{"id":43960,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/underwriting-agreement-for-common-stock-duke-energy-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"underwriting-agreement-for-common-stock-duke-energy-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/underwriting-agreement-for-common-stock-duke-energy-corp.html","title":{"rendered":"Underwriting Agreement for Common Stock – Duke Energy Corp."},"content":{"rendered":" DUKE ENERGY CORPORATION\n \n UNDERWRITING AGREEMENT\n \n For Purchase of Shares of\n Common Stock of the Corporation\n \n \n \n \n \n \nLadies and Gentlemen:\n \n1. Introductory. DUKE ENERGY CORPORATION, a North Carolina corporation\n(\"Corporation\"), proposes, subject to the terms and conditions stated \nherein, to issue and sell to the Underwriters named in Schedule A \nhereto (the \"Underwriters\") an aggregate of shares (the \"Firm \nShares\") and, at the election of the Underwriters, up to \nadditional shares (the \"Optional Shares\") of Common Stock (\"Stock\") of \nthe Corporation (the Firm Shares and the Optional Shares that the \nUnderwriters elect to purchase pursuant to Section 3 hereof being \ncollectively called the \"Shares\"). (\" \") and (\" \") are the \nrepresentatives (the \"Representatives\") of the Underwriters.\n \n2. Representations and Warranties of the Corporation. The Corporation\nrepresents and warrants to, and agrees with, the several Underwriters \nthat:\n \n(a) A registration statement (No. 333- , which also constitutes a \npost-effective amendment to a previous registration statement No. 333-\n52204), including a combined prospectus, relating to the Shares and\ncertain other securities has been filed with the Securities and\nExchange Commission (\"Commission\") under the Securities Act of 1933,\nas amended (the \"1933 Act\"). Such registration statement and any post-\neffective amendment thereto, each in the form heretofore delivered to\nyou, and, excluding exhibits thereto but including all documents\nincorporated by reference in the prospectus contained therein, for\neach of the other Underwriters, have been declared effective by the\n\n \nCommission in such form, and no stop order suspending the effectiveness\nof such registration statement has been issued and no proceeding for that\npurpose has been initiated or threatened by the Commission (any\npreliminary prospectus included in such registration statement or filed\nwith the Commission pursuant to Rule 424(a) of the rules and regulations\nof the Commission under the 1933 Act (\"1933 Act Regulations\") being\nhereinafter called a \"Preliminary Prospectus\"; the various parts of such\nregistration statement, including all exhibits thereto and including the\ndocuments incorporated by reference in the prospectus contained in the\nregistration statement at the time such part of the registration\nstatement became effective, each as amended at the time such part of the\nregistration statement became effective, being hereinafter called the\n\"Registration Statement\"; and the final prospectus relating to the\nShares, in the form first filed pursuant to Rule 424(b) under the 1933\nAct Regulations, being hereinafter called the \"Prospectus\"; and any\nreference herein to any Preliminary Prospectus or the Prospectus shall be\ndeemed to refer to and include the documents incorporated by reference\ntherein, as of the date of such Preliminary Prospectus or Prospectus, as\nthe case may be; any reference to any amendment or supplement to any\nPreliminary Prospectus or Prospectus shall be deemed to refer to and\ninclude any documents filed after the date of such Preliminary Prospectus\nor Prospectus, as the case may be, under the Securities Exchange Act of\n1934, as amended (the \"1934 Act\"), and incorporated by reference in such\nPreliminary Prospectus or Prospectus, as the case may be; and any\nreference to any amendment to the Registration Statement shall be deemed\nto refer to and include any annual report of the Corporation filed\npursuant to Section 13(a) or 15(d) of the 1934 Act after the effective\ndate of the Registration Statement that is incorporated by reference in\nthe Registration Statement).\n \n (b) The Registration Statement conforms and the Prospectus will conform in\n all material respects to the requirements of the 1933 Act and the 1933\n Act Regulations, and the Registration Statement does not and the\n Prospectus will not include any untrue statement of a material fact or\n omit to state any material fact required to be stated therein or\n necessary to make the statements therein, in the light of the\n circumstances under which they were made, not misleading, except that\n the Corporation makes no warranty or representation to the\n Underwriters with respect to any statements or omissions made in\n reliance upon and in conformity with written information furnished to\n the Corporation by any Underwriter specifically for use therein.\n \n (c) The documents incorporated by reference in the Prospectus, at the time\n they were filed with the Commission, complied in all material respects\n with the requirements of the 1934 Act and the rules and regulations of\n the Commission thereunder (the \"1934 Act Regulations\"), and, when read\n together with the other information in the Prospectus, do not contain\n an untrue statement of a material fact or omit to state a material\n fact required to be stated therein or necessary to make the statements\n therein, in the light of the circumstances under which they were made,\n not misleading, and any documents deemed to be incorporated by\n reference in the Prospectus will, when they are filed with the\n Commission, comply in all material respects with the requirements of\n the 1934 Act and the 1934 Act Regulations, and will not contain an\n untrue statement of a material fact or omit to state a material fact\n required to be stated therein or necessary to make the statements\n therein, in the light of the\n \n 2\n\n \n circumstances under which they were made, not misleading, except that\n the Corporation makes no warranty or representation to the Underwriters\n with respect to any statements or omissions made in reliance upon and in\n conformity with written information furnished to the Corporation by any\n Underwriter specifically for use therein.\n \n (d) The compliance by the Corporation with all of the provisions of this\n Agreement has been duly authorized by all necessary corporate action\n and the consummation of the transactions herein contemplated will not\n conflict with or result in a breach or violation of any of the terms\n or provisions of, or constitute a default under, any indenture,\n mortgage, deed of trust, loan agreement or other agreement or\n instrument to which the Corporation or any of its Principal\n Subsidiaries (as hereinafter defined) is a party or by which any of\n them or their respective property is bound or to which any of their\n property or assets is subject that would have a material adverse\n effect on the business, financial condition or results of operations\n of the Corporation and its subsidiaries, taken as a whole, nor will\n such action result in any violation of the provisions of the Restated\n Articles of Incorporation or By-Laws of the Corporation or any statute\n or any order, rule or regulation of any court or governmental agency\n or body having jurisdiction over the Corporation or its Principal\n Subsidiaries or any of their respective property that would have a\n material adverse effect on the business, financial condition or\n results of operations of the Corporation and its subsidiaries, taken\n as a whole; and no consent, approval, authorization, order,\n registration or qualification of or with any such court or\n governmental agency or body is required for the consummation by the\n Corporation of the transactions contemplated by this Agreement, except\n for authorization by the North Carolina Utilities Commission and The\n Public Service Commission of South Carolina and the registration under\n the 1933 Act of the Shares and such consents, approvals,\n authorizations, registrations or qualifications as may be required\n under state securities or Blue Sky laws in connection with the\n purchase and distribution of the Shares by the Underwriters.