Exhibit 10-lll


 


Adopted by the Cinergy Corp.


Benefits Committee on August 29, 2002


 


 


AMENDMENT TO THE


CINERGY CORP. EXCESS PENSION PLAN


 


 


The Cinergy Corp. Excess
Pension Plan, as amended and restated effective as of January 1, 1998 (the
“Plan”), is hereby amended effective as of August 29, 2002.




(1)           Explanation
of Amendment


 


The Plan is amended to
provide certain participants with the opportunity to make an election to
receive their Plan benefits in a single lump sum under certain circumstances
following a Change in Control.  The Plan
is further amended to provide that nonelective employer contributions made on
behalf of a participant under the Cinergy Corp. Excess 401(k) Plan shall be
taken into account when determining a participant’s Unrestricted Benefit, but
only to the extent specifically provided by the Committee.


 


(2)           Amendment


 


(a)                                  Section 1.22 of
the Plan is hereby amended by adding the following at the end thereof:


 


“Notwithstanding the
preceding sentence, but only to the extent specified by the Committee, (a) any
nonelective employer contributions (other than matching contributions) made on
behalf of a Participant under the Cinergy Corp. 401(k) Excess Plan during any
applicable period shall be taken into account when calculating such Participant’s
Unrestricted Benefit and (b) any Participant who receives nonelective employer
contributions (other than matching contributions) under the Cinergy Corp.
401(k) Excess Plan during the year in which occurs his Severance from Service
Date (as defined in Cinergy’s Pension Plan) shall be treated, for purposes of
calculating his Unrestricted Benefit, as if he had received Sabbatical Vacation
Pay (as defined in Cinergy’s Pension Plan) in the amount that he would have
received if such nonelective employer contributions were part of his Base
Salary (as defined in Cinergy’s Pension Plan) during the year in which occurs
his Severance from Service Date.”


 


(b)                                 Article 1 of
the Plan is hereby amended by adding the following new Section 1.23 immediately
following Section 1.22:


 


“1.23                     “Potential Change in
Control” means any period during which any of the following circumstances
exist:


 


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(a)                                  Cinergy enters
into an agreement, the consummation of which would result in the occurrence of
a Change in Control; provided that a Potential Change in Control shall cease to
exist upon the expiration or other termination of such agreement; or


 


(b)                                 Cinergy or any
Person publicly announces an intention to take or to consider taking actions
which, if consummated, would constitute a Change in Control; provided that a
Potential Change in Control shall cease to exist when Cinergy or such Person
publicly announces that it no longer has such an intention; or


 


(c)                                  Any Person who
is or becomes the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act), directly or indirectly, of securities of Cinergy
representing ten percent (10%) or more of the combined voting power of
Cinergy’s then outstanding securities, increases such Person’s beneficial
ownership of such securities by an amount equal to five percent (5%) or more of
the combined voting power of Cinergy’s then outstanding securities; or


 


(d)                                 The Board of
Directors adopts a resolution to the effect that, for purposes hereof, a
Potential Change in Control has occurred.


 


Notwithstanding anything
herein to the contrary, a Potential Change in Control shall cease to exist not
later than the date that (i) the Board of Directors determines that the
Potential Change in Control no longer exists, or (ii) a Change in Control
occurs.


 


The terms “Person” and
“Securities Exchange Act” where used herein shall have the meaning given to
such terms in the Cinergy’s Pension Plan.”


 


(c)                                  Article 6 of
the Plan is hereby amended by adding the following new Section 6.6 at the end
thereof:


 


“6.6         Special Payment Election Effective
Upon a Change in Control.


 


Notwithstanding
any other provision of this Plan, each Participant who is designated as a
“Selected Participant” by the Committee (a “Selected Participant”) shall be
entitled to make a special payment election in accordance with the provisions
of this Section 6.6.


