)(ii).

 

(iii)           Employee and/or Contractor Non-Solicitation. During the Restricted Period, Grantee shall not, whether on Grantee’s own behalf or on behalf of or in conjunction with any other person, company or entity whatsoever, directly or indirectly induce or attempt to induce any employee, agent, and/or independent contractor working for or rendering services to the Corporation and/or its Subsidiaries to terminate their employment or business relationship with the Corporation and/or its Subsidiaries and/or reduce or otherwise alter (to the detriment of the Corporation and/or its Subsidiaries) the scope of services to be rendered to the Corporation and/or its Subsidiaries. The application of the solicitation restriction described in this Section 6(a)(iii) is limited to those employees, agents and/or independent contractors of the Corporation and/or its Subsidiaries (1) with whom Grantee had material business-related contact in the ___ (_) year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries; or (2) with or from whom Grantee shared, exchanged, or received Confidential Information (as defined below) in the ___ (_) year period immediately preceding the end of Grantee’s employment with the Corporation and its Subsidiaries.

 

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(iv)          Definition of “Competitor”. The term “Competitor” means any person or entity in competition with the Corporation or any Subsidiary, and more particularly those persons and entities (1) engaged in any business in which the Corporation and/or its Subsidiaries is engaged at the time the Grantee's continuous employment with the Corporation and/or its Subsidiaries ends, and (2) within the following geographical areas: (A) any country (other than the United States) where the Corporation and/or its Subsidiaries, has at least $25 million in capital deployed as of the termination of Grantee's employment; (B) the states of Florida, Indiana, Kentucky, North Carolina, Ohio, South Carolina and Tennessee, and (C) any other state in the United States where the Corporation, including its Subsidiaries, has at least $25 million in capital deployed as of the termination of Grantee's employment. The Corporation and Grantee intend the above restrictions on competition in geographical areas to be entirely severable and independent, and any invalidity or unenforceability of this provision with respect to any one or more of such restrictions, including geographical areas, shall not render this provision unenforceable as applied to any one or more of the other restrictions, including geographical areas.

 

(v)            Non-Disclosure of Confidential Information.

 

(A)            Grantee shall not, whether on Grantee’s own behalf or on behalf of or in conjunction with any other person, company or entity whatsoever, directly or indirectly use or disclose the Confidential Information (as defined below) of the Corporation and/or its Subsidiaries (on behalf of himself or any other person or entity) for any purpose other than in furtherance of Grantee’s bona fide job duties as an employee of the Corporation and/or its Subsidiaries. “Confidential Information” means any information, documentation, or electronic data of the Corporation and/or its Subsidiaries that is non-public and pertains to the business of the Corporation and/or its Subsidiaries, including business and marketing strategies, non-public client and/or customer data, pricing strategies and other non-public financial information, and all other non-public information in which the Corporation and/or its Subsidiaries have a proprietary interest and through which the Corporation and/or its Subsidiaries derive(s) economic value by virtue of its confidentiality. “Confidential Information” also includes all information pertaining to legal advice directed to the Corporation and/or its Subsidiaries, operational and financial compliance and risk management information, and all non-public communications pertaining to such topics. Grantee also may be entitled to immunity and protection from retaliation under the Defend Trade Secrets Act of 2016 for disclosing a trade secret under limited circumstances, as set forth in the Corporation’s Innovations – Inventions, Patents and Intellectual Properties Policy, which is expressly incorporated herein by reference.  All other legal and contractual protections governing the Confidential Information of the Corporation and/or its Subsidiaries remain in full force and effect and are not altered or in any manner reduced by the terms of this subsection (v).

 

(B)           Grantee further agrees not to publish or provide any oral or written statements about the Corporation or any Subsidiary, any of the Corporation's or any Subsidiary's current or former officers, executives, directors, employees, agents or representatives that are false, disparaging or defamatory, or that disclose private or confidential information about their business or personal affairs.   The obligations of this paragraph are in addition to, and do not replace, eliminate, or reduce in any way, all other contractual, statutory, or common law obligations Grantee may have to protect the Corporation's confidential information and trade secrets and to avoid defamation or business disparagement.