\n \n (e) This Agreement has been duly authorized, executed and delivered by the\n Corporation.\n \n (f) The Shares have been duly authorized for issuance and sale to the\n Underwriters pursuant to this Agreement and, when issued and delivered\n by the Corporation pursuant to this Agreement against payment of the\n consideration set forth herein, will be validly issued, fully paid and\n nonassessable; no holder of the Shares will be subject to personal\n liability by reason of being such a holder; and the issuance of the\n Shares is not subject to the preemptive or other similar rights of any\n security holder of the Corporation.\n \n (g) Each of Duke Capital Corporation, PanEnergy Corp, Duke Energy Natural\n Gas Corporation and Texas Eastern Transmission Corporation, each a\n Delaware corporation (and herein called a \"Principal Subsidiary\"), is\n a direct or indirect wholly owned subsidiary of the Corporation.\n \n 3. Purchase and Sale. On the basis of the representations, warranties and\nagreements herein contained, but subject to the terms and conditions herein set\nforth (a) the Corporation agrees to issue and sell to each of the Underwriters,\nand each of the Underwriters agrees, severally and not jointly, to purchase\nfrom the Corporation, at a purchase price per share of $ , the number of Firm\nShares set forth opposite the name of such Underwriter in Schedule A hereto and\n(b) in the event and to the extent that the Underwriters shall exercise the\nelection to purchase Optional Shares as provided below, the Corporation agrees\nto issue and sell to each of the Underwriters, and each of the\n \n 3\n\n \nUnderwriters agrees, severally and not jointly, to purchase from the\nCorporation, at the purchase price per share set forth in this Section 3, that\nportion of the number of Optional Shares as to which such election shall have\nbeen exercised (to be adjusted by you so as to eliminate fractional shares)\ndetermined by multiplying such number of Optional Shares by a fraction, the\nnumerator of which is the maximum number of Optional Shares which such\nUnderwriter is entitled to purchase as set forth opposite the name of such\nUnderwriter in Schedule A hereto and the denominator of which is the maximum\nnumber of Optional Shares that all of the Underwriters are entitled to purchase\nhereunder.\n \nThe Corporation hereby grants to the Underwriters the right to purchase at\ntheir election up to Optional Shares, at the purchase price per share set\nforth in the paragraph above, for the purpose of covering sales of shares in\nexcess of the number of Firm Shares. Any such election to purchase Optional\nShares may be exercised only by written notice from you to the Corporation,\ngiven within a period of 30 calendar days after the date of this Agreement,\nsetting forth the aggregate number of Optional Shares to be purchased and the\ndate on which such Optional Shares are to be delivered, as determined by you\nbut in no event earlier than the First Time of Delivery (as defined in Section\n5 hereof) or, unless you and the Corporation otherwise agree in writing,\nearlier than two or later than ten business days after the date of such notice.\n \n 4. Offering by the Underwriters. It is understood that the several\nUnderwriters propose to offer the Shares for sale to the public as set forth in\nthe Prospectus.\n \n 5. Payment and Delivery.\n \n (a) The Shares to be purchased by each Underwriter hereunder, in\n definitive form, and in such authorized denominations and registered\n in such names as the Representatives may request upon at least forty-\n eight hours' prior notice to the Corporation, shall be delivered by or\n on behalf of the Corporation to , through the facilities of The\n Depository Trust Company (\"DTC\"), for the account of such Underwriter,\n against payment by or on behalf of such Underwriter of the purchase\n price therefor by wire transfer of Federal (same-day) funds to the\n account specified by the Corporation to the Representatives at least\n forty-eight hours in advance. The Corporation will cause the\n certificates representing the Shares to be made available for checking\n and packaging at least twenty-four hours prior to the Time of Delivery\n (as defined below) with respect thereto at the office of ,\n (the \"Designated Office\"). The time and date of such delivery\n and payment shall be, with respect to the Firm Shares, 10:00 a.m., New\n York time, on or such other time and date as the Representatives\n and the Corporation may agree upon in writing, and, with respect to\n the Optional Shares, 10:00 a.m., New York time, on the date specified\n by the Representatives in the written notice given by the\n Representatives of the Underwriters' election to purchase such\n Optional Shares, or such other time and date as the Representatives\n and the Corporation may agree upon in writing. Such time and date for\n delivery of the Firm Shares is herein called the \"First Time of\n Delivery,\" such time and date for delivery of the Optional Shares, if\n not the First Time of Delivery, is herein called the \"Second Time of\n Delivery,\" and each such time and date for delivery is herein called a\n \"Time of Delivery.\"\n \n (b) The documents to be delivered at each Time of Delivery by or on behalf\n of the parties hereto pursuant to subsections (d), (e), (f), (h) and\n (j) of Section 7 hereof, including the\n \n 4\n\n \n cross receipt for the Shares and any additional documents requested by\n the Underwriters pursuant to the last sentence of such Section 7, will be\n delivered at the offices of Dewey Ballantine LLP, 1301 Avenue of the\n Americas, New York, New York 10019, and the Shares will be delivered at\n the Designated Office, all at such Time of Delivery. A meeting will be\n held at said offices of Dewey Ballantine LLP at 3:00 p.m., New York time,\n on the Business Day immediately preceding such Time of Delivery, at which\n meeting the final drafts of the documents to be delivered pursuant to the\n preceding sentence will be available for review by the parties hereto.\n For the purposes of this Section 5, \"Business Day\" shall mean each\n Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on\n which banking institutions in New York, New York or Charlotte, North\n Carolina are generally authorized or obligated by law or executive order\n to close.\n \n 6. Covenants of the Corporation. The Corporation covenants and agrees with\nthe several Underwriters that:\n \n (a) The Corporation will advise you promptly of the filing of any\n amendment (and effectiveness thereof) or supplementation of the\n Registration Statement or the Prospectus, of the filing of any Rule\n 462(b) registration statement and of the institution by the Commission\n of any stop order proceedings in respect of the Registration\n Statement, and will use its best efforts to prevent the issuance of\n any such stop order and to obtain as soon as possible its lifting, if\n issued.\n \n (b) If at any time when a prospectus relating to the Shares is required to\n be delivered under the 1933 Act any event occurs as a result of which\n the Prospectus as then amended or supplemented would include an untrue\n statement of a material fact, or omit to state any material fact\n necessary to make the statements therein, in the light of the\n circumstances under which they were made, not misleading, or if it is\n necessary at any time to amend the Prospectus to comply with the 1933\n Act, the Corporation promptly will prepare and file with the\n Commission an amendment, supplement or an appropriate document\n pursuant to Section 13 or 14 of the 1934 Act which will correct such\n statement or omission or which will effect such compliance.