 


(a)                                       Distribution
Pursuant to Special Payment Election.  A Selected Participant may elect, on a form provided by the
Committee, to receive a single lump sum cash payment in an amount equal to the
Actuarial Equivalent (as defined below) of his benefits under the


 


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                                                   Plan (or the
Actuarial Equivalent of his remaining benefits under the Plan in the event that
payment of his benefits under the Plan has already commenced) payable no later
than 30 days after the later of the occurrence of a Change in Control or the
date of his termination of employment with Cinergy and its Affiliates.


 


(b)                           Effectiveness
of Special Payment Election.  An election made pursuant to this Section shall become operative
only upon the occurrence of a Change in Control and only if the Participant’s
termination of employment with Cinergy and its Affiliates occurs either (1) prior
to the occurrence of a Change in Control or (2) during the 24-month period
commencing upon the occurrence of a Change in Control.  Once operative, such special payment
election shall override any other payment election made by the Participant with
respect to his benefits under the Plan.


 


(c)                            Deadline for
Special Payment Election.  In
order to be effective, an election made pursuant to this Section must be made
either prior to the occurrence of a Potential Change in Control or, with the
consent of the Committee, during the thirty-day period commencing upon the
occurrence of a Potential Change in Control. 
In the event that a Potential Change in Control occurs and subsequently
ceases to exist, other than as a result of a Change in Control, such Potential
Change in Control shall be disregarded for purposes of this Section.


 


(d)                           Withdrawal of
Special Payment Election.  A
Selected Participant may withdraw, on a form provided by the Committee, a
special payment election made by him pursuant to this Section at anytime
specified in the first sentence of Section 6.6(c).


 


(e)                            In the event a
Selected Participant makes a special payment election and pursuant to that
election becomes entitled to receive a single lump sum cash payment pursuant to
this Section payable prior to the commencement of the payment of his
benefits, for purposes of this Section the Actuarial Equivalent of his
benefits under the Plan shall be calculated based on the following
assumptions:


 


 (I)                                      The form of
payment for each of the Selected Participant’s retirement benefits under the
Plan and Cinergy’s Pension Plan shall be a single life annuity;


 


 (II)                                  The commencement date for
each of the Selected Participant’s retirement benefits under the Plan and
Cinergy’s Pension Plan shall be the first day of the calendar


 


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                                                   month
coincident with or next following the later of his Severance from Service Date
(as defined in Cinergy’s Pension Plan) or his 50th birthday; and


 


 (III)                              The term
“Actuarial Equivalent” has the meaning given to that term
in Cinergy’s Pension Plan with respect to lump sum payments.


 


(f)                              In the event a
Selected Participant makes a special payment election pursuant to this Section
and pursuant to that election becomes entitled to receive a single lump sum
cash payment payable after the commencement of the payment of his
benefits, his lump sum cash payment shall be equal to the Actuarial Equivalent
(as that term is used in Cinergy’s Pension Plan with respect to lump sum
payments) of his remaining benefits under the Plan.


 


(g)                           The payment of
a single lump sum in cash, pursuant to this Section, to or on behalf of a
Participant shall completely discharge any liability under the Plan to or on
behalf of that Participant.


 


(h)                           Committee
Discretion for a Lump Sum Payment.  Notwithstanding any other Section, if a Change in Control occurs,
the Committee in its sole discretion may elect to accelerate the distribution
of a Participant’s benefits under the Plan so that the Actuarial Equivalent of
such benefits shall be distributed to the Participant (or, in the event of his
death, to his Beneficiary) in a single lump sum payment no later than 30 days
after the Change in Control occurs.”


 


 


IN
WITNESS WHEREOF, Cinergy Corp. has caused this Amendment to be executed and
approved by its duly authorized officer as of August 29, 2002.


 


	
   

  	
   

  	
  /s/  Timothy J. Verhagen

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Timothy J. Verhagen

  
	
   

  	
   

  	
  Vice President, Human
  Resources

  



 


 


 


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