 

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(b)        Nothing contained in this Agreement shall prohibit, restrict or otherwise discourage Grantee from reporting possible violations of federal, state or local laws or regulations to any federal, state or local governmental agency or commission (a "Government Agency"), from making other disclosures that are protected under the whistleblower provisions of federal, state or local laws or regulations, or from participating in "protected activity" as defined in 10 CFR 50.7 and Section 211 of the Energy Reorganization Act of 1974, including, without limitation, reporting any suspected instance of illegal activity of any nature, any nuclear safety concern, any workplace safety concern, any public safety concern, or any other matter within the United States Nuclear Regulatory Commission's ("NRC") regulatory responsibilities to the NRC or any other Government Agency. Grantee does not need prior authorization of any kind to engage in such activity or make any such reports or disclosures to any Government Agency and Grantee is not required to notify the Corporation that Grantee has made such reports or disclosures. Nothing in this Agreement limits any right Grantee may have to receive a whistleblower award or bounty for information provided to any Government Agency.

 

(c)        If any part of this Section 6 is held to be unenforceable because of the duration, scope or geographical area covered, the Corporation and Grantee agree to modify such part, or that the court or arbitrator making such holding shall have the power to modify such part, to reduce its duration, scope or geographical area.

 

(d)        Nothing in Section 6 shall be construed to prohibit Grantee from being retained during the Restricted Period in a capacity as an attorney licensed to practice law, or to restrict Grantee from providing advice and counsel in such capacity, in any jurisdiction where such prohibition or restriction is contrary to law.

 

(e)        Grantee's agreement to the restrictions provided for in this Agreement and the Corporation's agreement to provide the Award are mutually dependent consideration. Therefore, notwithstanding any other provision to the contrary in this Agreement, if Grantee materially breaches any provision of this Section 6 or if the enforceability of any material restriction on Grantee provided for in this Agreement is challenged and found unenforceable by a court of law, then the Corporation shall, at its election, have the right to (i) cancel the Award, (ii) recover from Grantee any Shares or Dividend Equivalents or other cash paid under Award, or (iii) with respect to any Shares paid under the Award that have been disposed of, require Grantee to repay to the Corporation the fair market value of such Shares on the date such shares were sold, transferred, or otherwise disposed of by Grantee.   This provision shall be construed as a return of consideration or ill-gotten gains due to the failure of Grantee's promises under the Agreement, and not as a liquidated damages clause.  Nothing herein shall (x) reduce or eliminate the Corporation's right to assert that the restrictions provided for in this agreement are fully enforceable as written, or as modified by a court pursuant to Section 6, or (y) eliminate, reduce, or compromise the application of temporary or permanent injunctive relief as a fully appropriate and applicable remedy to enforce the restrictions provided for in Section 6 (inclusive of its subparts), in addition to recovery of damages or other remedies otherwise allowed by law.

 

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(f)         Notwithstanding any other provision of this Agreement to the contrary, if the Corporation determines at any time that the Grantee engaged in Detrimental Activity (defined below) while employed by the Corporation or a Subsidiary, then, to the extent permitted by applicable law, such Grantee: (a) shall not be entitled to any further Shares, Dividend Equivalents or other amounts hereunder (and, if it is determined that a participant may have engaged in Detrimental Activity, payment of any Shares, Dividend Equivalents or other amounts otherwise due to the Grantee shall be suspended pending resolution to the Corporation’s satisfaction of any investigation of the matter), and (b) shall be required to promptly return to the Corporation, upon notice from the Corporation, any Shares, Dividend Equivalents or other amounts received under this Agreement by the Grantee during the three-year period preceding the date of the determination by the Corporation. To the extent that Shares, Dividend Equivalents or other amounts are not immediately returned or paid to the Corporation as provided in this paragraph, the Corporation may, to the extent permitted by applicable law, seek other remedies, including a set off of the Shares, Dividend Equivalents or other amounts so payable to it against any amounts that may be owing from time to time by the Corporation or an affiliate to the Grantee.  For purposes of this paragraph, “Detrimental Activity” means: (i) the engaging by the Grantee in misconduct that is detrimental to the financial condition or business reputation of the Corporation or its affiliates, including due to any adverse publicity, or (ii) the Grantee’s breach or violation of any material written policy of the Corporation, including without limitation the Corporation’s Code of Business Ethics or any written policy or regulation dealing with workplace harassment, including sexual harassment and other forms of harassment prohibited by the Corporation’s Harassment-Free Workplace Policy.

 

Section 7.         Change in Control.  Vesting of the Performance Shares shall not accelerate solely as a result of a Change in Control. In the event of a Change in Control, the surviving, continuing, successor, or purchasing entity, as the case may be, may, without Grantee's consent, either assume or continue the Corporation's rights and obligations under this Agreement or provide a substantially equivalent award or other consideration in substitution for the Performance Shares subject to this Agreement.