\n \n (c) The Corporation, during the period when a prospectus relating to the\n Shares is required to be delivered under the 1933 Act, will timely\n file all documents required to be filed with the Commission pursuant\n to Section 13 or 14 of the 1934 Act.\n \n (d) The Corporation will make generally available to its security holders,\n in each case as soon as practicable but not later than 60 days after\n the close of the period covered thereby, earnings statements (in form\n complying with the provisions of Section 11(a) of the 1933 Act, which\n need not be certified by independent certified public accountants\n unless required by the 1933 Act) covering (i) a twelve-month period\n beginning not later than the first day of the Corporation's fiscal\n quarter next following the effective date of the Registration\n Statement and (ii) a twelve-month period beginning not later than the\n first day of the Corporation's fiscal quarter next following the date\n of this Agreement.\n \n (e) The Corporation will furnish to you, without charge, copies of the\n Registration Statement ( of which will be signed and will include\n all exhibits other than those incorporated by reference), the\n Prospectus, and all amendments and supplements to such documents, in\n each case as soon as available and in such quantities as you\n reasonably request.\n \n \n 5\n\n \n (f) The Corporation will arrange or cooperate in arrangements for the\n qualification of the Shares for sale under the laws of such\n jurisdictions as you designate and will continue such qualifications\n in effect so long as required for the distribution; provided, however,\n that the Corporation shall not be required to qualify as a foreign\n corporation or to file any general consents to service of process\n under the laws of any state where it is not now so subject.\n \n (g) The Corporation will pay all expenses incident to the performance of\n its obligations under this Agreement including (i) the printing and\n filing of the Registration Statement and the printing of this\n Agreement and any Blue Sky Survey, (ii) the issuance and delivery of\n the Shares as specified herein (other than any transfer taxes), (iii)\n the fees and disbursements of counsel for the Underwriters in\n connection with the qualification of the Shares under the securities\n laws of any jurisdiction in accordance with the provisions of Section\n 6(f) and in connection with the preparation of any Blue Sky Survey,\n such fees not to exceed $5,000, (iv) the printing and delivery to the\n Underwriters, in quantities as hereinabove referred to, of copies of\n the Registration Statement and any amendments thereto, and of the\n Prospectus and any amendments or supplements thereto, (v) any fees and\n expenses in connection with the listing of the Shares on the New York\n Stock Exchange, (vi) any filing fee required by the National\n Association of Securities Dealers, Inc., (vii) the costs of any\n depository arrangements for the Shares with DTC or any successor\n depositary and (viii) the costs and expenses of the Corporation\n relating to investor presentations on any \"road show\" undertaken in\n connection with the marketing of the offering of the Shares,\n including, without limitation, expenses associated with the production\n of road show slides and graphics, fees and expenses of any consultants\n engaged in connection with the road show presentations with the prior\n approval of the Corporation, travel and lodging expenses of the\n Representatives and officers of the Corporation and any such\n consultants, and the cost of any aircraft chartered in connection with\n the road show; provided, however, the Underwriters shall reimburse a\n portion of the costs and expenses referred to in this clause (viii).\n \n (h) During a period of 90 days from the date of the Prospectus, the\n Corporation will not, without the prior written consent of the\n Representatives, offer, pledge, sell, contract to sell, sell any\n option or contract to purchase, purchase any option or contract to\n sell, grant any option, right or warrant to purchase, lend or\n otherwise transfer, dispose of, directly or indirectly, any Shares or\n any securities convertible into or exercisable or exchangeable for\n Shares or enter into any swap or other agreement that transfers, in\n whole or in part, the economic consequence of ownership of any Shares,\n whether any such swap or transaction is to be settled by delivery of\n Shares or other securities, in cash or otherwise; provided, however,\n that the foregoing shall not apply to any securities or options to\n purchase any securities granted or sold pursuant to any employee or\n director compensation plans of the Corporation or employee or other\n investment plans of the Corporation in effect on the date of this\n Agreement.\n \n (i) The Corporation will use its best efforts to maintain the listing of\n the Shares on the New York Stock Exchange.\n \n \n 6\n\n \n 7. Conditions of the Obligations of the Underwriters. The obligations of the\nseveral Underwriters to purchase and pay for the Shares will be subject at each\nTime of Delivery to the accuracy of the representations and warranties on the\npart of the Corporation herein, to the accuracy of the statements of officers\nof the Corporation made pursuant to the provisions hereof, to the performance\nby the Corporation of its obligations hereunder and to the following additional\nconditions precedent:\n \n (a) Prior to such Time of Delivery, no stop order suspending the\n effectiveness of the Registration Statement shall have been issued and\n no proceedings for that purpose shall have been instituted or, to the\n knowledge of the Corporation or you, shall be threatened by the\n Commission.\n \n (b) Prior to such Time of Delivery, the rating assigned by Moody's\n Investors Service, Inc. or Standard & Poor's Ratings Services to (i)\n any debt securities or preferred stock of the Corporation or (ii) any\n trust preferred securities of Duke Energy Capital Trust I or Duke\n Energy Capital Trust II as of the date of this Agreement shall not\n have been lowered.\n \n (c) Since the respective most recent dates as of which information is\n given in the Prospectus and up to such Time of Delivery, there shall\n not have been any material adverse change in the condition of the\n Corporation, financial or otherwise, except as reflected in or\n contemplated by the Prospectus, and, since such dates and up to such\n Time of Delivery, there shall not have been any material transaction\n entered into by the Corporation other than transactions contemplated\n by the Prospectus and transactions in the ordinary course of business,\n the effect of which in your reasonable judgment is so material and\n adverse as to make it impracticable or inadvisable to proceed with the\n public offering or the delivery of the Shares on the terms and in the\n manner contemplated by the Prospectus.\n \n (d) You shall have received an opinion of Ellen T. Ruff, Esq., Senior Vice\n President and General Counsel of the Corporation, dated such Time of\n Delivery, to the effect that:\n \n (i) The Corporation has been duly incorporated and is validly existing\n as a corporation in good standing under the laws of the State of\n North Carolina, with power and authority (corporate and other) to\n own its properties and conduct its business as described in the\n Prospectus and to enter into and perform its obligations under\n this Agreement.