 

Section 8.         Withholding. To the extent the Corporation or any Subsidiary is required to withhold any federal, state, local, foreign or other taxes in connection with the delivery of Shares under this Agreement, then the Corporation or Subsidiary (as applicable) shall retain a number of Shares otherwise deliverable hereunder with a value equal to the required withholding (based on the Fair Market Value of the Shares on the date of delivery); provided that in no event shall the value of the Shares retained exceed the minimum amount of taxes required to be withheld or such other amount permitted under the Plan. If the Corporation or any Subsidiary is required to withhold any federal, state, local or other taxes at any time other than upon delivery of the Shares under this Agreement (for example, if Grantee elects to defer payment of the Performance Shares), then the Corporation or Subsidiary (as applicable) shall have the right in its sole discretion to (a) require Grantee to pay or provide for payment of the required tax withholding, or (b) deduct the required tax withholding from any amount of salary, bonus, incentive compensation or other amounts otherwise payable in cash to Grantee (other than deferred compensation subject to Section 409A of the Code).

 

7


 

Section 9.         Conflicts with Plan, Correction of Errors, Section 409A and Grantee's Consent. 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. Capitalized terms used herein without definition shall have the meanings assigned to them in the Plan. In the event that, due to administrative error, this Agreement does not accurately reflect an 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.

 

To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Code and that this Award not result in unfavorable tax consequences to Grantee under Section 409A of the Code. This Agreement will be administered and interpreted in a manner consistent with this intent, and any provision that would cause this Agreement to fail to satisfy Section 409A of the Code will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by Section 409A of the Code and made without the consent of Grantee). For purposes of this Agreement, each amount to be paid to Grantee pursuant to this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code.

 

Notwithstanding the foregoing, this Award is subject to cancellation by the Corporation in its sole discretion unless Grantee has signed a duplicate of this Agreement, in the space provided below, and returned the signed duplicate to the Executive Compensation and Benefits Department – Performance Shares, _________________________, which, if, and to the extent, permitted by the Executive Compensation and Benefits Department, may be accomplished by electronic means.

 

8


 

IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed effective as of the Date of Grant.

 

  DUKE ENERGY CORPORATION
   
  By:  
  Its:  

 

9


 

Acceptance of Performance Award

 

IN WITNESS OF Grantee's acceptance of this Performance Award and Grantee's agreement to be bound by the provisions of this Agreement and the Plan, Grantee has signed this Agreement on _____________________.

 

   
  Grantee's Signature
   
   
  (print name)

 

10


 

EXHIBIT A
PERFORMANCE GOALS

 

Cumulative Adjusted Basic EPS (__%)

 

__% of the Target Number of Performance Shares subject to this Award shall become vested based upon the extent to which the Corporation achieves the "Cumulative Adjusted Basic EPS Performance Goal," which is based on the Corporation's cumulative adjusted basic earnings per share ("EPS"), for the Performance Period, in accordance with the applicable vesting percentage specified for Cumulative Adjusted Basic EPS in the following schedule:

 

Cumulative Adjusted
Basic EPS
Percent Payout of
Target Performance Shares*
   
   
   
   

*When such determination is at a level between those specified, the Committee, or its delegatee, in its sole discretion, shall interpolate to determine the applicable vesting percentage. The Committee shall have the authority to calculate and adjust the Cumulative Adjusted Basic EPS and the Cumulative Adjusted Basic EPS Performance Goal in the same manner as adjusted basic EPS is calculated and adjusted pursuant to the ____ Short-Term Incentive Program Guidelines, provided, however, that the Committee specifically reserves discretion to make adjustments to the EPS performance levels or results in the event that a major project is not placed in-service at the time assumed by the Corporation as of the Date of Grant for purposes of its business plan.

 

Total Shareholder Return (__%)

 

__% of the Target Number of Performance Shares subject to this Award shall become vested based upon the extent to which the Corporation achieves the "TSR Performance Goal," which is the Corporation's Total Shareholder Return ("TSR") percentile ranking among the companies that are in the Philadelphia Utility Index as of the beginning of the Performance Period, with higher percentile ranking for more positive/less negative TSR, for the Performance Period, in accordance with the applicable vesting percentage specified for such percentile ranking in the following schedule:

 

11


 

Relative TSR Performance
Percentile
Percent Payout of
Target Performance Shares**
   
   
   
   

**When such determination is of a percentile ranking between those specified, the Committee, or its delegatee, in its sole discretion, shall interpolate to determine the applicable vesting percentage. If the Corporation's TSR is at least __% during the Performance Period, the vesting percentage for this portion of the Performance Shares and Dividend Equivalents shall not be less than __%, and if the Corporation's TSR is less than __% during the Performance Period, the vesting percentage for this portion of the Performance Shares and Dividend Equivalents shall not be more than ___%.