\n \n (ii) Each of the Corporation and the Principal Subsidiaries is duly\n qualified to do business in each jurisdiction in which the\n ownership or leasing of its property or the conduct of its\n business requires such qualification, except where the failure to\n so qualify, considering all such cases in the aggregate, does not\n have a material adverse effect on the business, properties,\n financial position or results of operations of the Corporation\n and its subsidiaries taken as a whole.\n \n (iii) The Registration Statement has become effective under the 1933\n Act, and, to the best of the knowledge of such counsel, no stop\n order suspending the effectiveness of the Registration Statement\n has been issued and no proceedings for that purpose have been\n instituted or are pending or threatened under the 1933 Act.\n \n 7\n\n \n (iv) The descriptions in the Registration Statement and the Prospectus\n of legal or governmental proceedings are accurate and fairly\n present the information required to be shown, and such counsel\n does not know of any litigation or any legal or governmental\n proceeding instituted or threatened against the Corporation or\n any of its subsidiaries or any of their respective properties\n that would be required to be disclosed in the Prospectus and is\n not so disclosed.\n \n (v) This Agreement has been duly authorized, executed and delivered by\n the Corporation.\n \n (vi) The performance by the Corporation of this Agreement will not\n contravene any of the provisions of the Restated Articles of\n Incorporation or By-Laws of the Corporation or any statute or any\n order, rule or regulation of which such counsel is aware of any\n court or governmental agency or body having jurisdiction over the\n Corporation or any of its Principal Subsidiaries or any of their\n respective property, nor will such action conflict with or result\n in a breach or violation of any of the terms or provisions of, or\n constitute a default under any indenture, mortgage, deed of\n trust, loan agreement or other agreement or instrument known to\n such counsel to which the Corporation or any of its Principal\n Subsidiaries is a party or by which any of them or their\n respective property is bound or to which any of their property or\n assets is subject which affects in a material way the\n Corporation's ability to perform its obligations under this\n Agreement.\n \n (vii) The North Carolina Utilities Commission and The Public Service\n Commission of South Carolina have issued appropriate orders with\n respect to the issuance and sale of the Shares in accordance\n with this Agreement, and, to the best of the knowledge of such\n counsel, such orders are still in effect; the issuance and sale\n of the Shares to the Underwriters are in conformity with the\n terms of such orders; and no other authorization, approval or\n consent of any other governmental body (other than in connection\n or compliance with the provisions of the securities or Blue Sky\n laws of any jurisdiction) is legally required for the issuance\n and sale of the Shares pursuant to this Agreement.\n \n (viii) The Shares have been duly authorized; the Shares, when issued\n and delivered by the Corporation to the Underwriters against\n payment therefor as described in the Prospectus, will be\n validly issued, fully paid and nonassessable; none of the\n Shares are subject to preemptive rights of any security holder\n of the Corporation; and the Shares conform as to legal matters\n in all material respects to the description thereof in the\n Prospectus under the caption \"Description of the Common Stock.\"\n \nSuch counsel shall also state that nothing has come to her attention that has\ncaused her to believe that the Registration Statement as of the date of\neffectiveness under the 1933 Act and the Prospectus as of the date it was filed\nwith, or transmitted for filing to, the Commission, contained any untrue\nstatement of a material fact or omitted to state a material fact required to be\nstated therein or necessary to make the statements therein not misleading, or\nthat the Prospectus as of the date it was filed with, or transmitted for filing\nto, the Commission and at such Time of Delivery, contained or contains any\nuntrue statement of a material fact or omitted or omits to state a material\nfact necessary in order to make the statements therein, in light of the\ncircumstances under which they were made,\n \n 8\n\n \nnot misleading. Such counsel may also state that, except as otherwise expressly\nprovided in such opinion, she does not assume any responsibility for the\naccuracy, completeness or fairness of the statements contained in or\nincorporated by reference into the Registration Statement and the Prospectus\nand does not express any opinion or belief as to the financial statements or\nother financial data contained in or incorporated by reference into the\nRegistration Statement and the Prospectus.\n \nIn rendering the foregoing opinion, such counsel may state that she expresses\nno opinion as to the laws of any jurisdiction other than North Carolina and may\nrely on the opinion of Austin, Lewis & Rogers of Columbia, South Carolina as to\nmatters of South Carolina law. Such counsel may also state that she has relied\nas to certain factual matters on information obtained from public officials,\nofficers of the Corporation and other sources believed by her to be\nresponsible.\n \n (e) You shall have received an opinion or opinions of Dewey Ballantine\n LLP, counsel to the Corporation, dated such Time of Delivery, with\n respect to the matters set forth in (i), (iii), (v) through (viii) of\n Section 7(d) and to the further effect that:\n \n (i) Each of the Principal Subsidiaries has been duly incorporated and\n is validly existing as a corporation in good standing under the\n laws of its jurisdiction of incorporation, with power and\n authority (corporate and other) to own its properties and conduct\n its business as described in the Prospectus.\n \n (ii) The Corporation is not an \"investment company\" or an entity\n \"controlled\" by an \"investment company,\" as such terms are\n defined in the Investment Company Act of 1940, as amended.\n \n (iii) The Corporation is not a holding company under the Public\n Utility Holding Company Act of 1935, as amended.\n \n (iv) The Registration Statement as of the date of effectiveness under\n the 1933 Act and the Prospectus as of the date it was filed with,\n or transmitted for filing to, the Commission complied as to form\n in all material respects with the requirements of the 1933 Act\n and the 1933 Act Regulations; and nothing has come to their\n attention that would lead them to believe that the Registration\n Statement as of the date of effectiveness under the 1933 Act (or\n if an amendment to such Registration Statement or an annual\n report on Form 10-K has been filed by the Corporation with the\n Commission subsequent to the effectiveness of the Registration\n Statement, then at the time of the most recent such filing)\n contained an untrue statement of a material fact or omitted to\n state a material fact required to be stated therein or necessary\n to make the statements therein not misleading or that the\n Prospectus as of the date it was filed with, or transmitted for\n filing to, the Commission and at such Time of Delivery contained\n or contains an untrue statement of a material fact or omitted or\n omits to state a material fact necessary in order to make the\n statements therein, in the light of the circumstances under which\n they were made, not misleading. Such opinion may state that such\n counsel do not assume any responsibility for the accuracy,\n completeness or fairness of the statements contained in or\n incorporated by reference into the Registration Statement and\n Prospectus except as otherwise expressly provided in such opinion\n and do not express any\n \n 9\n\n \n opinion or belief as to the financial statements or other\n financial data contained in or incorporated by reference into the\n Registration Statement and the Prospectus.