 

For purposes of this Agreement, TSR means, with respect to any company, the percentage change in total stockholder return, determined by dividing (A) the difference between the price of a share of the company's common stock from the Opening Value (as defined below) to the Closing Value (as defined below), with any dividends with ex-dividend dates falling inside the Performance Period deemed reinvested in the company's common stock on the ex-dividend date, by (B) the Opening Value. The term "Opening Value" means, with respect to any company, the average of the closing prices per share of the company's common stock on each trading day during the calendar month preceding the start of the Performance Period, assuming any dividends with ex-dividend dates falling inside such calendar month are deemed reinvested in the company's common stock on the ex-dividend date. The term "Closing Value" means, with respect to any company, the average of the closing prices per share of the company's common stock on each trading day during the last calendar month of the Performance Period, assuming any dividends with ex-dividend dates falling inside such calendar month are deemed reinvested in the company's common stock on the ex-dividend date. In the event that a company becomes a member of the Philadelphia Utility Index following __________, or if a member of the Philadelphia Utility Index on ________ ceases to exist during the Performance Period as a separate publicly-traded company due to a merger, acquisition or privatization, such company shall not be taken into account for purposes of this Agreement. If a member of the ____________________ becomes bankrupt or insolvent during the Performance Period and ceases to be publicly-traded, for purposes of this Agreement its TSR shall be -100%.

 

Total Incident Case Rate For Employees (__%)

 

__% of the Target Number of Performance Shares subject to this Award shall become vested based upon the extent to which the Corporation achieves the "TICR Performance Goal," which is the Corporation's total incident case rate for employees, including staff augmentation workers ("TICR") as compared to the applicable vesting percentage specified in the following schedule:

 

12


 

Duke Energy TICR

vs. ___________***

Percent Payout of
Target Performance Shares****
   
   
   
   

***The ______________ shall consist of the results of the ___________, that report TICR results for at least one year during the _________ period.

 

****When such determination is at a level between those specified, the Committee, or its delegatee, in its sole discretion, shall interpolate to determine the applicable vesting percentage. The Committee retains discretion to make equitable adjustments to the TICR Performance Goal and the related payout levels to prevent dilution or enlargement of the Grantee’s right to payment in the event there are changes in the composition of the ______________ during the ________ period and/or there are fewer than __ companies in the ___________ that report TICR results for at least one year during the ________ period and/or the Corporation and members of the _________________ calculate their TICR results utilizing different methodologies.  The employees of any company acquired during the Performance Period shall not be taken into account when measuring the Corporation's TICR for the Performance Period.

 

Adjustments

 

If the Committee determines that a merger, consolidation, liquidation, issuance of rights or warrants to purchase securities, recapitalization, reclassification, stock dividend, spin-off, split-off, stock split, reverse stock split or other distribution with respect to the Shares, or any similar corporate transaction or event in respect of the Shares, the manner in which the Corporation conducts its business, changes in the law or regulations or regulatory structure, changes in accounting practices, other unusual or nonrecurring items or occurrences, or other events or circumstances, render the Performance Goals to be unsuitable, the Committee may, in its sole discretion, and without the consent of the Grantee or any other persons, modify the calculation of the Performance Goals, or any of the related minimum, target or maximum levels of achievement, or the performance results, in whole or in part, as the Committee deems equitable and appropriate to reflect such event.

 

In addition, the Committee reserves the right to reduce any vesting to the extent the Committee determines that such reduction is equitable and appropriate for any reason, including reductions based on overall financial performance, such as adjusted and reported earnings, capital deployment and credit position during the Performance Period.

 

13

 

EX-99.1 4 tm2314709d1_ex99-1.htm EXHIBIT 99.1

Exhibit 99.1

 

May 8, 2023

 

Dear Shareholder,

 

We are pleased to announce that Duke Energy has appointed Broadridge Corporate Issuer Solutions, LLC. (Broadridge) as the transfer agent and registrar for Duke Energy’s common stock, effective May 8, 2023. As the manager of Duke Energy’s shareholder records, you can expect Broadridge to provide the same level of services for your Duke Energy stock that Duke Energy Shareholder Services has previously provided.

 

What’s not changing:

•You will continue to own stock in Duke Energy.

•You will continue to receive account statements for your shares of Duke Energy common stock.

•Your account number has not changed.