\n \n (v) The statements made in the Prospectus under the caption\n \"Description of the Common Stock,\" insofar as they purport to\n summarize provisions of documents specifically referred to\n therein, fairly present the information called for with respect\n thereto by Form S-3.\n \n (vi) No consent, approval, authorization, order, registration or\n qualification of or with any court or governmental agency or body\n is required for the issue and sale of the Shares or the\n consummation by the Corporation of the transactions contemplated\n by this Agreement, except for authorization by the North Carolina\n Utilities Commission and The Public Service Commission of South\n Carolina and such as have been obtained under the 1933 Act and\n such consents, approvals, authorizations, orders, registrations\n or qualifications as may be required under state securities or\n Blue Sky laws in connection with the purchase and distribution of\n the Shares by the Underwriters.\n \nIn rendering the foregoing opinion or opinions, Dewey Ballantine LLP may state\nthat such opinion or opinions are limited to the Federal laws of the United\nStates, the laws of the State of New York and the General Corporation Law of\nthe State of Delaware, and that they are relying on the opinion of Ellen T.\nRuff, Esq. as to matters of North Carolina law and on the opinion of Austin,\nLewis & Rogers of Columbia, South Carolina as to matters of South Carolina\nlaw. In addition, such counsel may state that they have relied as to certain\nfactual matters on information obtained from public officials, officers of the\nCorporation and other sources believed by them to be responsible and that the\nsignatures on all documents examined by them are genuine, assumptions which\nsuch counsel have not independently verified.\n \n (f) You shall have received an opinion of , counsel for the\n Underwriters, dated such Time of Delivery, with respect to the\n incorporation of the Corporation, the validity of the Shares, the\n Registration Statement and the Prospectus, as amended or supplemented,\n and such other related matters as you may require, and the Corporation\n shall have furnished to such counsel such documents as they request for\n the purpose of enabling them to pass upon such matters. In giving their\n opinion, may rely on the opinion of Ellen T. Ruff, Esq. as to\n matters of North Carolina law and on the opinion of Austin, Lewis & Rogers of Columbia, South Carolina as to matters of South Carolina law.\n \n (g) On or after the date hereof, there shall not have occurred any of the\n following: (i) a suspension or material limitation in trading in\n securities generally or of the securities of the Corporation, Duke\n Energy Capital Trust I or Duke Energy Capital Trust II on the New York\n Stock Exchange; or (ii) a general moratorium on commercial banking\n activities in New York declared by either Federal or New York State\n authorities; or (iii) the outbreak or material escalation of\n hostilities involving the United States or the declaration by the\n United States of a national emergency or war if the effect of any such\n event specified in this subsection (g) in your reasonable judgment\n makes it impracticable or inadvisable to proceed with the public\n offering or the delivery of the Shares on the terms and in the manner\n contemplated in the Prospectus. In such event there shall be no\n liability on the part of any party to any other party except as\n otherwise provided in Section 8 hereof and except for the expenses to\n be borne by the Corporation as provided in Section 6(g) hereof.\n \n 10\n\n \n (h) You shall have received a certificate of the Chairman of the Board, the\n President, any Vice President, the Secretary or an Assistant Secretary\n and any financial or accounting officer of the Corporation, dated such\n Time of Delivery, in which such officers, to the best of their\n knowledge after reasonable investigation, shall state that the\n representations and warranties of the Corporation in this Agreement are\n true and correct as of such Time of Delivery, that the Corporation has\n complied with all agreements and satisfied all conditions on its part\n to be performed or satisfied at or prior to the Time of Delivery, that\n the conditions specified in Section 7(b) and Section 7(c) have been\n satisfied, and that no stop order suspending the effectiveness of the\n Registration Statement has been issued and no proceedings for that\n purpose have been instituted or are threatened by the Commission.\n \n (i) On the date of this Agreement, you shall have received a letter dated the\n date hereof, in form and substance satisfactory to you, from the\n Corporation's independent public accountants, containing statements and\n information of the type ordinarily included in accountants' \"comfort\n letters\" to underwriters with respect to the financial statements and\n certain financial information contained in or incorporated by reference\n into the Prospectus as of a specified date not more than three business\n days prior to the date of this Agreement.\n\n (j) At such Time of Delivery you shall have received from the\n Corporation's independent public accountants a letter, dated such Time\n of Delivery, to the effect that such accountants reaffirm the\n statements made in the letter furnished pursuant to subsection (i) of\n this Section 7, except that the specified date referred to shall be a\n date not more than three business days prior to such Time of Delivery.\n \n (k) The Shares to be sold at such Time of Delivery shall have been duly\n listed for trading on the New York Stock Exchange subject to official\n notice of issuance.\n \n (l) At the First Time of Delivery, each of the executive officers of the\n Corporation shall have entered into an agreement substantially in the\n form of Exhibit 1 hereto.\n \nThe Corporation will furnish you with such conformed copies of such opinions,\ncertificates, letters and documents as you reasonably request.\n \n 8. Indemnification. (a) The Corporation agrees to indemnify and hold harmless\neach Underwriter and each person, if any, who controls any Underwriter within\nthe meaning of Section 15 of the 1933 Act, as follows:\n \n (i) against any and all loss, liability, claim, damage and expense\n whatsoever arising out of any untrue statement or alleged untrue\n statement of a material fact contained in the Registration\n Statement (or any amendment thereto), or the omission or alleged\n omission therefrom of a material fact required to be stated\n therein or necessary to make the statements therein not misleading\n or arising out of any untrue statement or alleged untrue statement\n of a material fact contained in any Preliminary Prospectus, the\n prospectus constituting a part of the Registration Statement in\n the form in which it became effective or the Prospectus (or any\n amendment or supplement thereto) or the omission or alleged\n omission therefrom of a material fact necessary in order to make\n the statements therein, in the light of the circumstances under\n which they were made, not misleading, unless such statement or\n omission or such alleged\n \n 11\n\n \n statement or omission was made in reliance upon and in conformity\n with written information furnished to the Corporation by any\n Underwriter through you expressly for use in the Registration\n Statement (or any amendment thereto) or such Preliminary\n Prospectus, such prospectus, or the Prospectus (or any amendment\n or supplement thereto);\n \n (ii) against any and all loss, liability, claim, damage and expense\n whatsoever to the extent of the aggregate amount paid in\n settlement of any litigation, commenced or threatened, or of any\n claim whatsoever based upon any such untrue statement or omission\n or any such alleged untrue statement or omission, if such\n settlement is effected with the written consent of the\n Corporation; and\n \n (iii) against any and all expense whatsoever reasonably incurred in\n investigating, preparing or defending against any litigation,\n commenced or threatened, or any claim whatsoever based upon any\n such untrue statement or omission, or any such alleged untrue\n statement or omission, to the extent that any such expense is\n not paid under (i) or (ii) of this Section 8.\n \nIn no case shall the Corporation be liable under this indemnity agreement with\nrespect to any claim made against any Underwriter or any such controlling\nperson unless the Corporation shall be notified in writing of the nature of\nthe claim within a reasonable time after the assertion thereof, but failure so\nto notify the Corporation shall not relieve it from any liability which it may\nhave otherwise than on account of this indemnity agreement. The Corporation\nshall be entitled to participate at its own expense in the defense, or, if it\nso elects, within a reasonable time after receipt of such notice, to assume\nthe defense of any suit brought to enforce any such claim, but if it so elects\nto assume the defense, such defense shall be conducted by counsel chosen by it\nand approved by the Underwriter or Underwriters or controlling person or\npersons, defendant or defendants in any suit so brought, which approval shall\nnot be unreasonably withheld. In any such suit, any Underwriter or any such\ncontrolling person shall have the right to employ its own counsel, but the\nfees and expenses of such counsel shall be at the expense of such Underwriter\nor such controlling person unless (i) the Corporation and such Underwriter\nshall have mutually agreed to the employment of such counsel, or (ii) the\nnamed parties to any such action (including any impleaded parties) include\nboth such Underwriter or such controlling person and the Corporation and such\nUnderwriter or such controlling person shall have been advised by such counsel\nthat a conflict of interest between the Corporation and such Underwriter or\nsuch controlling person may arise and for this reason it is not desirable for\nthe same counsel to represent both the indemnifying party and also the\nindemnified party (it being understood, however, that the Corporation shall\nnot, in connection with any one such action or separate but substantially\nsimilar or related actions in the same jurisdiction arising out of the same\ngeneral allegations or circumstances, be liable for the reasonable fees and\nexpenses of more than one separate firm of attorneys for all such Underwriters\nand all such controlling persons, which firm shall be designated in writing by\nyou). The Corporation agrees to notify you within a reasonable time of the\nassertion of any claim against it, any of its officers or directors or any\nperson who controls the Corporation within the meaning of Section 15 of the\n1933 Act, in connection with the sale of the Shares.\n \n (b) Each Underwriter severally agrees that it will indemnify and hold\n harmless the Corporation, its directors and each of the officers of\n the Corporation who signed the\n \n 12\n\n \n Registration Statement and each person, if any, who controls the\n Corporation within the meaning of Section 15 of the 1933 Act to the same\n extent as the indemnity contained in subsection (a) of this Section, but\n only with respect to statements or omissions made in the Registration\n Statement (or any amendment thereto) or any Preliminary Prospectus, such\n prospectus or the Prospectus (or any amendment or supplement thereto) in\n reliance upon and in conformity with written information furnished to\n the Corporation by such Underwriter through you expressly for use in the\n Registration Statement (or any amendment thereto), such Preliminary\n Prospectus, such prospectus or the Prospectus (or any amendment or\n supplement thereto). In case any action shall be brought against the\n Corporation or any person so indemnified based on the Registration\n Statement (or any amendment thereto) or such Preliminary Prospectus,\n such prospectus or the Prospectus (or any amendment or supplement\n thereto) and in respect of which indemnity may be sought against any\n Underwriter, such Underwriter shall have the rights and duties given to\n the Corporation, and the Corporation and each person so indemnified\n shall have the rights and duties given to the Underwriters, by the\n provisions of subsection (a) of this Section.\n \n (c) No indemnifying party shall, without the prior written consent of the\n indemnified party, effect any settlement of any pending or threatened\n proceeding in respect of which any indemnified party is or could have\n been a party and indemnity could have been sought hereunder by such\n indemnified party, unless such settlement includes an unconditional\n release of such indemnified party from all liability on claims that\n are the subject matter of such proceeding.\n \n (d) If the indemnification provided for in this Section 8 is unavailable\n to or insufficient to hold harmless an indemnified party in respect of\n any losses, claims, damages, liabilities or expenses (or actions in\n respect thereof) that would otherwise have been indemnified under the\n terms of such indemnity, then each indemnifying party shall contribute\n to the amount paid or payable by such indemnified party as a result of\n such losses, claims, damages, liabilities or expenses (or actions in\n respect thereof) in such proportion as is appropriate to reflect the\n relative benefits received by the Corporation on the one hand and the\n Underwriters on the other from the offering of the Shares. If,\n however, the allocation provided by the immediately preceding sentence\n is not permitted by applicable law or if the indemnified party failed\n to give the notice required above, then each indemnifying party shall\n contribute to such amount paid or payable by such indemnified party in\n such proportion as is appropriate to reflect not only such relative\n benefits but also the relative fault of the Corporation on the one\n hand and the Underwriters on the other in connection with the\n statements or omissions which resulted in such losses, claims,\n damages, liabilities or expenses (or actions in respect thereof), as\n well as any other relevant equity considerations. The relative\n benefits received by the Corporation on the one hand and the\n Underwriters on the other shall be deemed to be in the same proportion\n as the total net proceeds from the offering (before deducting\n expenses) received by the Corporation bear to the total compensation\n received by the Underwriters in respect of the underwriting discount\n as set forth in the table on the cover page of the Prospectus,\n including proceeds from and compensation received with respect to the\n sale of any Optional Shares. The relative fault shall be determined by\n reference to, among other things, whether the untrue or alleged untrue\n statement of a material fact or the omission or\n \n 13\n\n \n alleged omission to state a material fact relates to information\n supplied by the Corporation on the one hand or the Underwriters on the\n other and the parties' relative intent, knowledge, access to information\n and opportunity to correct or prevent such statement or omission. The\n Corporation and the Underwriters agree that it would not be just and\n equitable if contributions pursuant to this Section were determined by\n pro rata allocation (even if the Underwriters were treated as one entity\n for such purpose) or by any other method of allocation which does not\n take account of the equitable considerations referred to above in this\n Section. The amount paid or payable by an indemnified party as a result\n of the losses, claims, damages, liabilities or expenses (or actions in\n respect thereof) referred to above in this Section shall be deemed to\n include any legal or other expenses reasonably incurred by such\n indemnified party in connection with investigating or defending any such\n action or claim. Notwithstanding the provisions of this Section, no\n Underwriter shall be required to contribute any amount in excess of the\n amount by which the total price at which the Shares underwritten by it\n and distributed to the public were offered to the public exceeds the\n amount of any damages which such Underwriter has otherwise been required\n to pay by reason of such untrue or alleged untrue statement or omission\n or alleged omission. No person guilty of fraudulent misrepresentation\n (within the meaning of Section 11(f) of the 1933 Act) shall be entitled\n to contribution from any person who was not guilty of such fraudulent\n misrepresentation. The Underwriters' obligations to contribute are\n several in proportion to their respective underwriting obligations and\n not joint.