•No changes will be made to your account, including your dividend payment and reinvestment elections, unless requested by you.

•Shareholder Services Representatives will continue to be available by telephone, 8:00 am - 5:00 pm ET.

 

What’s changing:

•Broadridge is Transfer Agent and Plan Administrator: Broadridge will perform transfer agent services, on behalf of Duke Energy and become plan administrator for the InvestorDirect Choice Plan, Duke Energy’s dividend reinvestment & direct stock purchase plan through which shareholders can buy and sell shares of Duke Energy common stock.

•More options for Dividend Reinvestment & Direct Stock Purchase Plan: You will have more options selling your shares by requesting market and limit orders either online or by telephone, giving you more control over the price you receive for your shares.

•More online account capabilities: You may request any type of stock sale online and have the proceeds directly deposited into your bank account. You may continue to request one-time stock purchases through a debit to your bank account and change any recurring debits you currently have. You may sign up for e-delivery of your statements and tax documents, request replacements for any misplaced or stale-dated checks and vote your shares directly through your online account.

 

If you would like to access your information online, you will need your account number printed above. You can find detailed instructions regarding online account set-up on the back of this letter.

 

 


 

Your account is important to us. If you have any questions related to your shares you can reach out to your Duke Energy team at Broadridge via any of the below contact methods:

 

Email: shareholder@broadridge.com

Phone: 1-800-488-3853 or 754-238-3853

 

Regular Mail:

Duke Energy Shareholder Services

c/o Broadridge Corporate Issuer Solutions

P.O. Box 1342

Brentwood, NY 11717-0718

 

Overnight Mail:

Duke Energy Shareholder Services

c/o Broadridge Corporate Issuer Solutions

Attn: IWS

1155 Long Island Avenue

Edgewood, NY 11717-8309

 

Creating your online account:

By accessing your account online, you can view your account balance, manage your preferences, and perform transactions on your account. To access your account online, follow the instructions listed below.

1. Go to www.duke-energy.com/investors

2. Click SHAREHOLDER SIGN IN, located below the stock price.

3. Click “Create Profile” under “First Time Users”

4. You would fill out ALL fields and then click Request PIN to complete the request

5. Once the information has been authenticated a PIN will be mailed to the address on record. PIN delivery may take up to ten business days due to processing and delivery via USPS first class mail.

6. Once you receive the PIN in the mail, follow the instructions listed on the letter to access your account online.

7. If you do not receive a PIN within 10 business days, contact us at 1-800-488-3853 or 754-238-3853.

 

Should you have questions or need any assistance, please call 1-800-488-3853 or 754-238-3853. Shareholder representatives are available from 8:00am until 5:00pm, ET, Monday through Friday.

 

Sincerely,

Duke Energy Shareholder Services

 

 


 

Common Questions about the Change

 

I have dividend checks that I have not yet cashed. May I still cash them?

You must cash any checks issued by Duke Energy that are still valid by June 5, 2023. After June 5, 2023, you must contact Broadridge for replacement checks.

 

Will I continue to receive my dividend payment or reinvestment just as I have previously?

Yes. Any dividend payment instructions and dividend reinvestment elections will continue.

 

I have recently submitted a request to transfer shares of stock. Will I need to resubmit my request?

Any requests to transfer received within a reasonable time of the change will be honored, if in good standing. You will be contacted by Broadridge if any additional information is needed.

 

May I continue to buy Duke Energy stock through the InvestorDirect Choice Plan

Yes, you may continue to buy shares of Duke Energy common stock through the InvestorDirect Choice Plan. Checks should be made payable to Broadridge and mailed to Broadridge Shareholder Services, c/o Broadridge Corporate Issuer Solutions, P.O. Box 1342, Brentwood, NY 11717. You may also purchase shares by logging into your account.

 

How do I obtain a replacement 1099-DIV or 1099-B?

Please contact the Duke Energy team at Broadridge at 800-488-3853 or 754-238-3853 and they will assist in getting you a duplicate copy of your 1099.

 

When will I start being charged fees?

The fee structure will be implemented on July 1, 2023, details of which can be found in the Amendment to the Prospectus that was filed on May 8, 2023.

 

How do I access my account online?

Shareholders who have accessed their account online within the last six months were sent an email containing a unique PIN and login instructions. This email was sent to the email address associated with their online account. If the shareholder did not receive an email or needs to establish their online account will need to request a unique PIN. This PIN may be requested by navigating to duke-energy.com/investors.

Select “SHAREHOLDER SIGN IN”

Click “Create Profile” under “First Time Users