\n \n 9. Substitution of Underwriters.\n \n (a) If any Underwriter under this Agreement shall fail or refuse (whether\n for some reason sufficient to justify, in accordance with the terms\n hereof, the termination of its obligations to purchase or otherwise)\n to purchase the Shares which it has agreed to purchase, the\n Corporation shall immediately notify the remaining Underwriters and\n the remaining Underwriters may, within 24 hours of receipt of such\n notice, procure some other responsible party or parties satisfactory\n to the Corporation, who may include one or more of the remaining\n Underwriters, to purchase or agree to purchase such Shares on the\n terms herein set forth; and, if the remaining Underwriters shall fail\n to procure a satisfactory party or parties to purchase or agree to\n purchase such Shares on such terms within such period after the\n receipt of such notice, then the Corporation shall be entitled to an\n additional period of 24 hours within which to procure another party or\n parties to purchase or agree to purchase such Shares on the terms\n herein set forth. In any such case, either the remaining Underwriters\n or the Corporation shall have the right to postpone the Time of\n Delivery for a period not to exceed five business days from the date\n set forth in Section 5 hereof, in order that the necessary changes to\n the Prospectus and any other documents and arrangements may be\n effected. The term \"Underwriter\" as used in this Agreement shall\n include any person substituted under this Section with like effect as\n if such person had originally been a party to this Agreement with\n respect to such Shares.\n \n (b) If, after giving effect to any arrangements for the purchase of the\n Shares of a defaulting Underwriter or Underwriters by you and the\n Corporation as provided in subsection (a) above, the aggregate number\n of such Shares which remains unpurchased does not exceed one-tenth of\n the aggregate number of all the Shares to be purchased at such Time of\n \n 14\n\n \n Delivery, then the Corporation shall have the right to require each non-\n defaulting Underwriter to purchase the number of Shares which such\n Underwriter agreed to purchase hereunder at such Time of Delivery and,\n in addition, to require each non-defaulting Underwriter to purchase its\n pro rata share (based on the number of Shares which such Underwriter\n agreed to purchase hereunder at such Time of Delivery) of the Shares of\n such defaulting Underwriter or Underwriters for which such arrangements\n have not been made; but nothing herein shall relieve a defaulting\n Underwriter from liability for its default.\n \n (c) If, after giving effect to any arrangements for the purchase of the\n Shares of a defaulting Underwriter or Underwriters by you and the\n Corporation as provided in subsection (a) above, the aggregate number\n of such Shares which remains unpurchased exceeds one-tenth of the\n aggregate number of all the Shares to be purchased at such Time of\n Delivery, or if the Corporation shall not exercise the right described\n in subsection (b) above to require non-defaulting Underwriters to\n purchase Shares of a defaulting Underwriter or Underwriters, then this\n Agreement (or, with respect to the Second Time of Delivery, the\n obligations of the Underwriters to purchase and of the Corporation to\n sell the Optional Shares) shall thereupon terminate, without liability\n on the part of any non-defaulting Underwriter or the Corporation,\n except for the expenses to be borne by the Corporation as provided in\n Section 6(g) hereof and the indemnity and contribution agreement in\n Section 8 hereof; but nothing herein shall relieve a defaulting\n Underwriter from liability for its default.\n \n 10. Representations and Indemnities to Survive Delivery. The respective\nindemnities, agreements, representations, warranties and other statements of\nthe Corporation or its officers and of the several Underwriters set forth in or\nmade pursuant to this Agreement will remain in full force and effect,\nregardless of any investigation, or statement as to the results thereof, made\nby or on behalf of any Underwriter or the Corporation, or any of its officers\nor directors or any controlling person, and will survive delivery of and\npayment for the Shares.\n \n 11. Reliance on Your Acts. In all dealings hereunder, the Representatives\nshall act on behalf of each of the Underwriters, and the Corporation shall be\nentitled to act and rely upon any statement, request, notice or agreement on\nbehalf of any Underwriter made or given by the Representatives.\n \n 12. Notices. All communications hereunder will be in writing and, if sent to\nthe Underwriters, will be mailed or telecopied and confirmed to the\nUnderwriters, in care of Attn: , , , (facsimile number\n( ) - ), or, if sent to the Corporation, will be mailed or telecopied and\nconfirmed to it at 526 South Church Street, Charlotte, N.C. 28202, facsimile\nnumber (704) 382-1452, attention of David L. Hauser, Senior Vice President and\nTreasurer; provided, however, that any notice to an Underwriter pursuant to\nSection 8 hereof shall be sent by mail or telecopy to such Underwriter at its\naddress or telecopy number set forth in its Underwriters' Questionnaire or\ntelex constituting such Questionnaire, which address or telecopy number will be\nsupplied to the Corporation by the Representatives. Any such communications\nshall take effect upon receipt thereof.\n \n \n 15\n\n \n 13. Business Day. As used herein, the term \"business day\" shall mean any day\nwhen the Commission's office in Washington, D.C. is open for business.\n \n 14. Successors. This Agreement shall inure to the benefit of and be binding\nupon the Underwriters and the Corporation and their respective successors.\nNothing expressed or mentioned in this Agreement is intended or shall be\nconstrued to give any person, firm or corporation, other than the parties\nhereto and their respective successors and the controlling persons, officers\nand directors referred to in Section 8 and their respective successors, heirs\nand legal representatives, any legal or equitable right, remedy or claim under\nor in respect of this Agreement or any provision herein contained; this\nAgreement and all conditions and provisions hereof being intended to be and\nbeing for the sole and exclusive benefit of the parties hereto and their\nrespective successors and said controlling persons, officers and directors and\ntheir respective successors, heirs and legal representatives, and for the\nbenefit of no other person, firm or corporation. No purchaser of Shares from\nany Underwriter shall be deemed to be a successor or assign by reason merely of\nsuch purchase.\n \n 15. Counterparts. This Agreement may be executed in two or more counterparts,\neach of which shall be deemed to be an original, but all of which together\nshall constitute one and the same instrument.\n \n 16. Applicable Law. This Agreement shall be governed by, and construed in\naccordance with, the laws of the State of New York, without giving effect to\nthe choice of law or conflict of law principles thereof.\n \n 16\n\n \n If the foregoing is in accordance with your understanding, kindly sign and\nreturn to us two counterparts hereof, and upon confirmation and acceptance by\nthe Representatives on behalf of each of the Underwriters, this letter and such\nconfirmation and acceptance will become a binding agreement between the\nCorporation, on the one hand, and each of the Underwriters, on the other hand,\nin accordance with its terms. It is understood that confirmation and acceptance\nof this letter by the Representatives on behalf of each of the Underwriters is\npursuant to the authority set forth in a form of Agreement Among Underwriters,\nthe form of which shall be submitted to the Corporation for examination, but\nwithout warranty on your part as to the authority of the signers thereof.\n \n Very truly yours,\n \n DUKE ENERGY CORPORATION\n \n By: _________________________________\n Name:\n Title:\n \nThe foregoing Underwriting Agreement\nis hereby confirmed and accepted as\nof the date first above written.\n \n \nBy:\n \n \nBy: _________________________________\n Name: \n Title:\n \nOn behalf of each of the Underwriters\n \n 17\n\n \n SCHEDULE A\n \n Underwriters\n \n<\/pre>\n
\n\n Number of Shares to be
\n Purchased if Maximum
\n Total Number of Shares to Option to Purchase
\n Underwriter be Purchased Exercised
\n ———– ————————- ———————-
\n <\/p>\n —– —–
\n Total Shares
\n ===== =====
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
18<\/p>\n
Exhibit 1<\/p>\n
Duke Energy Corporation<\/p>\n
Lock-Up Agreement<\/p>\n
,<\/p>\n
Re: Duke Energy Corporation–Lock-Up Agreement<\/p>\n
Ladies and Gentlemen:<\/p>\n
The undersigned understands that you, as representatives (the
\n“Representatives”), propose to enter into an Underwriting Agreement on behalf
\nof the several Underwriters named in Schedule A to such agreement
\n(collectively, the “Underwriters”) with Duke Energy Corporation, a North
\nCarolina corporation (the “Corporation”), providing for a public offering (the
\n“Public Offering”) of shares of the common stock (the “Common Stock”) of the
\nCorporation (the “Shares”) pursuant to a Registration Statement on Form S-3
\nfiled with the Securities and Exchange Commission (the “SEC”).<\/p>\n
In consideration of the agreement by the Underwriters to offer and sell
\nthe Shares, the undersigned agrees that, during the period beginning from the
\ndate of the definitive prospectus supplement covering the public offering of
\nthe Shares and continuing to and including the date (the “Cut-off Date”) 90
\ndays after the date of such definitive prospectus supplement, the undersigned
\nwill not (i) directly or indirectly offer or sell (or grant any option or
\nwarrant to offer to sell), (ii) enter into any swap or any other agreement or
\nany transaction that transfers, in whole or in part, directly or indirectly,
\nthe economic consequence of ownership of the Subject Shares (as hereinafter
\ndefined), whether any such swap or transaction described in clause (i) or (ii)
\nabove is to be settled by delivery<\/p>\n
19<\/p>\n
of Subject Shares or such other securities, in cash or otherwise, or any
\noptions or warrants to purchase any Subject Shares, or any securities
\nconvertible into, exchangeable for or that represent the right to receive
\nSubject Shares.<\/p>\n
The foregoing restriction is expressly agreed to preclude the undersigned
\nfrom engaging in any hedging or other transaction which is designed to or which
\nreasonably could be expected to lead to or result in a sale or disposition of
\nthe undersigned’s Subject Shares even if such Subject Shares would be disposed
\nof by someone other than the undersigned. Such prohibited hedging or other
\ntransactions would include without limitation any short sale or any purchase,
\nsale or grant of any right (including without limitation any put or call
\noption) with respect to any of the undersigned’s Subject Shares or with respect
\nto any security that includes, relates to, or derives any significant part of
\nits value from such Subject Shares.<\/p>\n
The term “Subject Shares” means (i) the shares of Common Stock, whether now
\nowned or hereafter acquired, owned directly by the undersigned (including
\nholding as a custodian) or with respect to which the undersigned has beneficial
\nownership within the rules and regulations of the SEC and (ii) shares of Common
\nStock acquired prior to the Cut-Off Date pursuant to any employee or director
\ncompensation plan of the Corporation or pursuant to any employee or shareholder
\ninvestment plan of the Corporation.<\/p>\n
Notwithstanding the foregoing, the undersigned may transfer the Subject
\nShares (i) as a gift or gifts, provided that the donee or donees thereof
\nagree(s) to be bound in writing by the restrictions set forth herein, (ii) to
\nany member of the immediate family of the undersigned provided that the
\ntransferee or transferees agree(s) to be bound in writing by the restrictions
\nset forth herein, (iii) to any trust or foundation, provided that the trustee
\nof the trust or foundation agrees to be bound in writing by the restrictions
\nset forth herein, and provided further that any such transfer shall not involve
\na disposition for value, (iv) to an entity controlled by the undersigned
\nprovided the transferee or transferees agree(s) to be bound in writing by the
\nrestrictions set forth herein, (v) pursuant to the laws of testamentary or
\nintestate descent, provided that the transferee or transferees agree(s) to be
\nbound in writing by the restrictions set forth herein or (vi) with the prior
\nwritten consent of the Representatives on behalf of the Underwriters. For
\npurposes of this Lock-Up Agreement, “immediate family” shall mean any
\nrelationship by blood, marriage or adoption, not more remote than first cousin.
\nThe undersigned will have at the time the undersigned acquires each of the
\nSubject Shares, and, except as contemplated by clause (i), (ii), (iii), (iv),
\n(v) or (vi) above, for the duration of this Lock-Up Agreement will have, good
\nand marketable title to such Subject Shares, free and clear of all liens,
\nencumbrances and claims whatsoever created by the undersigned. The undersigned
\nalso agrees and consents to the entry of stop transfer instructions with the
\nCorporation in its capacity as transfer agent and registrar against the
\ntransfer of the Subject Shares except in compliance with the foregoing
\nrestrictions.<\/p>\n
Notwithstanding the foregoing, the undersigned may not make any transfer of
\nthe Shares under clauses (i), (ii), (iii) or (iv) above if any filing by any
\nparty (donor, donee, transferor or transferee) under Section 16(a) of the
\nSecurities Exchange Act of 1934, as amended, shall be required (or be made
\nvoluntarily) in connection with such transfer or distribution (other than a
\nfiling on a Form 5 made after the expiration of the 90-day period referred to
\nabove).<\/p>\n
20<\/p>\n
The undersigned understands that the Corporation and the Underwriters are
\nrelying upon this Lock-Up Agreement in proceeding toward consummation of the
\noffering. The undersigned further understands that this Lock-Up Agreement is
\nirrevocable and shall be binding upon the undersigned’s heirs, legal
\nrepresentatives, successors, and assigns.<\/p>\n
Very truly yours,<\/p>\n
_____________________________________
\n Exact Name of Shareholder<\/p>\n
_____________________________________
\n Authorized Signature<\/p>\n
_____________________________________
\n Title<\/p>\n
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